New York Civil Practice Flashcards
TRO and PI (LIE)
Likelihood of plaintiffs success
Irreparable harm is or will occur
Equity balancing
How long is a temporary restraining order good for?
14 days, but the federal court can extend for another 14 days, no further
Appeals (TRO, PI)
TRO is not appealable, but an order granting or denying the preliminary injunction is immediately appealable
TRO procedure
- Obtained without a bond, discretion on the court
- Prior to service of the summons
- To obtain ex parte no notice on D, the plaintiffs motion must show SIP:
- Significant
- Immediate
- Prejudice to the plaintiff
*NY without SIP, the P’s motion must show that a good faith effort was made to the court
What is preliminary injunction?
Maintains status quo preventing the D from doing certain things or forces the D to act
Temporary Restraining Order
May be obtained by the court pending a court hearing for preliminary injunction
Immediate and irreparable harm will result unless defendant is restrained
When does TRO attach?
After process served on D and can be after issuance of TRO
Justification for a TRO
D threatens to destroy subject of lawsuit, or lawsuit seeks permanent injunction
What must be shown for a TRO
COP + Bond + demonstrate LIE byt C&C evidence
C-Clear and convincing evidence that P is likely to succeed on merits
O-Judge must issue an order
P-Immediate post-seizure hearing required if LIAR obtained ex parte (5-10 business days from issuance)
L-likelihood of success on the merits by C&C (COP)
I-Irreparable injury is occurring or will occur (and money will not adequately compensate the P for the harm)
E-Balancing of equities in P’s favor between harm seeking to prevent against harm D would suffer if enjoined
Bond is required to ensure that D is compensated for any damages due to improper PI
MOP
Minimum Contacts
Opportunity to be heard
Properly served
Sufficient minimum contacts personal jurisdiction = CHILI
Consent
At Home in the jurisdiction
Incorporated
Long Arm
In state served
Long arm jurisdiction (CPLR 302)
P uses long arm to sue a non-domicile whose conduct has caused some tortious or economic effect in the state, it allows a court to obtain specific jurisdiction over that non-domicile but only on a cause of action arising out of the D’s 302 activity
CPLR 302(a)(1)
- 302(a)(1) can be used when a non-domicile:
a. Transacts business in NY (PAN = purposely availed themselves in New York), or
b. Enters a contract anywhere, either to ship goods into NY or to perform services in NY that is where the D targeted NY
* A single act may be sufficient for transacting business
CPLR 302(a)(3)
Confers specific jurisdiction over a non domicile who commits a tortious act outside the state resulting in personal injury, property damage or economic injury inside the state of NY
In strict products liability cases, the US Supreme Court has stated that by simply placing defective product in the stream of interstate or international commerce, and foreseeing that it could enter NY, is NOT a sufficient minimum contact for 302(a)(3)
Stream of commerce + Targeted the market 3-S =
i. Solicitation of business in the state
ii. Sales consummated in the state
iii. Services in the state (marketing)
General Jurisdiction
all purpose jurisdiction, which allows that state courts to hear ANY CLAIM arising anywhere in the world against such a D
Specific Jurisdiction
“Case linked jurisdiction”, which arises when a non-domicile has engaged in a single act or occasional acts connected to a state and the P’s claim arose out of those actions.
Joint and Several Liability
Where the acts of several tortfeasors contribute to a P’s injury, each tortfeasor is fully jointly liable for 100% of the P’s damages regardless of that tortfeasors apportioned share of fault, ONLY ECONOMIC LOSSES (lost wages, medical expenses)
Article 16 affirmative defense pleaded in D’s answer
Whenever a joint tortfeasor is found by the jury to be 50% or less at fault then that D is only “SEVERALLY”, not jointly liable to the extent of her apportioned share of fault for the P’s non economic losses (pain and suffering or punitive damages)
Full benefit exceptions to article 16 (ARM WIN)
P must specifically plead this in her complaint and prove it at trial
Automobile, motorcycle or other motor vehicle but NOT municipal fire trucks and police cars
Reckless and not just negligent co-defendant
More than 50% responsible for the P’s injury by co-defendant
Workers compensation cases, but only if the worker suffered a grave injury
Intentional tortious conduct claims
Non-delegable duty from defendant to injured plaintiff (store owner —> customers)
Default Judgment
Binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.
D may vacate a default judgment within one year by submitting a REAM P of papers
Reasonable excuse, which federal rules call “good cause” for the D’s default
Affidavit of Merit must be submitted demonstrating the D has meritorious defense to the P’s claim
Prejudice: The defendant must also demonstrate to the court that the P will not be prejudiced, but usually the policy of NY and federal courts prevails over any possible prejudice and that strong policy favors resolving cases on the merits and not by default judgments
