New York Practice

Question 1

Forum non conveniens

Answer 1

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

Question 2

Exception to Supreme Court’s general jurisdiction

Answer 2

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)

Question 3

Supreme Court has exclusive subject matter jurisdiction over

Answer 3

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

Question 4

To satisfy SOL,

Answer 4

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

Question 5

SOL for medical malpractice

Answer 5

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

Question 6

Exceptions to normal 2.5 year SOL for medmal

Answer 6

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

Question 7

SOL against non-medical professional for malpractice

Answer 7

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

Question 8

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

Answer 8

3 years from date of bodily injury

Question 9

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

Answer 9

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

Question 10

Municipal tort liability SOL and other requirements

Answer 10

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

Question 11

Products liability SOL

Answer 11

Negligence and strict liability- 3 years

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

Question 12

Indemnity and contribution SOL

Answer 12

6 years from date of actual payment

Question 13

Toxic Tort SOL

Answer 13

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

Question 14

Toll for D’s absence

Answer 14

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)

Question 15

P’s infancy or insanity and SOL

Answer 15

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

Question 16

Tolls for death of P

Answer 16

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

Question 17

Death of D and SOL

Answer 17

18 months always added to relevant limitations period

Question 18

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

Answer 18

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

Question 19

Borrowing statute

Answer 19

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)

Question 20

Process must be served within ____ of filing with county clerk

Answer 20

120 days

Question 21

Forms of process (2)

Answer 21

1) Summons and complaint

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

Question 22

Methods of serving process

Answer 22

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

Question 23

Personal Delivery Requirements

Answer 23

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

Question 24

Leave and Mail Requirements

Answer 24

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

Question 25

Amount of time for leave and mail requirement

Answer 25

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

Question 26

Affix and Mail Requirements

Answer 26

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

Question 27

When can affix and mail be used?

Answer 27

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

Question 28

When must proof of service be filed

Answer 28

After leave and mail or affix and mail

Question 29

Expedient method of service

Answer 29

Court ordered upon ex parte motion

Question 30

Serving on disabled

Answer 30

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

Question 31

Service outside NY (methods and who may serve)

Answer 31

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

Question 32

Service on corporations

Answer 32

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

Question 33

Bases of general jurisdiction (PJ)

Answer 33

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

Question 34

Bases of specific jurisdiction

Answer 34

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

Question 35

Doing business in NY

Answer 35

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

Question 36

Types of corporations for "doing business" test

Answer 36

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

Question 37

Domicile

Answer 37

Residence at which person intends to remain indefinitely

Question 38

Long arm categories (5)

Answer 38

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

Question 39

Extra linkages for tort causing injury in NY

Answer 39

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

Question 40

Non-resident motorist statute unique features

Answer 40

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

Question 41

Consent for PJ

Answer 41

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

Question 42

Basis of jurisdiction for divorce claim

Answer 42

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

Question 43

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

Answer 43

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"

Question 44

Methods of service that can be used for matrimonial action

Answer 44

Personal delivery only (absent court order otherwise)

Question 45

What is the purpose of the matrimonial durational requirements?

Answer 45

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

Question 46

3 ways of satisfying durational requirements

Answer 46

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

Question 47

Rules for Choosing Venue

Answer 47

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)

Question 48

What is the remedy for improper venue?

Answer 48

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

Question 49

Two ways D can respond to a summons and complaint

Answer 49

1) Serve an answer | 2) Make a pre-answer motion to dismiss

Question 50

Answer consists of

Answer 50

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

Question 51

Reply

Answer 51

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

Question 52

How are interlocutory papers served?

Answer 52

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

Question 53

Time limits for serving answer

Answer 53

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

Question 54

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

Answer 54

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

Question 55

Standards used in deciding motion for failure to state a claim

Answer 55

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

Question 56

Lack of personal jurisdiction affirmative defense includes (3)

Answer 56

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

Question 57

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

Answer 57

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

Question 58

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

Answer 58

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

Question 59

Defenses that are never waived

Answer 59

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

Question 60

What is necessary to plead improper service?

Answer 60

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

Question 61

Responses to summons with notice (2)

Answer 61

1) Serve demand for complaint | 2) Serve a notice of appearance

Question 62

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

Answer 62

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)

Question 63

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

Answer 63

Requires P to serve complaint within 20 days

Question 64

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?

Answer 64

1) Show reasonable excuse for delay | 2) Make an evidentiary showing of merit ("Affidavit of merit")

Question 65

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

Answer 65

No

Question 66

Amendment as a matter of right must be made

Answer 66

within 30 days after defendant serves answer

Question 67

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

Answer 67

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

Question 68

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

Answer 68

Allowed if opponent will suffer no incurable prejudice

Question 69

In opposing an amendment, a party must show

Answer 69

Detrimental change of position as a result of delay

Question 70

Impleader

Answer 70

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

Question 71

Steps for joining third party defendant

Answer 71

1) File a summons and 3rd party complaint | 2) Servce a copy within 120 days of filing on 3rd party defendant

Question 72

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

Answer 72

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

Question 73

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

Answer 73

MS- no right of contribution or indemnity | NY- No right unless P sustained grave injury

Question 74

Contribution based on a doctor's malpractice following a tort

Answer 74

6 year SOL, not the regular 2.5 year

Question 75

Reduction formula for settlement

Answer 75

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

Question 76

Settlement prevents _______ but does not prevent _________

Answer 76

Contribution, indemnification

Question 77

What must a motion on notice require?

Answer 77

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)

Question 78

When is a motion on notice made?

Answer 78

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

Question 79

Return date

Answer 79

The time for hearing of the motion

Question 80

When must the motion on notice be served?

Answer 80

At least 8 days prior to the return date

Question 81

Order to show cause

Answer 81

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

Question 82

Reasons to move by order to show cause (3)

Answer 82

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

Question 83

Deciding order

Answer 83

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

Question 84

Two effects of service of copy of the deciding order

Answer 84

1) Doesn't take effect until then | 2) Starts the 30-day appeal limit

Question 85

Appealing interlocutory order

Answer 85

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

Question 86

When must summary judgment motion be made?

Answer 86

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

Question 87

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

Answer 87

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

Question 88

When is a pre-answer motion for SJ permitted?

Answer 88

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

Question 89

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

Answer 89

1) Action on instrument to pay money only | 2) Action on foreign judgment

Question 90

Procedures for SJ in lieu of complaint

Answer 90

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

Question 91

Provisional remedies (5)

Answer 91

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

Question 92

Which provisional remedies require court order

Answer 92

All but lis pendens

Question 93

CPLR Article 16

Answer 93

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.

Question 94

Article 16 does not apply to

Answer 94

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

Question 95

Main purpose of attachment

Answer 95

To provide security for enforcement of a money judgment

Question 96

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

Answer 96

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

Question 97

Method of levy on personal property

Answer 97

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

Question 98

Types of action in which attachment can be used

Answer 98

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

Question 99

Procedure for order of attachment

Answer 99

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

Question 100

In attachment cases, D is entitled to damages if

Answer 100

1) Improper procedure OR | 2) Wins on the merits

Question 101

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

Answer 101

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

Question 102

Time frame for motion to confirm after ex parte attachment motion

Answer 102

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

Question 103

Preliminary injunction may be used in (2)

Answer 103

1) Equity action seeking permanent injunction | 2) D threatens to harm O's interest in subject matter of an action

Question 104

Procedure for preliminary injunction

Answer 104

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

Question 105

Temporary restraining order serves to

Answer 105

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

Question 106

How does a party obtain a TRO?

Answer 106

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

Question 107

What is required for a TRO ex parte?

Answer 107

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

Question 108

Temporary receivership is only available where

Answer 108

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

Question 109

Seizure of chattel available where

Answer 109

P seeks to recover possession of chattel

Question 110

Requirements for motion for order of seizure of chattel

Answer 110

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

Question 111

Lis pendens is statutorily required for

Answer 111

Mortgage foreclosure

Question 112

Procedure for lis pendens

Answer 112

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)

Question 113

Remedy for improper filing of lis pendens

Answer 113

motion to cancel notice of pendency

Question 114

When is lis pendens appropriate?

Answer 114

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

Question 115

How does a party entitled to a jury obtain it?

Answer 115

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

Question 116

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

Answer 116

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

Question 117

Civil jury number and requirements

Answer 117

6 members, 5/6 required

Question 118

Res judicata (claim preclusion) approach in NY

Answer 118

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

Question 119

Exception to res judicata

Answer 119

We don't apply the transactional approach to matrimonial disputes

Question 120

Collateral estoppel applies where (3)

Answer 120

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

Question 121

Procedure for special proceeding

Answer 121

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

Question 122

Two major features of arbitration

Answer 122

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

Question 123

Doctrine of severability of arbitration clause

Answer 123

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

Question 124

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

Answer 124

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

Question 125

Judicial review of arbitration awards

Answer 125

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