NY BAR REVIEW CIVIL PRACTICE AND PROCEDURE LAW COURSE Flashcards
1
Q
permissive joinder of claims by multiple plaintiffs as well as the joinder of multiple defendants by plaintiff is permitted if claims are what?
A
arise out of same transaction/occurrence/series of transactions/occurrences AND have in common ANY question of law or fact
2
Q
nonjoinder of a necessary party may be ground for what?
A
dismissal
3
Q
misdjoinder of a necessary party may be ground for dismissal?
A
NO
4
Q
how may parties be added?
A
- leave of court, at any state in the action.
- stipulation of all parties who have appeared.
- one time without leave of court within 20 days after service of summons
- within the time period for responding to summons
- within 20 days after service of a pleading responding to it.
5
Q
what is an impleader?
A
third party practice. def is permitted to proceed ag a person nota party who is or may be liable to def for all or part of pl's claim ag def, by bringing in that person so that the original claim and related claim ag the added person may be decided in a single suit.
6
Q
the original party def is called what?
A
the third party pl
7
Q
the impleaded party is called what?
A
the third party def
8
Q
a party may commence a third-party action when?
A
after service of their answer
9
Q
third party summons and complaint must be filed with whom?
A
clerk of court
10
Q
third party summons and complaint must be filed with clerk of court and served together with all prior pleadings on whom?
A
third party def
11
Q
third party summons and complaint must be filed with clerk of court and served together with all prior pleadings on third party def when?
A
within 120 days of such filing
12
Q
third party def must serve an ANSWER upon third party pl that may contain what?
A
any defenses they have ag pl’s claims or third party’s claims
13
Q
third party def ANSWER may assert what?
A
any counterclaims or crossclaims the third party def has against any party to the action
14
Q
within how many days after service of the answer to the third party complaint, may the pl amend their complaint without leave of court to assert ag third party def any claim pl has ag such party?
A
20
15
Q
what is attachment?
A
form of seizure of def’s property by sheriff
16
Q
what does sheriff do in attachment?
A
holds property for potential satisfaction of judgment in pl’s favor, helping secure enforcement of money judgment
17
Q
when is attachment available?
A
only in action for money judgment
18
Q
attachment will be granted based on what?
A
MOTION demonstrating one of grounds in CPLR 6201
19
Q
what is CPLR 6201?
A
def is non-domiciliary residing without the state or is a foreign corporation not qualified to do business in the state. def resides or is domiciled in the state and cannot be personally served despite diligent efforts to do so. def, with intent to defraud their creditors or frustrate the enforcement of a judgment that might be rendered in pl's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts.
20
Q
what must pl making a motion for order of attachment show?
A
a probability of success on the merits through affidavits
21
Q
what must pl making a motion for order of attachment provide?
A
an undertaking set by the court
22
Q
when must pl making a motion for order of attachment file?
A
within 10 days of granting of the order, pl MUST file order of attachment and papers upon which it is based, including summons and complaint.
23
Q
what if the order of attachment is granted before service is made?
A
summons and complaint must be served within 60 days, subject to extension upon application to court upon good cause shown.
24
Q
what is preliminary injunction?
A
a court order that seeks to safeguard rights asserted by pl in pending action or special proceeding to preserve status quo until case can be fully adjudicated on the merits
25
on what grounds may preliminary injunctive relief be granted?
```
def threatens to harm pl's rights in subject of the action and such harm could render judgment ineffectual.
pl seeks judgment restraining def from injurious conduct that would also injure pl if committed during course of action
```
26
when may a preliminary injunction not be available?
in an action seeking solely money damages
27
what is the proceeding for getting a preliminary injunction?
motion in a pending action, made on notice to def.
| notice of motion may be served with or after summons or any time before final judgment
28
supporting affidavits and other evidence for a preliminary injunction MUST show what?
that the underlying action falls within one of the grounds for a preliminary injunction specified in CPLR 6301.
29
in addtion to CPLR 6301 grounds for preliminary injunction, courts REQUIRE a showing of what?
likelihood of success on merits of the action.
threat of irreparable injury.
balance of equities in pl's favor.
30
prior to getting a preliminary injunction, the pl will have to submit what?
an undertaking in amt set by court so that if it is finally determined that pl wasnt entitled to such relief, he will pay the def all damages and costs which were sustained by reason of the injunction.
31
what does a temporary restraining order provide?
immediate injunctive relief while the court determines a motion for preliminary injunction.
32
can a temporary restraining order be granted without notice?
YES
33
what must a pl demonstrate for a temporary restraining order?
immediate and irreparable injury, loss , or damages will result unless def is restrained before a hearing on the motion for preliminary injunction can be held
34
what is the court of appeals in NY?
it is the highest court in the court system.
it has no original jurisdiction but exercises only appellate jurisdiction without regards to the amount in controversy.
its jurisdiction is generally limited to questions of law
35
how many judicial depts does the appellate division of the supreme court have?
4
36
what is the appellate division?
a single statewide appellate court, divided into FOUR judicial depts., and is the principal intermediate appeals court. trial courts in a given dept. are required to follow precedent set by another dept. until the court of appeals or the dept in which the trial sits pronounces a contrary rule. the appellate divisions should accept the decisions of sister depts. as persuasive authority, but are free to reach a contrary result
37
what is stare decisis?
once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.
38
the first judicial dept. of appellate term of sup court consists of ?
2 counties within NYC
39
the second judicial dept. of appellate term of sup court consists of ?
3 counties within NYC and 7 other counties
40
what does the appellate terms hear?
appeals from civil and criminal courts of NYC
41
what does the appellate terms of the 2nd dept hear?
appeals from district, county (EXCLUDING felonies), city, town, village courts
42
what jurisdiction does NY sup court have, as a principal trial court?
general original jurisdiction of all cases in law and equity without monetary limitation, unless jurisdiction has been specifically proscribed.
in some cases, jurisdiction is concurrent with that of other courts.
it has EXCLUSIVE subject matter jurisdiction over matrimonial actions.
hears ALL FELONIES.
43
what jurisdiction does court of claims have, as a principal trial court?
exclusive jurisdiction over tort and contract claims against NYS
44
what jurisdiction does county court have, as a principal trial court?
it exists ONLY in 3rd and 4th judicial depts., which include counties that are all OUTSIDE nyc, and have jurisdiction over ALL criminal matters, but primarily hear FELONIES.
limited jurisdiction over civil cases where amount to be recovered does not exceed 25k.
jurisdiction over summary proceedings to recover possession of real property.
jurisdiction over appeals from city, town, and village courts.
45
what jurisdiction does surrogate court have, as a principal trial court?
all proceedings relating to affairs of decedents, probate of wills, administration of estates, guardianship of property of minors, concurrent jurisdiction with sup ct over wrongful death actions.
full equity powers in matters over which it has jurisdiction.
46
what jurisdiction does family court have, as a principal trial court?
child abuse proceedings.
child neglect proceedings.
spousal and child support proceedings.
proceedings to determine paternity.
proceedings for permanent termination of parental rights.
person in need of supervision proceedings.
family offense proceedings, concurrent and simultaneous with the criminal courts.
juvenile delinquency proceedings.
custody and support proceedings when referred by sup ct.
47
what jurisdiction does NYC CIVIL court have?
within city of new york, over monetary actions where amount to be recovered doesn't exceed 25k and over summary proceedings to recover possession of real property.
48
what jurisdiction does NYC CRIMINAL court have?
criminal jurisdiction within the city of NY over MISDEMEANORS and violations
49
what jurisdiction does district court and city court have?
district court is ONLY in 2nd jud dept and city courts all have jurisdiction over monetary actions where amount to be recovered doesnt exceed 15k
50
what jurisdiction does town court and village court have?
jurisdiction over monetary actions where amount to be recovered doesnt exceed 3k.
criminal jurisdiction over MISDEMEANORS and violations.
51
excluding town and village courts, how are actions commenced?
paper filing, electronic filing.
| of summons and complaint or summons with notice with the clerk of court in county where action is brought
52
how is a special proceeding commenced?
paper wiling, electronic filing.
| of notice of petition and petition w clerk in county where special proceeding is brought.
53
information about NYS courts electronic filing system can be found where?
website of UNIFORM COURT SYSTEM at nycourts.gov/efile
54
nondomiciliary who commences an action in NY, even if is not otherwise subject to personal jurisdiction in NY, does or does NOT submit themselves to personal jurisdiction in any separate action brought ag them by any party to the pending action ?
YES, does
55
nondomiciliary who commences an action in NY, even if is not otherwise subject to personal jurisdiction in NY, is or is NOT deemed to have designated their NY atty as agent upon whom process may be served in separate action?
YES, is
56
defendant can use CPLR 303 to acquire what over the pl in a separate action and its in place of interposing what?
jurisdiction.
| counterclaim.
57
upon commencement by filing, service in an action MUST be made within how many days?
120
58
if method of service of process requires two acts, what are they ?
deliver and mail.
| affix and mail.
59
if method of service of process requires two acts, what is required concerning the time period?
both acts MUST be performed within the 120 day period
60
in action /proceeding in which statute of limitations is 4 months or less, such as CPLR ART 78 proceeding, service of process is to be made no later than how many days after date on which relevant statute of limitation expires?
15
61
if service is NOT timely made, upon motion, MUST what?
dismiss action without prejudice as to def not served, or , upon good cause shown, or , in interest of justice, extend time for service even if applicable statute of limitations has expired
62
how does a court measure an application for extension of time to serve?
```
good cause requires a threshold showing of reasonable diligence in attempting to effect service on def.
interest of justice is broader and more flexible.
diligence in effecting service.
expiration of statute of limitations.
meritourious nature of claim.
length of delay.
promptness of request.
prejudice to defendant.
other relevant factors.
```
63
how MUST personal service in an action upon a natural person be made?
```
personal delivery.
delivery and mail.
service upon an agent.
affix and mail.
court ordered service.
adhere to particular provisions of CPLR 308.
```
64
service under CPLR 308, 2
delivery of process to person of suitable age and discretion at actual place of business, dwelling place, usual place of abode of def, mailing process to def at his last known address, actual place of business, AND thereafter, filing PROOF OF SERVICE.
65
service under CPLR 308, 4
affix process to door of actual place of business, dwelling place, usual place of abode of def, mail process to def at his last known residence or actual place of business, AND thereafter, file PROOF OF SERVICE.
this type of service is NOT available UNLESS service under subsection 1 and 2 cannot be made with due diligence
66
how to personal serve upon a partnership?
on any one of the partners, managing or general agent of partnership or person in charge of partnership office within the state at such office, mailing process to partner intended to be served by first class mail to their last known residence or partnership place of business, AND thereafter filing proof of service
67
if filing of proof of service is required, it is a prerequisite to what?
completion of service and thus the def's time to respond does NOT begin to run until service is complete
68
how to personally serve a domestic or foreign corporation?
serve an officer, director, managing agent, general agent, cashier, assistant cashier, service upon registered agent, secretary of state.
69
how to personally serve a domestic or foreign limited liability company?
serve process on any member of LLC, if mgt of LLC is vested in its members or any manager of LLC, if mgt of the LLC is vested in one or more managers or by service upon sec of state
70
how to serve outside of New York State?
any person domiciled in state or subject to personal jurisdiction under long arm statute may be served outside state in same manner as service is made within state by same parties authorized to make service within or without the state. papers may be served by any person over 18 who's not a party in the action.
71
what are the types of jurisdiction over persons, property and status?
in personam.
in rem.
quasi in rem.
72
what are the 5 bases for in personam jurisdiction?
```
presence.
consent.
domicile.
doing business.
long arm.
```
73
how does a pl demonstrate personal jurisdiction?
MUST have general jurisdiction or long arm jurisdiction.
74
what is general jurisdiction?
it permits a court to hear all claims ag an entity
75
what is specific jurisdiction?
it permits a court to hear only those claims that arise out of entity's contacts within the state
76
how is a foreign corporation subjected to general personal jurisdiction in NY?
it is present and doing business in the state, it is engaged in CONTINUOUS, PERMANENT, SUBSTANTIAL ACTIVITY IN NY
77
general personal jurisdiction can NO longer be asserted ag a foregin corporation based solely on what?
its continuous and systematic business activity in NY. due process limits the exercise of general jurisdiction to a state in which the corporation is AT HOME.
78
if a corporation is NOT incoroporated in NY or maintaining its principal place of business here,NY courts will exercise general personal jurisdiction when ?
when the foreign corporation's operations are so substl and of such a nature as to render the corporation essentially at home
79
presence , domicile, doing business, confer what?
general jurisdiction
80
long arm statute confers what?
specific jurisdiction.
81
what is specific jurisdiction?
cause of action must arise out of def's state connected activity
82
personal jurisdiction over whom?
non domiciliary who in person or through an agent transacts any business within NY or contracts to supply goods or services here; commits a tortious act within NY, EXCEPT as to a cause of action for defamation.
83
court of appeals
highest court in ct system.
no original jurisdition.
only appellate jurisdiction without regard to amt in controversy.
jurisdiction limited to questions of law.
principal intermediate appeals ct.
84
appellate division is single statewide and divided into
4 judicial depts
85
stare decisis
trial cts in a given dept are required to follow precedent set by another dept until ct of appeals or dept in which trial ct sits pronounces contrary rule
86
appellate divisions should accept whose decisions
sister depts. as persuasive authority. BUT they are still FREE to reach a contrary result!
87
appellate terms of sup ct / first judicial dept
2 counties within NYC
88
appellate terms of sup ct / 2nd judicial dept
3 counties within NYC + 7 other counties
89
appellate terms of 1st and 2nd depts hear what typeof appeals
civil and criminal cts of NYC
90
appellate term of 2nd dept hears appeals from which cts
district, county (NO felonies), city, town, village
91
sup ct jurisdiction
general original of all cases in law and equity w/o monetary limitation unless its jurisdiction has been specifically proscribed
92
in some cases, sup ct jurisdiction is concurrent with that of?
other cts
93
sup ct jurisdiction has exclusive subject matter jurisdition over which claims / actions?
matrimonial and wrongful death
94
in NYC, sup ct hears all
FELONIES
95
commercial division of sup ct handles claims meeting what
minimum monetary threshold and involving multitude of commercial disputes
96
after commencement of an action, any party may seek what
assignment of commercial case to commercial division and upon transfer, parties are subject to specific rules of practice for commercial division
97
specific rules of practice for commercial division
electronic submission and form of papers, atty appearances, limitations on discovery, discovery of electonically stored info, adherence to discovery schedules and discovery disputes, motions, trials
98
ct of claims exclusive jurisdiction over?
tort claims + contract claims = AGAINST NYS
99
ct of claims may NOT exercise what?
equitable jurisdiction.
100
ct of claims does NOT have jurisdiction over whom?
non-state actors
101
county cts exist where
in all counties outside of NYC
102
county cts have jurisdiction over what?
all criminal matters.
hear primarily felonies.
have limited jurisdiction over civil cases where amt to be recovered does NOT exceed 25K.
have jurisdiction over summary proceedings to recover possession of real property.
have jurisdiction over appeals from city / town / village cts.
103
surrogate ct has jurisdiction over what?
all proceedings relating to affairs of decedents / will probate / administration of estates / guardianship of minors' property.
has concurrent jurisdiction w family ct over adoptions.
has concurrent jurisdiction w sup ct over allocation and distribution of proceeds of wrongful death actions.
104
surrogate ct has full equity powers in what
in matters over which it has jurisdiction
105
family ct has jurisdiction over what
child abuse.
neglect proceedings.
spousal and child support proceedings.
proceedings to determine paternity.
proceedings for permanent termination of parental rights.
person in need of supervision proceedings.
family offense proceedings / concurrent and simultaneous w criminal cts.
juvenile delinquency proceedings.
adoptions.
custody and support proceedings - when referred by sup ct.
106
NYC civil ct has jurisdiction
within city of NY, over:
monetary actions where amt to be recovered doesnt exceed 25K
summary proceedings to recover possession of real property.
107
NYC criminal ct has criminal jurisdiction
within city of NY over:
misdemeanors.
violations.
108
district ct - where?
in 2nd judicial dept:
nassau county.
suffolk county.
jurisdiction over monetary actions where amt to be recovered does NOT exceed 15K.
have criminal jurisdiction over misdemeanors and violations.
109
city cts have jurisdiction over
monetary actions where amt to be recovered does NOT exceed 15K.
have criminal jurisdiction over misdemeanors and violations.
110
town cts and village courts have jurisdiction over
monetary actions where amt to be recovered does NOT exceed 3K.
have criminal jurisdiction over misdemeanors and violations.
111
actions commenced how?
paper filing / electronic filing of summons and complaint and summons w notice w clerk of ct in county where action brought
112
special proceeding commenced how?
paper filing / electronic filing of notice of petition and petition w clerk of ct in county where special proceeding is brought
113
in some counties as to certain types of actions, commencement by electronic filing is what
mandatory
114
in other matters, e filing is what
authorized
115
NYSCEF
NYS courts electronic filing system found on uniform court system website:
iapps.courts.state.ny.us/nyscef/homepage
116
nondomiciliary commencing action in NY, even if isnt otherwise subject to personal jurisdiction in NY, causes what?
submits himself to personal jurisdiction in separate action brought against him by any party to the pending action and is deemed to have designated his NY atty as agent upon whom process may be served in such separate action
117
CPLR 303
acquire jurisdiction over pl in separate action instead of interposing a counterclaim
118
upon commencement by filing, service in an action MUST be made when?
within 120 days
119
if particular method of serving process requires two acts
1. deliver and mail
2. affix and mail
both acts MUST be performed within 120 day period
120
in action/proceeding where statute of limitations is 4 months / less, (such as CPLR ART 78 proceeding), service of process is to be made when?
NO LATER THAN 15 days after date on which relevant statute of limitations expires
121
if service isnt timely made
ct, upon motion, MUST dismiss action WITHOUT prejudice as to def not served,
OR
upon good cause shown or in interest of justice, EXTEND time for service.
122
if applicable statute of limitations expired since, pl MUST
make a motion, or raise the issue in response to def's motion to dismiss, for an extension of time to serve while the action/proceeding is still pending OR commencement of a new action will be TIME BARRED
123
ct standards by which measuring an application for extension of time to serve
```
good cause- show reasonable diligence in attempting to effect service on def.
OR
interest of justice
OR
diligence in effecting service
expiration of statute of limitations
meritorious nature of claim
length of delay and promptness of request
prejudice to def
and others
```
124
PERSONAL SERVICE
| in an action upon natural person MUST be made by
```
personal delivery
deliver and mail
service upon an agent
affix and mail
court ordered service
```
125
delivery of process
to a person of suitable age and discretion
at the actual place of business / dwelling place / usual place of abode of def.
mailing process to def at last known residence / actual place of business.
filing proof of service.
126
other type of service
affixing process to door of actual place of business/ dwelling place/ usual place of abode of def, thereafter filing proof of service.
this is NOT available unless service under subsection 1 & 2 cannot be made w due diligence
127
mailing to def's actual place of BUSINESS
MUST be by first class mail
envelope labeled PERSONAL & CONFIDENTIAL
MUST NOT indicate it is from an atty
128
if method of service requires filing of proof of service
such filing is a prerequisite to completion of service, and service is complete 10 days after filing.
129
def's time to respond begins when
service is complete
130
personal service upon partnership / CPLR 310
serving process on any 1 of partners
131
partnership may also be served by serving whom
managing agent
general agent
person in charge of partnership office within state at such office
mailing process to partner intended to be served by first class mail to his last known residence or partnership place of business, then filing proof of service
132
personal service upon domestic/foreign corp is made how?
by serving officer/director/managing agent/general agent/cashier/assistant cashier/registered agent/sec of state
133
personal service upon domestic/foreign limited liability co. is made how?
by serving process on any member of LLC, if mgt of LLC is vested in members
OR
an manager of LLC, if mgt of LLC is vested in 1/more managers
OR
by service upon sec of state
134
person domiciled in state or subject to personal jurisdiction under long arm statute may be served outside state how?
in same manner as service is made within state by same parties authorized to make service within or without the state
135
papers may be served by whom?
any person over age 18, not a party in the action
136
jurisdiction over persons, property, status categories
in personam
in rem
quasi in rem
137
in personam jurisdiction's 5 potential bases
```
presence
consent
domicile
doing business
long arm jurisdiction
```
138
for pl to demonstrate personal jurisdiction over def, pl MUST have
general jurisdiction or long arm jurisdiction
139
general jurisdiction
permits a court to hear all claims ag an entity
140
specific jurisdiction
permits ct to hear ONLY claims arising out of entity's contacts within the state
141
foreign corp subject to general personal jurisdiction in NY if
present and doing business in the state.
| if it is engaged in continuous, permanent, substl activity in NY
142
daimler v. bauman decision
general personal jurisdiction can no longer be asserted ag foreign corp based solely on corp's continuous and systematic business activity in NY.
due process limits exercise of general jurisdiction to state in which corp is AT HOME.
if corp is not incorporated in NY or maintaining its principal place of business here, NY cts will only exercise general personal jurisdiction in exceptional case - when foreign corp's operations are so substl and of such nature as to render corp essentially AT HOME
143
state long arm statute confers only
specific jurisdiction, cause of action MUST arise out of def's state connected activity
144
re cause of action arising from enumerated acts, NY cts may exercise personal jurisdiction over non domiciliary who in person or through an agent does what?
transacts any business within NY or contracts to supply goods or services here.
commits tortious act within NY, except as to cause of action for defamation.
commits tortious act outside NY that causes injury within NY. injuried person/damaged property MUST be located in state at time of injury/damage, except as to cause of action for defamation, if def regularly does or solicits business, or engages in any other persistent course of conduct in NY, or expects or reasonably should expect the act to have consequences in NY and derives substl revenue from interstate or international commerce.
OR
owns/uses/possesses real property within NY.
145
personal jurisdiction over non resident def in what type of action
matrimonial, if certain prerequisites are satisfied
146
long arm jurisdiction assertion MUST not exceed what
limits imposed by due process clause of U.S. and NY Constitutions
147
place of trial
county in which pl/def resides at time of commencement of action. county in which substl part of events or omission giving rise to claim occurred
OR
if neither party resides in the state, any county designated by pl.
148
corporation is resident where?
of county in which principal office is located
149
partnership is resident where?
of county in which has principal office + county where partner suing or being sued actually resides
150
actions ag municipal def's place of trial is where?
county in which the municipal def is located
151
place of trial of action in which judgment would affect title to real property is where?
county where real property is situated
152
court may change venue when?
UPON MOTION,
upon grounds that venue was improperly placed,
impartial trial cannot be had in proper county,
OR
if convenience of material witnesses and ends of JUSTICE will be promoted by change
153
court is permitted, eventho has jurisdiction, to decline to entertain action when?
after examining ALL relevant factorsof private inconvenience and public interest, including whether chosen forumis significantly inconvenient for trial of action and whether more appropriate forum is available
154
NY does not require alternative forum as a precondition to what?
forum non conveniens dismissal
155
in NY, ct may stay or dismiss action, in entirety, or in part, upon what conditions?
just.
waiver of defenses - lack of jurisdiction or statute of limitations.
if alternate venue is another NY ct, ct may not transfer the case, unlike federal procedure, which permits such transfer
156
action must be commenced within limitations period in art 2, unless diff time is prescribed where?
by law or shorter time prescribed by written agreement
157
ct cannot extend time limited by law for what?
commencement of action
158
NY's borrowing statute
if nonresident pl's claim accrued outside of NY, claim MUST be timely under both NY law and that of place of accrual.
159
out of state claim that accrues in favor of NY resident will be governed by NY SOL regardless of whether what?
other state's statute of limitations is shorter than that of NY
160
pl must interpose the claim within the applicable what?
statute of limitations
161
in all cts except justice cts, a claim is deemed interposed when?
initiatory papers are filed w the clerk
162
if there are several def's and theyre united in interest, commencement as to one will do what?
preserve the action as ag the others
163
united in interest doctrine
assertion of claim ag def after expiration of statute of limitations will RELATE BACK to commencement date of timely action ag related party when:
1. claims ag parties arose out of same conduct/transaction/occurrence
2. def reasonably should have known that pl made a mistake in failing to timely identify proper parties
3. def and party originally sued have such unity of interest that, by reason of their relationship, def can be charged w such notice of action that he will not be prejudiced in defending the case
164
when is a defense / counterclaim interposed?
when a pleading containing it is served, and it is not barred if it was not barred at time claims asserted in complaint were interposed
165
if def / counterclaim arose from transactions or occurrences upon which claim in complaint depends, defense or counterclaim is what?
NOT barred to the extend of the demand in the complaint, even if time barred at time claims asserted in complaint were interposed
166
claim asserted in amended pleading is deemed to have been interposed when?
at time claims in original pleading were interposed provided original pleading gave notice of same conduct / transaction / occurrence
167
where limitations pd is measured from discovery of wrong, action must be commenced when?
within stated limitations period from wrong itself OR 2 years from discovery of the wrong, whichever is longer
168
adverse possession claims / limitations pd
10 years
169
6 yrs limitations pd
1. action for breach of contract, express or implied, except as otherwise provided
2. action based on fraud - greater of 6 yrs from time fraud was perpetrated or 2 yrs from time fraud was discovered or could with reasonable diligence have been discovered
3. action for which no limitation is specifically prescribed by law
170
3 yrs limitations pd
1. action to recover damages for personal injuries.
2. action to recover damages for injury to property
3. action to recover damages for malpractice, NOT MEDICAL, DENTAL OR PODIATRIC. regardless of whether the underlying theory is based in contract / tort.
171
2.5 yrs limitations pd
from day of alleged act / omission / failure.
if continuous treatment for same illness / injury / condition that gave rise to alleged act / omission, statute is tolled till date of last treatment.
if action based upon discovery of foreign object left in patient's body, excluding devices placed in patient for ongoing treatment, commencement pd tolled till earlier of 1 year of date of discovery or of date of discovery of facts which would reasonably lead to discovery.
if action based upon failure to diagnose cancer or malignant tumor, by act / omission, commencement pd tolled till later of either when person knows or reasonably should have known of act / omission and knows or reasonably should have known that act / omission has caused injury, NO LATE THAN 7 YRS FROM ACT/OMISSION or date of last treatment where there is continuous treatment.
1. medical malpractice
2. dental malpractice
3. podiatric malpractice
172
1 yr statute of limitations
1. action to recover damages for intentional torts, such as assault, defamation
2. action upon arbitration award
173
4 months statute of limitations
after determination to be reviewed becomes final and binding.
1. special proceeding under ART 78.
UNLESS shorter time is provided in law authorizing proceeding.
174
1 year AND 90 days statute of limitations
after cause of action accrues
| 1. actions ag municipalities to recover damages for personal injury or property damage, other than for wrongful death,
175
2 years statute of limitations
after decedent's date of death
| 1. wrongful death actions
176
action may NOT be maintained ag municipality / fire district / school district to recover damages alleged to have been sustained by reason of what?
negligence / wrongful act of def UNLESS notice of claim has been served in accordance w general municipal law.
177
notice of claim served on municipality / fire district / school district re negligence / wrongful act must be served within how many days after claim arises or in wrongful death, from apptmt of representative of decedent's estate
90 days
178
notice of claim re negligence / wrongful act served on municipality / fire district / school district must be
in writing.
sworn to by or on behalf of, claimant.
shall set forth name and address of claimant and his atty.
nature of claim.
time when and placer where and manner in which claim arose.
items of damage or injuries claimed to have been sustained.
179
ct, in its discretion, may EXTEND time to serve notice of claim re negligence / wrongful act served on municipality / fire district / school district, but it shall not exceed what?
statute of limitation for commencing action ag municipality or other public corp - 1 year and 90 days after happening of event, or in wrongful death, within 2 years of death of decedent - general municipal law.
180
whether to extend time to serve a notice of claim, court MUST consider what?
whether municipality or its insurance carrier had actual knowledge of facts constituting claim within 90 days of event and all other relevant factors, including whether claimant was an infant or incapacitated, whether claimant justifiably relied upon settlement representations of rep of municipality, and whether delay in serving the notice of claim substly prejudiced the municipality in maintaining its defense on the merits.
statutory factors are a non exhaustive list of factors ct should weigh
181
time limits for service of notice of calim and for commencing an action as set forth in gen munic law also apply to actions for
property damage.
personal injury.
wrongful death.
ag any politicial subdivision of the state, state agency, public authority, public benefit corp, that is entitled to receive notice of claim as condition precedent for commencement of action
182
when cause of actions accrues ag def and def is absent from STATE, limitations period is what?
tolled until def returns
183
if def leaves the state AFTER cause of action accrues and REMAINS out of state continuously for 4+ months, then?
period of absence is NOT part of limitations pd.
absence of def will suspend running of SOL if there is statutory authority for obtaining jurisdiction over def by some manner other than by personal delivery of process w/in the state, where there is a resident agent that may be served, or if jurisdiction over the person of the def can be effected out of state pursuant to long arm jurisdiction.
184
infancy and insanity are what?
disabilities which MAY toll applicable SOL
185
if applicable SOL is LESS than 3 years, SOL does NOT what?
run during entire period of disability
186
if applicable pd is 3+ years, pl will have at least how many years to sue from time disability ceases?
3 years.
| applies ONLY when pl is under such disability at time cause of action accrues
187
maximum toll permitted in case of insanity is how many years?
10
| as it is for infant's cause of action for medical / dental / podiatric malpractice.
188
in other cases involving infant, there is NO what?
10 yr maximum limit
189
NY CHILD VICTIMS ACT
from 8.14.19 and for 1 year thereafter, SOL and any notice of claim requirements for civil actions related to sexual offense from penal law, committed ag child are lifted and such actions granted trial preference.
190
civil action may be commenced ag any party whose what?
intentional or negligenct acts or omissions are alleged to have resultedin commission of said conduct, on or before pl reaches 55 yo, re NY CHILD VICTIMS ACT
191
where pl dies before expiration of SOL period, his executor / administrator has greater of what?
that limitation pd or 1 year from death in which to sue
192
when def dies before suit, how much time is tacked onto whatever limitations pd remains?
18 months
193
if action timely commenced and terminated in any manner other than final judgment on merits, voluntary discontinuance, neglect to prosecute, or lack of personal jurisdiction, and SOL has or is abt to expire, pl may nonetheless commence a new action upon same transaction or occurrence when?
within 6 mths after termination, provided service upon def is effected within such 6 mth pd.
194
applicaiton of the 6 mth period is NOT needed if SOL hasnt what?
run, when new action is commenced
195
def appears in action by serving what?
answer.
making motion which has effect of extending time to answer.
serving a notice of appearance.
196
if def was served by personal delivery within NYS, time to appear is when?
no later than 20 days from delivery
197
in most other cases, including service outside NYS, and service under cplr 308 2-5, time to appear is when?
no later than 30 days after service is complete
198
appearance by def confers what>?
jurisdiction over def's person, unless objection to jurisdiction is raised in motion or answer, or def makes limited appearance in actions based on quasi in rem or in rem jurisdiction
199
any party may appear in an action how?
pro se.
| through an atty.
200
corporation or LLC MUST appear how?
thru an atty
201
once party appears in action thru atty, atty of record may be changed how?
w c's consent by filing consent to change attys signed by retiring atty and signed and acknowledged by party
202
notice of change of atty MUST be given to whom?
to attys for all parties
203
atty of record may also withdraw from representation or be changed how?
w/o c's consent by ct order upon motion on notice to c, to attys of record for all other parties to action and to any unrepresented parties
204
pleadings permitted in an action are which?
complaint.
answer. - may include counterclaim. cross claim.
reply to counterclaim labeled as such.
3rd party complaint.
answer to inerpleader complaint or 3rd party complaint.
answer to cross claim that contains demand for answer.
205
if no answer is demanded, cross claim is deemed what?
denied
206
no other pleadings are permitted without what?
ct order
207
party in its answer MUST deny sttmts known or believed to be what?
untrue and/or specify sttmt of which he lacks knowledge or info sufficient to form belief
208
allegation NOT addressed by either kind of denial is deemed what?
admitted
209
part MUST specifically raise what?
affirmative defense any matter, which, if not pleaded, would be likely to take adverse party by surprise or would rais efact issues not appearing on face of prior pleading.
210
statute contains list of traditional affirmative def's such as which?
```
collateral estoppel.
release.
res judicata.
statute of frauds.
statute of limitations.
```
211
the affirmative defenses are waived if not raised in what?
answer or pre answer motion to dismiss
212
culpable conduct claimed in diminution of damages is what?
an affirmative def to be pleaded and proved by party asserting def
213
what is a counterclaim?
cause of action asserted by def ag pl.
neednt arise out of transaction or occurence out of which pl's claim arises, nor otherwise be related to pl's claim.
can be any cause of action the def has ag pl, legal or equitable.
214
every counterclaim in NY is what?
permissive, even if its subject matter related to pl's claim
215
what is a cross claim?
cause of action by 1 def ag another.
| cross claim MAY be asserted bw def's for any cause of action at all, whether or not related to pl's claim.
216
what is a verification?
sttmt by party under oath that pleading is true to knowledge of deponent.
217
pleadings need not be what?
verified.
| but if they are, each subsequent pleading MUST be verified, unless matter to be verified is privileged.
218
if counterclaim or cross claim in answer is separately verified, then what?
it's given same effect as if it wre a separate pleading
219
verification of a complaint in a matrimonial action
MANDATORY
220
verification of petition in art 78 proceeding
MANDATORY
221
amendments to pleading may be made once without leave of ct when?
within 20 days after service or
anytime before time to respond expires or
within 20 days after service of pleading responding to it
222
party may amend pleading or may supplement it how?
by setting forth addtl or subsequent transactions or occurrences ONLY by:
leave of ct or
stipulation of parties
223
answer or reply to amended or supplemental pleading MUST be served when?
within 20 days after service of the pleading to which it responds
224
bill of particulars purpose?
amplify pleadings.
NOT to obtain evidence.
its available bw parties in the action.
225
how to secure a bill of particulars?
serve a written demand on party from whom particulars are sought.
party on whom demand is made MUST serve a timely response.
if any particulars are objectionable, include in response a sttmt of objections for particulars not being responded to with reasonable particularity.
226
assertion of an objection to 1 or more of items in demand shall NOT what?
relieve party on whom demand is made from obligation to respond in full within 30 days of service of demand to items of demand to which no objection has been made
227
party may amend bill of particulars how?
once without leave of ct BEFORE note of issue is filed
228
if party fails to timely respond or fails to comply fully w demand, party seeking bill of particulars may what?
move to compel compliance.
or
if failure is willful, seek penalties.
229
if ct determines that a demand for particulars, or any part thereof is improper or unduly burdensome, it may what?
vacate or modify the demand or make such order as is just.
230
in personal injury, items that may be demanded have been what?
codified
231
in personal injury action, party may serve supplemental bill w respect to claims of continuing special damages w/o leave of ct when?
at any time up to 30 days prior to trial.
NO new cause of action may be alleged or new injury claimed.
other party may seek discovery regarding such continuing special damages and disabilities.
232
if pleading is verified, any bill of particulars in respect of it MUST also be what?
verified
233
in negligence case, bill of particulars MUST be verified whether or not pleading is what?
verified
234
what is a necessary party?
person who ought to be a party if complete relief is to be accorded bw parties to the action or who might be inequitably affected by judgment in action
235
necessary parties MUST be what?
joined in action if theyre are subject to jurisdiction of ct.
if are NOT subject toand do not consent to jurisdiction of ct, ct when justice requires may allow action to proceed w/o them
236
permissive joinder of claims by multiple pl's as well as joinder of multiple def's by pl is permitted if claims what?
arise out of same transaction / occurrence / series of transactions or occurrences
AND
have in common a question of law / fact
237
nonjoinder of necessary party may be ground for dismissal, but misjoinder of party is what?
NOT
238
parties may be added at ANY stage in action how?
leave of ct
OR
stipulation of all parties who have appeared
OR
one time w/o leave of ct w/in 20 days after service of summons
OR
within time period for responding to summons
OR
within 20 days after service of pleading responding to it
239
3rd party practice: IMPLEADER
procedure whereby def is permitted to proceed ag person not a party, who is or may be liable to def for all or part of pl's claim ag def, by bringing that person into lawsuit so that original claim and related claim ag added person may be decided in single suit.
240
what is original party def called?
3rd party pl
241
what is the impleaded party called?
3rd party def
242
party may commence 3rd party action after service of ?
their answer
243
3rd party summons and complaint MUST be filed how?
w clerk of ct and served together w all pleadings on pl and 3rd party def w/in 120 days of the filing
244
3rd party def must serve answer upon 3rd party pl that may contain what?
any defenses he ha ag pl's claims or 3rd party's claims
245
3rd party def's answer may assert what?
any counterclaims or crossclaims 3rd party def has ag any party to action
246
w/in 20 days after service of answer to 3rd party complaint, pl may what?
amend his complaint w/o leave of ct to assert ag the 3rd party def any claim pl has ag such party
247
provisional remedy- attachment
form of seizure of def's property by sheriff, who holds property for potential satisfaction of judgment in pl's favor, helping secure enforcement of money judgment.
248
attachment available in action for what?
money judgment.
| ONLY upon motion demonstrating one of grounds in CPLR 6201.
249
CPLR 6201
```
attachment in action for money judgment:
when def is nondomiciliary residing w/o the state OR is a foreign corp not qualified to do business in state.
def resides or is domiciled in state and cannot be personally served despite diligent efforts to do so.
OR def, w intent to defraud his creditors or frustrate enforcement of judgment that might be rendered in pl's favor, has assigned, disposed of, encumbered, secreted property, removed it from state or is about to do any of these acts.
```
250
pl making motion for order of attchmnt MUST show what and how?
through affidavits and other evidence a probability of success on the merits
251
pl MUST also provide what set by the ct?
undertaking in amount
252
pl MUST file ORDER of attchmnt and papers upon which it was based, including summons and complaint, when?
w/in 10 days of granting the order
253
in event order of attachment is granted before service is made, summons and complaint MUST be served when?
within 60 days, subject to extension upon application to the ct upon good cause shown
254
what is a preliminary injunction ?
ct order seeking to safeguard rights asserted by pl in pending action or special proceeding to preserve status quo till case can be fully adjudicated on merits
255
on what grounds may preliminary injunctive relief be granted?
```
def threatens to harm pl's rts in subject of action and such harm could render judgment ineffectual.
pl seeks judgment restraining def from injurious conduct that would injure pl if committed during course of action.
```
256
on what grounds may preliminary injunctive relief NOT be granted?
in aciton seeking solely money damages
257
procedure for getting preliminary injunction is what?
motion in pending action which MUST be made on notice to def.
notice of motion may be served w or after summons or at any time before final judgment
258
supporting affidavits and other evidence for preliminary injunction MUST show what?
underlying action falls w/in one of grounds for preliminary injunction specified in CPLR 6301 / 6312.
259
in addition to specified statutory requirements for preliminary injunction, cts require what?
showing of likelihood of success on merits of action.
threat of irreparable injury.
AND
balance of equities in pl's favor.
260
before getting preliminary injunction, pl has to submit what?
undertaking in amt set by ct so that if it is finally determined that pl was NOT entitled to such relief, he will pay def ALL damages and costs which were sustained by reason of injunction
261
what is a temporary restraining order?
provides immediate injunctive relief while ct determines motion for preliminary injunction.
262
obtain temporary restraining order how?
without notice.
pl MUST demonstrate that immediate and irreparable injury / loss / damages will result UNLESS def is restrained before a hearing on motion for preliminary injunction can be held.
263
undertaking necessary for temporary restraining order?
discretionary w ct
264
notice of pendency may filed when?
in action in which judgment demanded would affect title to or possession use or enjoyment of REAL PROPERTY.
265
what is a notice of pendency?
prevents potential transferee or mortgagee of property from acquiring status of innocent purchaser for value while action is pending by placing CLOUD on marketability of def's title for duration of lawsuit
266
or on after commencement of action, notice of pendency is filed in office of clerk of county where?
property is located.
w/o notice to def or leave of ct.
w/o undertaking.
before and after service of process.
267
once notice of pendency is filed, summons MUST be served on def when?
w/in 30 days
268
what is a motion to dismiss?
when a party may move for judgment dismissing 1 or more causes of action asserted ag the party
269
how many grounds on which a party may move to dismiss a complaint / cause of action?
11
270
party may move for judgment dismissing def on which ground?
def is NOT stated or has no merit
271
motion to dismiss may be treated by ct after adequate notice to parties, as one for what?
summary judgment
272
motion to dismuss cause of action to made before service of what is required
responsive pleading
273
if def has 20 days to answer complaint and wishes to make pre answer motion to dismiss complaint under cplr 3211, MUST make motion when
within that time
274
how many pre answer motions to dismiss may be made?
ONLY 1
275
if def makes pre answer motion to dismiss, def may raise what?
any of 3211 ground to dismiss available to def
276
if def makes pre answer motion and fails to include a def based upon lack of personal jurisdiction or lack of jurisdiction cplr 3211, where service was made under cplr 314 - service outside of NY, in certain in rem actions like matrimonial, or 315 - service by publication in such in rem actions, those defenses are what?
waived
277
def based upon 1 of enumerated grounds in 3211 is waived when
```
not raised by pre answer motion or as defense in answer.
documentary evidence.
lack of legal capacity to sue.
another action pending.
defenses such as collateral estoppel.
release.
res judicata.
statute of limitations.
statute of frauds.
```
278
objection based upon lack of subject matter jurisdiction, failure to state cause of action, failure to join necessary party, may be raised when?
ANYTIME by motion
OR
in subsequent pleading
279
these objections may be raised even if what?
pre answer motion was served and defense was not included and even if answer was served w/o raising defense
280
objection that initial pleading was NOT properly served is waived when?
if having raised such objection in responsive pleading, objecting party doesnt move for judgment on such ground w/in 60 days after serving pleading
281
service of notice of motion to dismiss a cause of action before responsive pleading is due extends time to serve responsive pleading till when?
10 days after service of notice of entry of order determining such motion
282
on motion to dismiss pursuant to cplr 3211k, ct affords the pleading what?
a liberal construction and accepts all facts as alleged in pleading to be true, accords pl benefit of every possible favorable inference, and determines only whether facts as alleged fit w/in any cognizable legal theory
283
party may move for summary judgment in what type of action?
ANY action
284
earliest time for making of motion for summary judgment is?
joinder of issue / service of def's answer
285
latest time for making of motion for summary judgment is?
120 days following filing of note of issue
286
ct may set earlier date but not earlier than how many days after filing of note of issue?
30 days
287
ct can set aside time restriction and allow late summary judgment motion for what reason?
if good cause is shown
288
good cause requires a showing of what?
good cause for delay in making the motion.
| that the delay is non prejudicial.
289
that the motion is __________ is NOT good cause that will permit a late filed motion to be heard
meritorious
290
party seeking summary judgment MUST make prima facie showing of what?
entitlement to judgment as matter of law
291
CPLR 3212 b requires that the moving party attach what?
a complete set of pleadings and submit affidavits made by 1 w knowledge of facts and all other available evidentiary proof in admissible form showing that there is NO defense to the cause of action or that the cause of action or defense has no merit.
292
conclusory assertions or assertions and allegations based solely upon info and belief are sufficient or not to obtain summary judgment?
NOT
293
attys affidavit as to facts is sufficient or not, if not based on personal knowledge?
NOT
294
attys affidavit as to facts if based on personal knowledge is sufficient or not?
SUFFICIENT
295
to defeat motion for summary judgment, opposing party MUST show what?
facts sufficient to require trial of any issue of fact
296
ct may search record and if appears that any party other than moving party is entitled to summary judgement, ct may what?
grant such judgment w/o necessity of cross motion
297
summary judgment is granted if what?
upon all papers and proof submitted, judgment is warranted for 1 side or other as matter of law
298
any party may move to vacate what?
judgment / order upon grounds set forth in CPLR 5015, excusable default.
newly discoverable evidence.
fraud.
misrepresentation.
misconduct of adverse party.
lack of jurisdiction to render judgment/order.
reversal.
modification/vacatur of prior judgment / order upon which current judgment / order is based.
299
if ground is party's excusable default, there is a ____ time limitation for making motion
1 year
300
application to vacate default judgment on ground of excusable default requires what?
excuse for default and affidavit of merits demonstrating meritorious defense
301
motions to vacate on other grounds MUST be made when?
w/in reasonable time
302
ct may vacate judgment / order upon such terms as may be what?
just.
| empowering the ct to impose conditions when it vacates a judgment / order.
303
motion requires what?
motion papers.
motion to request for judicial intervention.
motion of affirmation of good faith.
notice of motion specifying time and place of motion.
papers on which it is based.
relief sought.
ground upon which movant believes itself entitled to relief.
304
time and place of hearing of motion can be set when?
motion papers.
motion to request for judicial intervention.
motion of affirmation of good faith.
AFTER movant has filed request for judicial intervention + judge has been assigned to action.
305
if motion pertains to disclosure or a bill of particulars, MUST contain what?
motion papers.
motion to request for judicial intervention.
motion of affirmation of good faith.
affirmation that prior to making motion counsel has conferred w opposing party's counsel in good faith effort to resolve issues raised by motion
306
general right to disclosure extends to all matters which are what?
material and necessary in prosecution or defense of action regardless of burden of proof
307
disclosure is obtainable from whom?
```
any party.
officer.
director.
member.
agent.
employee of party.
```
308
disclosure from nonparty is obtainable if what?
person is about to depart from state or is outsdie state, residing more than 100 miles from place of trial.
too sick or infirm to attend trial.
is treating doctor.
is trial expert of party demanding disclosure.
309
disclosure from nonparty MUST be when?
upon notice stating circumstances / reasons such disclosure is sought or required
310
subpoena requires what?
attendance of nonparty witness
311
subpoena is for what purpose?
give testimony
312
subpoena duces tecum requires what?
nonparty's productions of documents
313
subpoenas may be issued by whom?
clerk of ct.
judge where there is no clerk.
atty of record of any party to action / special proceeding / administrative proceeding / arbitration.
others.
314
federal practice requires clerk to issue what?
subpoena
315
persons and entities outside of NY are or arent subject to subpoena power of NY ct?
NOT
316
what is immune from disclosure ?
privileged matter/ absolute immunity.
work product of atty / absolute immunity.
material prepared for litigation / conditional immunity - only upon showing that party seeking discovery has substl need of materials in preparation of case and is unable without undue hardship to obtain substl equivalent by other means
317
upon request, each party MUST identify whom?
each person whom party expects to call as expert witness at trial and disclose in reasonable detail:
the subject matter on which each expert is expected to testify.
substance of facts and opinions on which each expert is expected to testify.
qualifications of each expert witness.
summary of grounds for each expert's opinion.
318
expert's report need NOT be disclosed nor may a deposition of the expert be taken in absence of what?
ct order issued upon showing of special circumstances and subject to such restrictions and provisions as ct deems appropriate.
319
party w/o ct order may depose person authorized to practice what?
medicine.
dentistry.
podiatry.
who is the party's treating / retained expert.
in which case the other party is entitled to full disclosure regarding that expert.
320
special rules apply to experts in
medical / dental / podiatric MALPRACTICE ACTIONS
321
any party may obtain a copy of their own what?
sttmt
322
party may obtain discovery of existence and contents of what type of agreement?
any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of judgment which may be entered in action or indemnify or reimburse for payments made to satisfy judgment.
info concerning insurance agreement is NOT by reason of disclosure admissible in evidence at trial.
323
written accident reports prepared in regular course of business operations or practices of any person/ firm / corp / association / other public or private entity MUST be what?
disclosed.
UNLESS prepared by police / peace officer for criminal investigation or prosecution and disclosure would interfere w criminal investigation / prosecution
324
party MUST amend OR supplement response previously given to request for disclosure when?
promptly, upon party's thereafter obtaining info that response was incorrect or incomplete when made OR
that response though correct and complete when made, no longer is correct and complete AND
circumstances are such that a failure to amend OR supplement response would be materially misleading
325
party MAY obtain full disclosure of what?
```
films
photographs
video tapes
audio tapes
transcripts
memoranda thereof
involving another party.
all portions of material, including out takes, not just portions party intends to use.
```
326
although CPLR doesnt specifically address discovery of electronically stored info = ESI, e discovery is generally what?
permissible.
| material and necessary requirement contained in CLPR 3101 applies to ESI .
327
rules of commercial division of sup ct and NY uniform rules for trial cts specifically contemplate discovery of ESI in an action and contain list of relevant factors in determining what?
method and scope of electronic discovery
328
factors in determining method and scope of electronic discovery include what?
identifying potential types of ESI and relevant time frame.
manner in which ESI is maintained .
whether it is reasonably accessible.
implementing preservation plan for relevant ESI.
scope and form of production.
identification of privileged or confidential ESI.
anticipated cost and burden of data recovery and proposed allocation of such cost.
ny codes rules and regulations
329
some cts and bar associations have provided working guidelines for discovery of what?
ESI - guidelines for discovery of electronically stored information,
best practices in e discovery in NYS and federal cts,
report of e discovery committee of commercial and federal litigation section of NYS bar association
330
scope of discovery may include info from social media websites such as?
fb
331
party may NOT prevent disclosure of social media data by employing what?
privacy settings or curating materials on public portion of acct
332
requests for social media data should be what?
tailored to nature of controversy at issue and limited in time, as appropriate to specific circumstances of case
333
it is permitted for any party or non party from whom discovery is sought to move for what?
a protective order denying / limiting / conditioning / regulating use of disclosure device to prevent unreasonable annoyance / expenses /harassment / disadvantage / other prejudice
334
disclosure may be obtained w/o leave of ct by 1/more of these devices:
```
deposition.
interrogatory.
demand for addresses.
discovery and inspection of docs / property.
physical and mental examinations.
requests for admission.
```
335
any party in any action may serve upon other party written interrogatories subject to which 2 limitations?
interrogatories CANNOT be used if bill of particulars is demanded of same party.
in action seeking damages for personal injury, property damage, wrongful death, predicated solely on cause of action for negligence, interrogatories CANNOT be used w/o leave of ct if deposition is conducted of same party.
336
special interrogatory rules apply in which types of actions?
matrimonial
337
special proceeding is used to establish what?
rt OR enforce obligation in civil matter in expedited fashion.
338
statutory authorization MUST exist for use of what?
special proceeding
339
most common special proceedings are?
proceedings ag a body OR officer
CPLR ART 78 and
first application arising out of arbitrable controversy
340
party initiating special proceeding is the
petitioner
341
adversary in special proceeding is the
respondent
342
in special proceeding, leave of court is required for?
```
joining any other parties.
any additional pleadings other than
PETITION
ANSWER
REPLY
```
343
commencement of special proceeding requires what?
petition and
notice of petition
OR
order to show cause
344
what is a notice of petition
serves to notify respondent of time and place of return date on petition.
identifies affidavits, if any, that are being submitted in support of the petition
345
alternative to notice of petition
order to show case
346
what is an order to show cause?
judicial order obtained ex parte that specifies date and place of hearing
347
respondent may raise an objection in point of law
a defense that can produce summary dismissal of proceeding, either in answer or in motion to dismiss made within time allowed for answer
348
pretrial disclosure is generally NOT available without what?
leave of ct.
| EXCEPT for notice to admit under CPLR 3123 / CPLR 408.
349
ART 78 of CPLR governs what
procedure for judicial review of matters that were recognized at common law under prerogative
writs of certiorari
writs of mandamus
writs of prohibition
350
art 78 is the vehicle for judicial review of what?
most administrative action in NY
351
determination sought to be reviewed MUST be what?
final.
352
petitioner MUST exhaust his what before seeking judicial relief?
administrative remedies
353
CPLR 7803 contains list of issued that may be raised in what type of proceeding?
ART 78
354
issued that may be raised in ART 78 proceeding
whether body / officer failed to perform duty enjoined by law.
whether body/officer proceeded/ is proceeding / is about to proceed w/o / in excess of jurisdiction.
whether determination was made in violation of lawful procedure/ was affected by error of law/ was arbitrary and capricious / an abuse of discretion.
whether determination made as result of hearing held, at which evidence was taken, pursuant to direction by law is on entire record supported by substl evidence.
355
ART 78 proceeding is a special proceeding and is governed by procedures of?
CPLR ART 4, unless inconsistent provisions are found in ART 78
356
ART 78 proceeding MUST be commenced where?
sup ct
357
ART 78 proceeding commenced by filing what?
petition w clerk of ct of county in which proceeding is commenced
358
statute of limitations for ART 78 proceeding is?
4 MONTHS after determination to review becomes final and binding upon petitioner unless shorter time is provided in law authorizing proceeding
359
petition and answer in ART 78 proceeding MUST be what?
verified
360
art 78 proceeding may be accompanied by what?
affidavits.
| other written proof.
361
answer to art 78 MUST state what
facts showing grounds for respondent's action of which petitioner complains.
362
what MUST be filed w the answer / art 78?
certified transcript of record of proceedings being challenged by petitioner
363
affidavits or other written proof may be submitted as what?
evidentiary support for respondent's position / art 78
364
reply MUST be served in response to what in art 78?
any new matter raised in answer
365
art 78 objections in point of law MAY be raised where?
either in answer or in motion to dismiss made within time allowed for answer
366
on the return date of petition in art 78 proceeding, ct is to dispose of case as it woud what?
a motion for summary judgment
367
if pleadings, affidavits, other written proof submitted by parties raise NO triable issue of fact, ct should decide the case how?
on the papers
AND
grant judgment as matter of law for prevailing party
368
if triable issue of fact is raised, ct shall what?
try it
369
art 78 proceedings commenced in sup ct that challenge whether agency's determination, made as result of hearing held at which evidence was taken, was supported by substl evidence are what?
transferred to appellate division for resolution
370
alternative dispute resolution:
| what is arbitration?
procedure for resolving dispute by referring it to an impartial arbitrator / panel of arbitrators , chosen by parties to hear evidence and arguments from each side and then decide the outcome
371
arbitration is less formal than what?
a trial.
| **may be binding OR nonbinding**
372
written agreements to submit controversy to arbitration are enforceable and will be enforced by the cts without regard to what?
merits of underlying claim / CPLR 7501
373
party seeking to resist arbitration may do so only upon which grounds?
whether valid agreement to arbitrate was made.
whether any conditions precedent in agreement have been complied with.
whether claim is barred by statute of limitations.
374
in absence of 1 of 3 enumerated defenses to arbitration, ct shall direct parties to what?
arbitrate
375
cts are expressly prohibited under cplr 7501 from determining whether a claim sought to be arbitrated is what?
tenable, or otherwise passing upon merits of dispute
376
special proceeding is used to bring before the ct the first application arising out of arbitrable controversy which is NOT made by motion in what?
related pending action
377
how does a party initiate arbitration?
by serving upon other party a demand for arbitration or notice of intention to arbitrate complying w cplr 7503 OR by applying to ct for order compelling arbitration
378
party wishing to resist arbitration may apply to what?
stay arbitration upon any of 3 enumerated defenses and if party has been served w demand to arbitrate or notice of intent to arbitrate compliant w cplr 7503, opposing party MUST timely move for stay raising said grounds or they are waived, except that a limitations defense may still be asserted before the arbitrator, who has discretion whether or not to apply bar.
379
if limitations defense is decided by arbitrator, it cannot be later asserted as a basis to what?
vacate or modify an award
380
if demand for arbitration fails to comply w formalities of cplr 7503 and aggrieved party didnt participate in arbitration, said defenses are what?
NOT waived and can still be raised in motion to vacate award
381
provisiional remedies of attachment and preliminary injuction are available in conection with what ?
pending arbitration.
but ONLY upon ground that award to which applicant may be entitled may be rendered ineffectual without such provisional relief
382
arbitrator MUST be what before hearing a dispute?
sworn
383
arbitration parties are afforded rights - which?
right to be heard.
right to present evidence.
right to cross examine witnesses.
384
arbitrators are NOT bound by which rules?
rules of evidence that apply in judicial proceedings
385
in arbitration, each party has a non waivable right to be what?
represented by counsel throughout arbitration proceeding
386
application to confirm award, if desired, MUST be made when?
within 1 year after delivery of award to moving party.
387
application to vate or modify award MUST be made when?
within 90 days after delivery to moving party
388
judicial review of arbitration awards is extremely limited and an award will NOT be vacated for what?
arbitrator's errors of law and fact
389
cplr 7511 governs grounds for what?
moving to vacate or modify arbitration award.
390
where aggrieved party participated in arbitration or was served w notice of intention to arbitrate and was prejudiced by particular impropriety, there are 4 narrow grounds for vacating arbitration award:
misconduct.
bias.
excess of power.
procedural defects.
391
if aggrieved party didnt participate in arbitration, was not served w notice of intention to arbitrate, or notice did not comply w cplr 7503, grounds for vacatur include what?
ALL those mentioned above and added defenses of non arbitrability, noncompliance w arbitration agreement and statute of limitations.
392
3 grounds for modification of award pursuant to cplr 7511:
miscalculation of figures.
mistake in description of person.
mistake in description of things.
mistake in description of property.
determination of matters not within submission to arbitrate.
imperfection in matters of form not affecting the merits.
393
upon vacating an award, ct may order what?
rehearing
394
what is mediation?
form ofalternative dispute resolution used to resolve disputes bw 2 or more parties
395
3rd party neutral mediator in mediation does NOT what?
decide the case.
| he assists the parties to reach a mutually acceptable agreement
396
mediation may be inappropriate if what?
1 party is unwilling to compromise or has a significant advantage in power / control over the other party, such as if parties have history of abuse
397
mediation is ____ & ____
private and confidential
398
mediation is less formal than what?
a trial.
| it allows parties to communicate freely and participate fully in process
399
mediation is less expensive than what?
litigation
400
other forms of alternative dispute resolution
neutral evaluation.
collaborative law.
summary jury trials.
401
what is neutral evaluation?
parties present their case to an evaluator who is often an expert in subject matter in dispute
402
what does an evaluator do?
give opinion of strengths and weaknesses of each party's evidence and arguments and offers an opinion of the likely outcome in ct
403
what is collaborative law?
legal process enabling married couples who have decided to divorce, a way to do so in a cost efficient manner w/o going to ct, while retaining professional guidance of their own atty.
couples bind themselves to process and disqualify their respective lawyers in event either party decides to go to ct
404
what is a summary jury trial?
permits adversaries to present their case in an abbreviated form to a mock jury which reaches a verdict that is advisory only, unless parties agree to make it binding. it gives litigants preview of potential verdict should the case go to trial
405
in order to proceed to a trial in civil action or inquest in special proceeding, party MUST file what?
note of issue + certificate of readiness w clerk of ct.
pay required fee.
serve docs on all parties.
406
by filing a note of issue, party is respresenting to ct that what?
discovery is complete.
| case is ready for trial.
407
issues of fact on causes of action for money ONLY are what?
triable by jury, unless jury trial is waived.
408
any party may demand what?
trial by jury, by serving upon all parties and filing note of issue containing demand for trial by jury
409
any party served w note of issue NOT containing the demand may demand a trial by jury how?
by serving upon each party a demand for trial by jury and filingsuch demand in the office where the note of issue was filed w/in 15 days after service of the note of issue
410
if no party demands a trial by jury, rt to trial by jury is deemed what?
waived by all parties
411
jury in civil case MUST consist of how many?
6
412
verdict in civil case MUST be rendered by not less than?
5/6 of jurors constituting jury
413
each party has rt to interpose what?
peremptory challenges and challenges for cause
414
what is a peremptory challenge?
objection to prospective juror for which no reason need be assigned.
limited in number.
cannot be used to exclude juror for discriminatory reasons.
415
what is a challenge for cause?
may be made as often as necessary.
| objection that a prospective juror is unable to be impartial for particular reason.
416
lawyers may stipulate to excuse juror challenged for cause or the challenge is decided by whom?
the ct
417
grounds for challenge for cause of juror not impartial?
juror is in employ of a party to the action.
party to action is a corp that juror is a shareholder or stockholder therein.
in damages to person/property action, in which juror is a shareholder, stockholder, director, officer, employee, r in any manner interested in insurance co issuing policies for protection ag liability for damages for injury to persons / property.
418
at time of jury selection, 1 / more alternative jurors are chosen to participate in what?
trial to same extent as regular juror and serves until submission of the case to jury.
when case is submitted, ct may retain alternate jurors to ensure availability if regular juror becomes unable to perform duties of juror, or may dismiss alternate jurors.
419
appeal from final judgment brings what up for review?
non final judgment / order which necessarily affects final judgment.
incidental orders that dont have impact on final judgment are excluded.
all incidental rulings made at trial, evidentiary rulings, provided appellant objected / there was no opportunity to object.
420
court of appeals scope
limited to review of QUESTIONS OF LAW,
421
intermediate appellate ct scope
limited to review of QUESTIONS OF FACT + LAW
422
times w/in which to take an appeal are ___ & ____
mandatory and strictly enforced
423
appeal as of rt MUST be taken when?
w/in 30 days after service by party upon appellant of copy of judgment / order appealed from and written notice of its entry
424
motion for permission to appeal MUST be made when?
w/in 30 days computed from date of service by party upon person seeking to leave appeal of copy of judgment / order to be appealed from and written notice of its entry
425
where serviceis made by mail / overnight delivery service, ___ additional days are added to prescribed period
5
426
an appeal is taken how?
by serving on adverse party a notice of appeal and filing it in office where judgment / order of ct of original instance is entered
427
notice of appeal MUST contain what?
name of party taking the appeal.
judgement / order appealed from.
ct to which appeal is taken.
428
appeal may be taken to ct of appeals how?
AS OF RIGHT from any order of appellate division that finally determines action originating in sup ct / county ct / surrogate ct / family ct / ct of claims / admin agency/ where there is dissent by at least 2 justices on QUESTION OF LAW
429
appeal as of rt to ct of appeals is also available from what?
appellate division order that finally determines action where there is directly involved construction of NY or FEDERAL - CONSTITUTIONS
or
that finally determines actionwhere only question involved on appeal is constl validity of NY / FED statute.
430
appeal may be taken to ct of appeals how
by permission of appellate division
OR
by permission of ct of appeals upon REFUSAL by appellate division
OR
upon direct application to ct of appeals, from any order of appellate division that finally determines action originating in sup ct / county ct / surrogate ct / family ct / ct of claims / admin agency
431
final and non final judgements and intermediate orders are what?
APPEALABLE as of RIGHT to
| appellate division if non final order results from motion made on notice
