NY Practice Flashcards
Subject Matter Juris
the constitutional or leg authority to grant the relief a party seeks. SMJ may NOT be waived.
therefore an objection based on SMJ can be raised at ANY TIME even on appeal
SMJ of NY Supreme Ct
ct of original jurisdiction for ALL clams except claims for damages against the state of NY.
Limited Jurisdiciton Cts
9 ny cts of limited Juris:
(1) county ct ($25k demand limit)
(2) Civil Ct of City of NY ($25k demand limit)
(3) district cts ($15k demand limit)
(4) City cts
(5) small claims ct ($5k demand limit)
(6) Justice cts ($3k demand limit)
(7) Family Ct
(8) Surrogate’s ct
(9) Co of Claims
Transfer and Removal
a case can be transferred when t appears the transferee ct is the appropriate one to make the ultimate disposition of the matter. Three common situations
(1) Cases where the original ct lacked SMJ from the inception of the suit.
(2) Cases where the original ct had SMJ but events which occurred after the commencement of the suit require transfer in order to provide complete relief
(3) Case in which the original ct had SMJ but where a ct of lesser juris also has ample auth to dispose of the matter.
Limits on NY SC SMJ–Forum Non Convebiens
If, upon motion of the D, the ct finds that the case lacks substantial nexus w NY and that the case should more properly be heard in the ct of some other state, it may stay or dismiss the action in whole or in part.
In deciding whether to grant the motion the ct must weight the convenience of the ct, the P, and the D. Unless the balance of the various factors favors the D, the P’s choice of forum should not be disturbed.
If all parties are New York residents, FNC dismissal may still be an appropriate exercise of discretion. IF all relevant factors have been considered, the court of app will not disturb the the result below.
Limits on NY SC SMJ–Foreign Crop being sued in NY
1) Suits by foreign corp w/o auth–NYBCL 1312 permits an unauth foreign corp doing business in NY to commence an action, but prevents it from continuing the action until it pays all fees, taxes, and penalties owing for the period it did business w/o auth
2) Suits against foreign corps–Any NY resident or domestic corp may freely sue a foreign corp. However, a nonresident or foreign crop may not sue a foreign in NY unless the underlying action has a meaningful tie to the state.
Limits on NY SC SMJ–Contractual choice of NY Law
NY cts are prevented from dismissing an action based on forum non conveniens or the BCL if the action is based on a K that (1) at least $1mm; (2) contains a cl that req application of NY substative law; AND (3) contains a cl by which the parties agree to submit to the Juris of NY cts
SOL–Accrual
the SOL of a claim starts to run at the time the COA accrues
SOL–Commencement Against Party United in Interest
if the orig summons omitted a party that is then added to the action after the expiration of the SOL, timely commencement against the original D will toll the SOL as against the newly added party if: (1) both claims arise out of the same conduct; (2) the parties share L (either jointly or vicariously); (3) the new part knew or should have known that but for the P’s mistake in identifying all parties the action would also have been brought against him.
SOL–Counterclaims
If a counterclaim would have been timely as of the date of the P’s commencement of the action, then the counterclaim is timely. Even if not timely, the counterclaim can be asserted as a setoff that is arises out of events giving rise to the P’s claims
SOL–Special Exceptions
(1) Continuous Treatment–the 2.5 yr period begins to run from the date of the LAST TREATMENT if there has been continuous treatment by D of the same condition
(2) Foreign Objects–if the claim is based on an MD leaving a foreign object in patient during surgery, the suit may either be brought within 2.5 yrs from date of surgery OR a year from date of discovery of object or facts which would led to discovery of the object
(3) Fraudulent Concealment–if the MD knowingly conceals his malpractice and the P reasonably relies on the MD, the MD may be estopped from pleading SOL.
Architect’s Malpractice–SOL
1) client’s claim accrues when the work is done OR when the client/architect relationship terminates
2) Third party’s claim accrues at time of INJURY (could be after SOL)
Professionals other than MDs–SOL
Malpractice SOL accrues when the work is completed. Accrual is delayed if the services are part of a continuing course of professional services.
SOL–Actions based on Fraud
Claim accrues when P acts in reliance on the fraud to his detriment. Action may be commenced within 2 yrs after the fraud was, or should have been discovered DESPITE the SOL period of 6 yrs from accrual.
Products L–Breach of Warranty
the claim accrues when tender of delivery is made and bears a 4 yr SOL. However, a cause of action against a manufacturer or distributor accrues on the date the party charged tenders delivery of the product, not on the date some 3rd party sells it to P.
Products L–Negligence and SL
Gen Rule: claim accrues when the injury first occurs and usually bears a 3 yr SOL
Products L–Negligence and SL–TOXIC TORTS
SOL for a claim for damages for personal injury, injury to property, or wrongufl death caused by the latend defects of exposure to any substance is computed from the date of discovery of injury or when P shoudl have discovered through reasonable diligence, whichever is EARLIER. However, the DISCOVERY RULE does not apply unless the toxic substance produces “latent effects” (ie hidden damages/consequences)
Products L–Indemnity claim against manufacturer
the 6 yr SOL governs 3rd party claim by a D-purchaser seeking indemnification from the 3rd party D-manufacturer. The indemnification claim accrues when the purchaser-D pays the P.
Parties Shortening/Lengthening the SOL
Ct cannot do but Parties by agreement can shorten the SOL OR lengthen the SOL once a COA has accrued
NOTE: an agreement not to raise the SOL before accrual of COA is VOID
Tolling SOL–D’s Absence from NY
Absence of D from NY under circumstances that prevent the exercise of juris over him operates to toll the SOL during the per of absence.
NOTE: If D can be validly served w process outside NY tolling does not apply.
Tolling SOL–Disability or Death of Party
- In the case of disability (eg insanity) at the time toe COA accrued the applicable statute is tolled until disability removed.
- If COA accrues in favor of an infant it is tolled until he is 18
- If tolled for insanity, infancy, military service, once the statute begins to run COA must be filed within 3 years if the applicable SOL is 3+ yrs. IF SOL less than 3 yrs it must be filed within that period.
Tolling SOL–Death of a Party
- IF claimant dies and if cause is one that survives an action can be brought by representitive within SOL OR within 1 yr of death.
- If D dies the SOL is tolled for 18 months
Borrowing Statute
- a claim accruing out of state in favor of a nonresident of NY is measured by both the foreign and the local SOLs. Unless timley filed under both the action is BARRED.
- a claim accruing out of state in favor of a resident of NY at the time of accrual is measured ONLY by the NY SOL. A general choice of law provision does NOT adopt the chosen state’s SOL only the state’s substantive law.
Jurisdiction–DP requirements
(1) a basis of Jurisdiction
(2) adequate notice an opportunity to defend
- ct must have at least a minimum contact between the state and the D so that exercise of state’s juris does not offend notions of fair play and substantial justice.
- in determining if the ct has personal juris over the D the focus is on whether the D, through his own purposeful conduct has established a substantial claim-related connection w the forum state.
Jurisdiction–NOTICE
As long as the D reasonably should have known that he was the person meant to be named, notice is sufficient.
Commencing an Action
- in all cts but justice cts, an action is commenced with the FILING OF PROCESS w the county clerk.
- DP notice re is satisfied by service of process.
- service is adequate if it follows statutory procedure and is reasonably calculated to appraise interested parties of the pendency of the action. Mistakes in filing can be ignored by the ct if no prejudice results and fees are paid. BUT a complete failure to file cannot be ignored.
