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NY CPLR Flashcards

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
Four year SOL
- overcharge of residential rent - Breach of K for sale of goods - Breach of implied warranty for sale of a new home
26
3 year SOL
- 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
27
2.5 year SOL
- Medical, dental malpractice
28
2 year SOL
- wrongful death | - but if result of crime, 1 year after termination of criminal prosecution
29
1.5 year SOL
Ks against a village
30
1 year + 90 days SOL
Tort actions against municipalities
31
1 year SOL
- assault, battery, false imprisonment, IIED, libel, slander, false words, misappropriation of name
32
4 months SOL
Article 78 proceeding
33
When can SOL be shortened
By written agreement. * Sale of goods cannot be less than 1 year and no more than 4 (default)
34
Extension of SOL
- signed writing - after the accrual of action - no consideration necessary
35
Contract Accruals
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
Tort Accruals
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
Amended pleadings & SOL
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
Disabilities and SOL
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
SOL and out-of-state D
SOL does not run until person returns to NY
40
Death of D & SOL
Tolled for 18 months
41
Adding a D & "relates back"
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
Borrowing statute
Where claim accrued out-of-state and brought by out-of-state resident
43
Who can serve? When?
1. 18+ 2. cannot be a party to action 3. No service on Sundays 4. w/n 120 days of filing
44
Effect of failure to make timely service?
Dismissal w/o prejudice
45
Service on individuals
1. Personal 2. Leave and mail 3. Nail and mail 4. Service on designated agent 5. First Class Mail
46
Leave & Mail
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
Nail & Mail
1. Same as leave and mail | 2. Only if leave and mail fails after due diligence
48
Service on Corps.
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
Service on Partnerships
1. Personal 2. Leave and Mail 3. Nail and Mail 4. Designated Agent 5. Court ordered service 6. First Class Mail
50
Service by first class mail
- receipt | - returned w/n 30 days
51
Proper Venue
Local action: 1. Where RP is located Transitory actions: 1. Where any party resides 2. If non-residents, any county.
52
Discretionary Venue Change
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
Forum non conveniens (standard)
In the interests of substantial justice
54
Forum non-conveniens (factors)
- burden on ct - burden on D - Location of Ws and evidence - Available of adequate alternative forum - Improper motive - P's choice
55
Preliminary Injunction
- Likelihood of success on the merits - Irreparable harm (lack of an adequate remedy at law) - Balance of equities favors the injunction
56
TRO
- ex parte - immediate and irreparable harm - giving notice to opposing party will cause sig prej
57
Attachment
- 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
Motion Service 8-2 rule
If personally served, - 8 days before motion is to be heard - answer must be served 2 days before hearing
59
Motion Service 16-7-1 Rule
Reserves right to reply: - 16 days before hearing - answer 7 days before hearing - reply 1 day before hearing
60
Motion to Dismiss (failure to state a c/a)
- ct assumes truth of all allegations in complaint | - does not consider evidence outside complaint
61
Motion for summary judgment
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
Partial summary judgment
may be granted as to one c/a
63
Necessary Party (def)
Ought to be joined if complete relief is to be accorded or one who might be inequitably affected by judgment
64
Permissive Joinder of parties
- A single event (or related series of events) involved al the parties to be joined - At least one question of law/fact
65
Permissive joinder
P may join as many causes of action against D as P has
66
Class Action
- Numerosity - Commonality - Typicality - Fairly and adequately protected - Class action is superior to other available methods for the fair and efficient adjudication
67
J&S Liability
Each tortfeasor is subject to P for all damages regardless of 5 of fault
68
Contribution applies to . . .
- personal injury - injury to property - wrongful death - INTENTIONAL TORTS - SL - breach of warranty *NOT in K actions
69
Successive tortfeasors
- Several liability only EXCEPT: - P's injuries are indivisible such that no reasonable division is possible.
70
Several Liability
If 50% or less . . . - several liability for non-econ damages EXCEPTIONS: - car accidents - intentional or R torts - non-delegable duties - worker's comp
71
Atty-Work Product
- Absolute privilige - prepared by att - as an atty - in anticipation of litigation
72
Materials prepared in anticipation of litigation
- in anticipation of litigation (Not reg biz) - by party or representative EXCEPTION - substantial needs - unable to get w/o undue hardship
73
Grounds for arbitration modification
(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

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