NY Practice Flashcards

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1
Q

In NY, is an intentional tortfeasor entitled to seek contribution?

A

Yes

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2
Q

On MBE, is an intentional tortfeasor entitled to contribution?

A

No

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3
Q

relationship between settlement and contribution

A

A party who settles cannot sue or be sued for contribution.

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4
Q

relationship between settlement and indemnity

A

A party who settles can sue, and be sued, for indemnity

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5
Q

purpose of motion for summary judgment

A

to enable a party to show, before trial, that even though the pleadings may be sufficient on their face, there is no genuine issue of material fact requiring a trial.

Moving party is contending that reasonable persons cannot differ, and that she is therefor entitled to judgment as a matter of law

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6
Q

How does the opponent defeat a motion for summary judgment?

A

by producing contrary evidence showing that a triable issue of fact does exist.

That means opponent also has to submit affidavits from people who have actual knowledge of the facts. Opponent cannot simply rely on pleadings themselves b/c pleadings are not evidence; they’re just paper allegations.

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7
Q

purpose of attachment

A

security for enforcement of money judgment where D is a security risk:

  • unlicensed foreign corporation or non-domiciliary residing outside NY or
  • is about to conceal or remove assets from NY with intent to defraud creditors or frustrate enforcement of judgment
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8
Q

purpose of preliminary injunction

A

to maintain the status quo while an equity action is pending

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9
Q

3-Part showing for collateral estoppel

A
  1. identical issue in former/current proceeding
  2. issue actually litigated and decided formerly
  3. party against whom issue preclusion is asserted had prior full fair opportunity to litigate
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10
Q

PJ over D - general jurisdiction

A
  1. presence in NY
  2. domicile in NY
  3. corporate D at home in NY
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11
Q

basis for specific (personal) jurisdiction

A

long arm or non resident motorist

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12
Q

long arm jurisdiction

A

“minimum contacts” standard- arises from D’s acts in NY, allowing for out of state service conferring personal jurisdiction

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13
Q

5 categories of NY related activity to trigger long arm jurisdiction

A
  1. transaction of business by D in NY (substantial electronic communications could work)
  2. K transacted anywhere by which D agreed to supply goods or services in NY (does not include payment of a debt, or paying $)
  3. D’s tortious act in NY
  4. P’s claim arises from D’s tortious act outside NY that causes injury in NY AND D regularly does business in NY, solicits business in NY or engages in other persistent course of conduct in NY OR D derives substantial revenue from goods used or consumed, or services rendered in NY OR D expects or should reasonably expect the tortious act to have consequences in NY and D derives substantial revenue from interstate or international commerce that purposely includes NY
  5. D’s ownership, use, or possession of real property in NY
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14
Q

due process for long arm jurisdiction

A

Due process will be satisfied if P’s claim arises out of conduct of D that is so purposefully directed toward NY that D should reasonably anticipate being sued on that claim in a NY court.

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15
Q

Non-Resident Motorist Statute

A

confers PJ over an accident claim arising from a nondomiciliary motorist’s ownership or use of an auto on a NY roadway (often overlaps with long-arm category of tortious act in NY)

for owner: agency or business relationship btwn owner and driver not required

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16
Q

matrimonial long-arm jurisdiction

A

when P-spouse is a resident of NY, long-arm jurisdiction can be acquired over D-spouse for monetary support if

  1. NY was the matrimonial domicile of P and D shortly prior to their separation OR
  2. D abandoned P in NY OR
  3. D’s monetary obligation accrued under an agreement executed in NY (e.g. separation agmt) OR
  4. D’s monetary obligation accrued “under the laws of NY”
17
Q

durational residency requirement for matrimonial action

A
  1. If both parties are NY residents and grounds for action arose in NY, then no period of prior residency required
  2. If either party has been a NY resident for a continuous period of at least one year then one of these also req’d: marriage took place in NY, NY was the matrimonial domicile at some point, or grounds for divorce action arose in NY
  3. If either party has been a NY resident for a continuous period of at least 2 years, no need to show any other connection to NY
18
Q

Defenses that are never waived, even if not included in answer

A
  1. non-joinder of necessary party
  2. failure to state a cause of action
  3. lack of subject matter jurisdiction
19
Q

court’s standards in deciding motion to dismiss for failure to state a cause of action

A
  1. P entitled to every favorable inference that can be drawn from the allegations of the complaint
  2. motion denied if there is any basis for relief under the substantive law
20
Q

S/L for breach of warranty under products liability

A

governed by UCC: 4 yr S/L running from the date a particular defendant made its delivery of the product (look at each D separately)

21
Q

S/L for wrongful death cause of action

A

2 years from date of death, but it must also be shown that decedent possessed a timely cause of action at the time of death (P’s underlying personal injury claim must still be timely on date of death)

22
Q

S/L for survival cause of action

A

If P dies before the S/L expires, he estate rep gets whichever is longer:
the time remaining on the applicable S/L running from the usual date of accrual, or
1 year from P’s death

23
Q

If potential D dies at any time before S/L expires

A

18 months are always added to the relevant limitations period (regardless of whether P needs extra time)