New York Practice Flashcards
Subject Matter Jurisdiction
of the New York Supreme Court
**SMJ **= authority to grant relief sought; not waivable by any party.
NYSC = Court of general jursdiction with unlimited power to hear any type of claim and grant all forms of relief, except:
- Exclusive Federal Jurisdiction (Cases for which federal jurisdiction is exclusive, such as bankruptcy, patents, copyrights, etc.).
- Claims for MONEY DAMAGES on tort/contrat claims AGAINST THE STATE* (Must be brought only in the New York Court of Claims. The only defendant that can be sued in Court of Claims is the State of New York.
- **State of NY does not include municipalities or state employees. **
Forum Non Conveniens
** Defendant must make a motion; **court has discretion to dismiss on grounds of forum non conveniens if action lacks substantial nexus to New York.
Exclusive SMJ of NYSC
**The following actions can only be brought in the NYSC: **
- **Matrimonial Actions **(divorce, annulment, separation, declaration of validity)
- CPLR Art. 78 Proceedings (judicial review of NY state and local gov’t administrative action)
- Declaratory Judgment Action (judicial declaration of the rights and obligations of parties to an actual controversy before engaging in conduct that could cause liability).
Statute of Limitations
(generally)
- Affirmative defense to be raised by defendant;
- SOL (w/ exceptions) begins to run when the cause of action accrues (generally, the date of injury, not discovery of injury);
- Action commences with filing of process (summons & complaint or summons with notice) no later than last day of SOL);
- To compute SOL, exclude the day upon which the triggering event occurs. If the last day was a Sunday, Saturday, or public holidy, the plaintiff gets until Monday/next business day.
- **Parties can agree to shorten or extend time for bringing an action by written agreement; part payment, acknowledgement, or promise to pay an obligation starts the start anew from such promise. **
SOL:
Personal Injury / Property Damage
Three years from date of injury
SOL:
Breach of Contract
**Six years from date of breach **
(see exception for professionals)
SOL -
Medical Malpractice
Applies to suits against doctors/ dentists/ nurses/ hospitals for breach of duty of professional medical care.
**SOL = 2.5 years from date of malpractice **
**Except: **
- **Negligent hiring/retention of medical professional **(ordinary tort, 3 years)
- Continuous treatment **for same medical condition **(2.5 years from end of continuous treatment)
- **Foreign object rule **(the longer of 2.5 years from operation or 1 year after plaintiff discovered/should have discovered the object with reasonable diligence)
- Not applicable to chemical substances (e.g., medicine); prostheses; other fixation devices intended to stay; or anything the doctor wasn’t responsible for putting there.
4. If Doctor knowingly hides his malpractice and P reasonably relies on doctor, doctor may be estopped from pleading SOL.
SOL -
Non-Medical Professional Malpractice
Claims for economic injury against members of a “learned profession” (lawyer, architect, engineer, accountant, but **not **insurance broker, security analyst, plumber):
Exclusive 3 year SOL for torts, breach of contract with period beginning when WORK WAS COMPLETED regardless of P’s lack of awareness. (Med mal “continuous treatment” exception applicable here as well)
EXCEPT:
- Suit for personal injury: 3 year SOL from date of injury.
- If cause of action is for personal injury arising from a building collapse, and more than 10 years has elapsed since the building was completed, special procedure:
- Plaintiff must serve notice on D 90 days before suit
- Plaintiff may obtain pre-trial discovery during these 90 days;
- If D moves for summary judgment, the burden is on P to immediately show a substantial basis for D’s negligence.
SOL -
Municipal Tort Liability
Action for personal injury or property damage against a state government subdivision:
- One year and 90 days from date of accident
- **Notice of claim within 90 days of the accident. **
- Failure to comply with notice = dismissal for failure to state a claim.
- After service of notice, must wait 30 days to file
- If 90 day period has expired, may petiton court to serve late notice of claim, if no prejudice to D.
SOL -
Products Liability
When a defective product causes personal injury, plaintiff can assert negligence, strict products liability, and breach of warranty claims.
- **Negligence liability = 3 years from date of injury **as against any D in the chain of distribution.
- **Breach of Warranty = 4 years under the UCC Rule **running from when defendant made its delivery of the product.
- **Indemnity and Contribution Claims = 6 years from payment **(e.g., D pays P’s claim in ful; wants contribution from liable co-Ds)
- Exposure to Toxic Substance = 3 years from _earlier_ of **(1) discovery of symptoms or (2) date when the injury should have been discovered. This is not applicable to med mal cases against medical professionals. **But, IF P does not know cause of injury from toxic substance, AND cause is discovered within 5 years of injury AND could not have been reasonably ascertained by technical/medical knowledge within 3 years of discovery, then P gets alternative of suing within 1 year from discovery of cause. **
SOL- Tolling
while D is outside of NY
(and cannot be served outside of NY)
If there is no basis for which to serve defendant while outside of New York, the SOL tolls if:
- D is not in NY when the claim accrues (doesn’t begin to run until the defendant comes to New York).
If D is in NY when claim accrues, but leaves and is continuously absent for at least 4 months (toll applies to entire period of absence).
SOL - General Tolls
(Infancy/Insanity of Plaintiff)
Minors or plaintiffs who are insane may sue within the regular SOL with a competent adult representative, but get the benefit of the toll as well (tolled until disability ends, either by reaching 18 or when the insanity “clears up”).
- **When disability ends: SOL = the longer of the usual SOL running from the date of the claim accrual, or three years from when disability ends. **
- **But outside limit of ten years when: **
- Med Mal claim where P is an infant; or
- Any claim tolled by insanity
SOL - General Tolls
(Plaintiff’s Death)
- Survival Claim: P could have brought if alive; all damages recoverable by a living plaintiff including pain and suffering. The SOL is the longer of the usual applicable SOL from the date of claim accrual, or 1 year after death.
- Wrongful Death Action: For pecuniary losses of decedent’s statutory distributees, e.g., children, surviving spouse, including punitive damages, but *not *including emotional suffering of distributees or decedent’s pain and suffering. The SOL is within two years of death and the decedent must have possessed a timely cause of action at time of death.
SOL - General Tolls
(Defendant’s Death)
If a potential defendant dies at any time before the relevant SOL expires, 18 months are always added to the relevant SOL period, regardless of whether or not P needs the extra time.
SOL - General Tolling
(6 month grace period)
Plaintiff can get six extra months from the date of any dismissal of his action in order to refile the same action and serve process on the same Ds, **IF: **
- The New York action is timely commenced, and is dismissed before trial for a reason other than the following reasons, and
- The SOL has expired or P has less than 6 months remaining on the SOL.
EXCEPTIONS TO THE GRACE PERIOD.** If the action was dismissed for any of the following reasons, there is **no six month grace period:
- Dismissal on the merits;
- Prior dismissal based on voluntary discontinuance;
- Dismissal for P’s neglect to prosecute, if part of general pattern of conduct;
- Prior dismissal based on lack of personal jurisdiction (including improper service, lack of basis, improper summons).
SOL - The Borrowing Statute
If the cause of action arises outside of New York, and plaintiff is not a resident of New York, the New York court will apply the shorter statute of limitations as between the alternative state forums, to prevent forum shopping.
If the plaintiff is a New York resident, the court will always apply the New York SOL.
Commencement Procedures
An action is commenced** by filing process with the Clerk of the Court (this is **not the same as the “Supreme Court Clerk.” Filing process consists of:
- Summons & notice** or **summons & complaint;
- Payment of fees for the index number;
-
Service of process on defendants** no later than **120 days of filing with the clerk (same time frame for fed jur).
- Service time may be extended by the court if plaintiff has trouble serving defendant and can show either (1) due diligence or (2) interests of justice.
**NOTE THAT D WAIVES AN UNTIMELY SERVICE DEFENSE IF HE FAILS TO RAISE IT IN THE MOTION TO DISMISS. A JUDGE CAN PERMIT PLAINTIFF’S CORRECTION OF ERROR IF NO PREJUDICE TO D, FILING OCCURS WITHIN SOL, AND FEE PAID. **
FORM OF PROCESS
- Summons and Complaint. Advises D that P is suing in that particular court, and essential elements of the cause of action (the complaint); - **- OR - **
-
Summons with Notice. In lieu of a complaint, P may provide:
- A brief statement of the nature of the action;
- Specifying the type of relief being sought; and
- Specifying the amount of damages, if applicable, except that** in a personal injury action or wrongful death suit, **no damage amount may be specified (part of tort reform law).
“Bare” or “Naked” Summons
If Plaintiff commences an action with a “naked” summons, unaccompanied by complaint on notice, it can be dismissed for lack of personal jurisdiction (assuming timely objection by defendant).
Serving Process
(Generally)
- Process may be served by any person at least 18 years old not a party to the action (Spouse/lawyer okay)
- Process may be served any day of the week except Sunday (including Holidays, except that Saturday service is not permitted if P knows D observes the Sabbath)
- Actual notice to defendant is irrelevant (what’s important is that P complies with the formalities of property service of process)
Service
Personal Delivery Method
Service by personal delivery is “complete” upon the process server’s tender of summons directly to defendant.
- Defendant’s response time is measured from the date that service is complete.
- Defendant cannot refuse to accept delivery of process; server may leave in defendant’s immediate vicinity.
- Under this method, service must be to the defendant himself.
Service:
Leave and Mail Method
**Process Server may “leave and mail” by: **
- **Delivering process to a person of suitable age and discretion **(including teenagers), at defendant’s actual dwelling or actual place of business (guard of lobby in apartment building okay).
- **Mailing process to defendant’s actual place of business or last known residence **by regular first-class mail.
- These must take place within 20 days of each other (doesn’t matter which comes first).
- All defendants to the action must get their own copies, even if they reside or work at the same place.
Service of Process –
Affix and Mail Method
If, after exercising due diligence to use other service method (several attempts at different times / days of the week and effort to determine actual place of business or residence), plaintiff may use the affix-and-mail method:
- **Affix to Defendant’s Door **(actual dwelling or actual place of business); - and -
- Mail to Defendant’s Actual Place of Business or Last Known Residence
- These must happen within twenty days of each other
Service -
Filing Proof of Service
For both leave & mail and affix & mail methods, proof of service must be filed. Proof is an affidavit by process server describing details of service.
- Service is complete 10 days after proof of service is filed.
- Failure to file proof of service is not a jurisdictional defect, but it postpones D’s time to respond.
- Proof of service is not required for personal service on defendant.
Service -
Court-Ordered Service
If other methods of service are not practicable, plaintiff may make an ex parte motion for a court order allowing an improvised method of service, some expedient alternative method appropriate under the circumstances.
- E.g., service via email or on a family member / business associate, etc.
Service –
Designated Agent
Service can be made upon a specifically designated agent, as in a written commercial contract.
- For NY corps, and foreign corps authorized to do business in NY (a licensed corp), service may be made on the NY Secretary of State (2 copies must be mailed to the Secretary).
- For an unlicensed foreign corp: personally deliver one copy to the New York Secretary of State, plus mail one copy to the corporation by certified mail, return receipt requested.
Service –
Infants and the Mentally Incapacitated
INFANT: Infants name is on the summons, but process must be served on
- A parent;
- Guardian;
- Person with legal custody;
- An adult spouse with whom married infant resides
If D > 14, two copies are necessary and infant must also be served.
MENTALLY INCAPACITATED PERSON: Two sets of process must be served (on the defendant and the guardian). If no guardian has been appointed by the time of serving process, D is served just like anyone, but a guardian ad litem may be appointed.
Service –
D outside of New York
Same methods used in New York, but may be performed by:
- Any resident of New York at least 18 years old; or
- Anyone authorized in that jurisdiction* *to serve process; or
- Any attorney authorized in that jursidiction.
Service on a Corporation
Two Methods:
- Personal delivery to a corporate representative, being: any officer, director, designated agent, or managing agent (person with supervisory authority in corp.) - OR -
- Service on New York Secretary of State (domestic corps and licensed foreign corps) (send two copies).
- Unlicensed foreign corp., send 1 copy to NY secretary of state and 1 copy mailed to corp.
**Leave & Mail; Affix & Mail Methods NOT OKAY. **
Service –
Non-Traditional Method
Service by **First Class Mail + Acknowledgement **
- Enclose 2 copies of acknowledgement form and return envelope, postage pre-paid;
- Service only effective if defendant signs/returns form within 30 days (same time frame in fed court). If not, must use other service methods, but D must pay expenses if bad faith.
- May be used regardless of whether D is within or outside of NY.
- Cannot be used for infants/mentally incompetent
- D’s response is not a concession that court has jurisdiction.
Bases for Personal Jurisdiction
_All Purpose / General Jur _
- Presence in NY at the time of process;
- Domicile in NY
- Corporation “at home” in NY
Specific Jur (to NY Activity)
- Long-arm jurisdiction
- Non-resident motorist statute
- Matrimonial jur
_Consent _
- Forum selection clause
- Corp. license in NY (some constitutional doubt)
**Personal Jurisdiction **
Physical Presence in NY
Valid personal jurisdiction where D is served with process while in the state, regarding any claim, no matter the duration or purpose of the stay.
**Personal Jurisdiction - **
**Domiciliary **
A defendant who is a domiciliary in NY when the action is commenced may be subject to general personal jurisdiction in NY regardless of where the claim arose.
Domicile is not the same as residence. It implies an intent to remain there indefinitely as principle home (only have one domicile).
**Personal Jurisdiction **
THE LONG ARM STATUTE
- CPLR 302: “Minimum contacts” standard of jurisdiction, allowing out-of-state service conferring personal jurisdiction on the basis of acts taken by D with sufficient connection to NY, provided that P’s claim arises out of those contacts with New York.
- Applies to all types of Ds (corps, individuals, partners, etc.)
- Acts giving rise to jurisdiction can be performed by D or D’s agent/employee.
- If D dies, decedent’s estate representative can be served out of NY.
- Service - P must use the same methods of service on D outside NY as would be used in NY.
- Mere possession of driver’s license in NY too insubstantial to give rise to long-arm jur
CATEGORIES:
- Transaction of Business in New York. Even if business *will be *outside of NY, the transaction (active negotiation, or contract signing, etc.) is sufficient. Defendendant’s phone/email/mail contacts *to *NY can arise to the a “transaction” in NY if substantial in number/time and a significant contract.
- Contract Transacted Anywhere to Supply Goods/Services in New York. Not a payment of debt; must be to send the goods/services to NY (not send the payment).
- Tortious Act Within New York.** Personal jurisdiction over the act (**does not apply to defamation). The injury must originate in New York.
- Tortious Act Outside of New York that Causes Injury in New York + Additional Link:** Either - D regularly does business in NY; or solicits business, or engages in other persistent contact; - D derives substantial revenue from goods/services sold in NY; or - D reasonably should have expected the NY injury and dervies substantial revenue from interestate/international commerce. (**does not apply to defamation). Physicians’ services are NOT considered “interstate” even if physician services people from all around the country.
- Defendant’s Ownership/Use/Possession of Real Property in New York. For suit related to the property.
**Personal Jurisdiction **
**The Non-Resident Motorist Statute **
Confers personal jurisdiction over an accident claim arising from a non-domiciliary motorist’s ownership or use of an auto on a NY roadway.
- Service. P serves process on D by delivering one copy on the NY Sec. of State as “implied agent” and mailing second copy to D by certified mail to D’s out-of-state residence.
- **Owner. **This statute applies to a non-domiciliary vehicle owner who gave tortfeasor *permission *to drive in NY; agency/business relationship not required.
Personal Jurisdiction
**Consent **
- **Forum Selection Clause. **D may consent in advance in contract to adjudicate future contract dispute in NY; generally upheld if not fraudulent/unreasonable/ overreaching.
- *contractual choice of NY law for non-resident foreign corporation enforceable if it involves at least $1m and some agreement to submit to NY Jur. *
- **By Corporate Licensing. **Authorization to do business usually requires registration within NY Sec. of State and designating secretary as agent for service of process.
**Personal Jurisdiction **
**Matrimonial Jurisdiction **
Only proper method of service of process for matrimonial actions is PERSONAL SERVICE unless other method is authorized by court order.
- New York Supreme Court is exclusive New York Forum
- Personal Jurisdiction is satisfied by in rem jurisdiction over marriage for divorce actons (but see durational residency requirements).
- **Matrimonial Long-Arm Statute **(actions for support):
- NY was matrimonial domicile shortly prior to separation; or
- D abandoned P in NY; or
- D’s monetary obligation accrued under an agreement executed in NY; or
- D’s monetary obligation accrued under the laws of NY.
**Personal Jurisdiction **
**Durational Residency Requirements in Matrimonial Actions **
Failure to properly allege is grounds for dismissal
These requirements are not applicable to support actions
New York imposes additional residency requirements for actions seeking to afect marital status (divorce, separation, annulment). These are separate from personal jurisdiction concerns. P’s complaint must allege one of:
- Both parties are NY residents at time of action and grounds for action arose in NY.
- One-Year Residency:** If either party has been a NY resident for a continuous period of at least 1 year immediately prior to the action **and (a) marriage took place in NY; or (b) NY was matrimonial domicile at one point; or (c) grounds for divorce arose in NY.
- Two-Year Residency: Can automatically bring suit.
**Personal Jurisdiction **
Corporation is “At Home” In NY
Analogize to domiciliary. Corporation can be subject to general jurisdiction in NY when it is “at home” in NY, as in one of three situations:
- New York is the state of incorporation;
- New York is principal place of business;
- Exceptional case where NY activities are so substantial as to render the corporation “essentially at home,” based on a comparison of NY activities to the entire nation and world-wide activities.
**The presence of corporate officer in NY is NOT the same personal jurisdicton over the corporation. **
**Venue **
Plaintiff chooses venue and specifies in summons:
- **Actions where judgment affects title/possession of real property, **proper venue is the county in NY where the property is.
- All other actions, proper venue is any county where a party resides; if neither, then any county. This is a party residence test not a cause of action test.
Plaintiff’s improper venue is not a jurisdictional defect / not a basis for dismissal.
Defendant’s demand for change of venue must be before/with the answer. If P consents, automatic change; If P objects/fails to respond, D must motion for change; granted as of right if P’s venue was wrong and D’s is proper.
**Discretionary: **at any time, any party may move for change of venue for convenience of witnesses or impartial trial. **
