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)