NY Practice Flashcards
Commencement Procedures
Serving process outside NY.
Same methods as used in New York.
Who can serve?
any NY resident who is authorized under NY law (e.g. NY Process Server, 18+ yr. old)
anyone authorized to serve process by the law of the jurisdiction where service is made
any attorney who is licensed in the jurisdiction where services is made
Commencement Procedures
Service on Infants
Must serve on adult:
parent
guardian
any person having legal custody of infant
if infant is married, then on an adult w/ whom she resides
Infant over 14 yrs. old à process must be served on the eligible adult and the infant
Commencement Procedures
Service on Mentally Incapacitated
Mentally incapacitated person with court-appointed guardian – must serve person and guardian
Mentally incapacitated person without court-appointed guardian – serve person & then court will appoint a guardian ad litem
Commencement Procedures
Expedient Service
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.
Reasonable alternative:
D’s liability insurer
family member
business associate
email
Commencement Procedures
Basic requirements of serving process.
Process Server must be 18 or older
Process server cannot be a party to the action
Process may be served on any day except Sunday and if D is a Saturday Sabbath observer, and D knows it
Each D gets his own set of process
Commencement Procedures
Personal Delivery.
If D refuses, leave process in his vicinity.
Service is complete upon delivery.
Commencement Procedures
Nail & Mail
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.
Commencement Procedures
Service by 1st Class Mail PLUS Acknowledgement
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.
Commencement Procedures
Leave & Mail
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,
MAIL a copy by regular mail to D at D’s actual place of business or at his last known residence, and
File proof of service.
Service is complete 10 days after proof of service filed (i.e. when D’s response time begins to run)
If P fails to file proof of service, it is not a jurisdictional defect, just postpones D’s response time.
Also, proof of service does not have to be w/in 120 days from date of filing process.
Commencement Procedures
What are the forms of process?
Summons & Complaint, or
Summons = notifies D that he is being sued in a particular court
Summons & Notice
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
Naked Summons: if no complaint or notice attached, then defect in PJ & action can be dismissed
Commencement Procedures
Methods of serving process on corporations.
(1) Personal delivery to:
officer of the corporation
director of the corporation
designated agent
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
Domestic corp. & foreign corp. authorized to do business in NY = personally deliver 2 copies on Sec.
Unlicensed foreign corp. = 1 copy to Sec. & 1 by mail to corp. by certified mail, return receipt request
Commencement Procedures
How can an action be validly commenced?
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.
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.
Commencement Procedures
Methods of serving process on persons.
Personal delivery to D in New York
Leave & Mail
Nail & Mail
Expedient Service
Agent Designated by D to receive service
Service by 1st Class Mail PLUS acknowledgment
Statute of Limitations
Grace Period.
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 à 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
Subject Matter Jurisdiction
Over what does the Supreme Court have exclusive SMJ?
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
Statute of Limitations
Toll for potential Defendant’s death.
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.
Subject Matter Jurisdiction
Where must the State of NY be sued?
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.
Statute of Limitations
Toll for Defendant’s absence.
D not in NY when COA accrues à SOL does not begin to run until he returns to NY
D in NY when COA accrues but thereafter leaves NY & is continuously absent for at least 4 months à 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
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.
Statute of Limitations
Toll for potential Plaintiff’s death.
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
Statute of Limitations
What is the toxic substances exception to products liability?
Toxic substance = any inherently harmful toxin that has latent or slow-developing effects
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
éCaveat: does not apply to medical malpractice b/c exclusively governed by med mal rules
Statute of Limitations
Toll for Plaintiff’s infancy or mental disorder.
Infants (under 18) & insane à 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. à P gets 3 yrs.
SOL for COA less than 3 yrs. à 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
Statute of Limitations
What is the SOL for personal injury against a “professional”?
Building collapses, causing personal injuries.
SOL runs from 3 yrs. from the date of injury, regardless of date of completion of the building.
Statute of Limitations
Products Liability
3 Possible COA:
Negligence – 3 yrs. from injury as against “all D’s in the chain of distribution”
Strict Products Liability – same as neg.
Breach of Warranty – 4yrs. date of delivery of product (governs UCC Article 2 sales)
Ex: Manufacturer sold scooter to wholesaler in 2003; wholesaler sold it to retailer in 2004; retailer sold it to consumer in 2005; consumer suffered PI in 2008 b/c of defect.
Neg. & SPL against all D’s = 2011
Warranty = Man. = 2007, Whole = 2008, Retail = 2009
Statute of Limitations
Professional Malpractice
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
Statute of Limitations
Special Procedure required in PI claims against “professionals.”
Special Procedure required if claim brought more than 10 yrs. after building completed:
P must serve notice of claim on architect/engineer 90 days before suit.
P may obtain pre-action discovery from the potential D during the 90 day wait period; and
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.
Statute of Limitations
What is the continuous treatment rule?
Continuous Treatment exception:
If doctor continues to treat patient for the exact same medical condition that gave rise to the malpractice à SOL runs from termination of the treatment.
Statute of Limitations
Who can be liable for
professional malpractice?
Lawyers
Accountants
Architects
Engineers
NOT:
insurance brokers
securities analysts
plumbers
Statute of Limitations
Who can be liable for medical malpractice?
Doctors
Dentists
Podiatrists
Nurses
Hospitals
Statute of Limitations
What is the foreign object doctrine?
If doctor was responsible for introducing a foreign object into patient’s body and leaving it behind, P gets option of:
2.5 yrs. from date of operation, or
1 yr. from date of discovery (implied or actual)
NOT Foreign Objects (so no benefit of rule):
chemical substance (medicine) prosthetic device (plastic hip) fixation device (internal sutures, pacemaker)
Statute of Limitations
What actions have a SOL of 3-6 years?
3 yrs
Personal injury based on negligence & strict PL
Property damages
Professional malpractice
Accrues à date of injury (unless toxic substance = discovery), date of delivery of work
4 yrs
Ks governed by UCC Article 2 – sales
Accrues à tender of delivery
6 yrs
Ks express or implied - date of breach regardless of knowledge of breach
Indemnity or contribution – date of payment
Fraud – w/in 6 yrs. of commission or 2 years of discovery, whichever is longer
Statute of Limitations
When must an action be commenced to meet the SOL deadline?
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.
Ex: Car accident on June 1, 2006. Last day for timely commencement for PI and/or property damages = June 1, 2009.
Statute of Limitations
What actions have a SOL of 0-2.5 years?
4 months
Article 78 proceedings
1 yr.
Intentional torts to the person
2 yrs
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
If criminal proceeding – executor gets optional & independent 1 yr. from termination of criminal proceeding (TOTALLY INDEPENDENT FROM OTHER RUNNING OF SOL)
2.5 yrs.
Medical, dental & podiatric Malpractice – 2 yrs. from date of malpractice UNLESS continuous treatment (end of treatment) or foreign objects (1 yr. from discovery)
Statute of Limitations
What is the “Borrowing Statute”?
P was a non-resident when out-of-state claim arose à if SOL in state where COA arose is shorter, NY will apply it; otherwise NY SOL applies.
P was resident when out-of-state claim arose – will always apply NY SOL.
Subject Matter Jurisdiction
Power of the court to adjudicate particular types of claims.
Article 78 Proceedings
What is the procedure for an Article 78 Proceeding?
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
Injunction e.g. – reinstatement of employment
Declaratory e.g. - annulment of agencies determination
Damages are only recoverable if they are incidental to the main relief being sought.
Personal Jurisdiction
Power of the court to adjudicate claims for damages or injunctive relief against particular parties
Article 78 Proceedings
Prohibition
Prohibition – proceeding to stop a judicial officer from exercising power that exceeds his lawful jurisdiction
only for gross excess of jurisdiction
E.g. judge denies D’s motion to dismiss for clear violation of double jeopardy
Article 78 Proceedings
Mandamus to Review
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)
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.”
.
Article 78 Proceedings
Mandamus to Compel
Mandamus to Compel – to compel performance of act required by law
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
e.g. refusal to convene annual meeting of shareholders
Article 78 Proceedings
Certiorari
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
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.
Arbitration
5 Threshold Issues that can be presented to the court to avoid Arbitration.
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?
éNY PUBLIC POLICY FAVORS ABRITRATION
Article 78 Proceedings
What are the 4 grounds for an Article 78 Proceeding?
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
Arbitration
How does a party bring threshold issue to the court?
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
Arbitration
What are the 3 grounds of judicial review of arbitration awards?
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)
éNY – arbitrator cannot award punitive damages in localized dispute
Trial Procedures
When does a party in a civil action have a right to jury trial?
Action seeking solely money damages.
Replevin (action to recover chattel).
Claim to real property.
Annulment of a marriage.
Divorce action on issue of grounds.
é Civil jury = 6 jurors, need at least 5 votes
Collateral Estoppel
General Rule.
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
