NY CPLR Flashcards
Supreme Court Exclusive Jx
- Matrimonial
- Article 78 (officials/agencies)
- Declaratory Judgments
Supreme Court appeals
appellate division of the supreme court
County Court original jx
Civil action for money damages, provided that:
- 25K or less
- Each D resides in county or has biz office in county and claim arose in county
- Land located in county
- Incompetency proceeding re: county resident
- Enforcement of judgment obtained in another cty
Appeals of county court
- W/n 2nd dept. of Supreme Court –> appellate term of the supreme court
- All others –> Appellate Division
NYC Civil Courts (og jx)
Very similar to county courts.
- 25K or less
- Actions to acquire money
- Replevin actions
- DJ actions
- Rent
- Recission/Reformation of Ks
- Summary eviction
Appeals from NYC Civil courts
Appellate Term of the Supreme Court
Family Court (of jx)
- Child/Spousal support
- Custody/visitation
- Neglect/abuse
- Paternity
- Termination of parental rights
- Protection orders
Family Court (appeals)
Appellate Division
Court of Claims (exclusive jx)
- Contract and tort against NY state
Appellate Division of the Supreme Ct. (og jx)
Atty supervision and discipline
Appellate Division fo Supreme Ct (appeals heard)
- Family Court
- Supreme Court
- County
- Surrogate’s
- Court of claims
Appellate Terms of the Supreme Court
appeals heard
- 1st and 2nd division of NYC Civil Courts
Due Process Reqs
- Notice
- Opportunity to be heard
- If non-domicile, must be sufficient connection btw state-nonD-case
General PJx
- Domicile
- Physical presence
- Statutory consent (authorized corp)
- Doing business (unauthorized corp)
“Doing business” in NY
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
Specific PJx
- Express consent
- Waiver
- Statutory consent
- filing suit
- driving - Long-Arm
NY Long-Arm
- 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)
“Transacting Biz” in NY (long-arm)
Look to quality and quantity of act
*Less intensive than “doing business” requirement of general jx
Defamation exception to long arm
Cannot be based on tortious act w/n or outside NY
20 year SOL
- by state or its grantee to recover RP
- support, alimony, maintenance
- enforce a money judgment
10 year SOL
- recovery of RP
- Redeeming RP for a mortgage
7 year SOL
- 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
6 year SOL
- 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
5 year SOL
- V of 1st degree rape, criminal sex assault, aggravated sexual assault, aggravated sexual abuse or conduct against a child
Four year SOL
- overcharge of residential rent
- Breach of K for sale of goods
- Breach of implied warranty for sale of a new home
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
2.5 year SOL
- Medical, dental malpractice
2 year SOL
- wrongful death
- but if result of crime, 1 year after termination of criminal prosecution
1.5 year SOL
Ks against a village
1 year + 90 days SOL
Tort actions against municipalities
1 year SOL
- assault, battery, false imprisonment, IIED, libel, slander, false words, misappropriation of name
4 months SOL
Article 78 proceeding
When can SOL be shortened
By written agreement.
- Sale of goods cannot be less than 1 year and no more than 4 (default)
Extension of SOL
- signed writing
- after the accrual of action
- no consideration necessary
Contract Accruals
- Construction Ks:
= day of K completion - Sale of goods:
= when breach occurs regardless of injured party’s knowledge - Breach of warranty:
= when delivery is made by seller
Tort Accruals
- Generally = day of the injury
- Negligence = when P is injured even if P is unaware of injury
- Continuous treatment = does not begin until the last treatment
- Defamation = date of publication
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.
Disabilities and SOL
- If SOL < 3 years: when disability removed, person has full limitations period to bring action
- If SOL 3 years or more:
- if < 3 years left, get 3 years
- If > 3 years left, SOL unaffected
SOL and out-of-state D
SOL does not run until person returns to NY
Death of D & SOL
Tolled for 18 months
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
Borrowing statute
Where claim accrued out-of-state and brought by out-of-state resident
Who can serve? When?
- 18+
- cannot be a party to action
- No service on Sundays
- w/n 120 days of filing
Effect of failure to make timely service?
Dismissal w/o prejudice
Service on individuals
- Personal
- Leave and mail
- Nail and mail
- Service on designated agent
- First Class Mail
Leave & Mail
- Leave copy w/ someone at actual place of D’s biz/dwelling
- Mail copy to last known residence
- W/n 20 days of each other
Nail & Mail
- Same as leave and mail
2. Only if leave and mail fails after due diligence
Service on Corps.
- Personal (D/O/A)
- SOS
- 2 copies
- unauthorized corps –> must mail or personally serve as well - Court ordered service after 120 days
- First Class Mail
Service on Partnerships
- Personal
- Leave and Mail
- Nail and Mail
- Designated Agent
- Court ordered service
- First Class Mail
Service by first class mail
- receipt
- returned w/n 30 days
Proper Venue
Local action:
1. Where RP is located
Transitory actions:
- Where any party resides
- If non-residents, any county.
Discretionary Venue Change
- A fair trial cannot be obtained in present venue
- Nature of case may create prejudice against a party
- Convenience of material Ws and the ends of justice will be promoted by change.
Forum non conveniens (standard)
In the interests of substantial justice
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
Preliminary Injunction
- Likelihood of success on the merits
- Irreparable harm (lack of an adequate remedy at law)
- Balance of equities favors the injunction
TRO
- ex parte
- immediate and irreparable harm
- giving notice to opposing party will cause sig prej
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
Motion Service 8-2 rule
If personally served,
- 8 days before motion is to be heard
- answer must be served 2 days before hearing
Motion Service 16-7-1 Rule
Reserves right to reply:
- 16 days before hearing
- answer 7 days before hearing
- reply 1 day before hearing
Motion to Dismiss (failure to state a c/a)
- ct assumes truth of all allegations in complaint
- does not consider evidence outside complaint
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
Partial summary judgment
may be granted as to one c/a
Necessary Party (def)
Ought to be joined if complete relief is to be accorded or one who might be inequitably affected by judgment
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
Permissive joinder
P may join as many causes of action against D as P has
Class Action
- Numerosity
- Commonality
- Typicality
- Fairly and adequately protected
- Class action is superior to other available methods for the fair and efficient adjudication
J&S Liability
Each tortfeasor is subject to P for all damages regardless of 5 of fault
Contribution applies to . . .
- personal injury
- injury to property
- wrongful death
- INTENTIONAL TORTS
- SL
- breach of warranty
*NOT in K actions
Successive tortfeasors
- Several liability only
EXCEPT:
- P’s injuries are indivisible such that no reasonable division is possible.
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
Atty-Work Product
- Absolute privilige
- prepared by att
- as an atty
- in anticipation of litigation
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
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
