CPLR Flashcards
CPLR
Civil Practice Law and Rules
New York Courts - General Jurisdiction Court
Supreme Court is the only court of general subject matter jurisdiction
- power to hear any type of action
- 1 branch in each of the 62 counties (each county is the venue)
- if one NYS Supreme Court has subject matter jurisdiction then all branches have subject matter jurisdiction jurisdiction
Supreme Court - UNLIMITED Subject Matter Jurisdiction with regards to:
- Monetary damages (no min’s or max’s)
- Asserting equitable remedies
- Residency of the parties
- Place where the cause of action arose
Supreme Court - Forum Non-Conveniens
Although it has SMJ, the court may to dismiss action based on forum non-conveniens when there is no substantial nexus to NY and the Defendant makes a motion
Supreme Court - UNLIMITED Subject Matter Jurisdiction
EXCEPTIONS:
- Where federal law confers exclusive jurisdiction on federal courts (bankruptcy, patents, copyrights); and
- Claims for money damages in tort or contract against NYS must be brought in the Court of Claims (not judicial review of admin decisions!).
Court of Claims - Jurisdiction
NYS is the only party that can be a Defendant in the Cour to Claims.
Employees of the state, Gov’t subdivisions, must be sued in Supreme Court.
Supreme Court - Exclusive Subject Matter Jurisdiction
- Matrimonial Actions - status! (divorce, separation, annulment)
- CPLR Art. 78 Judicial review of government administrative actions
- Declaratory judgment actions
Statute of Limitations (“SoL”) - Defined
An affirmative defense, based on the passage of time, to be raised by the D.
SoL - When does it run?
When the cause of action ACCRUES
SoL - Accrual for Personal Injury & Contract
- Personal Injury - 3 years and accrues on the date of injury
- Breach of K - 6 years and accrues on the date of breach
SoL - Discovery & Accrual
NYS does NOT use “discovery” for the cause of action to accrue even if P is unaware of injury or breach.
- Injured fetus that is born alive has a cause of action that accrues on the date of birth.
- EXC - Fraud
SoL - Commencement
Action must be COMMENCED no later than the last day proscribed by SoL- summons & complaint or summons w/ notice
SoL - Accrual Calculation
Exclude the day upon which the triggering event occurs and begin counting the next day.- TIP: Last day to commence an action will be the anniversary date
SoL - Accrual: Holidays and Weekends
If the LAST day falls on a weekend or holiday, P has until the next business day to commence.
SoL - Action on judgment
20 years.
SoL - Action to Recover Real Property
10 years.
SoL - Action by crime victim against convicted D for serious crime
10 years.Runs from date of CONVICTION.
P also has 3 years to sue from discovery of D’s receipt of money or property.
SoL - Action by crime victim against convicted D for any crime
7 years from date of CRIME
SoL - Breach of Contract
6 years from date of breach
SoL - Indemnity & Contribution
6 years from date of payment for which indemnity or contribution is sought.
SoL - Fraud
6 years from commission
OR
2 years from discovery, whichever is longer
SoL - Equity Actions (rescission, reformation, accounting)
6 years.
SoL - Victim of Rape-related Felony
5 years from date of crime;
and
5 extra years from termination of the criminal proceeding
SoL - UCC Art 2 Contracts
4 Years
Breach of warranty claim accrues upon tender of delivery
SoL - Negligence & Strict Products Liability
3 years from injury
EXCEPT: toxic substances gets date of discovery
SoL - Products Liability
- Negligence - 3 years from injury
- Strict Products Liability - 3 years from injury
- Breach of Warranty - 4 years for sales from date of product delivery (by each D separately down the chain)
SoL - Property Damage (conversion & replevin)
3 years
SoL - Non-medical Professional Malpractice
3 years when services are completed regardless of awareness.
- SoL is EXCLUSIVE to other SoL’s
- 3 years from date of bodily injury (not date of work completion) (eg. from building collapse)
SoL - Old Buildings
When PI claim is brought more than 10 years after the building was completed
- P must service notice at least 90 days before suit
- P may obtain pre-action discovery from the potential D during the 90 day waiting period
- If D moves for SJ, P has the burden to show “substantial basis” to believe D’s negligence was the proximate cause of the injuries.
SoL - Toxic Substances
3 year SoL accrues when the earlier of either:
- Discovery
- Should have been discovered reasonably
SoL - Medical, Dental, & Podiatric Malpractice
2.5 years accruing on date of malpractice
EXCEPTIONS:
- continuous treatment (tolls until end of treatment for same condition)
- foreign object: 1 year from discovery or 2.5 years from operation, whichever is later.
SoL - Wrongful Death
2 years from date of death
SO LONG AS
he had a timely cause of action on date of death
SoL - Survival Action
If P dies before SoL expires, the estate gets the longer of:
- Time remaining on applicable SoL, or
- 1 year from date of death.
SoL - Personal Injury & Property Damages against Municipal D’s
Notice of Claim - 90 days
Suit filed at least 30d after notice.
No notice = failure to state cause
Commencement - 1 year 90 days
SoL - Municipal D’s Notice
After service of the notice of claim, P must wait 30 days and then commence the action but MUST plead compliance with the notice of claim requirement.
SoL - Intentional Torts to the Person
1 year
SoL - Article 78 Proceedings
4 months
SoL Tolls
- D’s absence
- P’s Infancy or Insanity
- Death
- 6-month grace period
SoL Tolls - Absence
- If D is not in NY when cause of action accrues, SoL does not begin to run until D returns to NY; or
- Continuous absence for at least 4 months, then toll applies to entire period of absence.
SoL Tolls - Absence EXC
usually defeats absence toll!
No toll if P has basis for PJ over absent D such that process could be validly served on D outside NYS.
e.g. long arm jurisdiction (tortious act in NYS)
SoL Tolls - Infancy & Insanity
Under 18 or insane (P turns 18 or insanity ends)
- If SoL was 3 year or MORE, P gets the longer of
a. usual SoL period with usual date of accrual; or
b. 3 years from date disability ends - If SoL was less than 3 years P gets the specific SoL once the disability ends.
SoL Tolls - Disability/Infancy - 10 Year Exceptions
- If infancy, medical malpractice barred after 10 years from date of accrual.
- Insane P’s must bring all actions by 10 years.
SoL Tolls - Defendant’s Death
18 months are added to the applicable underlying SoL, for suit against D’s estate.
SoL Tolls - 6 Month Grace Period
If action is dismissed BEFORE trial AND SoL has expired or has less than 6 months remaining, P gets an extra 6 months.
SoL Tolls - 6 Month Grace Period Exceptions
- Dismissal on the merits
- Voluntary discontinuance by P
- Dismissal because of P’s neglect to prosecute with a GENERAL pattern of delay.
- Dismissal was for lack of PERSONAL JURISDICTION (not subject matter!)
SoL - Borrowing Statute
different states’ SoLs
If cause of action arose in a different state:
1. Non-resident P will ALWAYS get the shorter of the two state’s SoL’s
2. NYS resident P will ALWAYS get the NYS SoL.
(Measure residency when claim arose)
(anti forum-shopping)
Personal Jurisdiction Req’s
- Proper commencement
- Proper service of process on the D
- Proper basis of jurisdiction over the person or property involved in the action.
Commencement Procedures
- Summons with Notice, or
- summons and complaint;
with - the County Clerk (for supreme court actions)
- Purchase an index number
Commencement & SoL
- Commencement must be completed before SoL expires, then
2. Service of process MUST be served within 120 days from filing with county clerk
Service of Process Deadline Exceptions
Upon P’s motion, the court has discretion to waive the 120 day requirement if
- good cause (due diligence to serve process)
- interests of justice
Summons with Notice
Must have sufficient “notice” inscribed on the face of the summons or on a one-page attachment consisting of
1. Brief statement of nature of the action
2. Type of relief being sought
3. Amount of damages, if any
EXCEPT: Damages may NOT be stated in pleadings for wrongful death or personal injuries.
Naked Summons
Not notice or complaint - Defective personal jurisdiction and subject to dismissal.
Service of Process - Who May Serve?
18 year old so long as server is NOT a party to the action.
Methods of Serving Process - Days of the Week
Process may be served on any day of the week EXCEPT Sunday.
Methods of Serving Process - Saturday Sabbath
If D is a Saturday sabbath observer and P knows, then service can’t be completed.
Methods of Serving Process - Holidays
Service of process can be served on a holiday EXCEPT Sundays and Sabbath-observed Saturdays
Service of Process - Actual Notice
Irrelevant. It’s all about statutory formalities.
Methods of Serving Process - Natural Persons (5 Methods)
- Personal Delivery to D
- Leave and Mail
- Nail and Mail
- Expedient Service
- Designated Agent
Methods of Serving Process - Personal Delivery
Complete upon server’s tender of summons directly to D
Service of Process - Personal Delivery & D Refuses
If D refuses to accept personal delivery of process, the server may leave summons in D’s “immediate vicinity”.
Service of Process - Leave and Mail
- Deliver process to a person of suitable age and discretion to D’s ACTUAL residence or place of business
- Mail a copy to D’s LAST KNOWN residence or place of business within 20 days of delivery.
- All must be done within 120 days of filing.
Service of Process - Suitable Age and Discretion
Teenagers are old enough, 12 year old is not.
Service of Process - Nail and Mail
- Affix service on D’s ACTUAL residence or place of business; and
- Mail it to LAST KNOWN residence or place of business within 20 days of affixing.
- All must be done within 120 days of filing.
- Only after due diligence in serving process another way (like visiting a few times).
Service of Process - Nail and Mail Due Diligence
Attempting service at different times of the day and different days of the week.
Service of Process - Proof of Service
-After Leave and Mail or Nail and Mail P must file an affidavit describing date, time, place, person served, etc).
- Service is complete 10 days after proof is filed, triggering response time.
*Failure is not fatal to jurisdiction, it just delays D’s response time
(No affidavit required for personal delivery)
Service of Process - Expedient Service
Available only when other methods are not practicable
- P may make an ex parte motion for a court order allowing “expedient” method
- reasonable alternative appropriate in the circumstances
Service of Process - Designated Agent
Party expressly specifies agent upon whom process may be served in dispute arising from contract.
Service of Process - Infants
Process must be served on an adult
- Parent
- Guardian
- Any person having legal custody
- Adult spouse
Service of Process - 14+ y/o Infant
Must serve a parent, guardian, custodian, adult spouse
AND
- the infant
Service of Process - Incapacitated w/ Court Appointed Guardian
Must serve
1. mentally incapacitated D
AND
2. court appointed guardian
Service of Process - Who May Service Process to D Outside NYS
- Any NY resident 18+ y/o
- Anyone authorized to serve process in the jurisdiction where service is made
- Any attorney who is licensed in the jurisdiction where process is served.
Service of Process - Methods of Service to D Outside NYS
ONLY NY methods are recognized regardless of where process is served.
(contrast with WHO may serve which is according to that state)
Service of Process - Corporations
2 methods
(Can’t use leave, nail, etc with corps)
- Personal delivery
2. NY Secretary of State
Service of Process - Personal Delivery to Corporations
- Officer
- Director
- Designated agent
- Managing agent
Service of Process - Corporations & NY Secretary of State
- For NY corps or foreign corps authorized to do business in NY
- 2 copies of process to the Office of the NY Secretary of State
Service of Process - Unlicensed Foreign Corporations
- 1 copy to NY Secretary of State
2. P mails 1 copy to corporation by certified mail, return receipt requested.
Service of Process - First Class Mail & Acknowledgement
Not infants or mentally incapacitated
- P mails service to D by first-class mail, including two copies of a statutory acknowledgement form, plus a return envelope, postage prepaid, addressed to sender.
- D signs and returns one of the acknowledgement forms to P within 30 days after receipt of mailed process.
* Refusal: Must serve traditionally, and D bears costs.
Personal Jurisdiction - 2 Types
- General jurisdiction
- Specific jurisdiction
(Need one or the other)
General Personal Jurisdiction - 3 Types
- D’s presence in NY
- Doing business in NY
- Domiciled in NY
General PJ - Presence in NY
Personal delivery of process while D is physically present in NY.
General PJ - Doing Business in NY
Unlicensed foreign corp. is “doing business” and therefore “present” in NYS if:
Corp’s employees/agents in NY are engaged in regular, systematic, and ongoing commercial activity.
General PJ - Doing Business in NY Limitations (3)
The following, alone, do NOT constitue “doing business” in NY for PJ purposes:
- Mere sales of products in NY
- Mere advertising/soliciting in NY
- Transient presence of corp officer in NY
General PJ - Doing Business in NY: Most Significant Factor
Office or physical facility in NY, with employees coming and going on a regular basis.
General PJ - Domiciled in NY
A NY domiciliary can be served with process ANYWHERE in the U.S.
Specific Personal Jurisdiction - 3 Types
- Long arm
- Non-resident motorist statute
- Consent
SPJ - Long Arm Statute (5 Categories)
- P’s claim arises from D’s transaction of business in NY.
- A K where D supplies goods or services in NY
- D’s tortious act in NY
- D tortious act outside NY
- Property interest
SPJ - Long Arm Statute: D’s Transaction
- 1 transaction is enough
- Negotiating a K is enough
- Substantial phone calls & emails is sufficient, but only 1 phone call is not.
- Cause of action must arise from that transaction
SPJ - Long Arm Statute: D’s Supply K
P’s claim arises from a contract transacted ANYWHERE upon which D agrees to SUPPLY goods or services in NY.
- K to pay a debt is insufficient
SPJ - Long Arm Statute: D’s tortious act in NY
D commits a tort while in NY - doesn’t matter if he stays in NY or leaves.
SPJ - Long Arm Statute: D’s tortious act outside NY
- D commits a tort outside NY
- Causing injury inside NY; and
- An additional link to NY (one of):
a. D regularly solicits business in NY
b. D derives substantial revenue from NY
c. D reasonably expects consequences in NY & derives substantial revenue from interstate commerce that PURPOSEFULLY directed toward NY.
SPJ - Long Arm Statute: Medical Treatment
Medical treatment, even by a specialist, is “inherently local.” (If rendered outside NY - no long-arm jurisdiction)
SPJ - Long Arm Statute: Defamation?
Defamation claims are excluded from both of the tortious act categories.
(Unless it arises from business transacted in NY)
SPJ - Long Arm Statute: Property
P’s claim arises from D’s ownership, use, or possession of real property in NY.
Personal Jurisdiction - Essay Points
- Discuss whether P can establish PJ under any non-long-arm categories (list them!)
- Discuss whether facts of P’s case fall within one or more of the long-arm categories (list them!)
- Briefly discuss whether PJ would satisfy constitutional due process (see test in next slide)
SPJ - Due Process test for Long Arm
Conduct by the D that is so purposefully directed towards NY that D should reasonably anticipate being sued on that claim in NY.
SPJ - Non-Resident Motorist Statute
Confers PJ over DRIVER or OWNER claims arising out of a non-domiciliary motorist’s ownership or use of an auto on a NY roadway.
SPJ - Non-Resident Motorist Service of Process
P serves process on D by personally serving one copy on the NY Secretary of State;
AND
mailing a second copy to D by certified mail to D’s out-of-state-residence.
SPJ - Consent
Forum selection clauses in contracts
Matrimonial Jurisdiction
- Only the Supreme Court has jurisdiction over matrimonial action
- No PERSONAL JURISDICTION necessary - In Rem jurisdiction is sufficient
- It is sufficient if P seeking divorce is a domiciliary of NY –> “Marital status exists in NY”
Matrimonial Jurisdiction - Monetary Support & Long Arm
When P-spouse is a resident of NY, long-arm jurisdiction can be acquired over D-spouse for MONETARY SUPPORT if:
- NY was the matrimonial domicile of P & D prior to their separation; or
- D abandoned P in NY; or
- D’s monetary obligation accrued under an agreement executed in NY (separation agreement), or
- D’s monetary obligation accrued “under the laws of NY.”
Matrimonial Jurisdiction - Service of Process
- Personal delivery only!!
or - Any other method with a Court order.
Matrimony - Durational Residency Requirements
P must allege satisfaction of any 1 of 3 optional durational residency categories or else action fails on the MERITS:
- Both parties NY residents
- 1y residency
- 2y residency
(Failure to show –> failure to state cause of action, not jurisdictional problem)
Durational Residency - No Residency Requirement
If both parties are NY residents at the time the action is commenced AND the grounds for the action arose in NY
Durational Residency - 1 Year Residency
1 year prior residency of either party AND ONE OF:
- Marriage took place in NY
- NY was the matrimonial domicile
- Grounds for divorce arose in NY
Durational Residency - 2 Year Residency
If either party has been a NY resident for 2 years then that is sufficient
Venue
Not jurisdictional and therefore not a basis for dismissal. Administrative rules to determine which county
Venue - Real Property
case affecting title or possession
Proper venue is the county in NY where the real property is located.
Venue - All Other Actions
Any county in NY in which any one party resides at the time action is commenced.
* If no party resides in NY then P can choose any county.
Venue - Improper Venue
- D’s remedy for improper venue is to serve a demand for a change of venue to a proper county designated by D.
- If P objects or fail to respond, then D must make a motion
Venue - Discretionary Changes
by motion
- The convenience of material witnesses
2. Impartial trial cannot be obtained in current county-venue.
Defendant’s Response
D can response to the summons and complaint by
- Answer
- Pre-answer motion to dismiss
Defendant’s Response - Answer
Answer contains:
- Denials (failure to deny is an implied admission)
- Affirmative defenses (not raised are waived)
- Cross claims
- Counter claims
Defendant’s Response - Nonwaived Defenses
- Nonjoinder of a necessary party
- failure to state a cause of action
- lack of subject matter jurisdiction
Plaintiff’s “Reply”
P’s response to D’s counter claims
Serving Answer & Interlocutory Papers
- First class mail from a post-office in NY(!!)
2. Service is effectuated on the date of mailing (mailbox rule)
Serving Answer Time Limits: When D was served by personal delivery in NY
D must serve ANSWER within 20 days of delivery
Serving Answer Time LImits: When D was served by First Class Mail & Acknowledgement
D must serve ANSWER within 20 days of D mailing acknowledgement
Serving Answer Time Limits:
D served Under Any Other Circumstances
D must serve ANSWER within 30 days after service is complete.
Motion to Dismiss - Affirmative Defenses
Which may be asserted in PRE-Answer MtD?
[DOWNFALL]
Documentary evidence Other action pending Want of P's capacity Non - joinder of necessary party Failure to state a cause of action Additional affirmative defenses [SPARERIBS - see later slide] Lack of personal jurisdiction Lack of subject matter jurisdiction
MtD - Failure to State a Cause of action:
P is entitled to:
every favorable inference that can be drawn from the allegations in the complaint
MtD Failure to State a Cause of Action:
MtD should be denied if
there is any basis for relief under the substantive law
MtD Additional Affirmative Defenses
Statute of limitations Payment of debt Arbitration award Release Estoppel (collateral) Res judicata Infancy Bankruptcy discharge Statute of frauds
MtD - Procedural Aspects
- Must be made on or before time limit for serving the answer
- Making the MtD extends D’s time to serve the answer (10d after denial).
- MtD is D’s option - defenses may be put in Answer instead.
MtD - Defense ALWAYS waived if not raised in MtD
Lack of personal jurisdiction
MtD - Defenses Never Waived
- Non-joinder of a necessary party
- Failure to state a cause of action
- Lack of subject matter jurisdiction
MtD - Are the waivable defenses waived by not mentioning in MtD?
Only IMPROPER SERVICE is waived by not being raised in MtD. Others can be raised in Answer.
*If lack of PJ is for IMPROPER SERVICE , D must also file MSJ for improper service within 60 days of serving answer.
Responses to Summons with Notice
- Demand for complaint; or
2. Notice of appearance
D’s Time Limit for Responding to Summons with Notice
Same as responding to summons and complaint
- 20 days if served by personal delivery in NY
- 20 days from acknowledgement
- 30 days in all other circumstances after service is complete
P’s Failure to Serve Complaint within 20 days
- Show reasonable excuse for delay; and
2. make an evidentiary showing of merit (affidavit)
Amending Pleadings - Time Frame
Each party may amend pleadings 1 time
within 20 days of D serving answer.
Motion to Amend - Court’s discretion
- Court’s discretion
- allowed if opponent will suffer no incurable prejudice
Motion to Amend - Prejudice
A “detrimental change in position” as a result of the delay.
- destruction of documents
- death or disappearance of key witness
Impleader - Conditional Cause of Action
If I’m liable then you have to reimburse me.
Impleader - Steps for Joining Third Party D
D must
- File a summons & 3rd party complaint with the county clerk; and
- Serve a copy of the summons and third party complaint on the TPD within 120 days of filing.
Impleader - TPD’s Answer
TPD must serve an answer on ALL parties within 20 or 30 days, depending on the method of service of process.
Impleader - P’s Amending
After TBD is joined, P may amend pleadings to make TBD a direct defendant if she does so within 20 days of receiving TPD’s answer.
Impleader - SoL
RULE: P’s amendment making TBD a direct D must fall within the SoL.
EXCEPTION: P can use the impleader date IF:
1. P claim against TPD arises out of the same transaction or occurrence as D’s impleader cause of action; AND
2. P’s claim would have been timely on the date TPD was impleaded.
Indemnity Defined
Shift 100% of the responsibility to the TPD to make them pay everything.
Indemnity - Methods
- Contract
- Implied-in-law indemnity
- Products liability (retailer - manufacturer)
- Vicarious liability
Contribution Defined
Sharing of the loss - apportionment - among multiple tortfeasors who are all actual participants in the tort. Mitigates the harshness of joint and several liability.
Contribution - Intentional Torts
MS - No contribution ###
NY - Allowed in all tort cases.
Contribution & Indemnity - Methods of Assertion
- If P originally joined the tortfeasors as co-D’s, they can assert CROSS CLAIMS
- If P omits a tortfeasor, D can IMPLEAD the TPD
- D may sue TPD in a separate action.
**Res judicata and collateral estoppel will not apply agains the TPD who has not had his day in court.
Contribution - Equations
- Equal shares (minority viewpoint) - # of D’s divided into judgment amount REGARDLESS of individual percentages of fault (ABSURD)
- Comparative Degrees of Fault (MS & NY) - A tortfeasor is entitled to the excess he actually paid
Contribution - General Rule
A right to contribution exists whenever TPD breached a duty in tort which contributed to the damages for which D may be help liable to P, regardless of whether TPD is liable to P.
Contribution - Worker’s Comp Limitations
MS: TPD has no right of contribution or indemnity against the employer
NY: TPD generally has no right against employer, UNLESS P sustained a “grave” injury.
*Grave = death, dismemberment, or loss of use of an organ or sense.
Contribution - Successive Tortfeasors
Original D can seek contribution from foreseeable, proximate causal successive tort feasors
Contribution - SoL
A claim for contribution has a SoL of 6 years, accruing on the day judgment is paid.
Important for successive tortfeasors - impleaded TPD with proximate cause whose independent tort has run out of SoL - is still liable as TPD.
Multiple D’s - Settlement Reduction Formula
If one D settles, any judgment for P against a non-settling D must be reduced by THE LARGER OF
- the amount of the settlement, OR
- the settling tortfeasor’s equitable share of the fault
Contribution - Effect of Settlement
A party who settles CANNOT be sued and CANNOT sue for contribution.
Indemnity - Effect of Settlement
A party who settles CAN sue and can be sued for indemnity.
Personal Injury & Joint Several Liability
NY modification
CPLR Article 16
Joint tortfeasor can only be required to pay her own share of non-economic damages if the tortfeasor is:
1. 50% or less at fault; and
2. P suffered non-economic damages.
CPLR Article 16 - irrelevant to these torts which have no non-economic damages
- wrongful death; and
2. property damage
Tortfeasors Subject to Full Joint and Several Liability for All Damages
- Intentional or reckless D’s
2. D’s who release HAZARDOUS substances.
Motion (defined)
An application to the court for a court order.
Motions on Notice (Components)
- Notice of Motion served on opponent w/ return date
- 1 or more affidavits of facts
- Optional memorandum of law
Motion on Notice - When is it Made?
When motion papers are SERVED on opponent (if by mail -> mailbox rule)
Motions on Notice - Return Date
- Return date is the “hearing date” for the motion- Motion must be served at least 8 days before return date.
Montion - Order to show cause
Prelim order signed by judge. Judge gives notice. Reasons: - Accelerating return date (can be <8) - Judge can grant immediate TRO - Some statutes require
Motion - Service of order Two effects of service?
Prevailing party must enter with clerk, then serve order with entry notice to other party.
- gives effect to order
- startes 30-day appeal clock
Motions on Notice - Appeals
- Interlocutory appeal (NY only)
2. Appeal after final judgment (other states, or if no appeal of interlocutory judgment)
Motions on Notice - Interlocutory Appeal
Appealing party must FILE and SERVE a notice of appeal within 30 days from service of the order or judgment, with notice of entry
Ex Parte Motions
Only with “express statutory authorization”
(Default - when on notice)
No appeal. Aggrieved party may make “motion on notice” to vacate ex parte order, if denied may appeal the denial.
Motion for Summary Judgment (MSJ) - Defined
MSJ will be granted when the is no genuine issue of material fact requiring a trial.
MSJ - Timing
MSJ can be made 1. as EARLY as after service of D’s answer; and
2. as LATE as 120 days from filing Note of Issue.
[contrast with MtD which is usually before answer]
MSJ - Evidence
Affidavits, relevant docs, & discovery materials
MSJ - Affidavits
Affidavit witness must have PERSONAL knowledge of the facts in issue.
MSJ - Defeating an MSJ
- Provide contrary evidence showing a TRIABLE ISSUE OF FACT
2. P cannot simply rely on the pleadings (because they are not evidence).
MSJ - Judgment for Either Side / Boomerang effect
After “searching” the case record, the court could conclude that either side (not just the moving side) is entitled to SJ.
MSJ - Partial Summary Judgment
The court can grant SJ on, e.g., liability, and then grant an immediate trial on the issue of damages.
MSJ - Pre-Answer (2 Situations)
- The court’s conversion of a MtD for failure to state a cause of action
- MSJ in lieu of a complaint by accompanying the summons with MSJ (סדר דין מקוצר)
MSJ - MtD Conversion (Requirements)
- At least 1 party has submitted factual affidavits
2. Court must give notice to the parties so they can submit additional evidence
MSJ - In Lieu of a Complaint (2 Situations)
- An action on an instrument for payment of money only (promissory note)
- Suing to enforce an out-of-state judgment
MSJ in lieu of complaint
Filing procedure?
File with court
Serves summons, notice of MSJ with docs and affidavits.
Return date - same as response time - 20/30d.
Provisional Remedies (5) (security to P for ultimate enforcement of potential judgment)
- Attachment
- Preliminary Injunction
- Temporary receivership
- Order to seize chattel (replevin)
- Notice of pendency (lis pendens)
Which remedies require court order?
All except lis pendens.
Attachment - Sheriff’s Procedure for Real Property
Sheriff files order of attachment with the county clerk where property is located.
Attachment - Property Types
- Real property
- Tangible personal property (cars, boats)
- A debtor (D’s bank account)
Attachment - Sheriff’s Procedure for Personal Property
Constructive seizure- delivers order of attachment to person in NY who is holding D’s personal property interest.
Attachment - Types of Actions
P must be seeking money damages; AND ONE OF:
1. D is an unlicensed foreign corporation or 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.
OR
3. D is a NY domiciliary but cannot be found and served.
Attachment - Motion Requirements
- Affidavits must show at least 1 ground for attachment
- Affidavits must show probability of success on the merits
- P must provide an undertaking (a bond) to indemnify the D for any damages or expenses caused by attachment
Attachment - Damages to D
D is entitled to damages and expenses caused by the attachment if:
- Attachment was procedurally deficient; OR
- D wins the case on the merits.
Attachment - Ex parte Due Process
Due process requires D must have opportunity for a PROMPT hearing after levy on his property.
After levy, P must make a motion on notice to confirm ex parte order with an order to show cause (with an accelerated return date).
Without this - attachment void.
Attachment - Ex Parte Notice - when?
- 10 days if D is a foreign entity
2. 5 days if D is fraudulently moving assets out of NYS.
Preliminary Injunction
Used to maintain the status quo while an equity action is pending.
Available if P’s complaint seeks either:
1. A permanent injunction; or
2. D threatens to harm P’s interests in the subject matter of the action.
Preliminary Injunction - Limitation
An action seeking ONLY money damages is not eligible for a preliminary injunction.
Preliminary Injunction - Procedure
Motion for preliminary injunction must be a “motion on notice” with
- grounds for equitable relief including threat for irreparable injury
- probability of success on the merits in the underlying cause of action
- undertaking to indemnify the D for damages
Temporary Restraining Order (“TRO”)
Places an immediate restraint while the motion for preliminary injunction is pending.
TRO - Procedure
- P starts action seeking equitable relief
- P moves to a preliminary injunction to maintain status quo until overall action is resolved
- In the order to show cause, P requests TRO to obtain immediate injunctive relief
(As in any ex parte - need affidavit demonstrating “significant prejudice”.
Temporary Receivership
Person appointed by the court to manage D’s property
Temporary Receivership - Types of Action
P must allege an equity claim where specific property is the subject matter of the action;
AND
there is a danger that D will injure or destroy the value of the property while the action is pending.
Temporary Receivership - Motion
Motion on notice only. No ex parte motions allowed.
Seizure of Chattel - Types of Actions
Available only in an action that seeks to recover possession of a chattel.
Seizure of Chattel - Procedure
- P’s affidavit will show likelihood of success on the merits
- P must provide an undertaking to indemnify the D for damages.
Seizure of Chattel - Motions Types
- On notice; or
2. Ex parte
Seizure of Chattel - Ex Parte Requirements
P must show
- threat of immediate loss of chattel
- P must make a follow up motion on notice to confirm ex parte order.
Notice of Pendency - Define
Equity action in which the judgment will have a direct effect on REAL PROPERTY
- Notice provides renders title unmarketable.
- Statutorily required in a mortgage foreclosure.
Notice of Pendency - Procedure
P files a notice of pendency with the County Clerk in the county where the property is located.
- NO COURT ORDER OR UNDERTAKING REQUIRED! NO BOND!
Notice of Pendency - D’s Remedy
D must make a motion to cancel the notice of pendency
Notice of Pendency - Duration
Effective for 3 years and eligible for a 3 year extension (if application made before expiration, otherwise gone forever, EXC mortgage)
TRIAL PROCEDURES
Note of Issue
After discovery is complete and the case is ready for trial, either party can file a NOTE OF ISSUE to place the matter on the court’s trial calendar.
How to Request a Jury Trial?
Note of issue - party that files it waives right to jury.
Non-filing party can file separate demand for a jury.
What Civil Actions Have Right to Jury Trial?
- An action seeking SOLELY money damages
- Replevin - action to recover possession of chattel
- Claim to real property
- Annulment of a marriage
- Divorce grounds (not alimony)
Civil Actions - Jury Vote
5 out of 6 is sufficient for a verdict.
Res Judicata
“Claim preclusion” - purpose is to avoid re-litigation of the same CLAIM
Res Judicata - NY “Transactional Approach”
When a claim against a particular defendant has been brought to a final judgment on the merits, all other claims by the P against that D will are barred IF:-the other claims arise out of the same “transaction or occurrence”.
Res Judicata - NY Transactional Approach EXCEPTION
Matrimonial disputes - abuse
Collateral Estoppel
“Issue preclusion”
Collateral Estoppel (3 Req’s)
- Common issue must be IDENTICAL; and
- Issue was actually litigated and decided in the former proceeding
- Party against whom issue preclusion is asserted had a FULL and FAIR opportunity to litigate that issue in the former proceeding.
Arbitration
Agreement through contract by the parties to resolve dispute through a neutral decision maker
Arbitration - 2 Characteristics
- Arbitrators are NOT bound by specific and substantive rules of law
- the scope of judicial review is extremely narrow
Arbitration - NY Public Policy
NY public policy FAVORS arbitration
Arbitration - Judicial Threshold Issues
can be presented to the court to avoid arbitration
- Did parties agree to arbitrate?
- Is the dispute within the scope of the arbitration clause?
- Is the clause valid?
- Compliance with express condition precedent to arbitration, if any?
- SoL
Arbitration - Contract
- Agreement must be in writing
- Agreement must be clear, express, and unequivocal
- Right to arbitrate need NOT be mutual
Arbitration - Invalid Contract Clause
Invalid only if it was induced by fraud, duress, coercion, or barred by public policy
Arbitration - Clause Severability
Validity of arbitration clause is analyzed independently from the overall K.
Party must show the clause itself was invalid.
Arbitration - Req’s for Judicial Review
- Corruption, fraud, or misconduct in the arbitration proceeding; or
- Bias of the arbitrator
- Arbitrator exceeded his powers (no punitive damages)
Arbitration:
How to move matter to arbitration
If action pending:
Motion to compel arbitration and stay civil action.
If not yet pending:
Serve counterparty with “notice of intention to arbitrate” (same procedure as summons).
Arbitration:
How to stop arbitration
Special proceeding for stay of arbitration
within 20 days of receipt of notice of intent to arbitrate.
Arbitration: What awards are not available in NY?
Punitive damages.
Other ADRs:
Mediation, neutral evaluation, summary jury trial
Creatures of contract
NY favors ADR, courts can recommend.
Other ADRs:
How different from arbitration?
- Usually non-binding
2. No specific statutory rules
Summary jury trial
Requires agreement with participation of the court.
Condensed version of real trial. One day!
Can be non binding (usual).
Parties can question jurors after verdict!
Article 78 Proceeding
Judicial review of state or local government, quasi-gov’t, or government official.
Article 78 - 3 Prerogative Writs
- Mandamus to compel2. Prohibition3. Certiorari
Article 78 Writ of Mandamus
To compel the performance of an act required by law without discretion
Article 78 Mandamus - Corporation
Corporations are considered quasi-gov’t entities because they exist due to state law.
Article 78 - Writ of Prohibition
To stop a judicial officer form exercising power that GROSSLY exceeds the officer’s lawful jurisdiction.
Article 78 - Writ of Certiorari
A proceeding to challenge the results of a “trial-type” hearing conducted by an administrative agency.Court must uphold the decision if agency’s decision was substantiated by substantial evidence.
Article 78 Remedies
- Declaratory
- Injunctive
- Damages that are incidental to the declaratory or injunctive relief.
Article 78 - Mandamus to Review
A proceeding to review any type of administrative action not covered by other Article 78 proceedings.- “arbitrary or capricious” standard.
Article 78 - Original Jurisdiction
Supreme Court exclusively
Special proceedings - if lawsuit erroneously filed as special proceeding
Court has discretion to convert into regular action
Article 78 Proceedings - SoL
4 months.
Special proceedings
Streamlined procedure for specific matters - will probate, eviction, habeas corpus, etc
Special proceedings - if lawsuit erroneously filed as special proceeding
Court has discretion to convert into regular action
Special proceedings - procedure for commencement
Petitioner files petitionServe on respondent - same as in action.Return date at least 8 days after service.EXC: Article 78 - 20 days.Accelerated return date can be initiated by show cause order.
