CivPro Flashcards
What do the 4 departments consist of in NY?
1) NYC and Bronx
2) LI, Brooklyn, Queens, Staten Island, Westchester, Orange, and Putnum
3) Sullivan county to Canadian border and
4) Western NY
what type of jx does the 62 county courts have?
original jx
where do actions brought against state have to be brought?
in court of claims (Federal court)
what type of jx does the court of claims have?
exclusive jx
where are county courts located?
in every county outside of the 5 boroughs
what jx does the county courts have?
broad monetary jx unto 25k
what claims does a surrogate court hear?
all decedent estate, will, guardianships etc
what is heard in family court?
child abuse, neglect, child support, and paternity
what claims does the NYC civil courts hear?
matters up to $25k
what claims does the Nassau and Suffolk district courts hear?
civil cases unto $25k
what claims does city courts hear?
claims up to $15k
what claims does town and village courts hear?
claims up to $3,000
how can process be served with in the state?
1) personal service by a non-party at least 18 years of age
2) deliver-and-mail service
3) service upon an agent
4) affix-and-mail service, or
5) court-ordered service
when is nail and mail service sufficient?
at a last resort if unable to serve by other means
if personal service is impracticable under CPLR 308, what can be done?
a court, upon the plaintiff’s ex parte application, has broad discretion to direct the manner by which service is to be made.
when must the mailing of notice be mailed?
within 20 days of the delivery or affixing, and a later mailing will not cure defect in service
how should notice be served by mail to a defendant’s actual place of business?
by first class mail and the envelope must be labeled “personal and confidential” and it must not indicate that it is from an attorney.
when is serving by mail permitted to a defendant’s actual place f business?
when other methods of service cannot be made with due diligence
how should service be made on a partnership?
by personally serving on any one of the partners, utilizing any of the methods authorized for an individual or by serving the managing or general agent of the partnership or the person in charge of the partnership
what must be done if a particular method of service on either an individual or a partner requires proof of service?
filing is a prerequisite to the completion of service and the filing must be done within 20 days of the last pervious act to effect service
when is service complete?
10 days after filing
when does the defendant’s time to respond to a complaint start running?
not until service is complete
how should personal service upon a domestic or foreign corporation be made?
1) delivering process to an officer,
2) director,
3) managing or general agent, or
4) cashier or assistant cashier, or
5) to a registered agent,
6) or Secretary of State.
how is service made to a domestic or foreign LLC?
delivering process to
1) any member of the LLC. if the management of the LLC is vested in its members
2) any manager of the LLC, if management of the LLC is vested in one or more managers or
3) any other person or agent authorized or designated to receive process
how should service be made outside of NY?
1) in the same manner as service made within the state by any person authorized to make service within NY who is a resident of NY, or
2) by any person authorized to make service by laws of the jx in which service is made, or
3) by any duly qualified attorney, solicitor, barrister, or equivalent in such jx
when must service of process be made?
within 120 days of filing unless the statute of limitations is 4 months or less
when must service be made if the SOL is 4 months or less?
no later than 15 days after date that SOL expire
what are the five potential bases that NY recognizes as PJ?
1) presence
2) consent
3) domicile
4) doing business , and
5) long arm statute
Under NY law, what must the plaintiff have to demonstrate PJ over a defendant?
that they either have general jx or long arm statute (specific jx).
what is the difference between claims the court will hear with specific or general jx?
with general jx, the court will hear all claims against an entity whereas with specific jx ,the court will only hear those claims that arise out of the entity’s contacts within the state
if a corporation is not incorporated in NY or does not have its principal place of business in NY, will courts hear the case?
yes under general jx when the foreign corporation’s operations are “so substantial and of such a nature as to render the corporation essentially at home.”
when can NY exercise PJ over a non-domiciliary of NY?
a person or through an agent that:
1) transacts any business with NY or contract to supply goods or services to NY
2) commits a tortious act within NY (except defamation)
3) commits tortious act outside NY that causes injury within NY (injured person or damaged property must be located in the state at time of injury or damage) (except defamation)
4) owns, uses, or possesses real property within NY
when can a court exercise PJ over a defendant that committed a tortious act outside of NY that resulted in injury in NY?
when the defendant:
1) regularly does or solicits business in NY, or derives substantial revenue from goods used or consumed or services rendered in NY or
2) expects or reasonably should expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce
even if the plaintiff’s case falls within a particular statutory grant of a long-arm statute, what must the particular assertion of the long-arm statute comport with?
the federal constitution due process requirements
what does the federal due process requirements for PJ require?
1) the defendant have minimum contacts with NY such that the defendant should reasonably anticipated being sued in NY and
2) maintenance of the suite against the defendant in NY must comport with traditional notions of fair play and substantial justice.
which Supreme Court can the plaintiff bring an action in NY?
in any county in which any party resides
which Supreme Court can the plaintiff bring an action in NY if neither party lives in NY?
(P) can choose any county
Like federal courts, does NY require an alternative forum as a precondition for forum nonconveniens?
not necessarily
In NY, if you blow the SOL, can the courts revive the action?
NO, the courts have no power
Under NY’s borrowing statute, what happens if a nonresident plaintiff’s claim accrued outside of NY?
the claim must be timely under both law of NY and that of place of accrual
What state’s law governs if the out-of-state claim accrued in favor of a NY resident?
NY’s law
When does the SOL start running?
except as otherwise expressly prescribed, from the time the cause of action accrued to the time the claim is interposed (commenced)
what is an exception to when the SOL starts running?
discovery statutes
what is the united-of-interests doctrine?
it provides that assertion of a claim against an additional defendant after the expiration of SOL will relate back to the commencement date of a timely action against the co-defendant if certain circumstances are met
what circumstances does NY require to join a defendant after SOL expires?
1) the claims against the parties arose out of the same T&O
2) new defendant should have known that the plaintiff made a mistake by failing to timely identify the proper parties; and
3) the new defendant and the party originally sued have such a unity that, by reason of their relationship, the new defendant can be charged with such notice of the action that he or she will not be prejudiced in defending the case
when is the SOL measured by?
except in Med Mal cases, from discovery of the wrong or two years from either discovery of the wrong or, if sooner, when the wrong could with reasonable diligence have been discovered
what is the SOL period for a breach of contract claim?
6 years except UCC claims
what is the SOL period for a breach of contract claim under the UCC?
4 years from breach of warranty
what is the SOL period for a fraud claim?
6 years from the date of discovery
what is the SOL period for a negligence claim?
3 years from discovery of the wrong or, if sooner, when the wrong could have been diligently discovered except in Med Mal claims
what is the SOL for med Mal cases?
2 1/2 years from date the incident occurred
what was made an exception in Jan 2018 to when the SOL period starts running in med Mal cases?
Doctor’s failure to diagnose cancer
what type of defendants can be sued in a med Mal case?
medical, dental or pediatric actions
when does the SOL start running if the action is based upon discovery of a foreign object left in the patient?
tolled until the earlier of one year of :
1) date of discovery or
2) date of discovery of facts which would have reasonably lead to discovery
when does the statute of limitations start running when a doctor fails to diagnose cancer or a malignant tumor, whether by act or omission?
within 2 1/2 years of the later of either:
1) when the person knows or reasonably should have known of such alleged negligent act or omission has caused injury (but not later than 7 years from act or omission) or
2) the date of the last treatment where there s continuous treatment
what is the limited discovery statute and when does it start running?
toxic torts and starts running on date discovered or should have discovered injury
what is the SOL for claims against municipalities?
1 year and 90 days from date of accrual in torts claims and for contract it depends on the municipality
what must the attorney do before commencing a municipality claim?
within 90 days of the accrual date, file a notice of claim
if the attorney fails to file a notice of claim for a claim against a municipality, what happens?
they cannot sue the municipality but they can file a motion of special proceeding
what is the SOL period for intentional tort claims (assault and defamation and action upon an arbitration award)?
1 year
when must a special proceeding under Article 78 be commenced?
Unless a shorter time is provided in the law authorizing the proceeding:
1) within four months after the determination to be reviewed becomes final and binding or
2) after the respondent’s refusal, upon demand, to perform its duty.
when must wrongful death claims be commenced?
within 2 years after the decedent’s death
what is a notice of claim?
a condition precedent for the commencement of an action to revere damages alleged to have been sustained by reason of negligence or wrongful act of the defendant
what should a notice of claim contain?
in writing within 90 days of commencement of the claim:
1) name and address of the claimant and his or her attorney;
2) the nature of the claim;
3) the time when, place where and manner in which the claim arose; and
4) the items of damage or injuries claim to have been sustained
Under the tolling provisions, in NY when can an infant (someone under 18) commence an action
cannot start action in their name until they are 18
when may a SOL toll under CPLR 208?
for infancy and disabilities
when does a SOL that is tolled start running if the applicable SOL is less than 3 years?
does not start running during the entire period of disability
when does the SOL that is tolled start running if the applicable SOL is more than 3 years?
a plaintiff will have at least 3 years to sue from the time the disability ceases
when is the maximum toll permitted and how long is it?
10 years when plaintiff suffers insanity or for an infant’s cause o action for medical, dental or podiatric med Mal
what happens if the plaintiff dies before the expiration of the limitations period?
his or her executor or administrator has the greater of the libation period or one year from the death in which to sue
what happens if defendant dies before the action is commenced?
18 months are added to the limitations period, extending the time that the action may be commenced against the defendant’s estate
what happens if an action was timely commenced and terminated?
the plaintiff can commence a new action within 6 months after the termination of the prior action if provided service upon the defendant is effected within that 6 month period even if not final judgment, voluntary discontinuance, neglect to prosecute , or failure to obtain PJ or SOL is about to expire.
how can a defendant “appear” before the time expires?
1) answer
2) motion or
3) notice of appearance
how long does the defendant have to appear if served by personal delivery within NY?
no later than 20 days from delivery
how long does the defendant have to appear if served outside of NY?
most of the time, the time to appear is not later than 30 days after service is complete.
what may a defendant do if the complaint is not served with the summons?
they may, within the time defendant would otherwise be required to appear, serve a written demand for the complaint.
when must the plaintiff service a complaint after a written demand was made?
within 20 days after service of the demand
is an answer required for a counterclaim?
yes
is an answer required for a cross-claim?
only if demanded an answer
when actions involving a common question of law or fact, what may the court do?
upon a motion, may order a joint trial or consolidation of the actions and may make such other orders as may tend to avoid unnecessary costs or delay
what is a verification of pleadings?
when a party under oath makes a statement that a pleading is true to the knowledge or belief of that person making the statement and must be an appropriate representative of the party (attorney)
do pleadings need to be verified?
no unless an exception applies but if they are, each subsequent pleading must be verified, unless the matter to be verified is privileged
what pleadings must be verified?
1) a complaint in a matrimonial action,
2) a petition in an Article 78 proceedings,
3) and a petition of summary proceeding to recover possession of real property.
may pleadings be amended?
yes, once without leave of court before the time to respond expires or within 20 days after service of the pleading responding to it
after 20 days, can a pleading be amended?
yes but by leave of court or stipulation of the parties
in NY when must lack of PJ be raised under 301 and 302?
in first appearance
when can a defendant raise a lack of PJ claim if an answer failed to include amendment?
it reserects the PJ debase otherwise waived
what is a bill of particulars?
response to (D)’s demand to vive reasons
which defenses are waived if not raised by pre-answer motion or as a defense in the answer?
1) lack of PJ
2) documentary evidence
3) lack of legal capacity to sue
4) another action pending, or
5) defenses of collateral estoppel, discharge in bankruptcy, infancy, or other disability of the moving party, release, res judicator, statute of limitations or statute of frauds
what is NY’s third party practice (imp leader)
very flexible and very liberal
can you seek money and a preliminary injunction?
ultimately you can seek money but also seek a preliminary injunction for status quo
can you use attachment as a security device?
yes but not easy to get
what does a preliminary injunction require?
a bond and amount is determined by court
what do you need to get a TRO until a preliminary injunction is heard?
move to show cause
is notice required for a TRO?
under the CPLR it was not required but judges started to require calling the other side to give notice and it became a rule
how is an undertaking of a TRO decided?
in discretion of the courtw
when can a notice of pendency be filed?
can be filed in an action which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property.
when is a notice of pendency not required?
in a summary proceeding brought to recover possession of real property
what does a notice of pendency do?
prevents a potential transferee or mortgagee of the property from acquiring the status of innocent purchaser for value while the action is pending by placing a cloud on the marketability of the defendant’s title for the duration of the trial
how long does a notice of pendency effective?
for three years from date of filing and may be extended by court order for good cause shown.
is a bond or motion required for notice of pendency?
no
when does a defense for failure to properly serve need to be raised?
either in pre-answer motion or if included in answer, need to make a motion within 60 days of serving answer.
what effect does serving a motion to dismiss have on the time required for a responsive pleading?
it extends the time to serve the pleading until 10 days after service of notice of entry of the order determining such motion.
when can an objection based on lack of SMJ, failure to state a cause of action, or failure to join a necessary party be raised?
any time by motion or in a subsequent pleading
when is the earliest time for the making of a motion for summary judgment?
after service of the defendant’s answer
what is the latest time for the making of a motion for summary judgment?
120 days following the note of issue
what is a note of issue?
document that tells court discovery is over
what happens if someone makes a motion for summary judgment late (even one day)?
it will be denied unless there is an excuse 44
