2,3,4,10 Terms And Information

Question 1

NYCPLR/ means :

Answer 1

New York Civil Practice Laws and Rules

Question 2

NY Trial Courts

Answer 2

1. Supreme Court
2. Family Court
3. Surrogate’s Court
4. County Court
5. NYC Civil Court
6. District Court
7. City Court
8. Town and Village Court (Justice Court)
9. Court of Claims

Question 3

NY Appellate Courts (4):

Answer 3

Court of Appeals + 3 Intermediate Appellate Courts

1. Supreme court, Appellate Division
2. Supreme court, Appellate Term
3. County courts

Question 4

NY Court of appeals:

Answer 4

Highest court
• Statewide appellate jurisdiction in civil matters
• Generally, hears appeals of decisions by lower appellate courts, but, in limited instances, may hear appeals from trial courts
• Review usually confined to questions of law

Question 5

Subject Matter Jurisdiction (SMJ)

Answer 5

A court’s competence to hear and determine cases of the general class and subject to which the proceeding in question belongs

• Objection to SMJ can be presented at any stage of proceeding
• Cannot be waived or agreed to by parties

Question 6

What are the rules re: when Foreign Corporations can sue/be sued in NY?

Answer 6

A foreign corporation doing business in New York without authority may not initiate suit in New York courts unless it has paid all applicable fees, penalties, and taxes
Actions against foreign corporations by New York individuals or corporations are permitted

Question 7

20 year SOL (4):

Answer 7

1. Recover principal/interest on bonds
2. Enforce a money judgment
3. By state or its grantee to recover real property
4. Support, alimony, or maintenance

Question 8

10 year SOL (4):

Answer 8

1. Recover real property or its possession
2. Recover premises after a state grant of real property is annulled due to fraud/mistake
3. Redeem real property from mortgage
4. Recover under affidavit of support amounts paid to/on behalf of an alien

Question 9

7 year SOL

(1):

Answer 9

Action by a crime victim to recover damages from convicted perpetrator, generally.
BUT, victim must bring action to recover money damages from convicted perpetrator w/in 3 years of discovery of any profits from crime PLUS, any action by victim of a felony to recover damages from convicted perpetrator must be brought w/in 10 years of the date of conviction

Question 10

6 year SOL (9)

Answer 10

1. DEFAULT- when no specific SOL applies
2. Express/implied contract (except sale of goods- 4 yr) 3. Sealed instrument
3. real prop mortgage, bond or note securing mortgage 5. By state for misappropriation/spoliation of pub prop 6. Based on mistake/other equitable action
4. Derivative actions
5. Based on fraud
6. For contribution from other tortfeasors

Question 11

5 year SOL

(1):

Answer 11

Action by victim of sexual abuse against a child to recover for injuries caused by perpetrator, whether or not convicted

Question 12

4 year SOL

(3):

Answer 12

1. Overcharge of residential rent
2. Breach of contract for sale of goods
3. Against a housing merchant for breach of implied warranty on sale of new home

Question 13

3 year SOL

(8):

Answer 13

1. Against sheriff or other officer for nonpayment of funds collected on execution of judgment 2. Statutory liability, penalty, or forfeiture
2. Recover chattel or damages for taking/detaining it
3. Property damage or personal injuries
4. Annul marriage due to fraud
5. Professional malpractice (other than medical, dental, podiatric malpractice)
6. Damages due to strict product liability
7. Neg hiring or administrative procedures in hospitals

Question 14

2 year, 6 months SOL

(1):

Answer 14

Medical, dental, or podiatric malpractice, including lack of informed consent
*If action is for foreign object unintentionally left in a patient, action must be brought w/in 1 year of discovery, or the date of discovery of facts that would lead to such discovery (whichever is earlier)

Question 15

2 year SOL (1):

Answer 15

Wrongful Death

Question 16

18 months SOL

(1):

Answer 16

Actions against a village over a contract

*Written claim must be filed w village clerk w/in 1 year of accrual

Question 17

1 year, 90 days SOL

(1):

Answer 17

Actions in tort against municipalities

• Notice of claim must be filed w municipality w/in 90 days of accrual
• Action cannot be brought until at least 30 days after filing notice of claim w/out payment
• Villages must be given written notice of dangerous/defective conditions of public ways, and given a reasonable time to correct condition

Question 18

4 months SOL

(1):

Answer 18

Article 78 proceedings

Question 19

Rules re: extending/shortening SOL:

Answer 19

Shortening: parties may agree, in writing, to shorten the limitations period
• Sale of goods- can’t reduce to less than one year

Extending: parties to a contract may agree to extend limitations period, in a writing signed by the party against whom enforcement is sought, but only if the agreement is entered after accrual of the cause of action
• Sale of goods- can’t extend beyond four years

Question 20

Waiver of SOL:

Answer 20

Defendant may be deemed to have waived SOL defense if Defendant fails to timely assert it

Question 21

SOL for Breach of Contract

Answer 21

(Real Estate Contract, Employment Contract, Service Contract, Contract to Build):
6 years from date cause of action accrued. Accrual date is generally date of breach -Date of breach on construction contract is generally date of completion
But terms of contract can affect date of breach

Question 22

What’s a Replevin Action - Definition & SOL:

Answer 22

Replevin= legal action to recover personal property from D, which belongs to P, and D has wrongfully refused to return after P made demand for it.

Question 23

SOL for Fraud

SOL for action based on fraud = the later of:

Answer 23

(i) 6 yrs from date Defendant induced Plaintiff by fraud to suffer injury, or (ii) 2 yrs from date Plaintiff discovered fraud

Question 24

SOL Medical malpractice:

Answer 24

2 years and 6 months
Generally accrues on date of malpractice
For continuous treatment of the same condition, claim accrues at last treatment that gives rise to the malpractice act, omission, or failure (typically date of patient’s last visit with physician, but may be date of a scheduled visit for further treatment)
*Checkups are not continuous treatment

Question 25

Special Rules for Medical Malpractice SOL

Answer 25

1. Continuous Treatment Doctrine:
   The 2 years and 6 months doesn’t begin to run until the date of last treatment where the medical malpractice occurred.
   

2. Foreign Object Doctrine:
   P will have the later of the
   (i) applicable SOL (2 yrs & 6 months) or,
   (ii) 1 year from date P discovered or should have discovered the object by exercise of due diligence.
   

3. Infant/Minor:
   When an infant P is injured by malpractice, P will have the shorter of (i) 2 yrs & 6 months from date of 18th birthday, or
   (ii) 10 yrs from date cause action of action accrued

Question 26

Service of Process on an Infant:

Answer 26

1. Infant at least 14:
   Under the CPLR when the infant defendant is at least 14 year old service of process must be made upon (i) an adult with whom the infant resides and (ii) the infant himself.
   Service of process on infant who lives on his own can be made on infants ER.
   P must obtain an order for expedient when infant lives on his own.