New York Practice Flashcards
Forum non conveniens
Court has discretion, upon motion, to dismiss on the ground that the action lacks any substantial nexus to NY
Exception to Supreme Court’s general jurisdiction
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)
Supreme Court has exclusive subject matter jurisdiction over
1) Matrimonial action where the court is asked to adjudicate marital status
2) CPLR Article 78 proceeding
3) Declaratory judgment action
To satisfy SOL,
Filing must be made with the clerk of court on or before the last day of SOL
SOL for medical malpractice
Period is 2.5 years and date of accrual is from the date of the malpractice
Exceptions to normal 2.5 year SOL for medmal
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
SOL against non-medical professional for malpractice
3 years regardless of whether based in tort or contract. Begins to run from date the services are completed
Bodily injury as a result of non-medical professional’s malpractice
3 years from date of bodily injury
Procedures for personal injury actions against architects and engineers brought more than 10 years after the building was completed
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
Municipal tort liability SOL and other requirements
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
Products liability SOL
Negligence and strict liability- 3 years
Breach of warranty- 4 years (begins from date the potential defendant made delivery)
Indemnity and contribution SOL
6 years from date of actual payment
Toxic Tort SOL
3 years from earlier of either discovery of the injury or date injury should have been discovered with reasonable diligence
Toll for D’s absence
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)
P’s infancy or insanity and SOL
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
Tolls for death of P
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
Death of D and SOL
18 months always added to relevant limitations period
6 month grace period for subsequently dismissed actions that were timely filed does not apply to (4)
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
Borrowing statute
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)
Process must be served within ____ of filing with county clerk
120 days
Forms of process (2)
1) Summons and complaint
2) Summons with notice (requires statement of notice of the action, type of relief sought, amount of damages)
Methods of serving process
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
Personal Delivery Requirements
Delivery is complete upon tender of summons directly to D. If refuses to accept, leave process in D’s immediate vicinity
Leave and Mail Requirements
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
Amount of time for leave and mail requirement
Both steps must be performed within 20 days of each other and within 120 days of filing process
Affix and Mail Requirements
Affixing- to actual dwelling place or actual place of business plus mailing by regular mail at D’s actual POB or LKR
When can affix and mail be used?
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
When must proof of service be filed
After leave and mail or affix and mail
Expedient method of service
Court ordered upon ex parte motion
Serving on disabled
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
Service outside NY (methods and who may serve)
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
Service on corporations
1) Personal delivery to any officer, director, designated agent, managing agent
2) Domestic corporation or foreign licensed corporation- 2 copies with SecState
Bases of general jurisdiction (PJ)
1) Presence in NY
2) Doing business in NY
3) Domicile in NY
Bases of specific jurisdiction
1) Long-arm jurisdiction
2) Non-resident motorist statute
3) Consent
Doing business in NY
Corporations employees or agents were in NY engaging in commercial activity for the corp. on a regular, systematic, and ongoing basis
Types of corporations for “doing business” test
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
Domicile
Residence at which person intends to remain indefinitely
Long arm categories (5)
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
Extra linkages for tort causing injury in NY
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
Non-resident motorist statute unique features
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
Consent for PJ
Parties can consent through forum selection clause and will be enforced in the absence of fraud, overreaching, or unreasonableness
Basis of jurisdiction for divorce claim
All that is needed is that plaintiff spouse is a domiciliary. Court has in rem jurisdiction over the marriage
Basis for jurisdiction for monetary support related to divorce if she cannot be served in NY
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”
Methods of service that can be used for matrimonial action
Personal delivery only (absent court order otherwise)
What is the purpose of the matrimonial durational requirements?
Conditions precedent to matrimonial action to ensure NY has a sufficient stake in the action. P’s complaint must allege satisfaction
3 ways of satisfying durational requirements
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
Rules for Choosing Venue
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)
What is the remedy for improper venue?
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
Two ways D can respond to a summons and complaint
1) Serve an answer
2) Make a pre-answer motion to dismiss
Answer consists of
1) Denials of allegations (failure to deny is implied admission)
2) Affirmative defenses (failure to raise, waive)
3) Counterclaims
4) Cross-claims
Reply
P’s response to counterclaim. Consists of denials and affirmative defenses
How are interlocutory papers served?
Ordinary mailing to the attorneys (must be made through NY post office)
Time limits for serving answer
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
Defenses that can be asserted in pre-answer motion to dismiss
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
Standards used in deciding motion for failure to state a claim
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
Lack of personal jurisdiction affirmative defense includes (3)
1) Improper commencement
2) Improper service of process
3) Lack of basis for jurisdiction
How does filing a motion to dismiss affect the time for the answer?
Extends time to answer. IF denied, D must serve answer within 10 days
How does making a pre-answer motion on one affirmative defense affect the availability of the others?
Doesn’t waive any other than personal jurisdiction (can still raise the others in the answer)
Defenses that are never waived
1) Non-joinder
2) Failure to state a cause of action
3) Lack of subject-matter jurisdiction
What is necessary to plead improper service?
Waived if he doesn’t make a follow-up motion for SJ within 60 days
Responses to summons with notice (2)
1) Serve demand for complaint
2) Serve a notice of appearance
What is the timing for responding to a summons with notice?
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)
What is the effect of a response to summons with notice?
Requires P to serve complaint within 20 days
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?
1) Show reasonable excuse for delay
2) Make an evidentiary showing of merit (“Affidavit of merit”)
Does service of a demand for complaint or notice of appearance run the risk of waiving of jurisdictional objections?
No
Amendment as a matter of right must be made
within 30 days after defendant serves answer
May D raise an omitted PJ objection through amended right to the answer
Yes, provided that he made no previous motion to dismiss and adds this no later than 20 days after filing the answer
Standard used by the court when leave to amend must be sough
Allowed if opponent will suffer no incurable prejudice
In opposing an amendment, a party must show
Detrimental change of position as a result of delay
Impleader
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
Steps for joining third party defendant
1) File a summons and 3rd party complaint
2) Servce a copy within 120 days of filing on 3rd party defendant
Rule for measuring compliance with SOL for claim in amended complaint (rule and exception)
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
When can a third party seek contribution from a plaintiff’s employer in a worker’s comp case?
MS- no right of contribution or indemnity
NY- No right unless P sustained grave injury
Contribution based on a doctor’s malpractice following a tort
6 year SOL, not the regular 2.5 year
Reduction formula for settlement
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
Settlement prevents _______ but does not prevent _________
Contribution, indemnification
What must a motion on notice require?
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)
When is a motion on notice made?
When motion papers are served on the other party (or date of mailing)
Return date
The time for hearing of the motion
When must the motion on notice be served?
At least 8 days prior to the return date
Order to show cause
Alternative way to make a motion on notice. Ex parte order directing adversary to show cause of why the motion shouldn’t be granted
Reasons to move by order to show cause (3)
1) Return date can be shorter than 8 days
2) Judge can grant stay or TRO
3) Statute may require it
Deciding order
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
Two effects of service of copy of the deciding order
1) Doesn’t take effect until then
2) Starts the 30-day appeal limit
Appealing interlocutory order
Must file and serve notice of appeal within 30 days from service of order or judgment
When must summary judgment motion be made?
After answer/reply and within 120 days after the note of issue (i.e. the answer/reply)
When can SJ motion be made after the 120 day window?
Showing a good cause (something other than the strength of the motion on the merits)
When is a pre-answer motion for SJ permitted?
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
When is motion for summary judgment in lieu of complaint permitted?
1) Action on instrument to pay money only
2) Action on foreign judgment
Procedures for SJ in lieu of complaint
P serves with summons and sets a return date at least 20 days after personal delivery and 30 days after other methods
Provisional remedies (5)
1) Attachment
2) Preliminary injunction
3) Temporary receivership
4) Replevin
5) Lis Pendens
Which provisional remedies require court order
All but lis pendens
CPLR Article 16
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.
Article 16 does not apply to
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
Main purpose of attachment
To provide security for enforcement of a money judgment
Method of sheriff’s levy on real property in attachment proceeding
Files order of attachment with county clerk in the county in which real property is located
Method of levy on personal property
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
Types of action in which attachment can be used
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
Procedure for order of attachment
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
In attachment cases, D is entitled to damages if
1) Improper procedure OR
2) Wins on the merits
If motion for attachment is made ex parte, what is required?
A hearing for D to have the opportunity to contest the attachment and a followup motion on notice to confirm after levy
Time frame for motion to confirm after ex parte attachment motion
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
Preliminary injunction may be used in (2)
1) Equity action seeking permanent injunction
2) D threatens to harm O’s interest in subject matter of an action
Procedure for preliminary injunction
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
Temporary restraining order serves to
Maintain status quo pending brief period during which preliminary injunction is litigated
How does a party obtain a TRO?
Moves by order to show cause for preliminary injunction and request TRO
What is required for a TRO ex parte?
Affidavit demonstrating that there will be significant prejudice to the party seeking the TRO if notice is provided to the adversary
Temporary receivership is only available where
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
Seizure of chattel available where
P seeks to recover possession of chattel
Requirements for motion for order of seizure of chattel
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
Lis pendens is statutorily required for
Mortgage foreclosure
Procedure for lis pendens
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)
Remedy for improper filing of lis pendens
motion to cancel notice of pendency
When is lis pendens appropriate?
Equity action in which judgment will have a direct effect on real property
How does a party entitled to a jury obtain it?
The party who files can make a demand in not of issue. If not, waives the right. OThre parties can make their own demand
When is there a right to jury trail in a civil action? (5)
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
Civil jury number and requirements
6 members, 5/6 required
Res judicata (claim preclusion) approach in NY
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
Exception to res judicata
We don’t apply the transactional approach to matrimonial disputes
Collateral estoppel applies where (3)
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
Procedure for special proceeding
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
Two major features of arbitration
1) Arbitrators are not bound by the substantive law or the rules of evidence
2) Scope of judicial review is very narrow
Doctrine of severability of arbitration clause
Validity of arbitration clause determined separately from the validity of the contract itself
Once proponent of arbitration serves a notice of intention to arbitrate, what can opponent do?
Commence special proceeding to stay arbitration within 20 days of receive of notice to arbitrate
Judicial review of arbitration awards
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
