1.
5 categories of long-arm: 1) P's claim arises from a transaction of business by the D in NY. This transaction can be a one-time thing. Sometimes, P's phone/email transmissions from out-of-state can be substantial in number and relating to the performance of a significant contract, to the point where they rise to the level of transacting business in NY.
2) P's claim arises from a contract transacted anywhere, by which a D agreed to supply goods or services in NY. The agreement must be economically significant.
3) P's claim arises from D's tortious act in NY.
4) P's claim arises from D's tortious act outside NY, which causes injury in NY, AND there exists an additional link between D and NY in that either: a) D regularly solicits business or engages in any other persistent course of conduct in NY ; OR b) D derives substantial revenue from goods used or consumed, or services rendered, in NY; OR D expects or should reasonably expect the act to have consequences in NY AND derives substantial revenue from interstate or international commerce. This last link must involve defendant's purposefully including NY, and all bases must comply with DP. Defamation claims are excluded from all the tortious act categories.
5) P's claim arises from the D's ownership, use, or possession of real property in NY.
2.
5 threshold issues: 1) Did the parties agree to arbitrate? That is, do they have an agreement in writing that is clear, express, and unequivocal?
2) Is the dispute within the scope of the arbitration clause? The broad clause phrasing is "all disputes or claims arising out of or in connection with this contract shall be resolved by arbitration." When the broad clause is used, there are very few issues that the court will be allowed to decide.
3) Is the arbitration clause valid? Presumption of validity; they will only be found invalid if the clause was induced by fraud, duress, or coercion, or involves a matter that is contrary to public policy.
4) Is there an express condition precedent to arbitration, and has it been complied with? Courts will oversee whether disputes have been submitted to other parties first, if that is in the agreement.
5) Statute of limitations
3.
Additional affirmative defenses: 1) Statute of limitations
2) Payment (sued on debt)
3) Arbitration awards
4) Release
5) Collateral estoppel
6) Res judicata
7) Infancy of the defendant
8) Bankruptcy discharge
9) Statute of frauds
4.
Affix and mail (nail and mail): Process may be 1) affixed to the door of D's actual dwelling place or actual place of business AND 2) mailed by regular mail to D at D's actual place of business or last known residence.
Affixing and mailing may be done in either order, and they do not need to be made to the same location.
Both steps must be performed within 120 days of filing, and must be completed within 20 days of each other.
BUT: process server must first exercise due diligence by:
1) making several attempts to serve D directly, on different days of the week, at different times of day
2) leaving process with a person of suitable age and discretion at the home or place of business.
5.
Amending the pleadings: 1) Each party is entitled to amend her pleading once as a matter of right. This one amendment must occur within 20 days of the D serving the answer. When making an amendment as of right, the party can put anything into the pleading that could have been in the original.
2) D may raise an omitted PJ objection in an amendment as of right provided that 1) D made no pre-answer motion to dismiss; AND 2) D adds jurisdictional amendment to the answer within 20 days after serving the original answer.
3) When the period for the amendment as of right has expired, or the one free amendment is used, a motion for leave to amend is required. Whether or not an amendment is allowed will be in the court's discretion, and will be allowed if opponent will suffer no incurable prejudice. There is a presumption in favor of amendment. To oppose a motion, a party must show a detrimental change of position as a result of the delay, such as loss of documentary evidence, or the death or disappearance of a witness.
6.
Appeals on orders from motions on notice: A party can appeal from most interlocutory orders in NY state courts. A party must file and serve a notice of appeal within 30 days from service of the order or judgment, with notice of entry.
7.
Article 78: Authorizes a special proceeding for judicial review of action by governmental or quasi-governmental officers or bodies of any kind. 4 distinct grounds:
1) Mandamus to compel
2) Prohibition
3) Certiorari
4) Mandamus to review
8.
Attachment: Main purpose of attachment is to provide security for the enforcement of a money judgment.
P obtains an order of attachment from the court and gives it to a NY sheriff who levies upon D's property in NY. The levy imposes a lien on the property, giving the P a security interest in the property superior to that of any subsequent lien holder. Real or personal property can get levied upon.
A third person who holds defendant's property interest or owes a debt to the defendant is called a garnishee.
9.
Attachment may be used when: P is seeking money damages AND:
1) D is an unlicensed foreign corporation or a non-domiciliary residing outside of NY, OR
2) D is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment.
10.
Bases of general jurisdiction: 1) Presence in NY
2) Doing business in NY
3) Domicile in NY
11.
Bases of specific jurisdiction: 1) Long-arm jurisdiction
2) Non-resident motorist statute
3) Consent
12.
Borrowing statute: If a cause of action arises outside of NY, a choice of law problem arises if the S/L of the other state is different from NY. Borrowing statute is meant to prevent forum-shopping by non-resident plaintiffs.
1) If plaintiff was a non-resident of NY when the out-of-state claim arose, NY court will apply S/L of state where claim arose if it is shorter than that of NY. If the state where cause arose has a longer S/L than NY, NY court will apply its own S/L.
2) If p was a NY resident when the out-of-state claim arose NY will always apply own S/L, regardless of which is longer or shorter. .
13.
Certiorari: Proceeding to challenge the results of a trial-type hearing, or a hearing in which testimony was taken under oath with a right of cross-examination, conducted by an administrative agency.
The standard for the court's review of the results of such a proceeding is that the court must uphold the results if the agency's determination was supported by substantial evidence.
14.
Characteristics of arbitration: 1) Arbitrators are not bound by the substantive law or the rules of evidence.
2) The scope of judicial review is extremely narrow.
15.
Collateral preclusion: Issue preclusion prevents the need for re-litigation of specific fact issues that were decided in a prior proceeding if:
1) the issue in the former proceeding and the current proceeding is identical
2) the issue was actually litigated and decided in the former proceeding
3) the party against whom IP is asserted had a full and fair opportunity to litigate that issue in the former proceeding.
16.
Comparative degrees of fault: a) The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment.
b) A party from whom contribution is sought cannot be required to pay more than her equitable share.
c) The rules of contribution do not change P's right to impose join and several liability on any one of the defendants.
17.
Consent: Parties to a contract may consent in advance to personal jurisdiction in NY in a forum selection clause. These will be enforceable in the absence of fraud, overreaching, or unreasonableness.
18.
Considerations in serving process, generally: 1) Process server must be at least 18 years old
2) Process server may not be a party to the action.
3) Process may be served on any day of the week, including holidays, except Sunday (if P knows that D is a Saturday-Sabbath observer, P may not properly serve that particular D on Saturday).
ACTUAL NOTICE is irrelevant to a determination of whether or not process has been served.
Each defendant must be served with their own set of process
19.
Continuous treatment rule: Plaintiff gets 2 1/2 years from the end of a continuous treatment, if the treatment is for the same condition that gave rise to the medical malpractice.
20.
Contribution: Contribution involves a sharing of the loss, or apportionment, among multiple tortfeasors who are all actual participants in the tort.
Contribution can be either:
1) Equal shares formula (minority) OR
2) Comparative degrees of fault.
21.
Contribution in cases involve successive tortfeasors: Successive tort liability makes first tortfeasor responsible for all injuries that proximately flow from the accident, including those caused by successive tortfeasors. Because there is a substantive-law basis for liability, contribution case will go forward.
22.
CPLR Article 16: NY rule modifying the law of joint and several liability. When a joint tortfeasor is 1) 50% or less at fault, and 2) plaintiff has sustained non-economic damages, then the joint tortfeasor can only be required to pay her own share of plaintiff's non-economic damages. Any D found liable for 51% or more of the total liability is jointly and severally liable for the entire judgment.
Non-economic damages are: 1) pain and suffering, 2) mental anguish, 3) loss of consortium.
23.
D's remedy for improper venue: Serve a demand for change of venue to a proper country designated by defendant. This demand must be served before or with the answer.
If P consents to demand: change of venue to D's designated county will be automatic.
If P objects or fails to respond, D must make a motion for change of venue, and this motion must be granted as a matter of right if P chose an improper venue, and D designated a proper venue in his demand.
24.
D's time limit for serving either a demand for the complaint or a notice of appearance: The same as the response time for responding to a summons and complaint:
1) 20 days if D was served by personal delivery in NY
2) 20 days from acknowledgment if served by first-class mail
3) 30 days is served in all other circumstances after service complete.
25.
Deciding order: Court's decision on a motion on notice must be in a written order signed by the court. Prevailing party serves a copy of the order on the losing party with notice of entry of the order. This is necessary in order to:
1) Give legal effect of the order
2) Start the running of a 30-day time limit to appeal from the court's order
26.
Defendant's answer: 1) Denials of the allegations D wishes to contest (failure to deny an allegation is an implied admission) AND
2) Any affirmative defenses. Affirmative defenses not raised in the answer are waived (subject only to D's possible amendment of the pleadings).
3) Any counterclaims that D has, i.e., D's own causes of action against P.
P may respond to any counterclaims in a reply, which will consist of denials and affirmative defenses. If there is no counterclaim, P can only serve a reply with court permission.
4) In a multi-D case, D may assert any cross-claims against any other Ds. Cross-claims can be based on any type of claim.
27.
Defendant's response to summons and complaint: 1) Serve and answer
2) Make a pre-answer motion to dismiss
28.
Discretionary grounds for a change of venue: 1) Convenience of material witnesses. Either party, by motion, may request the court for a change of venue to the county that would be most convenient for witnesses.
2) If there is reason to believe that an impartial trial cannot be had in the county where the action is commenced, either party may make a motion to change venue.
29.
Doing business in NY: 1) Domestic corporations and foreign corporations authorized to do business in NY: subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world the claim arose.
2) Unlicensed foreign corporation: present in NY if they are "doing business" in NY.
30.
Domicile: A defendant who is a domiciliary of NY at time action is commenced can be served with process anywhere in the US.
Domicile is the one residence at which a person intends to remain indefinitely and is treated by her as the principal home, and should be distinguished from residence, which people can have multiple of.
31.
Due process test for long-arm jurisdiction: Due process will be satisfied if claim arises out of conduct of D that is so purposefully directed towards NY, that the D reasonably should anticipate being sued on that claim in a NY court.
32.
Durational residency requirements: Durational residency requirements are elements of the cause of action, not aspects of jurisdiction. Failure to properly allege one of these categories will result in dismissal for failure to state a cause of action. P must allege satisfaction of any 1 of 3 categories.
1) If both parties are NY residents at the time the action is commenced and the grounds for the matrimonial action arose in NY
2) one-year residency: If either party has been a NY resident for continuous period of at least 1 year immediately prior to the action and NY has any 1 of the following prior links: a) marriage took place in NY; b) NY was the matrimonial domicile of the spouses at some point; c) grounds for divorce action arose in NY
3) two-year residency: if either party has been a NY resident for a continuous period of at least 2 years immediately prior to the action, that residency alone is sufficient.
33.
Effect of service of a demand for the complaint or a notice of appearance on jurisdiction: Jurisdictional defenses are NOT waived by service of these papers.
34.
Elements of a valid judgment: Valid judgments are ones that can be enforced in NY and are entitled to full faith and credit in other states. To make a judgment valid, you need
1) SMJ
2) Proper commencement of the action
3) Proper service of process on the D
4) Proper basis of jurisdiction over the person or property involved in the action.
35.
Equal shares contribution: Each D is equally liable to the P for the damages. Individual percentages of fault are irrelevant.
36.
Ex parte motion: A motion in which no advance notice is given to the adversary, so no opportunity to be heard in opposition is given. This can only be done with express statutory authorization, for example, if 1) expedient service of process or 2) a request for extension of time to serve process.
If you are a party who is aggrieved by the ex parte order, make a motion on notice to vacate the ex parte order. If the motion to vacate is denied, the aggrieved party can appeal from the denial of a motion to vacate.
37.
Exception to timing rules for SJ: Motion may be permitted after expiration of 120 days from filing of note of issue if moving party shows good cause.
38.
Exceptions to infancy/insanity rule: Outside limit of 10 years for commencement of action in 2 situations:
1) A claim for medical malpractice must be commenced no later than 10 years from date of accrual
2) Claims of insane plaintiffs, regardless of nature of cause of action, become time-barred 10 years from date of accrual, when relying on toll for insanity.
39.
Exceptions to Supreme Court's jurisdiction: 1) Where federal law confers exclusive jurisdiction on federal courts: bankruptcy, patents, copyrights
2) In claims for money damages in tort or contract against the State of NY
40.
Expedient (court-invented) service: If the other methods of service are not practicable (e.g., P cannot find D), P may make an ex parte motion to the court for an order allowing an improvised, expedient method, i.e. a reasonable alternative appropriate in the circumstances. This may include service via email, service on liability insurer, or service on a family member or business associate.
41.
Foreign object rule: If doctor is responsible for introducing a foreign object into plaintiff's body, plaintiff gets the longer of either:
1) 2 1/2 years from the date of the operation
2) 1 year from the date P discovers the presence of the object, or should have discovered the object with reasonable diligence.
Foreign objects are things that the doctor did not intend to leave behind, such as clamps, sponges, or scalpels. NOT foreign objects:
1) chemical substances
2) prosthetic devices
3) fixation devices
* For these, the period runs not from the day of discovery, but from the date of the malpractice.
42.
General jurisdiction: A court with general jurisdiction has original subject matter jurisdiction over any type of action. The court has the power to hear cases, even when the parties and the acts at issue happened outside the state.
43.
General points on long-arm: 1) Covers all types of Ds
2) Acts giving rise to jurisdiction can be performed by D herself or by her agent or employee. Agent's acts in NY will subject the agent herself to jurisdiction.
3) Even if D dies, decedent's estate representative can be served outside NY.
4) Serving process: P must use the same methods of service on D outside NY as would be used inside NY, NOT the methods of the state in which process is served.
44.
Getting case ready for trial: Either party may file a note of issue, telling court case is ready to go to trial. File and serve copies on the other parties.
45.
Government subdivisions of the state: They are not the state, and so can be sued: counties, towns, school districts. They CANNOT be sued in the Court of Claims.
46.
How does a levy work?: Real property: A sheriff files an order of attachment with county of clerk of the county in NY where real property is located.
Personal property: Tangible personal property, or intangible personal property such as a debt, can qualify for a levy. The sheriff puts a levy on personal property through constructive seizure: sheriff delivers order of attachment to the person in NY who holds the property interest, which may be defendant herself, or may be a garnishee. Sheriff's delivery of order of attachment imposes a lien on the personal property, and serves as an injunction against the transfer of the property pending the outcome of the case.
47.
How does moving party meet its burden?: Affidavits, which must be submitted by persons with actual knowledge of the facts, relevant documents, and discovery materials. The burden on SJ is that the moving party must produce proof that establishes she is entitled to judgment as a matter of law.
When that burden is met, the burden shifts to the other side: they must then produce and present contrary evidence showing that a triable issue of fact does exist, with the same types of evidence that a moving party would use. If opponent can show that he, through no fault of his own, is unable to produce opposing evidence, teh court can either deny the motion or grant a continuance to permit additional evidence to be obtained.
48.
How to assert a contribution claim: 1) If P originally joined the tortfeasors as co-Ds, they can assert cross-claims against each other
2) If P omits a tortfeasor, a D can implead the other as a TPD
3) Tortfeasor may sue TPD in a separate action. This was is inefficient, and any findings of fact/percentages of fault found in the earlier action are not binding on the other tortfeasors.
49.
How to bring threshold issues to a court: In pending actions, the D should make a motion to stay a contested action and to compel arbitration. All threshold issues will be litigated through motions.
If proponent of arbitration serves a notice of intention to arbitrate, and the other side wants to avoid arbitration, the remedy is to commence a special proceeding for a stay of arbitration. In that proceeding, any of the 5 threshold issues may be raised.
The time limit to commence a proceeding to stay arbitration is no more than 20 days after receipt of notice of intention to arbitrate. Otherwise, all objections are waived.
50.
How to commence: 1) File process with the clerk of the court, and pay a fee for the purchase of an index number. Process will include either a summons and notice, or a summons and complaint.
2) Serve process on defendant within 120 days of filing with the county clerk.
51.
How to compute S/L?: Exclude the day on which the triggering event occurs, and begin counting the next day.
If the last day for performing any procedural act, such as commencing an action or serving a paper, falls on a Saturday, Sunday, or public holiday, plaintiff gets until the end of the next business day to perform the act.
52.
How to determine if an unlicensed foreign corporation is "doing business" in NY: At the time the action is commenced, are the corporation's employees or agents in NY engaging in commercial activity for the corporation on a regular, systematic, ongoing basis? Most significant factor in this determination: whether the corporation has an office or other physical facility in NY, with employees coming and going on a regular, systematic, ongoing basis.
Mere sales of a corporation's products in NY does not constitute doing business in NY. Mere advertising does not constitute doing business in NY either. (This standard only needs to be used, though, if the cause of action arose outside NY; otherwise, the long-arm takes care of it.)
Doing business standard will probably work for individuals and partnerships as well as corporations.
53.
How to get a jury?: 1) Party who files a note of issue can make a demand for jury trial in note of issue. If there is no demand, the right to a jury is waived by the party filing the note of issue.
2) Other parties may file a separate demand for a jury.
54.
How to satisfy the S/L?: The action must be commenced no later than the last day of the prescribed period of limitations.
Commencement consists of filing process (summons and complaint, or summons with notice) with the clerk of the court.
55.
If P fails to meet the 20-day time limit to serve the complaint ...: D may move to dismiss the action based on P's noncompliance. D may defend by:
1) showing a reasonable excuse for the delay AND
2) making an evidentiary showing that there is merit to P's cause of action
56.
Impleader: Procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P. Usually, the claim in question is for indemnity or contribution, so that D doesn't have to later start an action against the impleaded party.
57.
Indemnity: Allows one party to shift 100% of the responsibility to another party. This can apply either by contract or through an implied-in-law indemnity.
Implied-in-law indemnities:
1) Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.
2) Vicarious liability
58.
Indemnity and contribution: S/L of 6 years running from the date of actual payment of the judgment for which indemnity or contribution is sought.
Original transaction is irrelevant here.
59.
Infants injured in utero: Child has no cause of action unless the child is born alive, in which case the S/L begins to run from the date of birth.
60.
Interlocutory papers: After initial service of process, all other papers are interlocutory papers. Any interlocutory papers served on one party must be served on all parties, by serving the attorneys of the parties.
Interlocutory papers may be served by personal delivery or by first-class mail. Service of an interlocutory paper by mail is deemed made upon the mailing, not receipt.
Service by mail must be made through a post office of official depository of the USPS within NY.
61.
Joint and several liability: Jointly and severally liable defendants are all liable for the full damages, and can sue each other to recover some of any judgments paid.
MBE Rule: Contribution is not available when liability is based on intentional wrongdoing.
NY Rule: Contribution is allowed for all forms of tort liability, including intentional torts.
62.
Judicial gatekeeping: Generally, strong public policy in favor of arbitration. Courts may be called on, however, to decide certain threshold issues as to whether the arbitration should proceed.
63.
Judicial review of arbitration awards: 1) Corruption, fraud, or misconduct in arbitration proceeding
2) Bias of an arbitrator who was chosen to be neutral
3) Arbitrator has exceeded his powers (this usually fails)
64.
Jury size and voting: Civil jury consists of 6 jurors. Votes need to be 5/6, NOT unanimous.
65.
Leave and mail: Process server may 1) deliver process to person of suitable age and discretion (NOT necessarily an adult) at D's actual dwelling place or actual place of business, AND 2) mail a copy by regular mail to D at D's actual place of business or last known residence.
Both steps must take place within 120 days from filing, and the two steps must be performed within 20 days of each other.
Delivery may occur before or after mailing. Delivery and mail can go to different places. Regular mail may be used.
66.
Limitation on contribution and indemnity: workers' comp: An employee injured on the job cannot sue the employer, but can sue a third person who is partially at fault for the accident. The third person is barred from seeking contribution or indemnity from P's employer UNLESS the P suffered a grave injury.
NB that multistate rules never allow contribution from employer. (??)
67.
Long-arm jurisdiction: Originates from the "minimum contacts" standard: P can get jurisdiction over D on the basis of certain acts by D that have a sufficient connection with NY, provided P's claim arises from those acts/contacts with NY state.
68.
Mandamus to compel: Used to compel the performance of an act required by law, as to which no discretion is involved.
** THIS APPLIES TO CORPORATIONS
69.
Mandamus to review: Proceeding to review any type of administrative action not covered by categories 1-3, usually used for review of determinations that were not involving trial-type hearings.
The standard for the court's review is that the court must uphold the agency's determination unless it was arbitrary or capricious
70.
Matrimonial actions: Where the court is adjudicating marital status, including divorce, separation, annulment, declaration of validity of the marriage: Supreme Court has jurisdiction.
Family Court has jurisdiction over custody issues, support.
71.
Matrimonial jurisdiction (often seen in a question with a domestic relations law issue): Proper court for these actions is the NY Supreme Court. Having a basis of personal jurisdiction is not necessary for a matrimonial action. All that is needed to obtain a divorce, separation or annulment, all that is necessary is that the plaintiff spouse is a domiciliary of NY. (Court has in rem jurisdiction over the marriage.)
In matrimonial actions, serving process must be accomplished by personal delivery to D.
72.
Matrimonial long-arm: When P is a resident of NY, long-arm jurisdiction can be acquired over D for monetary support if:
1) NY was the matrimonial domicile of P and D prior to their separation, OR
2) D abandoned P in NY, OR
3) D's monetary obligation accrued under an agreement executed in NY, OR
4) D's monetary obligation accrued under the laws of NY
73.
Mechanics of impleader: 1) D may implead at any time after D serves the answer to the complaint.2) D must file and serve teh TPD: file summons and third party complaint, and serve within 120 days of the filing a copy of the summons and third party complaint on the third party defendants. There must be a basis of PJ, and they must serve the TPD properly.
2) TPD must serve a third-party answer on D, P and all other parties who have appeared in the action. TPD's time limit for doing so is the same as would apply to an ordinary D: 20 or 30 days depending depending on where and how TPD was served.
3) After TPD is joined, P may amend her complaint to assert a claim directly against TPD. P has 20 days after being served with the third-party answer to do this as a matter of right.
74.
Mediation: Non-binding process in which a neutral mediator attempts to facilitate a settlement by speaking confidentially to each party and then jointly with both parties present.
75.
Medical Malpractice: S/L applies to doctors, dentists, podiatrists, nurses and hospitals (hospitals protected against vicarious liability for their doctors, etc. as well, BUT, you can sue for negligent hiring, which is a separate tort).
S/L expires 2 1/2 years from the date of accrual, which is the date of the malpractice. Ordinarily, the discovery of the malpractice is irrelevant.
2 exceptions to the med mal rule: 1) continuous treatment; 2) foreign object rule
76.
Motion for Summary Judgment: Motion that enables a party to show, before trial, that even though the pleadings may be sufficient on their face, there is no genuine issue of material fact requiring a trial.
Motions for SJ must come after the service of the defendant's answer.
Outside time limit for filing of the motion for SJ is 120 days from the filing of the note of issue. The note of issue is a paper notifying the court of the case's readiness for trial: this note is what places it on the trial calendar.
77.
Motion to confirm: 1) If D is an unlicensed foreign corporation or a non-domiciliary residing outside of NY, the motion to confirm must be served on D no later than 10 days after the levy.
2) If D is fraudulently moving assets, the motion must be served on D no later than 5 days after the levy.
78.
Motion to dismiss: grounds: 1) Documentary evidence as the basis for a defense (must be a legally operative doc, where language itself gives you the defense)
2) Other action pending between the same parties on the same cause of action
3) Want of capacity
4) Non-joinder of a necessary party (co-makers of a promissory note)
5) Failure to state a cause of action
In responding to this motion, plaintiff is entitled to every favorable inference that can be drawn from allegations. Motion should be denied if there is any basis for relief under the substantive law
6) Additional affirmative defenses (separate mnemonic)
7) Lack of personal jurisdiction: a) improper commencement procedure; b) improper service of process; c) lack of basis jurisdiction
8) lack of SMJ
79.
Motions on notice: A motion on notice gives the adversary an opportunity to be heard in opposition. Papers to be served on the other party:
1) A notice of motion
2) Affidavits showing why the motion should be granted
3) (optional) Memorandum of law
80.
Municipal tort liability: 1) S/L for personal injury or property damages actions against a government subdivision of the state is one year and 90 days from the date of the accident.
2) "Notice of claim" prerequisite: As a condition precedent, P must serve a notice of claim on the potential municipal defendant no later than 90 days from the date of the accident. (Purpose: to allow the municipal defendant to engage in early investigation and possible settlement without the need for litigation.) If P fails to file the notice of claim, the municipal defendant is entitled to have the action dismissed on the ground of failure to state a cause of action; P must put its compliance in the complaint.
81.
Neutral Evaluation: A neutral expert in the subject matter at issue receives a condensed presentation about the merits from each side, evaluates the presentations and predicts how a court would decide the dispute.
82.
Non-resident motorist statute: Confers personal jurisdiction over an accident claim arising from a nondomiciliary motorists' ownership or use of an auto on a NY roadway. This often overlaps with category 3 of the long-arm but has two special features:
1) P serves process on D by personally serving one copy on the NY Secretary of State AND mailing second copy to D by certified mail to D's out-of-state residence
2) Applies to vehicle owner who gave permission to drive in NY
83.
Notice of pendency: In an equity action that will have a direct effect on real property (title, possession or use), the filing of a notice of pendency gives record notice to any potential buyers or mortgagees that any interest they acquire in the property will be subordinate to that of the P.
In mortgage foreclosures, the filing of a notice of pendency is statutorily required.
84.
NY Court of Claims: Where you can sue the State of NY for money damages in tort or contract action. The only defendant in the Court of Claims is the State of New York; non-state defendants must be sued separately in New York Supreme Court; this is inefficient, but required by the silly sovereign immunity rules.
85.
Order to show cause: The order to show cause is a preliminary order, signed ex parte by a judge, directing the adversary to show cause why the motion should not be granted. The judge thus gives notice of the motion. Judge gives return date and specifies method of service, usually personal delivery. The order and underlying papers are served on the opponent, who may then submit opposition papers on the return date. Three reasons for OSC:
1) It accelerates the return date. The judge can specify a return date sooner than the 8-day minimum.
2) Judge can grant immediate stay of the proceedings or a temporary restraining order.
3) The statute which governs the particular motion may require it.
86.
Other forms of ADR in NY: 1) Like arbitration, the other ADR devices are creatures of contract and are enforced as contractual terms
2) NY public policy favors ADR
3) Court can recommend, but generally cannot require, the parties to agree to ADR.
4) Two differences from arbitration: normally, non-binding, because the purpose is to help the parties reach a voluntary settlement; no specific statutory rules governing the mechanics of enforcing the other ADR agreements
87.
Party's agent: In a written commercial contract, party may explicitly specify an agent on whom process may be served in a dispute arising from that contract.
88.
Personal delivery of process to D: Service is complete on process server's tender of summons directly to D (or leaving it in their vicinity).
89.
Pre-Answer motions for SJ: Two special situations where this is allowed:
1) conversion of motion to dismiss: D's pre-answer motion to dismiss for failure to state a cause of action can be converted by the court into SJ, thereby allowing decision on the basis of evidence rather than on the face of the pleadings. In order for this to happen: 1) at least one party must have submitted some evidence, in connection with the motion to dismiss; 2) the court must give notice to the parties of the conversion to SJ, so parties have opportunity to submit additional evidence.
2) Motion for SJ in lieu of a complaint: in two types of actions, P may move for SJ when she serves process: 1) an action on an instrument for the payment of money only, in which the instrument contains an unconditional promise to pay money. 2) action on an out-of-state judgment
90.
Preliminary injunction: Used to maintain the status quo while an equity action is pending. They may be used in an equity action in which P's complaint seeks either:
1) a permanent injunction
2) if defendant threatens to harm P's interest in the subject matter of the action.
An action seeking solely money damages will not support a preliminary injunction.
91.
Presence in NY: Requires only short presence in NY
92.
Preserving PJ defenses: 1) Before serving answer, make 3211 motion to dismiss that includes lack of personal jurisdiction.
**** IF defendant pleads improper service of process as a defense in the answer, defendant must make a follow-up motion for summary judgment on that ground within 60 days after serving the answer or it will be waived.
2) Make no 3211 motion on any ground, and include lack of PJ as an affirmative defense in the answer.
93.
Procedural considerations for motions on notice: 1) The motion is "made" when the motion papers are served on the other party.
2) The day on which the motion papers are presented to the court is called the "return date" aka "hearing date" of the motion.
3) The moving party must serve the motion papers on the opponent at least 8 days before the return date.
4) All motion papers, including those of the moving party as well as those of the opponent, must be filed with the court no later than the return date.
94.
Procedure for a notice of pendency: P files a notice of pendency with the County Clerk of the county in which the real property is located. P may file the notice without a court order, and without providing a bond.
If a notice is improperly filed, D must file a motion to cancel, and the burden will be on the D.
A notice of pendency is effective for three years after filing. P can move for a 3-year extension, but must make the motion for extension prior to the expiration of the original three-year period. If P does not obtain an extension in the proper time, 1) the notice of pendency becomes void and has no further effect, and 2) P cannot obtain another notice of pendency on the same property for the same cause of action. EXCEPT in a mortgage foreclosure, the court may grant a motion for a new notice of pendency.
95.
Procedure for Article 78s: 1) Article 78s must be brought in NY Supreme Court only.
2) S/L is 4 months from the date that the agency action became final and binding.
3) Declaratory or injunctive relief may be sought in an Article 78 (monetary damages are recoverable to the extent that they are incidental to the other relief sought.)
96.
Procedure for attachment: a) P must make a motion for an order of attachment. Order must include:
1) Affidavits in support of the motion to show one of the 2 grounds listed above.
2) Affidavits must also show probability of success on merits of plaintiff's underlying claim.
3) Plaintiff must provide an undertaking, or bond, to indemnify defendant for any damages or expenses caused by the attachment. D will be entitled to damages if: 1) attachment is made by improper procedures or 2) the defendant wins the case on the merits.
b) Motion can be made on notice or ex parte. If it's made ex parte, P must provide D the opportunity for a prompt hearing after the levy on his After the levy, P must make a follow-up motion on notice to confirm the ex parte order, so that there can be an expedited return date.
c) Ex parte order will become automatically void if P fails to make a follow-up motion to confirm within the proper number of days after the levy. property
97.
Procedure for getting a preliminary injunction: Motion for a preliminary injunction must be made ON NOTICE. Papers for the motion can be served with or after the summons. The papers must include:
1) P's affidavit must show grounds for equitable relief, including threat of irreparable injury
2) P must show probability of success on merits of claim
3) P must provide an undertaking to indemnify D for damages if later determined that preliminary injunction should not have been granted.
98.
Procedure for pre-answer motion to dismiss: 1) Motion is made before service of the answer (on or before the last day of prescribed time limit for service of the answer)
2) Making the motion extends D's time to answer. If the motion is denied, D must then serve the answer within 10 days.
3) If D has one or more of the defenses listed in CPLR 3211 (DOWNFALL), D does not need to raise them in the pre-answer motion to dismiss. D only gets one pre-answer MTD, but can make it on multiple grounds, or can use other DOWNFALL defenses in answer.
99.
Procedure for SJ: After filing process with the court, P must serve on D, with the summons, a notice of motion for SJ with supporting documentation and affidavits.
Advance notice for the return date must be at least the same as the time limit for D's appearance in the action: at least 20 days from personal delivery, or at least 30 days after service is complete for the other methods.
100.
Procedure for special proceedings: 1) Need special statutory authorization
2) Petitioner files a petition, which is the commencement of the proceeding
3) Petition and notice of petition must be served on the respondent, using the same methods as those used to serve process.
4) Notice of petition advises the respondent to serve an answer and to appear on the specified return date for the hearing. The return date in a special proceeding can be no sooner than 8 days from the service of process.
**ARTICLE 78 proceedings, on the other hand, have a return date no sooner than 20 days from the service of process. If the petitioner needs an accelerated return date, the petitioner can initiate special proceeding via OSC. Affidavits are normally served in support of, and in opposition to, the petition.
101.
Products liability: causes of action and S/Ls: 1) Negligence: 3 years, running from date of injury, against all defendants in chain of distribution
2) Strict product liability: 3 years, running from date of injury, against all defendants in chain of distribution
3) Breach of warranty: Governed by UCC: S/L specified for sales is 4 years. It begins to run when the defendant against whom the warranty claim is asserted made its delivery of the product.
102.
Professional malpractice: Learned professions (architects, engineers, accountants, attorneys): cause of action for financial loss has an exclusive S/L of 3 years, running from the termination of the services in which the malpractice occurred. Continuous representation applies here as well.
Not learned professions (insurance brokers, securities analysts, plumbers): no special S/L
103.
Prohibition: A proceeding to stop a judicial officer from exercising power that exceeds the officer's lawful jurisdiction. The excess must be gross in nature: blatant double jeopardy violation; orders that lawyers depose witnesses neither side wants to depose.
104.
Proof of service: For leave-and-mail and affix-and-mail. Must file an affidavit by the process server describing the details of service, e.g. date, time, place, description of person served, due diligence if relevant.
It is a necessary step to make service complete. Service will be complete 10 days after proof of service is filed.
It is not a jurisdiction defect if plaintiff forgets to file, but it does postpone the defendants' time to respond. The filing need not take place within the 120 day period for serving process.
105.
Provisional remedies: 1) Attachment
2) Preliminary injunction
3) Temporary receivership
4) Order to seize chattel in an action to recover the chattel (replevin)
5) Notice of pendency (lis pendens)
Court order is required for all of the provisional remedies except lis pendens.
106.
Res judicata: Transactional approach to claim preclusion used in NY: When a claim against a particular defendant has been brought to a final judgment on the merits, all other claims by the plaintiff against that defendant are barred if the other claims arise out of the same transaction or occurrence, even if other claims are based on different theories or seek different remedies.
There is a policy exception to this general rule for matrimonial disputes based on domestic abuse.
107.
Responding to the Summons with Notice: D wants to avoid default and force the P to serve the complaint. D should serve
1) Demand for the complaint
2) Notice of appearance
Service of either of these documents require P to serve the complaint within 20 days of service.
If P timely serves, D has 20 days from such service to either :
1) Serve the answer
2) Make a pre-answer motion to dismiss
108.
S/L for Contribution claims: 6 years, running from the date of payment of judgment for which contribution is sought.
109.
S/L for falling buildings: Personal injury actions may be brought in a special action against architects and engineers when action is brought more than 10 years after the building was completed. Procedure:
1) P must serve a notice of claim on the architect or engineer at least 90 days before suit.
2) P may obtain pre-action discovery from the potential D during the 90-day waiting period
3) if D moves for SJ, the burden will be on P to make an evidentiary showing that there is a substantial basis to believe that D's negligence was the proximate cause of the injuries.
110.
S/L for related claims added by amendment of complaint: relation-back: For S/L purposes, P's added claim against TPD will be deemed interposed on the date TPD was impleaded provided P's claim against TPD is based on 1) the same transaction or occurrence as the impleaded claim, AND 2) P's claim against TPD would have been timely on date of impleader.
111.
S/L in cases of exposure to toxic substances: Toxic substances: any inherently harmful toxin that has latent or slow-developing effects. Exposure: any sort of assimilation into one's body or property.
S/L: 3 years, beginning to run upon the earlier of either
1) discovery of the injury
2) date the injury should have been discovered with reasonable diligence
BUT this rule is inapplicable to claims of medical malpractice.
112.
S/L: 6-month grace period: If a NY action is timely commenced, but is thereafter dismissed before trial, and at the time of dismissal the S/L has either expired or has less than 6 months from date of dismissal to re-file the same action and serve process on same D.
Limitations:
1) Dismissal on the merits
2) Dismissal based on voluntary discontinuance by P
3) Dismissal based on plaintiff's neglect to prosecute, if it consisted of a general pattern of delay
4) Dismissal based on lack of personal jurisdiction (BUT NOT if it's based on SMJ).
113.
S/L: Defendant's absence: If D is not in NY when cause of action accrues, S/L doesn't begin to run until D comes to NY.
If D is in NY when cause of action accrues, but D thereafter leaves the state and is continuously absent for at least 4 months, toll applies to whole period of absence. UNLESS toll for D's absence is not available if P has basis of PJ over absent D such that process could be validly served on D outside NY.
114.
S/L: Infancy of insanity: Infants and insanes may sue within regular S/L through a competent adult rep, but also have a toll:
S/L is tolled until disability ends: until infant is age 18, or until insanity clears up. When the disability ends:
1) If original S/L was 3 years or more, P gets the longer of either a) 3 years from end of disability OR time remaining on the statutory period, measured from original date of accrual.
2) If original S/L was less than 3 years, P gets the statutory period, measured from date disability ends.
115.
S/L: Potential defendants: If potential D dies at any time before S/L expires, 18 months are always added to the relevant limitations period.
116.
S/L: Survival claim: If plaintiff dies before the S/L on a claim expires, the estate rep gets the time remaining on the S/L or 1 year from plaintiff's death to commence a survival action, whichever is longer.
This claim is not limited to torts, and recoverable damaged include emotional damages incurred by P prior to death.
117.
S/L: Wrongful death: 2 years from the date of death, but it must also be shown that decedent possessed a timely cause of action at the time of death. It is limited to pecuniary damages, so not pain and suffering, ALTHOUGH punitive damages remain available.
118.
Searching the record: A motion for SJ searches the record, meaning that the court reviews all of the evidence in the record, regardless of which side submitted it. If the court concludes that the opponent, rather than the moving party, is entitled to SJ on an issue, the court may grant SJ to the opponent even if the opponent did not make a cross-motion for such relief. This is called the "boomerang effect."
119.
Seizure of a chattel: Replevin actions are available when you are seeking to recover possession of a chattel. The function of the order of seizure is to ensure enforcement of a judgment awarding possession of the chattel to P. The sheriff will seize the chattel and retain custody of it.
Procedure for seizure of chattel:
1) P must have affidavits showing that P will probably succeed on the merits of the underlying claim.
2) P must provide an undertaking to indemnify D for damages for a wrongful seizure.
If the motion for replevin is made ex parte, P must:
1) Show threat of an immediate loss of the chattel, AND
2) If ex parte order is granted, P must make a follow-up motion on notice within 5 days of the seizure to confirm the ex parte order.
120.
Service by first-class mail plus acknowledgement: Mail process to D by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope. postage prepaid, addressed to sender.
Service will be effective ONLY IF D signs and returns one of the acknowledgment forms to P within 30 days after D receives the mailed process. Service is complete on D's posting of the signed form.
If D does not return the form, P will have to serve again, using one of the traditional methods. D who refuses to acknowledge will have to pay P's expenses in making 2nd service.
This may be used whether D is inside or outside NY, but it may NOT be used against infants and mentally incapacitated persons for whom guardian have been appointed.
Reutrning the form does NOT mean taht D consents to jurisdiction: these objections can still be raised by motion or in answer.
121.
Service on corporations: 1) Personal delivery can be made on any one of the following corporate representatives: officer of the corporation; directory of the corporation; designated agent; managing agent. They may be served anywhere in the US.
2) Service on NY Secretary of State
For a domestic or foreign corporation authorized to do business in NY: personally deliver two copies of process to the NY Secretary of State.
For an unlicensed foreign corporation: personally deliver one copy of process to the NY Secretary of State PLUS plaintiff mails one copy to the corporation by certified mail, return receipt requested.
122.
Service outside NY: Process may be served by:
1) Any NY resident who is at least 18
2) Anyone authorized to serve process by laws of jurisdiction where service is made
3) Anyone licensed as an attorney in the jurisdiction where service is made.
123.
Serving infants and the mentally incapacitated: If D is an infant, they may be named in the summons but process must be served on any one of:
1) A parent
2) A guardian
3) Any person having legal custody
4) If the infant is married, serve process on adult spouse with whom the infant resides
For infants 14 and older, you must serve process both on them and on the adult.
Mentally incapacitated: Serve the D and any serve their GAL if one has been appointed by a court. If one has not been appointed by a court, D should be served as any other D, and court will appoint GAL.
124.
Settlements in cases involving multiple tortfeasors: The law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have to be reduced to take account of the settlement. Any judgment for P against a non-settling tortfeasor must be reduced by either:
1) the amount of the settlement, OR
2) the settling tortfeasor's equitable share of the fault, whichever is LARGER.
A party who settles cannot sue or be sued for either contribution or indemnity.
125.
Special proceedings: Speedy, streamlined procedures to get final resolution of a dispute. They are:
1) probate
2) election disputes
3) summary proceeding by a landlord for eviction
4) dissolution of a corporation
5) habeas corpus
6) enforcement of an arbitration agreement
7) CPLR Article 78
126.
Statute of Limitations: An affirmative defense, based on the passage of time, to be raised by the defendant.
127.
Summary Jury Trial: SJT requires an agreement that includes the participation of the court. The SJT is a condensed version of a real trial in which a real judge presides an a real jury is empanelled to hear the case and render a verdict.
128.
Summons and complaint: The summons advises D the P is suing D in a particular court.
The complaint is P's pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the elements of P's cause.
129.
Summons with notice: Summons can also be accompanied by "notice" inscribed on the face of the summons or on a one-page attachment. The notice must have:
1) Brief statement of the nature of the action
2) Type of relief sought (injunction, damages)
3) If seeking damages, amount sought.
BUT in a personal injury or wrongful death action, neither the notice nor complaint may specify the amount of damages being sought.
130.
Supreme Court: New York's most important trial court, having general jurisdiction.
131.
Supreme Court's exclusive SMJ: 1) matrimonial actions
2) CPLR Article 78
3) Declaratory judgment action
132.
Temporary Receivership: A person appointed by the court to manage property in defendant's possession is a temporary receiver.
P must be asserting an equity claim in which specific property is the subject matter of the action, AND there must be a danger that D will injure or destroy the value of the property while the action is pending.
If an action seeks solely money damages, a temporary receivership is not available.
A temporary receivership requires a motion on notice.
133.
Three defenses that are never waived: 1) Nonjoinder of a necessary party
2) Failure to state a cause of action
3) Lack of SMJ
134.
Time limits for serving teh answer: 1) If D was served with process by personal delivery within NY state, D must serve answer within 20 days of delivery.
2) If D was served with process by first class mail plus acknowledgment, D must serve an answer within 20 days of D's mailing of the acknowledgment form.
3) If D was served with process under any other circumstances, D must serve answer within 30 days after service is complete.
135.
Tortfeasors excluded from Article 16: 1) Tortfeasors who acted with intent or reckless disregard for the safety of others.
2) Torfeasors who released a hazardous substance into the environment.
3) Drivers and owners of motor vehicles other than police and fire vehicles.
136.
TRO: In a case involving threat of immediate injury, P can ask court for a TRO ex parte. The TRO's purpose is to maintain status quo until motion for preliminary injunction is decided.
To get a TRO: Make the motion for preliminary injunction by order to show cause. Then, the judge can include the TRO with the OSC.
Any ex parte application for a TRO must contain an affidavit demonstrating that there will be significant prejudice to the party seeking the TRO if notice is provided to the adversary.
137.
Venue: P chooses venue and specifies it in summons in accordance with these rules:
1) in an action in which the judgment would affect title of possession to real property, proper venue is the county in NY in which the real property is located
2) in all other action, proper venue is any county in NY in which any one of the parties resides at the time the action is commenced. If no parties reside here, P chooses.
138.
Waiver rules: 1) Lack of personal jurisdiction waived if not raised in a pre-answer motion to dismiss (???)
2) Improper service of process also waived?
139.
Ways to serve: 1) personal delivery to D
2) leave and mail
3) affix and mail
4) expedient service
5) Service by First-Class Mail PLUS Acknowledgement
140.
What if P omits a part of this process?: There is a defect in personal jurisdiction, and the action is subject to dismissal for this reason alone, provided D made timely objections.
141.
What to do if you can't serve defendant within the time period: Court has discretion, on plaintiff's motion, to extend the time to make service if plaintiff can demonstrate EITHER:
1) good cause (acted with diligence) OR
2) interests of justice warrant an extension.
If defendant wants to challenge plaintiff's untimely service, D must preserve this defense and make a motion on it, or the defense is waived.
Deviations from this procedure may be excused in the discretion of the court, provided D suffers no prejudice, the filing occurs within the S/L, and the filing fee is paid.
142.
When do you have a right to contribution?: A right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which D may be held liable to P. Thus, a D may seek contribution from TPD even if the P has no right of recovery against TPD.
143.
When does a party in a civil action have a right to trial by jury?: 1) An action seeking solely money damages
2) Replevin
3) Claim to real property
4) Annulment of a marriage
5) In a divorce action, other than a no-fault, entitled to a jury on the issue of the grounds for divorce. But no jury to decide issues of money or child custody.
144.
When does the statute of limitations begin to run?: When the cause of action accrues, aka when the injury occurs.
USUALLY, though not ALWAYS, the statute of limitations begins to run from the date of the injury or breach, even if the plaintiff is unaware of the injury.
