CPLR, Evidence & Professional Responsibility

Question 1

Service of In-Hand Complaint

Answer 1

Under the CPLR, a defendant has 20 days to answer the complaint where it is served in-hand in NY State, and 30 days for any other method of service.

Question 2

CPLR 3211 Motion to Dismiss

Answer 2

Under the CPLR 3211, the court properly grants a motion to dismiss where, taking the allegations of the complaint in the light most favorable to the plaintiff, the complaint fails to state a cause of action on which relief may be granted.

Question 3

CPLR 3212 Motion for Summary Judgment

Answer 3

Under the CPLR 3212, the court properly grants a motion for summary judgment where, taking affidavits and other facts in the case in the light most favorable to the non-moving party, the case presents no triable issue of fact but may be decided entirely as a question of law.

Question 4

Bases of Personal Jurisdiction

Answer 4

Under the CPLR, the 5 traditional bases of personal jurisdiction are:

1. New York domiciliary,
2. Personally served in the state,
3. Doing business in New York State,
4. Contractual Agreement, AND
5. Designation of an in state agent for receipt of service of process.

Question 5

CPLR 302(a) Long Arm Statute

Answer 5

Under the CPLR 302(a), personal jurisdiction may be attained over a non-domiciliary, executor/administrator, who in person or through an agent if defendant:

1. Transacts any business or contracts anywhere to supply goods or services within the state,
2. Commits tortious act within the state (except defamation),
3. Commits tortious act outside state causing harm in state (except defamation) if he:

a. regularly solicits business, persistent cause of conduct, or derives “substantial revenue” from goods or services “used in states,” OR
b. reasonably expects the act to have consequences in the state or derives “substantial revenue” from “interstate or international commerce,” OR

4. Owns, uses, or possesses real property in the state.

Question 6

CPLR 302(b) Long Arm Statute - “DADA”

Answer 6

Under CPLR 302(b), in a New York matrimonial action in a NY Supreme Court, or a Family Court proceeding where a NY plaintiff is seeking maintenance and support, personal jurisdiction exists over non-domiciliary provided:

NY was the most recent marital DOMICILE of the parties

ABANDONMENT took place in NY

Claim for support accrued under a NY DECREE or under NY law

Parties executed a separation AGREEMENT in NY

Question 7

4 Types of Provisional Remedies (“RAIL”)

Answer 7

Receivership,
Attachment,
Preliminary Injunction,
Lis pendens

Question 8

Lis Pendens (aka Notice of Pendency)

Answer 8

Under the CPLR, a lis pendens may be filed in any action where the judgment demanded would affect title, possession, use or enjoyment of real property. Filing of the pendency places future bona fide purchasers on constructive notice that their title may be subject to plaintiff’s judgment.

A lis pendens is not reviewable by a court, but it must be served on the defendant within 30 days.

A lis pendens is effective for three years from the date of filing and before the expiration of this period, a plaintiff may file for an extension of pendency.

Question 9

Preliminary Injunction - “MILE”

Answer 9

Under the CPLR, an injunction is a proper remedy only where:

1. MONEY damages are not available,
2. There will be IMMEDIATE and irreparable harm,
3. There is a LIKELIHOOD of success on the merits, AND
4. The EQUITIES favor the moving party.

Question 10

Attachment

Answer 10

Under the CPLR, the court properly issues an order of attachment where:

1. The defendant is a non-domiciliary residing outside the state or a foreign corporation not qualified to do business in the state,
2. The defendant cannot be personally served in the state, despite diligent efforts,
3. The defendant, with the intent to defraud his creditors or frustrate the enforcement of a judgment, has assigned property or removed it from the state or is about to, OR
4. The cause of action is based on a judgment entitled to full faith and credit or judgment under Article 53 “Son of Sam” law relating to a defendant’s “ill gotten gains.”

Question 11

Temporary Receivership

Answer 11

Under the CPLR, a court properly appoints a temporary receiver to take control of and preserve property where there is danger that it may be removed or destroyed, during an action, and where plaintiff asserts a right in that specific property, not money damages.

Question 12

Article 78 Proceedings

Answer 12

Under the CPLR, an Article 78 proceeding is a special proceeding brought in NY Supreme Court against a state body or officers to determine whether they are performing the duties imposed on them by law.

Question 13

4 questions that may be raised in an Article 78 Proceeding - “SAFE”

Answer 13

1. Whether the determination made was supported by “SUBSTANTIAL evidence.”
2. Whether the determination was made in violation of legal procedure, or was affected by an error of law, was “ARBITRARY and capricious,” or was an abuse of discretion, including the penalty imposed.
3. Whether the body or officer “FAILED” to perform a duty enjoined upon it by law, OR
4. Whether the body or officer proceeded, is proceeding, or is about to proceed without or in “EXCESS” of jurisdiction.

Question 14

SOL: Action to recover payment for a money judgment

Answer 14

20 years

Question 15

SOL: For a claim of adverse possession against New York State

Answer 15

20 years

Question 16

SOL: To enforce an order or judgment for support, alimony, or maintenance

Answer 16

20 years

Question 17

SOL: For a claim to establish adverse possession or prescriptive easements

Answer 17

10 years

Question 18

SOL: Action by crime victim against convicted defendant

Answer 18

7 years

Question 19

SOL: Breach of Contract

Answer 19

6 years

Question 20

SOL: Indemnity/Contribution

Answer 20

6 years

Question 21

SOL: Action upon a mortgage

Answer 21

6 years

Question 22

SOL: By a corporation against a director, officer, or shareholder for an accounting fraud (including corporate derivative actions and constructive trusts)

Answer 22

6 years

Question 23

SOL: Mistake

Answer 23

6 years

Question 24

SOL: Equity actions

Answer 24

6 years

Question 25

SOL: Where no limitation is specifically prescribed by law

Answer 25

6 years

Question 26

SOL: Grounds for Divorce or Separation

Answer 26

5 years

Question 27

SOL: Breach of contract action under UCC Art. 2, including breach of warranty

Answer 27

4 years

Question 28

SOL: Action against a sheriff, constable or other officer for the non-payment of money collected upon an execution

Answer 28

3 years

Question 29

SOL: Action to recover a chattel (replevin) or damages for the taking or liability, prima facie tort

Answer 29

3 years

Question 30

SOL: Action to recover damages for malpractice, other than medical, dental, or podiatric

Answer 30

3 years, regardless of underlying theory (contract or tort)

Question 31

SOL: Action to annul a marriage on the ground of fraud

Answer 31

3 years, the time within which the action must be commenced shall be computed from the time the plaintiff discovered the fraud

Question 32

SOL: Nuisance

Answer 32

3 years

Question 33

SOL: Tortious interference with a contract

Answer 33

3 years

Question 34

SOL: Medical Malpractice

Answer 34

2 1/2 years

except:

1. continuous treatment,
2. foreign objects (1 year from discovery),
3. infancy (cannot extend the SOL beyond 10 years after the cause of action)

Question 35

SOL: Wrongful Death

Answer 35

2 years - brought by statutory beneficiaries

Question 36

SOL: Survival action

Answer 36

2 years

Question 37

SOL: Notice of Tort Claim Against a Municipality

Answer 37

1 year 90 days

Question 38

SOL: Intentional Torts

Answer 38

1 year

Question 39

SOL: Libel/Slander

Answer 39

1 year

Question 40

SOL: Malicious Prosecution

Answer 40

1 year

Question 41

SOL: Confirmation of Arbitration Award in Court

Answer 41

1 year

Question 42

SOL: Employment Discrimination

Answer 42

1 year

Question 43

SOL: Article 78 Proceeding

Answer 43

4 months

Question 44

SOL: Removal of State Action to Federal Court

Answer 44

30 days

Question 45

SOL: Notice of Appeal

Answer 45

30 days

Question 46

Under the New York CPLR, New York courts can assert long-arm jurisdiction if:

Answer 46

(1) the conduct is placed within the NY long-arm statute,
(2) there are minimum contacts, AND
(3) the notions of fair play and substantial justice are not offended.

Question 47

Partial Summary Judgment

Answer 47

Under the New York CPLR, a court may grant a motion for partial summary judgment, where appropriate, in order to expedite litigation. If liability is conclusively established, the court may award summary judgment on that issue and order a trial or inquest on the sole issue of damages.

Question 48

Joint & Several Liability

Answer 48

Joint tortfeasors are joint and severally liable for the collective injuries a plaintiff sustains from both tortfeasors. Under the New York CPLR, joint tortfeasors are held jointly and severally liable for the entire amount of plaintiff’s damages.

This means that the plaintiff may recover the full amount from either one of the defendants (but may not receive a double recovery).

However, there is a special rule regarding non-economic damages under CPLR Article 16. When a joint tortfeasor is found to be less than 50% liable, he is NOT required to contribute more than his equitable share for non-economic damages. This exception does not apply to intentional tortious acts, environmental hazardous waste defendants, and operators or owners of automobiles (except police or fire vehicles).

Question 49

Contribution

Answer 49

Contribution is a theory of recovery when there are joint tortfeasors. A joint tortfeasor will be liable to the plaintiff for 100% of the plaintiff’s injuries, but he can seek contribution from another joint tortfeasor if he pays more than his percentage share of liability. The amount that can be recovered in contribution is based on pure comparative fault and a defendant cannot recover from another joint tortfeasor more than that tortfeasor’s percentage share of fault.

Question 50

Limitation on Claims for Contribution in Worker’s Compensation Cases

Answer 50

Under NY Worker’s Compensation Law, a 3rd party may not obtain contribution from the injured party’s employer unless the employee has sustained a grave injury. Grave injury is defined as: death; total and permanent loss of an arm, leg, hand, or foot; loss of multiple fingers or toes; paraplegia or quadriplegia; total and permanent blindness or deafness; loss of nose; loss of ear; permanent and severe facial disfigurement; loss of an index finger; or permanent brain damage causing total disability. The New York Court of Appeals has strictly construed this definition.

Question 51

Collateral Estoppel

Answer 51

Issue preclusion.

Issue preclusion (collateral estoppel) precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction. Issue preclusion may be invoked if:

(1) the issue is identical with the issue decided in the prior action;
(2) the issue was actually and conclusively decided in the prior action; AND
(3) the party against whom enforcement is sought had a similar motive and opportunity to defend the claim in the first action. A non-party to a prior action may assert issue preclusion if the three part test above is satisfied.

Question 52

Res Judicata

Answer 52

Claim preclusion.

Claim preclusion (res judicata) bars a party from re-litigating any issue in a case where there has already been a final judgment on the merits by a court of competent jurisdiction.

It is only applicable where the two parties are the same in both actions.

Question 53

NY Court Involvement in Pre-Arbitration Matters

Answer 53

In New York, the policy is to favor arbitration and courts are limited in their ability to review arbitration awards. An objection to an arbitration proceeding must be made within 20 days from the receipt of the notice of intention to arbitrate.

A court will only involve itself in the following matters presented to the court in an attempt to avoid arbitration:

(1) whether there was an enforceable agreement to arbitrate and the scope of that agreement;
(2) the arbitration agreement is subject to a condition precedent which has not been complied with; and
(3) whether the underlying claim is barred by res judicata or the statute of limitations.

Question 54

NY Court Review of Arbitration Decisions

Answer 54

New York courts may only review an arbitration decision on the following grounds:

(1) there was fraud, corruption, or misconduct on the part of the arbitrator;
(2) bias of the arbitrator;
(3) the arbitrator exceeded his or her powers; and
(4) a failure to follow procedural rules set forth in Article 75 of the CPLR.

Erroneous decisions of law that do not fall into one of the above grounds are NOT grounds for review.

Question 55

Punitive Damages in Arbitration Decisions

Answer 55

The New York Court of Appeals has held that an award of punitive damages exceeds an arbitrator’s power.

Question 56

Arbitration in Matrimonial Matters

Answer 56

A court will allow an arbitrator to hear issues of maintenance and support but will NOT submit child custody and visitation matters to an arbitrator because of the delicate nature of such matters and the need for judicial inquiry into the best interests of the child.

Question 57

Arbitration Clause

Answer 57

In New York, there is a presumption that arbitration clauses are valid. Thus, New York courts will enforce an arbitration clause if it is:

(1) freely entered into,
(2) the clause is in writing, AND
(3) the dispute falls within the scope of the arbitration clause. However, fraud, duress, or coercion may render an arbitration clause to be invalid.

Question 58

Conflict of Laws

Answer 58

New York applies the Governmental Interest Analysis approach to choice of law analysis, which was developed in the Babcock case. Under this approach, the court examines the connections that each State has to the parties and the events of the litigation, analyzes the difference between the State laws, pinpoints the underlying policies behind those State laws, and then applies the facts to the law to determine which State has a greater interest in having its law applied.

Question 59

Choice of Law: Loss Distribution Problems in Tort Cases

Answer 59

The New York Court of Appeals refined the governmental interest analysis approach in Neumeier and developed three general principles that are applied to loss distribution problems in tort cases.

The three principles are:

(1) If both parties are domiciled in the same State, that State’s laws apply;
(2) If the plaintiff and the defendant are domiciled in different states, you generally apply the law of the situs of injury as long as that State’s law would protect its own domiciliary;
(3) In an unprovided for case (a case that does not fit into either of the first two categories), the law of the State where the injury occurred is applied absent some strong governmental interest to the contrary.

Question 60

Hearsay

Answer 60

Under the New York rules of evidence, hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible unless it falls within an exception or is excluded from the definition of hearsay. If an out-of-court statement is offered to prove something other than the truth of the statement, it is non-hearsay and is admissible.

Common non-hearsay statements include:

(1) verbal acts of independent legal significance,
(2) statements offered to show the effect on the listener,
(3) a prior inconsistent statement used to impeach, and
(4) circumstantial evidence of the speaker’s state of mind.

Question 61

Hearsay Exceptions

Answer 61

1. Excited Utterance
2. Present Sense Impression
3. Admission by Party-Opponent
4. Dying Declaration

Question 62

Hearsay Exceptions: Excited Utterance

Answer 62

An excited utterance is an exception to the hearsay rule. An excited utterance is a statement concerning a startling event, made while the declarant is still under the stress of the exciting event.

Question 63

Hearsay Exceptions: Present Sense Impression

Answer 63

Present sense impression is an exception to the hearsay rule. A present sense impression is a statement describing the event made by the declarant while observing the event OR immediately thereafter.

Question 64

Hearsay Exceptions: Admission by a Party-Opponent

Answer 64

In New York, an admission by a party opponent is an exception to the hearsay rule. An admission by a party opponent is any statement offered against a party which is made by that party. A vicarious admission by an employee or agent is admissible against the principal if the statement is made within the scope of the employment or agency. However, in order to use an employee’s statement against the principal, the agent or employee must have had speaking authority.

Question 65

Hearsay Exceptions: Dying Declaration

Answer 65

A dying declaration is an exception to the hearsay rule. In order to be admissible, the statement must:

(1) be made under a sense of impending death,
(2) concern the circumstances or cause that put the declarant in the position of impending death,
(3) the declarant must thereafter die or be unavailable to testify, AND
(4) in New York, the exception may only be used in a criminal homicide case.

Question 66

Professional Responsibility: Contingency Fees

Answer 66

Under the New York Rules of Professional Conduct, a contingent fee agreement (where the lawyer’s fee is dependent on success of the action) must be in writing. The writing must be signed by the client and must disclose the basis of the fee calculation.

Contingent fee agreements are prohibited in Criminal cases and Domestic Relations cases (including cases for past due alimony and child support, unless it is for recovery of post-judgment balances due).

Question 67

Conflicts of Interest

Answer 67

A lawyer faces a conflict of interest if a matter is likely to involve issues in which the client’s interests will be opposed to the lawyers’ personal interests, his business interests, or the interests of another previous or current client. If there is a conflict of interest, a lawyer may not represent the client for the matter, unless:

(1) the lawyer explains the conflict, all material facts, and the potential consequences to the client or clients (if more than one party involved are current clients), and the client agrees in writing to continue the representation, AND
(2) a reasonably prudent lawyer would accept the case despite the conflict. Although most conflicts of interest may be cured by this method, a lawyer may NEVER represent two clients simultaneously if the representation involves the assertion of a claim by one client against the other client represented by lawyer in the same litigation or other proceeding before a tribunal.