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Bar Exam > NY CPLR > Flashcards

NY CPLR Flashcards

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1
Q

Supreme Court Exclusive Jx

A
  1. Matrimonial
  2. Article 78 (officials/agencies)
  3. Declaratory Judgments
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2
Q

Supreme Court appeals

A

appellate division of the supreme court

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3
Q

County Court original jx

A

Civil action for money damages, provided that:

  1. 25K or less
  2. Each D resides in county or has biz office in county and claim arose in county
  3. Land located in county
  4. Incompetency proceeding re: county resident
  5. Enforcement of judgment obtained in another cty
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4
Q

Appeals of county court

A
  1. W/n 2nd dept. of Supreme Court –> appellate term of the supreme court
  2. All others –> Appellate Division
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5
Q

NYC Civil Courts (og jx)

A

Very similar to county courts.

  1. 25K or less
  2. Actions to acquire money
  3. Replevin actions
  4. DJ actions
  5. Rent
  6. Recission/Reformation of Ks
  7. Summary eviction
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6
Q

Appeals from NYC Civil courts

A

Appellate Term of the Supreme Court

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7
Q

Family Court (of jx)

A
  1. Child/Spousal support
  2. Custody/visitation
  3. Neglect/abuse
  4. Paternity
  5. Termination of parental rights
  6. Protection orders
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8
Q

Family Court (appeals)

A

Appellate Division

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9
Q

Court of Claims (exclusive jx)

A
  1. Contract and tort against NY state
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10
Q

Appellate Division of the Supreme Ct. (og jx)

A

Atty supervision and discipline

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11
Q

Appellate Division fo Supreme Ct (appeals heard)

A
  1. Family Court
  2. Supreme Court
  3. County
  4. Surrogate’s
  5. Court of claims
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12
Q

Appellate Terms of the Supreme Court

appeals heard

A
  1. 1st and 2nd division of NYC Civil Courts
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13
Q

Due Process Reqs

A
  1. Notice
  2. Opportunity to be heard
  3. If non-domicile, must be sufficient connection btw state-nonD-case
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14
Q

General PJx

A
  1. Domicile
  2. Physical presence
  3. Statutory consent (authorized corp)
  4. Doing business (unauthorized corp)
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15
Q

“Doing business” in NY

A

systemic & continuous w/ a fair measure of permanence and continuity

NOT OK:

  • substantial sales & manufacturing
  • mere solicitation of biz

OK:

  • Employing a sales rep
  • Maintaining an office
  • Ownership of property
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16
Q

Specific PJx

A
  1. Express consent
  2. Waiver
  3. Statutory consent
    - filing suit
    - driving
  4. Long-Arm
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17
Q

NY Long-Arm

A
  • Business transaction in NY
  • K to supply goods/services in NY (purposeful availament of NY commerce)
  • Ownership/use/possession of real property in NY
  • Tortious act w/n NY
- Tortious act outside NY & injury w/n NY 
\+ regularly biz
\+ solicits
\+ persistent contacts
\+ revenue (NY/interstate/int'l)
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18
Q

“Transacting Biz” in NY (long-arm)

A

Look to quality and quantity of act

*Less intensive than “doing business” requirement of general jx

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19
Q

Defamation exception to long arm

A

Cannot be based on tortious act w/n or outside NY

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20
Q

20 year SOL

A
  • by state or its grantee to recover RP
  • support, alimony, maintenance
  • enforce a money judgment
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21
Q

10 year SOL

A
  • recovery of RP

- Redeeming RP for a mortgage

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22
Q

7 year SOL

A
  • Crime V to recover damages from convicted perpetrator
  • Felony –> 10 years from date of conviction
  • Profits of crime –> 3 years from discovery
  • 1st degree rape, criminal sex assault, aggravated sex abuse or conduct against child –> 5 years
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23
Q

6 year SOL

A
  • Default SOL
  • Ks (except for goods)
  • Action on mortgage of RP, or a bond/note securing a mortgage
  • Contribution against joint-tortfeasors
  • Equity/mistake
  • Derivative action by or for a corporation
  • Fraud
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24
Q

5 year SOL

A
  • V of 1st degree rape, criminal sex assault, aggravated sexual assault, aggravated sexual abuse or conduct against a child
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25
Q

Four year SOL

A
  • overcharge of residential rent
  • Breach of K for sale of goods
  • Breach of implied warranty for sale of a new home
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26
Q

3 year SOL

A
  • N causes of action
  • SPL
  • Damages for injury or damage to property
  • Personal injuries
  • Annulment based on fraud
  • Malpractice (except: docs, dentists)
  • Personal property injuries due to SPL
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27
Q

2.5 year SOL

A
  • Medical, dental malpractice
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28
Q

2 year SOL

A
  • wrongful death

- but if result of crime, 1 year after termination of criminal prosecution

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29
Q

1.5 year SOL

A

Ks against a village

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30
Q

1 year + 90 days SOL

A

Tort actions against municipalities

31
Q

1 year SOL

A
  • assault, battery, false imprisonment, IIED, libel, slander, false words, misappropriation of name
32
Q

4 months SOL

A

Article 78 proceeding

33
Q

When can SOL be shortened

A

By written agreement.

  • Sale of goods cannot be less than 1 year and no more than 4 (default)
34
Q

Extension of SOL

A
  • signed writing
  • after the accrual of action
  • no consideration necessary
35
Q

Contract Accruals

A
  1. Construction Ks:
    = day of K completion
  2. Sale of goods:
    = when breach occurs regardless of injured party’s knowledge
  3. Breach of warranty:
    = when delivery is made by seller
36
Q

Tort Accruals

A
  1. Generally = day of the injury
  2. Negligence = when P is injured even if P is unaware of injury
  3. Continuous treatment = does not begin until the last treatment
  4. Defamation = date of publication
37
Q

Amended pleadings & SOL

A

Must be timely at the time of filing the amended pleading, unless:

  • original pleading gave notice of the events on which the new claim is based. If so, relates back.
38
Q

Disabilities and SOL

A
  1. If SOL < 3 years: when disability removed, person has full limitations period to bring action
  2. If SOL 3 years or more:
  • if < 3 years left, get 3 years
  • If > 3 years left, SOL unaffected
39
Q

SOL and out-of-state D

A

SOL does not run until person returns to NY

40
Q

Death of D & SOL

A

Tolled for 18 months

41
Q

Adding a D & “relates back”

A

Relates back if:

  • same T&O
  • original and added D are united in interest
  • New D knew or should’ve that action would’ve been brought against him but for P’s mistake
42
Q

Borrowing statute

A

Where claim accrued out-of-state and brought by out-of-state resident

43
Q

Who can serve? When?

A
  1. 18+
  2. cannot be a party to action
  3. No service on Sundays
  4. w/n 120 days of filing
44
Q

Effect of failure to make timely service?

A

Dismissal w/o prejudice

45
Q

Service on individuals

A
  1. Personal
  2. Leave and mail
  3. Nail and mail
  4. Service on designated agent
  5. First Class Mail
46
Q

Leave & Mail

A
  1. Leave copy w/ someone at actual place of D’s biz/dwelling
  2. Mail copy to last known residence
  3. W/n 20 days of each other
47
Q

Nail & Mail

A
  1. Same as leave and mail

2. Only if leave and mail fails after due diligence

48
Q

Service on Corps.

A
  1. Personal (D/O/A)
  2. SOS
    - 2 copies
    - unauthorized corps –> must mail or personally serve as well
  3. Court ordered service after 120 days
  4. First Class Mail
49
Q

Service on Partnerships

A
  1. Personal
  2. Leave and Mail
  3. Nail and Mail
  4. Designated Agent
  5. Court ordered service
  6. First Class Mail
50
Q

Service by first class mail

A
  • receipt

- returned w/n 30 days

51
Q

Proper Venue

A

Local action:
1. Where RP is located

Transitory actions:

  1. Where any party resides
  2. If non-residents, any county.
52
Q

Discretionary Venue Change

A
  1. A fair trial cannot be obtained in present venue
  2. Nature of case may create prejudice against a party
  3. Convenience of material Ws and the ends of justice will be promoted by change.
53
Q

Forum non conveniens (standard)

A

In the interests of substantial justice

54
Q

Forum non-conveniens (factors)

A
  • burden on ct
  • burden on D
  • Location of Ws and evidence
  • Available of adequate alternative forum
  • Improper motive
  • P’s choice
55
Q

Preliminary Injunction

A
  • Likelihood of success on the merits
  • Irreparable harm (lack of an adequate remedy at law)
  • Balance of equities favors the injunction
56
Q

TRO

A
  • ex parte
  • immediate and irreparable harm
  • giving notice to opposing party will cause sig prej
57
Q

Attachment

A
  • available in any matter but a matrimonial action
  • P must demand and show that he is entitled to a money judgment

AND one of more of the following:

  • D is non-domicilliary
  • D is unauthorized foreign corp
  • D cannot be served personally despite diligent efforts
58
Q

Motion Service 8-2 rule

A

If personally served,

  • 8 days before motion is to be heard
  • answer must be served 2 days before hearing
59
Q

Motion Service 16-7-1 Rule

A

Reserves right to reply:

  • 16 days before hearing
  • answer 7 days before hearing
  • reply 1 day before hearing
60
Q

Motion to Dismiss (failure to state a c/a)

A
  • ct assumes truth of all allegations in complaint

- does not consider evidence outside complaint

61
Q

Motion for summary judgment

A

No material and triable issues of fact presented.

  • moving party has burden of showing prima facie evidence that she is entitled to JMOL
  • Burden shifts to non-moving party to praise a triable issue of fact
  • Evidence includes affidavits, hearsay and dead man’s rule NOT strictly applied in summary judgment
62
Q

Partial summary judgment

A

may be granted as to one c/a

63
Q

Necessary Party (def)

A

Ought to be joined if complete relief is to be accorded or one who might be inequitably affected by judgment

64
Q

Permissive Joinder of parties

A
  • A single event (or related series of events) involved al the parties to be joined
  • At least one question of law/fact
65
Q

Permissive joinder

A

P may join as many causes of action against D as P has

66
Q

Class Action

A
  • Numerosity
  • Commonality
  • Typicality
  • Fairly and adequately protected
  • Class action is superior to other available methods for the fair and efficient adjudication
67
Q

J&S Liability

A

Each tortfeasor is subject to P for all damages regardless of 5 of fault

68
Q

Contribution applies to . . .

A
  • personal injury
  • injury to property
  • wrongful death
  • INTENTIONAL TORTS
  • SL
  • breach of warranty

*NOT in K actions

69
Q

Successive tortfeasors

A
  • Several liability only

EXCEPT:
- P’s injuries are indivisible such that no reasonable division is possible.

70
Q

Several Liability

A

If 50% or less . . .
- several liability for non-econ damages

EXCEPTIONS:

  • car accidents
  • intentional or R torts
  • non-delegable duties
  • worker’s comp
71
Q

Atty-Work Product

A
  • Absolute privilige
  • prepared by att
  • as an atty
  • in anticipation of litigation
72
Q

Materials prepared in anticipation of litigation

A
  • in anticipation of litigation (Not reg biz)
  • by party or representative

EXCEPTION

  • substantial needs
  • unable to get w/o undue hardship
73
Q

Grounds for arbitration modification

A

(i) a miscalculation of figures,
(ii) the arbitrators having made an award on a matter not before them, or
(iii) the award is imperfect as to form

Bar Exam (18 decks)

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