Civil Procedure

Question 1

What are the 5 potential bases NY recoginizes for personam jurisdiction?

Answer 1

presence, consent, domicile, doing business (subject to constitutional limits, see Civil Practice and Procedure, I.A.2.) and “long-arm jurisdiction.”

Question 2

What happens if a nondomiciliary commences an action in NY?

Answer 2

A nondomiciliary who commences an action in New York, even if he or she is not otherwise subject to personal jurisdiction in New York, submits himself or herself to personal jurisdiction in any separate action brought against him or her by any party to the pending action and is deemed to have designated his or her New York attorney as an agent upon whom process may be served in such separate action (CPLR 303).

Question 3

Rules for asserting general personal jurisdiction over a foreign corporation

Answer 3

If a corporation is not incorporated in New York or maintaining its principal place of business here, New York courts will only exercise general personal jurisdiction in the exceptional case - when the foreign corporation’s operations are “so substantial and of such a nature as to render the corporation essentially ‘at home’” (Daimler, 571 US at 139; BNSF Ry. Co. v Tyrrell, 581 US-, 137 SCt 1549 [2017]).

Question 4

If a summons is not derved with a complaint, what must the summons contain?

Answer 4

The summons must specify the basis of the venue designated by the plaintiff and contain the index number and date of the filing with the clerk of the court (CPLR 305). If a complaint is not served with the summons, the summons must contain a notice stating the nature of the action and the relief sought in the action, and except in medical malpractice actions, the sum of money for which judgment may be taken in the event of a default (Id).

Question 5

Service of Process within the State (5 ways)

Answer 5

Personal service in an action upon a natural person must be made by any non-party at least 18 years of age (CPLR 2103 [a]) pursuant to one of the CPLR 308 subsections: (1) personal delivery, (2) deliver-and-mail service, (3) service upon an agent, (4) affix-and-mail service, or (5) court-ordered service.

Question 6

Under deliver-and-mail service and affix-and-mail service what are the applicable rules?

Answer 6

The mailing required by CPLR 308 (2) or (4) must occur within 20 days of the delivery or affixing, and a later mailing will not cure the defect in service (Estate of Norman Perlman v Kelley, 175 AD3d 1249 [2d Dept 2019]). When mailing is made to a defendant’s actual place of business, it must be by first class mail, the envelope must be labeled “personal and confidential,” and it must not indicate that it is from an attorney (CPLR 308 [2], [4]). Service under CPLR 308 (4) is not available unless service under subsections (1) and (2) cannot be made with due diligence.

Question 7

What are the only two ways matrimonial service may be made?

Answer 7

Personal delivery

Court-ordered service

Question 8

If a particular method requires filing for completion:

1) When must filing be done?

2) When is service complete? And

3) When does the D’s time to respond begin to run?

Answer 8

1. The filing must be done within 20 days of the last previous act to effect the service (affixing or mailing),
2. 10 days after filing
3. Does not run until service is complete

Question 9

Service outside of NY CPLR 313 Rules

Answer 9

Any person domiciled in the state or subject to personal jurisdiction under the long-arm statute may be served outside the state in the same manner as service is made within the state by any person authorized to make service within New York who is a resident of New York, or by any person authorized to make service by the laws of the jurisdiction in which service is made, or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.

Question 10

Upon commencement of an action or proceeding by filing:

1) when must service of process be made?

2) What if the statute of limitations is 4 months or less?

Answer 10

1) 120 days of filing

2) no later than 15 days after the date on which the relevant statute of limitations expires

Question 11

Where is the proper venue for an individual?

Answer 11

The place of trial is the county in which either the plaintiff or defendant resides at the time of commencement of the action, the county in which a substantial part of the events or omission giving rise to the claim occurred, or if neither party resides in the state, any county designated by the plaintiff (CPLR 503).

Question 12

Where is the proper venue for corp / LLC?

Answer 12

A corporation or limited liability company is a resident of the county in which its principal office is located (CPLR 503; Graziuso v 2060 Hylan Blvd. Restaurant Corp., 753 NYS2d 103 [2d Dept 2002]).

Question 13

Where is the proper venue for a partnership?

Answer 13

A partnership is deemed a resident of the county in which it has its principal office as well as the county where the partner suing or being sued actually resides (CPLR 503).

Question 14

Will written agreements that fix the place of the trial be enforced?

Answer 14

Yes

Question 15

Where is the proper venue for municipal defendants or the city of NY?

Answer 15

The place of trial of all actions against municipal defendants is the county in which such municipal defendant is located (CPLR 504 [a], [b]). However, for actions against the city of New York, it is the county within the city in which the cause of action arose, or if it arose outside of the city, in the county of New York (CPLR 504 [cl).

Question 16

Where is the proper venue in which judgment would affect the title to real property?

Answer 16

Where the property is situated

Question 17

How does a defendant move for a change of venue on the ground that venue was improperly placed?

Answer 17

The defendant must first, before or with its answer, serve a written a demand for the change, and if the plaintiff does not agree to the change, make the motion within 15 days of serving the demand. A motion upon any other ground must be made within a reasonable time after commencement of the action.

Question 18

New York’s borrowing statute on statute of limitation problems

Answer 18

Under New York’s borrowing statute, if a nonresident plaintiff’s claim accrued outside of New York, the claim must be timely under both the law of New York and that of the place of accrual. An out-of-state claim that accrues in favor of a New York resident will be governed by the New York statute of limitations regardless of whether the other state’s statute of limitations is shorter than that of New York (CPLR 202).

Question 19

1) What is the statute of limitations for claims against municipalities?

2) What about in actions for negligence or wrongful death?

Answer 19

1 year and 90 days

The notice of claim must be served within 90 days after the claim arises or, in the case of wrongful death, 90 days from the appointment of a representative of decedent’s estate. (can be extended but shall not exceed 1 year and 90 days)

Question 20

What happens if you join a legal claim with a transactional-related claim for equitable relief?

Answer 20

Waives the right to a jury trial with respect to the legal claim

Question 21

What are the two grounds for which preliminary injunctive relief may be granted?

Answer 21

1. The defendant threatens to harm plaintiffs rights in the subject of the action and such harm could render the judgment ineffectual;
2. The plaintiff seeks a judgment restraining the defendant from injurious conduct that would also injure the plaintiff if committed during the course of the action