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State Subjects > New York Practice > Flashcards

New York Practice Flashcards

1
Q

Forum non conveniens

A

Court has discretion, upon motion, to dismiss on the ground that the action lacks any substantial nexus to NY

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2
Q

Exception to Supreme Court’s general jurisdiction

A

1) Cases as to which federal law confers exclusive jurisdiction
2) Claims for money damages in tort or contract against the state (claims against state employees and municipal subdivisions must be brought in Supreme Court)

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3
Q

Supreme Court has exclusive subject matter jurisdiction over

A

1) Matrimonial action where the court is asked to adjudicate marital status
2) CPLR Article 78 proceeding
3) Declaratory judgment action

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4
Q

To satisfy SOL,

A

Filing must be made with the clerk of court on or before the last day of SOL

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5
Q

SOL for medical malpractice

A

Period is 2.5 years and date of accrual is from the date of the malpractice

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6
Q

Exceptions to normal 2.5 year SOL for medmal

A

1) Continuous treatment rule- Physician continues to treat the patient after an operation for the exact same medical condition that gave rise to the malpractice
2) Foreign object rule- Plaintiff gets longer of 2.5 years from the date of operation or 1 year from the date P discovers or should have discovered the object with reasonable diligence

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7
Q

SOL against non-medical professional for malpractice

A

3 years regardless of whether based in tort or contract. Begins to run from date the services are completed

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8
Q

Bodily injury as a result of non-medical professional’s malpractice

A

3 years from date of bodily injury

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9
Q

Procedures for personal injury actions against architects and engineers brought more than 10 years after the building was completed

A

1) Plaintiff must serve a notice of claim on architect or engineer at least 90 days before suit
2) P may obtain pre-action discovery from the potential D during the 90-day waiting period
3) After suit is commenced, if D moves for SJ the burden is on P to make an immediate showing that there is substantial basis to believe that D’s negligence was the proximate cause of the injuries

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10
Q

Municipal tort liability SOL and other requirements

A

SOL- 1 year and 90 days

Notice of Claim requirement- P must serve notice of claim on D no later than 90 days from the date of the accident. Failure to provide the notice is failure to state a cause of action

After service of notice, P must wait 30 days before suing

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11
Q

Products liability SOL

A

Negligence and strict liability- 3 years

Breach of warranty- 4 years (begins from date the potential defendant made delivery)

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12
Q

Indemnity and contribution SOL

A

6 years from date of actual payment

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13
Q

Toxic Tort SOL

A

3 years from earlier of either discovery of the injury or date injury should have been discovered with reasonable diligence

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14
Q

Toll for D’s absence

A

If D not in NY when cause of action accrues, SOL does not begin to run until D comes to NY

If D is in NY when cause of action accrues, and leaves for 4 months, toll applies to entire period of absence

Does NOT apply when there is a valid basis of personal jurisdiction that reaches outside NY (like long-arm)

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15
Q

P’s infancy or insanity and SOL

A

1) May sue through competent adult representative within regular SOL

2) If infant or insane at time COA accrues, SOL tolls until the disability ends, at which point he has:
a) if SOL was 3 years or more, P gets longer of usual SOL period running from usual date of accrual OR 3 years from date disability ends
b) If SOL was less than 3 years, when disability ends, P gets specified period measured from date disability ends

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16
Q

Tolls for death of P

A

Wongful death action- 2 years from date of death, but it must be shown that decedent possessed a timely claim at time of death

Survival claim- If P died before SOL expired, longer of time remaining on SOL and 1 year from P’s death

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17
Q

Death of D and SOL

A

18 months always added to relevant limitations period

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18
Q

6 month grace period for subsequently dismissed actions that were timely filed does not apply to (4)

A

1) Dismissal on the merits
2) Voluntary discontinuance by P
3) Dismissal based on P’s neglect to prosecute which consisted of a general pattern of delay
4) Dismissal for lack of PJ

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19
Q

Borrowing statute

A

Cause of action that arises outside NY, if P was non-resident, court will apply the shorter SOL Period (for resident, court applies NY period)

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20
Q

Process must be served within ____ of filing with county clerk

A

120 days

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21
Q

Forms of process (2)

A

1) Summons and complaint

2) Summons with notice (requires statement of notice of the action, type of relief sought, amount of damages)

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22
Q

Methods of serving process

A

1) Personal delivery
2) Leave and mail
3) Affix and mail
4) Expedient service
5) Agent specifically designated to receive process
6) First class mail plus acknolwedgment

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23
Q

Personal Delivery Requirements

A

Delivery is complete upon tender of summons directly to D. If refuses to accept, leave process in D’s immediate vicinity

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24
Q

Leave and Mail Requirements

A

Process server may deliver process to person of suitable age at D’s actual dwelling place or place of business PLUS a copy by regular mail to D’s actual place of business or last known residence

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25
Q

Amount of time for leave and mail requirement

A

Both steps must be performed within 20 days of each other and within 120 days of filing process

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26
Q

Affix and Mail Requirements

A

Affixing- to actual dwelling place or actual place of business plus mailing by regular mail at D’s actual POB or LKR

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27
Q

When can affix and mail be used?

A

Due diligence to serve directly and to try to leave with a person of suitable age and discretion at home or POB. Different attempts at different times of day and days of week

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28
Q

When must proof of service be filed

A

After leave and mail or affix and mail

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29
Q

Expedient method of service

A

Court ordered upon ex parte motion

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30
Q

Serving on disabled

A

Must be served on someone with custody or adult spouse of minor.

For infant 14+ or disabled person with court appointed guardian, must serve D and the adult

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31
Q

Service outside NY (methods and who may serve)

A

1) Same methods as in NY
2) Service made by any NY resident 18+, anyone authorized by the other jur., or an attorney licensed where service is made

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32
Q

Service on corporations

A

1) Personal delivery to any officer, director, designated agent, managing agent
2) Domestic corporation or foreign licensed corporation- 2 copies with SecState

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33
Q

Bases of general jurisdiction (PJ)

A

1) Presence in NY
2) Doing business in NY
3) Domicile in NY

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34
Q

Bases of specific jurisdiction

A

1) Long-arm jurisdiction
2) Non-resident motorist statute
3) Consent

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35
Q

Doing business in NY

A

Corporations employees or agents were in NY engaging in commercial activity for the corp. on a regular, systematic, and ongoing basis

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36
Q

Types of corporations for “doing business” test

A

1) Domestic and foreign licensed corp- automatically qualify no matter where the claim arose
2) Foreign corporation- ask whether the corp. has an office or similar physical presence with employees regularly coming and goign

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37
Q

Domicile

A

Residence at which person intends to remain indefinitely

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38
Q

Long arm categories (5)

A

1) Arises under transaction of business by D in NY
2) Contracted transacted anywhere by which D agreed to provide goods/services in NY
3) Claim arose from tortious act in NY (not defamation)
4) Claim arises from tortious act outside NY causing injury in NY plus extra linkage
5) Claim arises from ownership, use, possession, of real property in NY

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39
Q

Extra linkages for tort causing injury in NY

A

1) D regularly solicits business or engages in an other persistent course of conduct in NY
2) D derives substantial revenue from goods used or consumed or services rendered in NY
3) D expects or should reasonable expect the act to have consequences in NY and derives substantial revenue from interstate or int’l commerce that purposely includes NY

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40
Q

Non-resident motorist statute unique features

A

1) Service of process- serving one copy on SecState and certified mailing second copy to out of state address
2) Applies to nondomicilliary vehicle owner who gave permission to drive in NY

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41
Q

Consent for PJ

A

Parties can consent through forum selection clause and will be enforced in the absence of fraud, overreaching, or unreasonableness

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42
Q

Basis of jurisdiction for divorce claim

A

All that is needed is that plaintiff spouse is a domiciliary. Court has in rem jurisdiction over the marriage

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43
Q

Basis for jurisdiction for monetary support related to divorce if she cannot be served in NY

A

Matrimonial long-arm statute- When P spouse is a resident of NY, long-arm jdx can be acquired if:

1) NY was matrimonial domicile of the couple prior to separation
2) D abandoned P in NY
3) D’s monetary obligation accrued under an agreement executed in NY
4) D’s monetary obligation accrued “under the laws of NY”

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44
Q

Methods of service that can be used for matrimonial action

A

Personal delivery only (absent court order otherwise)

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45
Q

What is the purpose of the matrimonial durational requirements?

A

Conditions precedent to matrimonial action to ensure NY has a sufficient stake in the action. P’s complaint must allege satisfaction

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46
Q

3 ways of satisfying durational requirements

A

1) If both parties are NY residents at time action is commenced and grounds for action arose in NY
2) If either was a NY resident for at least 1 year prior to marriage and (i) marriage took place in NY (ii) NY was matrimonial domicile of them at some point or (iii) grounds for divorce arose in NY
3) Either party has been a NY resident for a continuous period of at least 2 yrs prior to action

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47
Q

Rules for Choosing Venue

A

1) Action affecting title/possession of real property- proper venue is county where real property located
2) All other actions- proper venue is any county in which one of the parties reside (if neither reside in any county, they can choose)

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48
Q

What is the remedy for improper venue?

A

D can serve demand to change venue. If P consents, change is automatic. If P objects, D must make a motion but court will grant as matter of right if D is right and P was wrong

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49
Q

Two ways D can respond to a summons and complaint

A

1) Serve an answer

2) Make a pre-answer motion to dismiss

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50
Q

Answer consists of

A

1) Denials of allegations (failure to deny is implied admission)
2) Affirmative defenses (failure to raise, waive)
3) Counterclaims
4) Cross-claims

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51
Q

Reply

A

P’s response to counterclaim. Consists of denials and affirmative defenses

52
Q

How are interlocutory papers served?

A

Ordinary mailing to the attorneys (must be made through NY post office)

53
Q

Time limits for serving answer

A

1) If personal delivery was used- within 20 days
2) First class mail plus acknowledgment- within 20 days of mailing the acknowledgment
3) Any other method- within 30 days after service is complete

54
Q

Defenses that can be asserted in pre-answer motion to dismiss

A

1) Documentary evidence
2) Other action pending
3) Want of capacity
4) Non-joinder of parties
5) Failure to state a cause of action
6) Lack of personal jurisdiction
7) Lack of subject matter jurisdiction
8) Statute of limitations
9) Payment
10) Arbitration award
11) Release
12) Estoppel
13) Res judicata
14) Infancy of D
15) Bankruptcy discharge
16) Statute of frauds

55
Q

Standards used in deciding motion for failure to state a claim

A

1) P is entitled to all inferences in his favor

2) Motion should be denied if there is any basis for relief under the substantive law

56
Q

Lack of personal jurisdiction affirmative defense includes (3)

A

1) Improper commencement
2) Improper service of process
3) Lack of basis for jurisdiction

57
Q

How does filing a motion to dismiss affect the time for the answer?

A

Extends time to answer. IF denied, D must serve answer within 10 days

58
Q

How does making a pre-answer motion on one affirmative defense affect the availability of the others?

A

Doesn’t waive any other than personal jurisdiction (can still raise the others in the answer)

59
Q

Defenses that are never waived

A

1) Non-joinder
2) Failure to state a cause of action
3) Lack of subject-matter jurisdiction

60
Q

What is necessary to plead improper service?

A

Waived if he doesn’t make a follow-up motion for SJ within 60 days

61
Q

Responses to summons with notice (2)

A

1) Serve demand for complaint

2) Serve a notice of appearance

62
Q

What is the timing for responding to a summons with notice?

A

Same as for a summons with complaint. 30 days after service generally, 20 after personal delivery, 20 after acknowledgment if served by 1st class mail)

63
Q

What is the effect of a response to summons with notice?

A

Requires P to serve complaint within 20 days

64
Q

IF P fails to meet the 20 day limit to serve a complaint after having initially used summons with notice, what must he do to avoid dismissal?

A

1) Show reasonable excuse for delay

2) Make an evidentiary showing of merit (“Affidavit of merit”)

65
Q

Does service of a demand for complaint or notice of appearance run the risk of waiving of jurisdictional objections?

A

No

66
Q

Amendment as a matter of right must be made

A

within 30 days after defendant serves answer

67
Q

May D raise an omitted PJ objection through amended right to the answer

A

Yes, provided that he made no previous motion to dismiss and adds this no later than 20 days after filing the answer

68
Q

Standard used by the court when leave to amend must be sough

A

Allowed if opponent will suffer no incurable prejudice

69
Q

In opposing an amendment, a party must show

A

Detrimental change of position as a result of delay

70
Q

Impleader

A

Procedural device used to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P

71
Q

Steps for joining third party defendant

A

1) File a summons and 3rd party complaint

2) Servce a copy within 120 days of filing on 3rd party defendant

72
Q

Rule for measuring compliance with SOL for claim in amended complaint (rule and exception)

A

Go by date of amendment

Exception- impleader claims are deemed interposed on the date TPD was impleaded provided (1) P’s claim against TPD arose out of the same occurrence (2) P’s claim would have been timely as of date of impleader

73
Q

When can a third party seek contribution from a plaintiff’s employer in a worker’s comp case?

A

MS- no right of contribution or indemnity

NY- No right unless P sustained grave injury

74
Q

Contribution based on a doctor’s malpractice following a tort

A

6 year SOL, not the regular 2.5 year

75
Q

Reduction formula for settlement

A

Judgment for P against non-settling tortfeasor must be reduced by larger of

1) Amount of settlement OR
2) Settling tortfeasor’s equitable share of fault

76
Q

Settlement prevents _______ but does not prevent _________

A

Contribution, indemnification

77
Q

What must a motion on notice require?

A

Place, time, date, and papers on which it is based, the relief demanded, and the grounds (must include affidavits of fact, optional to include memo of law)

78
Q

When is a motion on notice made?

A

When motion papers are served on the other party (or date of mailing)

79
Q

Return date

A

The time for hearing of the motion

80
Q

When must the motion on notice be served?

A

At least 8 days prior to the return date

81
Q

Order to show cause

A

Alternative way to make a motion on notice. Ex parte order directing adversary to show cause of why the motion shouldn’t be granted

82
Q

Reasons to move by order to show cause (3)

A

1) Return date can be shorter than 8 days
2) Judge can grant stay or TRO
3) Statute may require it

83
Q

Deciding order

A

After return date of motion on notice, court decision written in order signed by the court. Prevailing party must serve a copy on the losing party

84
Q

Two effects of service of copy of the deciding order

A

1) Doesn’t take effect until then

2) Starts the 30-day appeal limit

85
Q

Appealing interlocutory order

A

Must file and serve notice of appeal within 30 days from service of order or judgment

86
Q

When must summary judgment motion be made?

A

After answer/reply and within 120 days after the note of issue (i.e. the answer/reply)

87
Q

When can SJ motion be made after the 120 day window?

A

Showing a good cause (something other than the strength of the motion on the merits)

88
Q

When is a pre-answer motion for SJ permitted?

A

1) Court can convert a motion to dismiss if at least one party has submitted factual affidavits with the MTD and court must give notice of the conversion
2) Motion for SJ in lieu of complaint by the plaintiff at the time she serves process

89
Q

When is motion for summary judgment in lieu of complaint permitted?

A

1) Action on instrument to pay money only

2) Action on foreign judgment

90
Q

Procedures for SJ in lieu of complaint

A

P serves with summons and sets a return date at least 20 days after personal delivery and 30 days after other methods

91
Q

Provisional remedies (5)

A

1) Attachment
2) Preliminary injunction
3) Temporary receivership
4) Replevin
5) Lis Pendens

92
Q

Which provisional remedies require court order

A

All but lis pendens

93
Q

CPLR Article 16

A

Two or more D’s liable, where liability of any D is less than 50% of total, that D’s liability for noneconomic loss cannot exceed relative fault.

94
Q

Article 16 does not apply to

A

1) Wrongful death and property-damage claims
2) Tortfeasors who acted intentionally or with reckless disregard
3) Tortfeasors who released a hazardous substance into the environment
4) Drivers and owners of motor vehicles other than police/fire vehicles

95
Q

Main purpose of attachment

A

To provide security for enforcement of a money judgment

96
Q

Method of sheriff’s levy on real property in attachment proceeding

A

Files order of attachment with county clerk in the county in which real property is located

97
Q

Method of levy on personal property

A

Delivers order of attachment to the person in NY who is holding the property interest. Delivery automatically imposes a lien and serves as a injunction against transfer of the property

98
Q

Types of action in which attachment can be used

A

P must be seeking money damages AND

1) D is an unlicensed foreign corp or a non-domiciliary residing outside New York
2) Di is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment

99
Q

Procedure for order of attachment

A

1) P must make motion for order of attachment
2) Motion must contain (a) affidavits showing one of the two grounds )unlicensed corp/non-domiciliary non-resident) (b) Probability of success on the merits (c) Bond to indemnify for any damages/expenses caused by attachment

100
Q

In attachment cases, D is entitled to damages if

A

1) Improper procedure OR

2) Wins on the merits

101
Q

If motion for attachment is made ex parte, what is required?

A

A hearing for D to have the opportunity to contest the attachment and a followup motion on notice to confirm after levy

102
Q

Time frame for motion to confirm after ex parte attachment motion

A

For unlicensed foreign corp or non-domiciliary non-resident, motion must be served no later than 10 days after levy

For fraudulent concealment, must be served on D no later than 5 days after levy

103
Q

Preliminary injunction may be used in (2)

A

1) Equity action seeking permanent injunction

2) D threatens to harm O’s interest in subject matter of an action

104
Q

Procedure for preliminary injunction

A

1) P’s affidavits must show grounds for relief including threat of irreparable injury
2) Probability of success on the merits
3) Must provide undertaking of bond

105
Q

Temporary restraining order serves to

A

Maintain status quo pending brief period during which preliminary injunction is litigated

106
Q

How does a party obtain a TRO?

A

Moves by order to show cause for preliminary injunction and request TRO

107
Q

What is required for a TRO ex parte?

A

Affidavit demonstrating that there will be significant prejudice to the party seeking the TRO if notice is provided to the adversary

108
Q

Temporary receivership is only available where

A

P is asserting an equity claim in which specific property is the subject matter AND

There is a danger that D will injure or destroy the value of the property while the action is pending

109
Q

Seizure of chattel available where

A

P seeks to recover possession of chattel

110
Q

Requirements for motion for order of seizure of chattel

A

1) Probability of success on the merits
2) Undertaking
3) If made ex parte, must show (a) Threat of immediate loss of chattel (b) Followup motion on notice within 5 days of sezure to confirm ex parte order

111
Q

Lis pendens is statutorily required for

A

Mortgage foreclosure

112
Q

Procedure for lis pendens

A

P files a notice with the County Clerk of the country in NY in which the real property is located (no need for court order or bond)

113
Q

Remedy for improper filing of lis pendens

A

motion to cancel notice of pendency

114
Q

When is lis pendens appropriate?

A

Equity action in which judgment will have a direct effect on real property

115
Q

How does a party entitled to a jury obtain it?

A

The party who files can make a demand in not of issue. If not, waives the right. OThre parties can make their own demand

116
Q

When is there a right to jury trail in a civil action? (5)

A

1) Action seeking solely money damages
2) Replevin
3) Claim to real property
4) Annulment of marriage
5) Divorce action, on the grounds for divorce, but not for money or custody

117
Q

Civil jury number and requirements

A

6 members, 5/6 required

118
Q

Res judicata (claim preclusion) approach in NY

A

NY uses transactional approach- claims are barred if they arose out of the same transaction or occurrence as a claim that has been brought to final judgment on the merits

119
Q

Exception to res judicata

A

We don’t apply the transactional approach to matrimonial disputes

120
Q

Collateral estoppel applies where (3)

A

1) Same issue in both
2) Issue was actually decided in first proceeding
3) Party against whom issue preclusion is asserted had a full and fair opportunity to be heard

121
Q

Procedure for special proceeding

A

1) Petitioner files petition, which is the commencement
2) Served on respondent the same as ordinary process
3) Notice of petition advises respondent to serve an answer and appear on return date (which can be no sooner than 8 days from service of process, 20 days for Art. 78 proceeding)
4) Affidavits served in support of and opposition to the petition

122
Q

Two major features of arbitration

A

1) Arbitrators are not bound by the substantive law or the rules of evidence
2) Scope of judicial review is very narrow

123
Q

Doctrine of severability of arbitration clause

A

Validity of arbitration clause determined separately from the validity of the contract itself

124
Q

Once proponent of arbitration serves a notice of intention to arbitrate, what can opponent do?

A

Commence special proceeding to stay arbitration within 20 days of receive of notice to arbitrate

125
Q

Judicial review of arbitration awards

A

Grounds for vacating award

1) Corruption/fraud/misconduct in the proceeding
2) Bias by the arbitrator who was chosen to be neutral
3) Arbitrator exceeded his powers

State Subjects (9 decks)

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