CivPro

Question 1

What do the 4 departments consist of in NY?

Answer 1

1) NYC and Bronx

2) LI, Brooklyn, Queens, Staten Island, Westchester, Orange, and Putnum

3) Sullivan county to Canadian border and

4) Western NY

Question 2

what type of jx does the 62 county courts have?

Answer 2

original jx

Question 3

where do actions brought against state have to be brought?

Answer 3

in court of claims (Federal court)

Question 4

what type of jx does the court of claims have?

Answer 4

exclusive jx

Question 5

where are county courts located?

Answer 5

in every county outside of the 5 boroughs

Question 6

what jx does the county courts have?

Answer 6

broad monetary jx unto 25k

Question 7

what claims does a surrogate court hear?

Answer 7

all decedent estate, will, guardianships etc

Question 8

what is heard in family court?

Answer 8

child abuse, neglect, child support, and paternity

Question 9

what claims does the NYC civil courts hear?

Answer 9

matters up to $25k

Question 10

what claims does the Nassau and Suffolk district courts hear?

Answer 10

civil cases unto $25k

Question 11

what claims does city courts hear?

Answer 11

claims up to $15k

Question 12

what claims does town and village courts hear?

Answer 12

claims up to $3,000

Question 13

how can process be served with in the state?

Answer 13

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

Question 14

when is nail and mail service sufficient?

Answer 14

at a last resort if unable to serve by other means

Question 15

if personal service is impracticable under CPLR 308, what can be done?

Answer 15

a court, upon the plaintiff’s ex parte application, has broad discretion to direct the manner by which service is to be made.

Question 16

when must the mailing of notice be mailed?

Answer 16

within 20 days of the delivery or affixing, and a later mailing will not cure defect in service

Question 17

how should notice be served by mail to a defendant’s actual place of business?

Answer 17

by first class mail and the envelope must be labeled “personal and confidential” and it must not indicate that it is from an attorney.

Question 18

when is serving by mail permitted to a defendant’s actual place f business?

Answer 18

when other methods of service cannot be made with due diligence

Question 19

how should service be made on a partnership?

Answer 19

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

Question 20

what must be done if a particular method of service on either an individual or a partner requires proof of service?

Answer 20

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

Question 21

when is service complete?

Answer 21

10 days after filing

Question 22

when does the defendant’s time to respond to a complaint start running?

Answer 22

not until service is complete

Question 23

how should personal service upon a domestic or foreign corporation be made?

Answer 23

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.

Question 24

how is service made to a domestic or foreign LLC?

Answer 24

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

Question 25

how should service be made outside of NY?

Answer 25

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

Question 26

when must service of process be made?

Answer 26

within 120 days of filing unless the statute of limitations is 4 months or less

Question 27

when must service be made if the SOL is 4 months or less?

Answer 27

no later than 15 days after date that SOL expire

Question 28

what are the five potential bases that NY recognizes as PJ?

Answer 28

1) presence

2) consent

3) domicile

4) doing business , and

5) long arm statute

Question 29

Under NY law, what must the plaintiff have to demonstrate PJ over a defendant?

Answer 29

that they either have general jx or long arm statute (specific jx).

Question 30

what is the difference between claims the court will hear with specific or general jx?

Answer 30

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

Question 31

if a corporation is not incorporated in NY or does not have its principal place of business in NY, will courts hear the case?

Answer 31

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.”

Question 32

when can NY exercise PJ over a non-domiciliary of NY?

Answer 32

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

Question 33

when can a court exercise PJ over a defendant that committed a tortious act outside of NY that resulted in injury in NY?

Answer 33

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

Question 34

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?

Answer 34

the federal constitution due process requirements

Question 35

what does the federal due process requirements for PJ require?

Answer 35

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.

Question 36

which Supreme Court can the plaintiff bring an action in NY?

Answer 36

in any county in which any party resides

Question 37

which Supreme Court can the plaintiff bring an action in NY if neither party lives in NY?

Answer 37

(P) can choose any county

Question 38

Like federal courts, does NY require an alternative forum as a precondition for forum nonconveniens?

Answer 38

not necessarily

Question 39

In NY, if you blow the SOL, can the courts revive the action?

Answer 39

NO, the courts have no power

Question 40

Under NY’s borrowing statute, what happens if a nonresident plaintiff’s claim accrued outside of NY?

Answer 40

the claim must be timely under both law of NY and that of place of accrual

Question 41

What state’s law governs if the out-of-state claim accrued in favor of a NY resident?

Answer 41

NY’s law

Question 42

When does the SOL start running?

Answer 42

except as otherwise expressly prescribed, from the time the cause of action accrued to the time the claim is interposed (commenced)

Question 43

what is an exception to when the SOL starts running?

Answer 43

discovery statutes

Question 44

what is the united-of-interests doctrine?

Answer 44

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

Question 45

what circumstances does NY require to join a defendant after SOL expires?

Answer 45

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

Question 46

when is the SOL measured by?

Answer 46

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

Question 46

what is the SOL period for a breach of contract claim?

Answer 46

6 years except UCC claims

Question 47

what is the SOL period for a breach of contract claim under the UCC?

Answer 47

4 years from breach of warranty

Question 48

what is the SOL period for a fraud claim?

Answer 48

6 years from the date of discovery

Question 49

what is the SOL period for a negligence claim?

Answer 49

3 years from discovery of the wrong or, if sooner, when the wrong could have been diligently discovered except in Med Mal claims

Question 50

what is the SOL for med Mal cases?

Answer 50

2 1/2 years from date the incident occurred

Question 51

what was made an exception in Jan 2018 to when the SOL period starts running in med Mal cases?

Answer 51

Doctor’s failure to diagnose cancer

Question 52

what type of defendants can be sued in a med Mal case?

Answer 52

medical, dental or pediatric actions

Question 53

when does the SOL start running if the action is based upon discovery of a foreign object left in the patient?

Answer 53

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

Question 54

when does the statute of limitations start running when a doctor fails to diagnose cancer or a malignant tumor, whether by act or omission?

Answer 54

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

Question 55

what is the limited discovery statute and when does it start running?

Answer 55

toxic torts and starts running on date discovered or should have discovered injury

Question 56

what is the SOL for claims against municipalities?

Answer 56

1 year and 90 days from date of accrual in torts claims and for contract it depends on the municipality

Question 57

what must the attorney do before commencing a municipality claim?

Answer 57

within 90 days of the accrual date, file a notice of claim

Question 58

if the attorney fails to file a notice of claim for a claim against a municipality, what happens?

Answer 58

they cannot sue the municipality but they can file a motion of special proceeding

Question 59

what is the SOL period for intentional tort claims (assault and defamation and action upon an arbitration award)?

Answer 59

1 year

Question 60

when must a special proceeding under Article 78 be commenced?

Answer 60

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.

Question 61

when must wrongful death claims be commenced?

Answer 61

within 2 years after the decedent’s death

Question 62

what is a notice of claim?

Answer 62

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

Question 63

what should a notice of claim contain?

Answer 63

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

Question 64

Under the tolling provisions, in NY when can an infant (someone under 18) commence an action

Answer 64

cannot start action in their name until they are 18

Question 65

when may a SOL toll under CPLR 208?

Answer 65

for infancy and disabilities

Question 66

when does a SOL that is tolled start running if the applicable SOL is less than 3 years?

Answer 66

does not start running during the entire period of disability

Question 67

when does the SOL that is tolled start running if the applicable SOL is more than 3 years?

Answer 67

a plaintiff will have at least 3 years to sue from the time the disability ceases

Question 68

when is the maximum toll permitted and how long is it?

Answer 68

10 years when plaintiff suffers insanity or for an infant’s cause o action for medical, dental or podiatric med Mal

Question 69

what happens if the plaintiff dies before the expiration of the limitations period?

Answer 69

his or her executor or administrator has the greater of the libation period or one year from the death in which to sue

Question 70

what happens if defendant dies before the action is commenced?

Answer 70

18 months are added to the limitations period, extending the time that the action may be commenced against the defendant’s estate

Question 71

what happens if an action was timely commenced and terminated?

Answer 71

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.

Question 72

how can a defendant “appear” before the time expires?

Answer 72

1) answer

2) motion or

3) notice of appearance

Question 73

how long does the defendant have to appear if served by personal delivery within NY?

Answer 73

no later than 20 days from delivery

Question 74

how long does the defendant have to appear if served outside of NY?

Answer 74

most of the time, the time to appear is not later than 30 days after service is complete.

Question 75

what may a defendant do if the complaint is not served with the summons?

Answer 75

they may, within the time defendant would otherwise be required to appear, serve a written demand for the complaint.

Question 76

when must the plaintiff service a complaint after a written demand was made?

Answer 76

within 20 days after service of the demand

Question 77

is an answer required for a counterclaim?

Answer 77

yes

Question 78

is an answer required for a cross-claim?

Answer 78

only if demanded an answer

Question 79

when actions involving a common question of law or fact, what may the court do?

Answer 79

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

Question 80

what is a verification of pleadings?

Answer 80

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)

Question 81

do pleadings need to be verified?

Answer 81

no unless an exception applies but if they are, each subsequent pleading must be verified, unless the matter to be verified is privileged

Question 82

what pleadings must be verified?

Answer 82

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.

Question 83

may pleadings be amended?

Answer 83

yes, once without leave of court before the time to respond expires or within 20 days after service of the pleading responding to it

Question 84

after 20 days, can a pleading be amended?

Answer 84

yes but by leave of court or stipulation of the parties

Question 85

in NY when must lack of PJ be raised under 301 and 302?

Answer 85

in first appearance

Question 86

when can a defendant raise a lack of PJ claim if an answer failed to include amendment?

Answer 86

it reserects the PJ debase otherwise waived

Question 87

what is a bill of particulars?

Answer 87

response to (D)’s demand to vive reasons

Question 88

which defenses are waived if not raised by pre-answer motion or as a defense in the answer?

Answer 88

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

Question 89

what is NY’s third party practice (imp leader)

Answer 89

very flexible and very liberal

Question 90

can you seek money and a preliminary injunction?

Answer 90

ultimately you can seek money but also seek a preliminary injunction for status quo

Question 91

can you use attachment as a security device?

Answer 91

yes but not easy to get

Question 92

what does a preliminary injunction require?

Answer 92

a bond and amount is determined by court

Question 93

what do you need to get a TRO until a preliminary injunction is heard?

Answer 93

move to show cause

Question 94

is notice required for a TRO?

Answer 94

under the CPLR it was not required but judges started to require calling the other side to give notice and it became a rule

Question 95

how is an undertaking of a TRO decided?

Answer 95

in discretion of the courtw

Question 96

when can a notice of pendency be filed?

Answer 96

can be filed in an action which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property.

Question 97

when is a notice of pendency not required?

Answer 97

in a summary proceeding brought to recover possession of real property

Question 98

what does a notice of pendency do?

Answer 98

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

Question 99

how long does a notice of pendency effective?

Answer 99

for three years from date of filing and may be extended by court order for good cause shown.

Question 100

is a bond or motion required for notice of pendency?

Answer 100

no

Question 101

when does a defense for failure to properly serve need to be raised?

Answer 101

either in pre-answer motion or if included in answer, need to make a motion within 60 days of serving answer.

Question 102

what effect does serving a motion to dismiss have on the time required for a responsive pleading?

Answer 102

it extends the time to serve the pleading until 10 days after service of notice of entry of the order determining such motion.

Question 103

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?

Answer 103

any time by motion or in a subsequent pleading

Question 104

when is the earliest time for the making of a motion for summary judgment?

Answer 104

after service of the defendant’s answer

Question 105

what is the latest time for the making of a motion for summary judgment?

Answer 105

120 days following the note of issue

Question 106

what is a note of issue?

Answer 106

document that tells court discovery is over

Question 107

what happens if someone makes a motion for summary judgment late (even one day)?

Answer 107

it will be denied unless there is an excuse 44