NY Practice Flashcards

Question

PERSONAL JURISDICTION What are 3 defenses that are never waived?

Answer 1

**_Defenses that can be *raised* at Any Time:_**  **Non-Joinder** of a **Necessary Party**  **Failure to State a COA**  **Lack** of **Subject Matter Jurisdiction**

Answer 2

_2 Ways:_ * affirmative defense in Motion to Dismiss * do not make a Motion to Dismiss on any ground and raise it as affirmative defense in the Answer * AND, if the lack of PJ defense is based on I**mproper Service of Process --** * Make a follow-up motion for summary judgment on that ground w/in **_60 Days_** ***after*** serving the answer (or it is waived)

Answer 3

* Each party can amend 1 time, as a **Matter of Right.** * Time limit – w/in 20 days of service of Answer. * Can put anything that could have been put in the original. * This means D can assert lack of personal jurisdiction in the Amended Complaint (as long as he did not make a Motion to Dismiss before).

Answer 4

_D’s goals are to avoid default & force P to serve the complaint so..._  Serve a demand for the Complaint, or  Serve a notice of appearance • Same time constraints as serving Answer  P must then serve the complaint w/in 20 days  D then must serve the Answer or MTD w/in 20 days (can still object to PJ)  If P does not serve the Complaint w/in the 20 days, D can move for dismissal on the basis of noncompliance (i.e. failure to prosecute the claim) • To avoid dismissal, P would have to show there was reasonable excuse for the delay **and** make an evidentiary showing that there is merit to his claim in Affidavit of Merit.

Answer 5

* Procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P. * D may implead 3rd party any time AFTER D serves the Answer.

Answer 6

_Either party can request the right to amend if:_  As a matter of right amendment has passed, or  The party has already used his right to amend once  **_Standard:_** amendment allowed as long as n_o incurable prejudice_ to opponent * o To estab. prejudice – opponent has burden of showing that b/c of the delay in amending, the P has suffered a detrimental change in position (e.g. key W died, key docs destroyed)

Answer 7

 TPD must serve an Answer on D, P & all other parties.  After TPD joined, P can amend her complaint to assert complaints directly against TPD. * **w/in 20 days** – w/o judicial permission * **after 20 days** – needs permission ➩New claims by P **“relate back”** to date D filed impleader papers as long as based on same transaction or occurrence as D’s impleader claim

Answer 8

**_Contribution:_** the sharing or apportionment of loss among multiple tortfeasors (who are actually part of the tort or aggravated the damages).  _Exceptions:_ * CPLR Article 16 * MBE – not available when liability is based on an intentional tort  Purpose – mitigate the harshness of joint & several liability

Answer 9

_Indemnity: _ Allows D to shift 100% of the responsibility or damages to another party.  _Can be accomplished:_ * o By K (e.g. sub-contractor) * o Implied in Law * Products Liability – manufacturer must indemnify retailer * Vicarious liability – driver indemnifies owner of car  Settlement **does NOT extinguish claims** for indemnity by or against a settling tortfeasor

Answer 10

 Tortfeasors already co-Ds → Crossclaim  Tortfeasors not part of suit → implead or sue in a separate action ➩ If D sues outside tortfeasors in a separate action, the findings of liability in the 1st action are not binding on 2nd action. Collateral estoppel & res judicata cannot be used against tortfeasors who were not joined as D’s in 1st action.

Answer 11

 Each tortfeasor is liable to P for the whole amount of damages regardless of the individual tortfeasor’s percentage of fault.

Answer 12

_Comparative Degrees of Fault:_ * Each tortfeasor is liable for his actual fault. * Each D cannot be compelled to pay more than his own equitable share **_by another tortfeasor._** * P can force one tortfeasor to pay the entire amount of damages if the others are insolvent.

Answer 13

_Equal Shares Formula **(MINORITY VIEW):**_ * All liable tortfeasors pay an equal share of the damages. ➩**TIP:** only on MBE – will say “in an equal share jurisdiction”

Answer 14

**Workers Compensation** → may not sue employer if you are injured on the job.  Injured P may sue other 3rd party tortfeasor, such as manufacturer of machine used, etc.  D may not implead the employer for contribution **UNLESS** it was a grave injury.  **_Grave injury:_** * • Death * • Total loss of arm, leg. hand, foot, ear, nose, index finger * • Total loss of multiple fingers or toes * • Paraplegia, quadraplegia * • Total blindness or deafness * • Sever facial disfigurement * • Brain damage causing total disability

Answer 15

 TPD who is not directly liable to P may still be liable to D.  **Example:** Manufacturer of smoke alarm, fire protection service. Fire protection service not liable to P b/c of clause in K but manufacturer-D can still implead him for aggravating the damages. ➩So contribution can be broader than liability.

Answer 16

**_Rule:_** P’s pretrial settlement w/ 1 tortfeasor in partial satisfaction of the claim does not discharge P’s claim against other tortfeasors.  Law prohibits excessive recovery so P can only collect up to total amount of damages.  Any damages awarded must be reduced by **the LARGER of:** * • the amount of settlement, **or** * • the settling tortfeasor’s equitable share of fault * o E.g. P settles w/ A for $30k. P wins $100k in trial. Ct. says A 10% liable & B 90%. B only owes $70k. If A 40% liable, P could only collect $60k from B. ➩ Pre-trial settlement extinguishes claims by & against settling party.

Answer 17

**_Rule:_** tortfeasor is liable to P for all injuries that proximately flow from the accident but he may claim contribution from a successive tortfeasor.  E.g. subsequent malpractice by a doctor who negligently treats P.

Answer 18

_Exceptions from Article 16 (i.e. tortfeasors always liable for J&S liability):_  **Intentional tortfeasors** or those who act w/ reckless disregard. o If multiple tortfeasors - only intentional ones are J&S liable.  Tortfeasors who _release_ **hazardous substance** into the environment.  **Drivers & owners of cars** except police or fire cars. * Note: police officer driving vehicle also gets benefit of Article 16

Answer 19

**_Rule:_** in a **_personal injury claim_** a joint tortfeasor whose fault is found to be **50% or less** _Cannot Be Required to Pay the P_ more than his equitable share of the P’s **noneconomic damages.** * **Noneconomic damages** – paint & suffering, mental anguish, loss of consortium, loss of companionship (but NOT wrongful death) * **Economic damages** – all tortfeasors are J&S liable for full judgment * e.g. medical expenses, lost income * Ex: P sues A & B. A = 60% liable & B = 40% liable. A is J&S liable for all of the damages but B is only liable up to $40k. *

Answer 20

An order to show cause is an accelerated Motion on Notice. * accelerates the return date (used in exigent circumstances) * judge can grant an immediate stay of the proceedings or a temporary restraining order * statute which governs the particular motion may require it * can also be used in a special proceeding

Answer 21

* Moving party serves Notice of Motion & supporting affidavits on other party * Tells opponent nature of motion & specifies return date/hearing date, which is day motion is presented to court * Opponent must get motion papers **at least 8 days prior** to the return date * Both sides file papers w/ court by return date * Court then makes a decision & issues an order

Answer 22

 Winning party serves a copy of the order on the losing party.  Service gives effect to the order.  Service starts the running of a 30-day time limit to appeal from the order.

Answer 23

 Moving party drafts order to show cause & submits it directly to the judge along w/ affidavits for the underlying motion.  Judge sets the return date in the order & specify the method of service on the adversary (usually personal delivery). ➩**Ex:** Proposed order to show cause is signed by the judge on May 1, 2008, and it states, “Let D show cause on May 5, 2008 why an order should not be granted requiring D to produce docs x, y, & z.” After the order is signed, the order & the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.

Answer 24

 **Moving party goes straight to court & requests an order granting the relief sought.**  Need specific statutory authorization. * **e.g.** order for expedient service of process, P seeks extension of time to serve process  No appeal may be taken from an ex parte order (but can make a motion on notice to vacate the ex parte order & if this is denied the aggrieved party can appeal from the denial).

Answer 25

 NY allows an immediate appeal of an order from the Supreme Court to the Appellate Division **_as a matter of right_** w/in 30 days of service of any order determining a motion on notice. * e.g. order denying change of venue or change of jurisdiction  **MBE – CANNOT** appeal immediate orders until final judgment entered ➩ NY bar loves this

Answer 26

 Moving party must submit evidence in the form of affidavits, relevant docs or discovery materials. Must come from party himself or W – personal knowledge.  Opponent can defeat motion using same type of evidence to show material issue of triable fact exists.  Opponent can also submit affidavit est. that he is not yet able, through no fault of his own, to produce opposing evidence. Court can grant a continuance (adjournment).  Court **“searches the record”** (i.e. looks at all the evidence in the record). * • **“Boomerang Effect”** – court can grant opposing party SJ even w/o a cross-claim

Answer 27

* **Rule:** party may show, before trial. that even thought the pleadings are sufficient on their face **“there is no genuine issue of material fact requiring trial”** * If motion is denied it means that triable issue of material fact exists EXCEPT if the only issue is as to damages, ct. can grant SJ on liability & then order an immediate trial on the issue of damages. * **After** Answer served, **EITHER** party can move for SJ w/ respect to any claim or defense asserted in the pleadings * **Time limit:** _120 days_ from the notice of issue (i.e. cases is marked on trial calendar) unless moving party shows “good cause.”

Answer 28

* Provide P a measure of security pending the outcome of the case so that ultimately the judgment may be enforced. * **TIP** – type of action & grounds for using remedy tested * **TIP** – court order required so motion procedure pervades this area

Answer 29

 **Court converts Motion to Dismiss for failure to state a COA into Motion for SJ** (this allows fro decision on basis of evidence instead of just on pleadings) * 2 Reqs – at least 1 party submitted factual affidavits & ct. gives notice to parties so they can submit add’l evidence  **Motion for SJ in Lieu of Complaint** * o Action on an instrument for the payment of money only – instrument must contain uncond’l promise to pay $$ * very few docs count – e.g. promissory note * cannot use this for ordinary breach of K * o Action on an out-of-state judgment

Answer 30

* Provides security for the enforcement of a money judgment. * **_Types of actions_**: P must be seeking money damages AND: * D is an unlicensed foreign corp. or a non-domiciliary of NY; or * D is about to conceal or remove assets from NY w/ the intent to defraud creditors or frustrate the enforcement of a judgment ➩okay to seek equity damages too, just must have $$

Answer 31

**Provisional Remedies** ## Footnote  Attachment  Preliminary Injunction  Temporary Receivership  Order to Seize to Chattel in an action to recover the chattel (replevin)  Notice of Pendency (lis pendens)

Answer 32

 P makes a motion for an order of attachment (can be on notice or ex parte).  Affidavits in support must show one of the grounds for attachment (i.e. type of action) **AND** probability of success on the merits of the P’s underlying COA  P must provide an undertaking (i.e. a bond) to indemnify the D for any damages or expenses caused by the attachment • D would be entitled to damages if attachment improperly obtained or the D wins the case on the merits & the bond is there to pay damages

Answer 33

 P gives order of attachment to sheriff who imposes lien, which stays until end of case.  Levy on Real Property – sheriff files order of attachment w/. the county clerk in county where RP located  Levy on personal property – sheriff delivers order of attachment to the person in NY who holds D’s personal property interest (D himself or garnishee) • Garnishee – 3rd person who owes a debt to the D or has possession of the D’s tangible personal property (e.g. bank) • Delivery automatically imposes lien on personal property & serves as an injunction against transfer of the property for the duration of the action. • Personal property qualifying – tangible (car, boat) or intangible (e.g. debt owed to D – i.e. bank acct)

Answer 34

 _Purpose:_ to maintain the status quo while action is pending  **_Types of actions:_** must be an EQUITY action where P’s complaint seeks either:  permanent injunction, **_or_**  if D threatens to harm the P’s interest in the subject matter of the action ➩Cannot be only for **_$$_** - e.g. P sues D for $70k debt owed. Cannot get injunction to stop D from spending money.

Answer 35

**_To satisfy due process:_**  Must be a hearing **_promptly after_** the levy on D’s property to give the D opportunity to protest the attachment.  **_Caveat:_** After the sheriff levies on the property, the P must make a follow-up motion on **notice to confirm** the ex parte order. It is on that motion that there will be a prompt hearing. * • D unlicensed foreign corp. or non-domiciliary of NY – no later than 10 days after levy * • D fraudulently moving assets – no later than 5 days after levy  If follow-up not w/in proper # of days then void.

Answer 36

When a motion for preliminary injunction is not possible b/c action is not yet commenced and/or would take too long b/c 8 day notice requirement then to get **IMMEDIATE INJUNCTIVE RELIEF:**  If there is a threat of immediate injury court may grant a TRO  function is to maintain the status quo until the motion for preliminary injunction is decided  can be granted ex parte if the P shows that giving prior notice of it to D would result in **_significant prejudice_** (e.g. he would run off or give the stock away)

Answer 37

 Motion must be made **ON NOTICE.**  Can be served w/ or after the summons and any time up to final judgment.  **_Affidavits must show:_** * • grounds for equitable relief, including a threat of irreparable injury * • a probability of success on the merits of underlying COA  Must provide indemnity.

Answer 38

* P commences action seeking equitable relief. * P makes a motion (by order to show cause) for a preliminary injunction to maintain status quo until overall action is resolved. * In the order to show cause, P requests TRO to obtain immediate injunctive relief pending the outcome of the preliminary injunction motion.

Answer 39

* Make the order for preliminary injunction by order to show cause scheduling a quick return date for the motion for preliminary injunction. * Judge can include TRO in Order. * Order is then served on the D along w/ the motion papers for the preliminary injunction. * Upon service, D is immediately restrained by the TRO, pending the resolution of the preliminary injunction motion.

Answer 40

 Make the order for preliminary injunction by order to show cause scheduling a quick return date for the motion for preliminary injunction.  Judge can include TRO in Order.  Order is then served on the D along w/ the motion papers for the preliminary injunction.  Upon service, D is immediately restrained by the TRO, pending the resolution of the preliminary injunction motion.

Answer 41

 **_Types of actions:_** only available in an action that seeks to recover possession of a chattel (replevin)  **_Order to Seize Chattel_** – to insure enforcement of a judgment awarding the chattel * o Sheriff seizes chattel & impounds it until judgment b/c if it was lost/destroyed recovery is limited to monetary value of chattel  Affidavits must show P will probably succeed on merits of underlying COA.  P must provide indemnity.  Can be made on notice or ex parte.

Answer 42

* **Temporary receiver** – person appointed by the court to manage property in the D’s possession * **_Types of actions_**: must be in EQUITY claim in which specific property is the subject matter of the action, AND * there is danger that D will injure or destroy the value of the property while the action is pending. * Requires a motion on notice. ➩ very rare b/c so drastic

Answer 43

* **EQUITY** action in which the judgment will have _direct_ effect on possession, use or title of **REAL PROPERTY** * Filing of notice of pendency gives record notice to potential buyers that any interest they acquire will be subordinate to P. * **Mortgage foreclosure** – lis pendens is statutorily required * Does NOT need a court order * D’s only remedy – motion to cancel lis pendens

Answer 44

 P must show a threat of immediate loss of the chattel, **_and_**  Due process must be satisfied: * o If motion granted, P must make a follow-up motion on notice w/in 5 days of the seizure to confirm the ex parte order & that’s how D gets a prompt hearing to say his part.

Answer 45

_When discovery is completed & case is ready for trial:_  EITHER party may file a **Note of Issue**  Filing party has to serve copies on opposing parties

Answer 46

 Effective for 3 years from date of filing  If action goes beyond 3 years then P would have to make a motion for a 3-year extension o MUST make the motion PRIOR to the expiration → if after: * • lis pendens becomes void, and * • P cannot obtain another one on the same property for the same COA  Mortgage foreclosure – even if miss deadline, ct. will renew b/c statutorily required

Answer 47

o Action seeking solely money damages. o Replevin (action to recover chattel). o Claim to real property. o Annulment of a marriage. o Divorce action on issue of grounds. ➩ Civil jury = 6 jurors, need at least 5 votes

Answer 48

 Party who files notice of motion – makes a demand for a jury trial in Note of Issue or else waives it  Other parties – assuming no jury demand made in the Note of Issue, other party must file his own separate demand for a jury

Answer 49

**_RJ (or Claim Preclusion):_** to avoid & to prevent relitigation of the same claim * **_Transactional Approach_** – when claim against the D gets final judgment on the merits, all other claims by the P against the same D are barred if they arise out of the same transaction * True even if other claims based on different theory or seek a different remedy * o _Exception:_ matrimonial action based on domestic abuse

Answer 50

**Collateral Estoppel:** avoids & prevents relitigation of specific fact issues that were decided in a prior proceeding upon 3-part showing:  identical issue  issue was actually litigated & decided  party against whom issue preclusion is asserted had a full & fair opportunity to litigate the issue in the former proceeding

Answer 51

 Agmt to arbitrate? – must be in writing, clear, explicit & unequivocal  Particular dispute w/in scope of clause?  Clause valid? – i.e. not induced by fraud, duress or coercion * **Doctrine of severability** – will examine clause separately from K b/c that would look at merits of entire K  Express condition precedent to arbitration has been complied w/?  SOL issue? **➩NY PUBLIC POLICY FAVORS ABRITRATION**

Answer 52

* **_Already pending action_** – D should make motion to stay the action & compel arbitration * **_Notice of Intention to Arbitrate_** – opponent who wants to avoid arbitration must commence a special proceeding for stay of arbitration * must be w/in 20 days of receipt of Notice of Intention or waives any of the threshold objections

Answer 53

 Agmt to arbitrate? – must be in writing, clear, explicit & unequivocal  Particular dispute w/in scope of clause?  Clause valid? – i.e. not induced by fraud, duress or coercion * **• Doctrine of severability** – will examine clause separately from K b/c that would look at merits of entire K  Express condition precedent to arbitration has been complied w/?  SOL issue? **➩NY PUBLIC POLICY FAVORS ABRITRATION**

Answer 54

Article 78 authorizes a special proceeding for judicial review of (in)action by govt. or quasi-govt. officers (i.e. administrative agency review). **_4 Grounds:_**  Mandamus to compel  Prohibition  Certiorari  Mandamus to Review

Answer 55

**_Only 3 grounds:_**  Corruption, fraud, misconduct in the arbitration proceeding.  bias of an arbitrator who was chosen to be neutral  arbitrator exceeded his powers (almost always loses b/c arbitrators usually have unlimited power unless the parties agree otherwise) ➩NY – arbitrator cannot award punitive damages in localized dispute

Answer 56

• Prohibition – proceeding to stop a judicial officer from exercising power that exceeds his lawful jurisdiction * o only for gross excess of jurisdiction * o E.g. judge denies D’s motion to dismiss for clear violation of double jeopardy

Answer 57

**_• Mandamus to Compel_** – to compel performance of act required by law * o e.g. election official refuses to issue absentee ballot, city clerk refuses to issue marriage license • **_Corporations_** = quasi-govt. body b/c gets right to exist from the state * o e.g. refusal to convene annual meeting of shareholders

Answer 58

 **_Mandamus to Review_** – proceeding to review any type of administrative action not covered by other 3 (usually used to challenge agency determination w/o trial-type hearing) * o E.g. zoning permit denied, gun permit renewal denied  Agencies may determine such matters w/o trial-type hearing b/c no vested rts. are at stake  Ct. must uphold determination UNLESS it was **_“arbitrary & capricious.”_**

Answer 59

• Certiorari – proceeding to challenge the results of a “trial-type” hearing conducted by an administrative agency  **_Trial-type hearing_** – testimony taken under oath w/ a rt. of cross-examination * o Persons w/ a vested property or quasi-property right are entitled to trial-type hearing prior to divestiture  Ct. must uphold determination if it was **_supported by substantial evidence._**

Answer 60

 Only the Supreme Court can hear Article 78 Proceeding.  Even the State can be sued here.  **SOL** = 4 months  May only seek declaratory or injunctive relief * o Injunction e.g. – reinstatement of employment * o Declaratory e.g. - annulment of agencies determination  Damages are only recoverable if they are incidental to the main relief being sought.

Answer 61

Power of the court to adjudicate particular types of claims.

Answer 62

Power of the court to adjudicate claims for damages or injunctive relief against particular parties

Answer 63

 3 yrs * o Personal injury based on negligence & strict PL * o Property damages * o Professional malpractice * o Accrues → date of injury (unless toxic substance = discovery), date of delivery of work  4 yrs * o Ks governed by UCC Article 2 – sales * o Accrues → tender of delivery  6 yrs * o Ks express or implied - date of breach regardless of knowledge of breach * o Indemnity or contribution – date of payment * o Fraud – w/in 6 yrs. of commission or 2 years of discovery, whichever is longer

Answer 64

 4 months * o Article 78 proceedings  1 yr. * o Intentional torts to the person  2 yrs * o Wrongful death – date of death AS LONG AS can also be shown that decedent’s personal injury claim had not expired on date of death * o If criminal proceeding – executor gets optional & independent 1 yr. from termination of criminal proceeding (TOTALLY INDEPENDENT FROM OTHER RUNNING OF SOL)  2.5 yrs. * o Medical, dental & podiatric Malpractice – 2 yrs. from date of malpractice UNLESS continuous treatment (end of treatment) or foreign objects (1 yr. from discovery)

Answer 65

 Commencement of the action (i.e. filing process) must be made w/ the County Clerk _on or before the last day_ of the SOL.  Clock starts ticking the day after the injury. * o **_Ex:_** Car accident on June 1, 2006. Last day for timely commencement for PI and/or property damages = June 1, 2009.

Answer 66

 P was a **non-resident** when _out-of-state claim arose_ → if SOL in state where COA arose is shorter, NY will apply it; otherwise NY SOL applies. ## Footnote  P was resident when out-of-state claim arose – will always apply NY SOL.

Answer 67

Continuous Treatment exception:  If doctor continues to treat patient for the exact same medical condition that gave rise to the malpractice → SOL runs from termination of the treatment.

Answer 68

*  Doctors *  Dentists *  Podiatrists *  Nurses *  Hospitals

Answer 69

 Lawyers  Accountants  Architects  Engineers  NOT: * o insurance brokers * o securities analysts * o plumbers

Answer 70

 If doctor was responsible for introducing a foreign object into patient’s body and leaving it behind, P gets option of: * o 2.5 yrs. from date of operation, or * o 1 yr. from date of discovery (implied or actual)  NOT Foreign Objects (so no benefit of rule): * o chemical substance (medicine) * o prosthetic device (plastic hip) * o fixation device (internal sutures, pacemaker)

Answer 71

* Malpractice has an **_exclusive SOL of 3 years_**, whether the claim is based in tort or K (which would normally have 6 years). * Doctrine of Continuous Representation Applies * **Caveat:** personal injury different

Answer 72

 **_Special Procedure_** required if claim brought more than 10 yrs. after building completed: * o P must serve notice of claim on architect/engineer 90 days before suit. * o P may obtain pre-action discovery from the potential D during the 90 day wait period; and * o if D moves for SJ, burden on P to make evidentiary showing that has “substantial basis” to believe D’s negligence was the proximate cause of the injuries.

Answer 73

 Special Procedure required if claim brought more than 10 yrs. after building completed: * o P must serve notice of claim on architect/engineer 90 days before suit. * o P may obtain pre-action discovery from the potential D during the 90 day wait period; and * o if D moves for SJ, burden on P to make evidentiary showing that has “substantial basis” to believe D’s negligence was the proximate cause of the injuries.

Answer 74

 D _not in NY_ when COA accrues → SOL does not begin to run until he returns to NY  D in NY when COA accrues but _thereafter leaves N_Y & is continuously absent for at least 4 months → SOL tolls during time absent  **_Exception:_** no tolling if P has a basis of personal jurisdiction over absent D that would allow process to be validly served * o E.g. Texan comes to NY, punches someone & goes back to Texas. No tolling b/c long arm available b/c tortious act in NY.

Answer 75

 **Toxic substance =** any inherently harmful toxin that has latent or slow-developing effects * o e.g. DES, asbestos, insecticides, HIV-virus, leaking petroleum  **Exposure** = any sort of assimilation into one’s body or property  **SOL =** date of discovery or when w/ reasonable diligence should have discovered ➩**Caveat:** does not apply to medical malpractice b/c exclusively governed by med mal rules

Answer 76

**_Survival Claim:_** any COA P could have brought  Damages = any incurred by P prior to death  SOL = if claim still timely on date of death, executor gets time remaining or 1 yr. from date of death **_Wrongful Death Claim:_** tort claim for economic damages of decedent’s statutory distributes  Damages = punitive but not emotional suffering of distributees or P’s p&s.  SOL – 2 yrs. from date of death AS LONG AS personal injury claim would have been timely

Answer 77

 Infants (under 18) & insane → may sue w/in regular SOL w/ competent adult rep. but they get a toll until the disability ends. **Once the disability ends:**  SOL for COA was 3+ yrs. → P gets 3 yrs.  SOL for COA less than 3 yrs. → P gets whatever period specified **Exception – 10 yr. limit:**  Claims of insane Ps barred after 10 yrs.  Med mal – barred after 10 yrs  **Caveat:** continuous treatment toll separate so if applicable then run separately to see what’s best

Answer 78

 If a **New York action** is timely commenced but dismissed before trial & at the time of dismissal SOL has either expired or has less than 6 months remaining → P gets 6 months from the date of dismissal to re-file the same action & serve process on D. **4 Exceptions:**  dismissal on the merits  voluntary discontinuance by the P (dropped the suit)  P neglects to prosecute  dismissal for lack of personal jurisdiction

Answer 79

 If potential defendant dies AT ANY TIME before the SOL expires, 18 months are always added to the relevant limitations period.  **Ex:** Car crash on June 1, 2005, in which D’s negligence caused person’s death. Wrongful death SOL = 2 yrs. + 18 months so P’s executor has until December 1, 2008.

Answer 80

 Matrimonial actions where ct. is asked to adjudicate marital status (e.g. divorce, separation, annulment, validity of marriage)  CPLR Article 78 Proceedings  Declaratory judgment action – judicial declaration about smtg which could cause liability before it does

Answer 81

 Claims for money damages in tort or contract against the State of New York must be brought in NY Court of Claims.  **Exception:** govt. subdivisions (counties, cities, school districts) must be sued in SC  **Note:** If there is a non-state co-D, they have to be sued in separate courts.

Answer 82

* **o Summons & Complaint,** or * o Summons = notifies D that he is being sued in a particular court * **o Summons & Notice** * o _Notice must state:_ * • brief stmt of nature of action * • nature of relief sought * • amount of damages UNLESS personal injury or wrongful death – then CANNOT state * **_o Naked Summons:_** if no complaint or notice attached, then defect in PJ & action can be dismissed

Answer 83

**_To be valid:_**  file process w/ the County Clerk  pay a fee for the purchase of an index number  serve process on the D w/in 120 days after filing w/ the county clerk  **_Note:_** Court has discretion to extend 120 days if P makes an ex parte motion & makes a showing of good cause or interest of justice. * o If D wants to challenge timeliness, must make a Motion to Dismiss for untimely service but court can still grant P an extension & apply it retroactively.

Answer 84

**(1) Personal delivery to:** * o officer of the corporation * o director of the corporation * o designated agent * o managing agent (employee who has supervisory power) * \*\*\*Can be served anywhere if there is a basis of personal jurisdiction. **(2) Service on NY Sec. of State** * o Domestic corp. & foreign corp. authorized to do business in NY = personally deliver 2 copies on Sec. * o Unlicensed foreign corp. = 1 copy to Sec. & 1 by mail to corp. by certified mail, return receipt request

Answer 85

o Personal delivery to D in New York o Leave & Mail o Nail & Mail o Expedient Service o Agent Designated by D to receive service o Service by 1st Class Mail PLUS acknowledgment

Answer 86

* If D refuses, leave process in his vicinity. * Service is complete upon delivery.

Answer 87

**_Mail process to D by 1st class mail, enclosing:_** * 2 copies of statutory acknowledgement form and * a return envelope, postage prepaid, addressed to sender - Service is effective only if D signs 1 form & returns it to P w/in 30 days. (complete upon sending signed form) - If D does not return it, P must serve process some other way & D must pay for it. **_Notes:_** CANNOT be used on infants or insane. D’s return of form is NOT a concession that court has jurisdiction.

Answer 88

* Server may **AFFIX** process to the door of D’s actual dwelling place or actual place of business, **and within 20 days,** * **MAIL** a copy by regular mail to D at D’s actual place of business or last known residence, **and** * Must have exercised Due Diligence by making attempts to serve D directly or by delivery, **and** * File proof of service.

Answer 89

o Server may **DELIVER** process to _person of suitable age & discretion_ (does not mean 18 nec.) at D’s actual dwelling place or actual place of business, and **within 20 days,** o **MAIL** a copy by regular mail to D at D’s actual place of business or at his last known residence, and o File proof of service. o **Service is complete 10 days after proof of service filed** (i.e. when D’s response time begins to run) o If P fails to file proof of service, it is not a jurisdictional defect, just postpones D’s response time. o Also, proof of service does not have to be w/in 120 days from date of filing process.

Answer 90

**_Must serve on adult:_** o parent o guardian o any person having legal custody of infant o if infant is married, then on an adult w/ whom she resides o Infant over 14 yrs. old → process must be served on the eligible adult _and_ the infant

Answer 91

o Mentally incapacitated person **with** court-appointed guardian – must serve person and guardian o Mentally incapacitated person **without** court-appointed guardian – serve person & then court will appoint a guardian ad litem

Answer 92

o If all 3 other methods of delivery on persons are not practicable, P may make an ex parte motion to the court for an order allowing an improvised expedient method. ## Footnote **_Reasonable alternative:_** o D’s liability insurer o family member o business associate o email

Answer 93

o Process Server must be 18 or older o Process server cannot be a party to the action o Process may be served on any day except Sunday and if D is a Saturday Sabbath observer, and D knows it o Each D gets his own set of process

Answer 94

o Same methods as used in New York.

Answer 95

**Period: 2 years** **Note:** But must also show that SOL on decedent's **underlying claim had not expired @ death**

Answer 96

**Period: 1 year**

Answer 97

**Period: 1 yr and 90 days** **Note:** But π must also show that she served notice of claim to ∆ w/t 90 days of accident.

Answer 98

**Exceptions:** * **Continous Treatment: **period runs from end of treatment * **Foreign Objects**: **1 yr from discovery** if insufficient time under regular rules

Answer 99

**Period: 2 1/2 **years

Answer 100

**Period: 3 **years

Answer 101

**Period: 3 **years

Answer 102

**Period: 3 **years (date of personal injury or property dmg) **Note:** No discovery rule except for toxic substances.

Answer 103

**Period: 5** years **Note:** Period rns from date of crime, and if perp prossecuted...5 yrs from terminatino of criminal proceeding regardless of outcome.

Answer 104

**Note:** **Breach** of **warranty** accrues upon **Tender of Delivery**

Answer 105

**Period**:** 4** years

Answer 106

**Period**: **6** years

Answer 107

**Period**: **6** years **Note**: π can sue w/t 6 years of commission or 2 years of discovery (w/e longer)

Answer 108

**Period**: **6** years **Note**: Accrual from date of payment

Answer 109

**Period**: **6** years **Note**: Accrual from date of breach regardless of P's lack of knowledge.

Answer 110

**Period: 7 **years **Note**: Period runs from date of crime

Answer 111

**Period: 10** years Note: Period runs from date of conviction.

Answer 112

**Period: 10** years

Answer 113

**Period: 20** years