New York Practice Flashcards
Motions to dismiss
Under CPLR § 3211, the court properly grants a motion to dismiss where, taking the allegations of the complaint in the light most favorable to the plaintiff, the court finds that the complaint is defective and cannot be maintained.
Failure to state a cause of action
Under CPLR § 3211, the court properly grants a motion to dismiss where, taking the allegations of the complaint in the light most favorable to the plaintiff, the complaint fails to state a cause of action on which relief must be granted.
Motions for summary judgment
Under CPLR § 3212, the court properly grants a motion for summary judgment when, after considering the affidavits and any other materials the parties submit, in the light most favorable to the non-moving party, it decides that neither the plaintiff nor defendant presents any triable issue of fact, and the dispute may be decided entirely as a matter of law.
Statute of limitations
Under the CPLR, the statute of limitations is the time period in which a lawsuit must be commenced. The following are the most common statute of limitations:
6 years: actions concerning contracts not under the UCC for the sale of goods; actions for fraud; shareholder derivative actions
4 years: actions concerning contracts for the sale of goods under UCC Article 2
4 years: Actions for residential rent overcharge
3 years: Actions for negligence, strict liability, and general malpractice
2 years 6 months: action for medical malpractice
2 years: wrongful death actions
1 year and 90 days: tort claims against a municipality 自治区
1 year: actions for intentional torts
4 months: special proceedings such as certiorari.
Summons
Under the CPLR, the summons advises the defendant that plaintiff has filed a claim against him in a particular court.
Residence 居所
Under the CPLR, residence is the place where a person lives for a fair amount of time with some degree of permanency. A person may have multiple residences.
Domicile / ˈdoʊmɪsaɪl/ 住所
Under the CPLR, domicile is a person’s true, fixed, and permanent home to which that person intends to return and remain even though he may reside elsewhere for a time. A person may have only one domicile.
Res judicata (claim preclusion)
Under the CPLR, res judicator is also called claim preclusion. Under the doctrine of res judicata, a litigant is barred from re-litigating a claim already decided on the merits.
Collateral estoppel (issue preclusion)
Under the CPLR, collateral estoppel is also called issue preclusion. Under the doctrine of collateral estoppel, an issue fully litigated in a prior trial cannot be relitigated in a subsequent trial.
Subject matter jurisdiction
Under the CPLR, subject matter jurisdiction is the power of a court to adjudicate a claim by grant of constitutional or legislative authority.
Personal Jurisdiction
Under CPLR, the following are bases for establishing general personal jurisdiction over a defendant: (1) physical presence in NY, (2) doing business in NY, and (3) domicile. The CPLR also provides the following bases for establishing specific personal jurisdiction over a defendant: (1) consent,voluntarily appear in court without challenging jurisdiction (2) the non-resident motorist statute, (3) NY’s Long Arm Statute, 5个and (4) matrimonial /mætri’məuniəl/ 婚姻的 jurisdiction.3 个需要residency requirements 3 个,否则 failure to state a cause of action
Complaint
Under CPLR, the complaint is plaintiff’s pleading specifying the transaction or occurrence that is subject matter of the claim and explains the essential elements of plaintiff’s cause of action.
Arbitration
Under CPLR, arbitration is a private procedure based on contract for the binding resolution or disputes by one or more arbitrators. Arbitrators are not bound by substantive law or rules of evidence.
Counterclaims
Under CPLR, a counterclaim is an offensive claim against an existing opposing party.
Answer
Under CPLR, an answer is the defendant’s principal response to the plaintiff’s complaint that denies, admits, or otherwise addresses each of the allegations in the complaint. When applicable, an answer also sets forth the defendant’s affirmative defenses and counterclaims.
