NY BAR REVIEW CIVIL PRACTICE AND PROCEDURE 1

Question 1

civil procedure laws

Answer 1

NY state court rules
federal rules of civil procedur
civil procedure and practice 
Civil procedure laws and rules
judges, municipalities etc have their own diff practice

Question 2

courts

Answer 2

NYS court of appeals 7 judges
no original jurisd
only appellate
no $ limit
questions of law
death penalty appeals - direct
appeal from appellate - reversed or modifiedon NEW FACTS - direct entry of judgment 
review questions of fact.

Question 3

APPELLATE DIVISION

Answer 3

1,2,3,4 DEPTS.

Question 4

art 78 proceeding

Answer 4

certiorari
review of determination that results from required evidentiary standard
commenced in sup ct
transferred to appellate division - whether the agency’s determination was supported by applicable evidentiary standard - SUBSTL EVIDENCE - rationale based on teh record before the appellate division

Question 5

trial court in each appellate division will follow which court’s decision if was made in its division?

Answer 5

the appellate court in which it sits

Question 6

trial court in each appellate division will follow which court’s decision if wasnt made in its division?

Answer 6

free to choose one of the two holdings

Question 7

appellate divisions designate what?

Answer 7

appellate terms
lower intermediate appellate courts
hearing appeals from lower level courts
only 1 and 2 division have done that so far
appellate term 1st dept.
appellate term 2nd dept.

Question 8

principal trial court

Answer 8

NYS sup ct
general original jurisdiction
law and equity
no $ limitation, unless jurisdiction specifically described.
exclusive over most art 78 proceedings.
at times jurisdiction concurrent w other courts.

Question 9

local criminal court was approved to be moved to which court in people v. correia?

Answer 9

local supreme court- court of general concurrent jurisdiction - had power to adjudicate those misdemeanor cases

Question 10

supreme court also has what type of presumptive jurisdiction?

Answer 10

concurrent with federal court over FEDERAL CLAIMS

Question 11

sup court has concurrent jurisdiction with federal court over federal claims unless what?

Answer 11

exceptions - explicit statutory directive to the contrary, unmistakable implication from legislative history that there shouldn’t be concurrent jurisdiction OR clear incompatibility bw state court jurisdiction and federal interests, OR transfer to a lower specialized court given the specialized nature of that court

Question 12

court of claims = trial level court

Answer 12

exclusive jurisdiction over claims of person, corporation, municipality AGAINST the state of NY and certain agencies of the state considered to be arms of the state.
sup ct does NOT have concurrent jurisd over those claims.

Question 13

NYS may bring an action ag a claimant where?

Answer 13

in court of claims

in sup court

Question 14

right to jury in court of claims?

Answer 14

NO

Question 15

bench or jury trial in court of claims?

Answer 15

ALL bench

Question 16

county court located where?

Answer 16

each county in NYS, EXCEPT in NYC

Question 17

county court- what type of jurisdiction?

Answer 17

limited.

possesses NO inherent equitable powers

Question 18

county court - monetary jurisdiction?

Answer 18

up to 25k

Question 19

county court - subject matter jurisdiction?

Answer 19

criminal matters.
summary proceedings to recover possession of real property.
any action NOT within the exclusive jurisdiction of the sup ct.
appellate power and reviews appeals from district, town, village, and city courts which finally determine an action.

Question 20

monetary actions brought where?

Answer 20

lowest court jurisdictionally competent to hear the case.

if brought to a higher monetary jurisdiction court, will generally be transferred to that lower court.

Question 21

surrogate court jurisdiction?

Answer 21

actions related to affairs of decedents,
 probate of wills, 
administration of estate, 
guardianship of property of minors, 
full equity powers in matters in which has jurisdiction

Question 22

family court- jurisdiction?

Answer 22

limited.

does NOT possess inherent jurisdictional powers.

Question 23

family court- subject matter jurisdiction from which provision?

Answer 23

NYS constitution.

FAMILY COURT ACT.

Question 24

family court - jurisdiction over what?

Answer 24

child abuse.
neglect proceedings.
spousal support.
child support.
proceedings to determine paternity for children born out of wedlock.
permanent termination of parental rights.
pins- person in need of supervision proceedings.
family offense proceedings - concurrent w criminal court.
juvenile delinquency actions.
custody and support incidentals in matrimonial proceedings ONLY when referred to family court by sup ct.

Question 25

civil court - 5 counties of NYC

Answer 25

amt up to 25k.
summary proceedings to recover real property.
any action not within the exclusive jurisdiction of the sup court.

Question 26

criminal court where?

Answer 26

5 counties of NYC

Question 27

district court

Answer 27

may not exceed jurisdiction for city of NY.
same jurisdictional limits.
monetary up to 15k.

Question 28

district courts - how many and where?

Answer 28

2
nassau.
suffolk partial.

Question 29

town, village, city courts

Answer 29

jurisdictional, outside of NYC, may NOT exceed that of district courts.

Question 30

commencement of action how?

Answer 30

by filing.

paper, electronic.

Question 31

town and village courts - commencement of action how?

Answer 31

by service

Question 32

as of 8.15.2015 - filing process ?

Answer 32

e-file

Question 33

action commenced by filing - service of process when?

Answer 33

within 120 days

Question 34

nail and mail ?

Answer 34

affix to door and mail thereafter.

both acts must be performed within 120 day period.

Question 35

statute of limitations 4 months or less- service of process?

Answer 35

no later than 15 days after the date which the applicable statute of limitations expires.
if service not made upon def within that time, court, upon motion, shall dismiss the action without prejudice to the def, OR upon good cause shown, OR in the interests of justice, extend time for service

Question 36

application for an extension of time to serve based on what?

Answer 36

good cause shown.

interest of justice.

Question 37

methods of service?

Answer 37

personal delivery- summons delivered within the state to the person to be served.

Question 38

alternatives to personal service upon def?

Answer 38

deliver summons within the state to person of suitable age and discretion at actual place of business, dwelling place, or usual place of abode of the person to be served + mail

Question 39

alternative - service upon an agent?

Answer 39

MUST be agent for service designated under rule CPLR 318.

Question 40

alternative to personal service upon defendant?

Answer 40

affix and mail / nail and mail.
summons and complaint affixed to door of place of business, dwelling place, usual place of abode within the state of person to be served.

Question 41

last known address

Answer 41

NO

suitable age and discretion and nail and mail require an additional mailing which DOES go to the last known address.