NY BAR REVIEW - civil practice and procedure 2019 Flashcards
court of appeals
hightest court in court system. no original jurisd. ONLY appellate. without regard to amount in controversy.
limited to questions of law.
appellate division of sup ct - 1st 2nd 3rd and 4th judicial depts
single statewide appellate ct divided into 4 judicial depts.
principal intermedicate appeals ct.
trial cts in dept are required to follow precedent set by another dept until ct of appeals or dept. in which trial ct sits pronounces a contrary rule - STARE DECISIS. appellate division should accept decisions of sister depts. as persuasive authority, but are free to reach contrary results.
appellate terms of sup ct in 1st and 2nd jud depts
first - 2 counties within NYC.
2nd- 3 counties within NYC plus 7 others.
hear appeals from civil and criminal cts on NYC and of 2nd dept hears appeals also from district, county - excluding felony, city town, village cts.
sup ct
general original jurisdiction of all cases in law and equity without monetary limitation UNLESS jurisdi has been specifically proscribed.
at times, jurisd concurrent w that of other cts.
exclusive subj matter jurisdi over matrimonial actions and wrongful death claims.
in NYC - hears ALL felonies.
commercial divis of sup ct handles which types of claims?
those meeting a monetary threshold and involving a multitude of commercial disputes. shortly after commencement of action, any party MAY seek assignment of commercial case to commercial divisi and upon transfer, parties subject to specific rules of practice for comm divis. electronic submission and form of papers, atty appearances, limitations on discovery, discovery of electronically stored info, adherence to discovery schedules and discovery disputes, motions, trials
court of claims
COURT OF CLAIMS ACT.
exclusive jurisd over tort and contract claims ag STATE OF NY.
may NOT exercise equitable jurisdic and does NOT have jurisdi over NON STATE ACTORS
county court
only in 2nd dept outside NYC and long island and 3rd and 4th judic depts, which include counties that are all outside NYC.
have jurisd over ALL cirminal matters, but hear primarily FELONIES.
limited jurisd over civil cases where amt to be recovered isnt over 25K and have jurisd over summary proceedings to recover possession of real prop.
has jurisd over appeals from city, town, village cts
surrogate’s court
SURROGATE COURT PROCEDURE ACT.
has jurisd over all proceedings relating to affairs of decedents, probate of wills, admin of estates, guardianship of prop of minors.
has concurrent jurisd w family ct over adoptions and concurrent jurisd w sup ct over admin of decedent’s estate, although matters are generally disposed of in surrogate’s ct, and over allocation and distribution of proceeds of wrongful death actions. full equity powers in matters over which it has jurisd
family court
jurisd over child abuse and neglect proceedings, spousal support, child support proceedings, proceedings to determine paternity, proceedings for permanent termination of parental rts, person in need of supervision proceedings, family offense proceedings, concurrent and simultaneous w criminal ct, juvenile delinquency proceedings, adoptions, custody and support proceedings when referred by sup ct
NYC CIVIL CT.
NYC CRIM CT.
nyc civil ct has jurisd within city of ny over monetary actions where recovery is up to 25k and over summary proceedings to recover possession of real prop.
nyc crim ct has crim jurisd within city of ny over misdemeanors and violations
NY CONSTITUTION
district ct.
city ct.
town ct.
village ct.
district cts - ONLY in nassau and suffolk counties in 2nd judic dept., and city cts have jurisd over monetary actions where amt to be recovered doesnt exceed 15k.
town cts and village cts have jurisd over monetary actions where amt of recovery doesnt exceed 3k.
these all have crim jurisd over misdemeanors and violations
NY CONSTITUTION.
UNIFORM CT ACTS.
commencement by filing, including electronic
excluding town and village cts, action commenced by paper filing or where authorized , electronic filing of summons and complaint or summons w notice w clerk of ct in county where action is brought
special proceeding commenced by
paper filing, or electronic filing where authorized, of a NOTICE OF PETITION and PETITION w clerk of ct in county where special proceeding is brought
in some counties, certain types of actions, commencement by electronic filing is
MANDATORY.
in others, authorized.
nondomiciliary who commences action in NY, even if he is NOT otherwise subject to personal jurisd in NY, submits himself to
personal jurisdic in any separate action brought ag him by any party to pending action and is deemed to have designated his NY atty as agent upon whom process MAY be served in such sep action. def can use CPLR 303 to acquire jurisd over pl in separate action instead of interposing a counterclaim
commencement by filing, service in action MUST be made within
120 days.
CPLR
if method of serving process requires 2 acts, such as deliver and mail or affix and mail,
BOTH acts MUST be performed within 120 day period
in action/proceeding where statute of limitations is 4 months and less (like art 748 proceeding), service of process is to be made no later than
15 days after date on which relevant statute of limitations expires
if service NOT timely, court will
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
if statute of limitations expired since, pl MUST make motion or raise issue in response to def’s motion to dismiss, for
extension of time to serve while action / proceeding is still pending or commencement of new action will be TIME BARRED
application for extension of time to serve
GOOD CAUSE requires threshold showing of reasonable diligence in attempting to effect service on def
interest of justice std
broad and flexible ground for extension.
one factor ct MAY consider along w other relevant factors
diligence in effecting service. expiration of statute of limitations. meritorious nature of claim. length of delay. promptness of request. prejudice to def. and other relevant factors.
personal service in action upon natural person MUST be made pursuant to cplr 308
personal delivery. deliver and mail. service upon agent. affix and mail. court ordered service.
each method of personal service requires
adherence to provision.
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 residence or actual place of business, and filing proof of service.
service that requires affixing process to door of
actual place of business, dwelling place, or usual place of abode of def, mailing to def at his last known residence or actual place of business, then filing proof of service
SERVICE UNDER CPLR 308 4 is NOT available UNLESS
service under subsection 1 and 2 CANNOT be made w due diligence
personal service upon partnership
serving process on any of partners. serving the managing or general agent of partnership or 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
if method of service requires filing of proof of service, it is a
prerequisite to completion of service and service is complete 10 days after filing. def’s time to respond does NOT begin to run until service is complete
personal service upon domestic or foreign corp by serving
officer. director. managing agent. general agent. cashier. assistant cashier. service upon registered agent or sec of state.
personal service upon domestic or foreign limited liability company by
serving process on any member of LLC if mgt of LLC is vested in its members or any manager of LLC if mgt of LLC is vested in one or more managers, or service upon sec of state.
LIMITED LIABILITY COMPANY LAW.
person domiciled in state or subject to personal jurisd 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 whos NOT a party in the action
personal juris
in personam.
in rem.
quasi in rem.
in personam jurisd
presence. consent. domicile. doing business. LONG ARM.
personal juris over a def, pl MUST have
either general juris or LONG ARM juris .
general juris
permits court to hear all claims ag entity,
specific juris
permits ct to hear ONLY those claims that arise out of entity’s contacts within the state
foreign corp is subject to
general personal juris in NY if it is present and doing business in the state.
if it is engaged in continuous, permanent, substl activity in NY.
general personal juris can NO longer be asserted ag foreign corp based solely on its
continuous and systematic business activity in NY.
due process limits exercise of general juris to state in which corp is at home.
if corp is NOT incorporated in NY or maintaining principal place of business there, NY cts will only exercise general personal jurisd
in exceptional case, when foreign corp’s operations are so substl and of such a nature as to render corp essentially at home
traditional jurisdictional bases of presence, domicile, doing business, confer
general jurisd
state LONG ARM statute confers ONLY
specific juris
specific jurisd
cause of action MUST arise out of def’s state connected activity
state directed activities that permit assertion of IN PERSONAM jurisd as to cause of action arising from those acts. cts MAY exercise personal juris over non domiciliary who in person or through an agent:
transacts business w 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 - injured person or damaged property MUST be located in state at time of injury or damage, except as to cause of action for defamation, if def regularly does or solicits business, or engages in other persistent course of conduct in NY, or derives substl revenue from goods used or consumed or services rendered in NY or expects or reasonably should expect act to have consequences in NY and derives substl revenue from interstate or intl commerce.
OR
owns uses or possesses real prop within NY.
personal juris over non resid def in ____ action
matrimonial.
IF prerequisites are satisfied
if pl’s case falls within particular statutory grant of LONG ARM jurisd, particular assertion of LONG ARM jurisd MUST NOT exceed what?
limits imposed by due process clause of US CONST and NY CONST.
place of trial is ___ in which pl or def resides at time of commencement of action, in which substl part of events or omission giving rise to claim occured, or if neither party resides in the state, in any ___ designated by pl.
county
corp is a resident of _____ in which its principal office is located
county
partnership is deemed resident of ____ in which it has its principal office and _____ where partner suing or being sued actually resides
county
place of trial of all actions ag MUNICIPAL def’s is ______ in which such municipal def is located
county
place of trial of any action in which judgment would affect title to real prop is the ______ where real property is situated
county
ct upon motion may change venue upon grounds that venue was what?
improperly placed.
impartial trial cannot be had in proper county.
OR
if convenience of material witnesses and ends of justice will be promoted by the change.
ct is permitted, even though has jurisd, to decline to entertain action after what?
examining all relevant factors of private inconvenience and public interest, including whether chosen forum is significantly inconvenient for trial of action and whether a more appropriate forum is available
NY , unlike federal cts, does NOT necessarily require alternative forum as what?
precondition to forum non conveniens dismissal
ct may stay or dismiss action it entirety or in part upon what?
any just conditions
what are just conditions?
waiver of defenses - lack of jurisd or state of limitations
if alternate venue is another NY court, ct may not transfer the case, unlike fed procedure which what?
permits such a transfer
action MUST be commenced within limitations period in ART 2 unless what?
diff time is prescribed by law or shorter time is prescribed by written agreement
ct CANNOT extend time limit limited by law for what?
commencement of an action
borrowing statute
if nonresident pl’s claim accrued outside NY, claim MUST be timely under both NY law and that of place of accrual
out of state claim that accrues in favorof NY resident will be governed by NY statute of limitations regardless of whether what?
other state’s statute of limitations is shorter than that of NY
pl MUST interpose claim within applicable what?
statute of limitations
in all cts, except justice cts, claim is deemed interposed when?
initiatory papers are filed w clerk
if there are several def’s and they are united in interest, commencement as to one will what?
preserve action as ag others
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 under circumstances
relate back to commencement date of timely action ag related party under which circumstances?
claims ag parties arose out of same conduct / transaction / occurrence.
def reasonably should have known that pl made a mistake in failing to timely identify proper parties.
AND
def and party originally sued have such a 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
def or counterclaim is interposed when?
pleading containing it is served and it is NOT barred if it was NOT barred at time claims asserted in complaint were interposed
if def or counterclaim arose from transactions or occurrences upon which a claim in complaint depends, then?
defense or counterclaim is NOT barred to extent of demand in complaint even if time barred at time claims asserted in complaint were interposed
claim asserted in amended pleading is deemed to have interposed when?
at time claims in original pleading were interposed provided original pleading gave notice of same conduct, transaction, occurrence
limitations period measured from discovery of wrong, action MUST be commenced when?
within stated limitations period from wrong itself or 2 years from discovery of wrong, whichever longer
ten year limitation period
adverse possession claim
six year limitation period
action for breach of contract, express or implied (except as otherwise provided).
action based upon fraud - greater of 6 years from time fraud was perpetrated or 2 years from time it was discovered or could w reasonable diligence have been discovered.
action for which NO limitation is specifically prescribed by law.
three year limitation period
action to recover damages for personal injury.
action to recover damage for injury to property.
action to recover damages for malpractice (NOT medical / dental / podiatric) regardless of whether underlying theory is based in contract or tort
two years and six months limitation period
medical malpractice.
dental malpractice.
podiatric malpractice.
alleged act / omission / failure.
one year limitation period
action to recover damages for intentional torts - assault , defamation.
action upon arbitration award.
if continuous treatment for the illness / injury / condition that gave rise to act / omission,
statute is tolled until date of last treatment.
if action is based upon discovery of a foreign object left in patient’s body, excluding devices placed in patient for ongoing treatment, commencement period is
tolled until earlier of one 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 oromission, comencement period is
tolled until later of either - when person knows or reasonably should have known of act / omission and knows or reasonably shoujld have known that act or omission has caused injury, NO later than 7 years from act or omission OR date of last treatment where there is continuous treatment
4 months limitation period, after determination to be reviewed becomes final and binding
special proceeding under ART 78 (unless shorter time provided in law authorizing proceeding,)
CPLR
one year and 90 days limitation period
action ag municipalities to recover damages for personal injury or property damage, other than for wrongful death
CPLR
two years limitation period
wrongful death actions , since decedent’s date of death
GENERAL MUNICIPAL LAW
90 days limitation period
claims ag municipalities / fire district, school district, recover damages alledged to have been sustained by reason of negligence or wrongful act of def unless notice of claim served according to law below.
from date claim arises.
from date of apptmt of rep for decedent estate.
notice of claim in writing, sworn to by or behalf of claimant
GENERAL MUNICIPAL LAW
notice of claim ag municipality shall set forth what?
name and address of claimant and atty if any.
nature of claim.
time, place, manner in which claim arose.
AND
items of damage or injuries claimed to have been sustained.
in municipality case - ct in its discretion may extend time to serve notice of claim but it shall NOT exceed what?
statute of limitations for commencing action ag municipality or other public corp. - one year and 90 days after happening of event or in wrongful death case, within 2 years of decedent’s death
GENERAL MUNICIPAL LAW
in municipality case - whether to extend time to serve notice of claim, ct MUST consider 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 notice of claim substly prejudiced municipality in maintaining its defense on the merits
cause of action accrues ag a def and def is absent from state, limitations period is what?
tolled until his return
if def leaves state after cause of action accrues and remains there continuously for 4 months and more, period of absence is what?
NOT part of limitations period
absence of def will NOT suspend running of statute of limitations if what?
there is statutory authority for obtaining jurisd over def by manner other than by personal delivery of process within state, where resident agent may be served OR if jurisd over person of def can be effected out of state pursuant to LONG ARM jurisdi.
CPLR
infancy and insanity
disabilities which MAY toll applicable statute of liimitations
if SOL is less than 3 years, it does NOT run during entire period of what?
disability
if SOL is 3 years or longer?
pl will have at least 3 years to sue from time disability ceases
disability
applies only when pl is under the disability at time cause of actions accrues
toll of ten years
max toll permitted in case of insanity
toll of ten years
infant’s cause of action for medical / dental / podiatric malpractice
NO ten year maximum limit
any other cases involving infant
greater of that limitation period or one year from death
pl dies before expiration of limitations period, his executor or administrator has in order to sue
18 months tacked onto limitations period that’s remaining
def dies before suit
if action timely commenced and terminated in manner other than final judgm on merits, voluntary discontinuance, neglect to prosecute, lack of personal jurisd, and statute of limitations has or is about to expire,
pl MAY commence NEW action upon same trans or occurrence within 6 months after termination, provided service upon def is effected within such 6 month period.
application of the 6 month period is NOT needed if statute of limitations hasnt run when new action is commenced.
def appears in an action how?
by serving an answer.
making a motion which has effect of extending time to answer.
serving notice of appearance.
if def served by personal delivery within NYS, time to appear is NO later than
20 days from delivery
in most other cases including service outside state and service under CPLR 308, time to appear is NOT later than
30 days after service is complete
appearance by def confers jurisd over def’s person unless
objection to jurisdi is raised in motion or answer according to CPLR 3211 or def makes limited appearance in actions based on quasi in rem or in rem jurisdi
who may appear in an action through an atty?
any party
once party appears in action through an atty, atty or record may be changed how?
by filing consent to change attys signed by retiring atty and signed and anknowledged by party
notice of change of atty MUST be given to attys for whom
all parties
atty of record MAY withdraw or be changed by court order upon what?
motion on notice to client , to attys of record, for all other parties to action and to any unrepresented parties
pleadings that are permitted in an action are :
complaint.
answer.
which may include a counterclaim and crossclaim, reply to counterclaim labeled as such.
third party complaint.
answer to interpleader complaint or third party complaint.
answer to crossclaim that contains a demand for an answer.
if no answer is demanded, cross claim is deemed ?
denied
no other pleadings are permitted without what?
court order
party in its answer MUST what?
deny sttmts known or believed to be untrue and or specify sttmts of which he lacks knowledge or info sufficient to form a belief.
allegation NOT addressed by either kind of denial is deemed what?
admitted
party MUST specifically raise as an affirmative defense any matter which, if not pleaded would be likely to what?
take adverse party by surprise or would raise fact issues not appearingon face of prior pleading
statute contains list of traditional affirmative defenses, such as?
collateral estoppel. release. res judicata. statute of frauds. statute of limitations.
the affirmative defenses, among others, are waived if NOT what?
raised in answer or pre answer motion to dismiss
culpable conduct claimed in diminution of damages is likewise what?
an affirmative def to be pleaded and proven by party asserting the defense
counterclaim
cause of action asserted by def ag pl.
need not arise out of trans or occurrence out of which pl’s claim arises, nor otherwise be related to pl’s claim.
can be ANY cause of action def has ag pl, legal or equitable
every counterclaim in NY is what?
PERMISSIVE, even if subject matter relates to pl’s claim
crossclaim
cause of action by 1 def ag another.
MAY be asserted bw def’s for any cause of action at all, whether or NOT related to pl’s claim.
verification of pleadings
sttmt by party under oath that pleading is true to knowledge of deponent
pleadings need NOT be what?
verified
if a pleading is verified , each subsequent pleading MUST be what?
verified, unless matter to be verified is privileged
if a counterclaim or crossclaim in an answer is separately verified, it is given the same effect as if it were what?
separate pleading
verification of complaint in matrimonial action is what?
mandatory
MATRIMONIAL AND FAMILY LAW
verification of petition in ART 78 proceeding is what?
mandatory
CIVIL PRACTICE AND PROCEDURE LAW
amendments to pleadings MAY be made once how and when?
without leave of court within 20 days after its service or any time before time to respond expires or within 20 days after service of pleading responding to it.
thereafter, party MAY amend pleading of may supplement it by setting forth addtl or subsequent transactions or occurrences only by LEAVE OF CT or STIPULATION OF PARTIES
answer or reply to amended or supplemental pleading MUST be served when?
within 20 days after service of pleading to which it responds
bill of particulars
amplifies pleadings. NOT obtain evidence.
is available bw parties to an action;.
how to secure bill of particulars?
serve written demand on party from whom particulars are sought
party on whom demand is made MUST serve what?
timely response, and if any particulars are objectionable, include in response a sttmt of objections for particulars NOT being responded to with reasonable particularity
