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NY Practice Flashcards

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1
Q

What is the term for the court in which an action is commenced?

A

Original Subject Matter Jurisdiction

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2
Q

If a court has general jurisdiction, what types of claims can it hear?

A

It has the power to hear any type of action.

“All purpose”

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3
Q

What is the only court in NY that has general SMJ?

A

Supreme Court (most important trial court).

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4
Q

Since the SC’s SMJ = general, its jurisdiction is unlimited with regard to …?

A

(1) Monetary Amount
(2) Ability to assert equity claims
(3) Residency of parties
(4) Place where COA arose.

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5
Q

Injunction, specific performance, mortgage foreclosure, accounting, contract recission and the imposition of a constructive trust - are all examples of what?

A

Equity claims.

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6
Q

Does it matter than neither party is a NY resident and that the cause of action has no relation to NY?

A

No - not a problem.

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7
Q

Forum non conveniens

A

The court has DISCRETION, upon motion, to dismiss the case on the ground of forum non conveniens when action LACKS SUBSTANTIAL NEXUS to NY.

Motion must be made by D.

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8
Q

What are the exceptions to SC’s general jurisdiction?

A

(1) Cases where federal law confers exclusive jurisdiction

(2) Claims for money damages in tort or contract against the STATE OF NY.

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9
Q

What is the Court of Claims?

A

Only court where claims against the State of NY can be brought.

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10
Q

What are the three areas the SC court has exclusive jurisdiction over?

A

(1) Matrimonial Action
(2) CPLR Article 78 Proceeding
(3) Declaratory Judgement Action

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11
Q

Which court has jurisdiction over matrimonial actions?

A

Supreme Court - it has EXCLUSIVE jurisdiction

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12
Q

What court has jurisdiction over cases involving judicial review of NY State and local government AGENCY ACTIONS?

A

Supreme Court - it has exclusive jurisdiction

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13
Q

What is a CPLR Article 78 proceeding?

A

Judicial review of STATE ADMINISTRATIVE ACTION.

Judicial review of NY State and local government agency action. These actions are distinguished from claims against the State for money damages in tort/contract - which must be brought in Court of Claims

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14
Q

What court has jurisdiction over cases involving declaratory judgment actions?

A

SC has exclusive jurisdiction.

Declaratory judgment action are judicial declarations of the rights and obligations of the parties to an actual controversey before on of the engages in conduct that could cause liability.

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15
Q

What are the three areas the SC court has exclusive jurisdiction over?

A

(1) Matrimonial Action
(2) CPLR Article 78 Proceeding
(3) Declaratory Judgement Action

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16
Q

Which court has jurisdiction over matrimonial actions?

A

Supreme Court - it has EXCLUSIVE jurisdiction

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17
Q

What court has jurisdiction over cases involving judicial review of NY State and local government AGENCY ACTIONS?

A

Supreme Court - it has exclusive jurisdiction

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18
Q

What is a CPLR Article 78 proceeding?

A

Judicial review of STATE ADMINISTRATIVE ACTION.

Judicial review of NY State and local government agency action. These actions are distinguished from claims against the State for money damages in tort/contract - which must be brought in Court of Claims

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19
Q

What court has jurisdiction over cases involving declaratory judgment actions?

A

SC has exclusive jurisdiction.

Declaratory judgment action are judicial declarations of the rights and obligations of the parties to an actual controversey before on of the engages in conduct that could cause liability.

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20
Q

If the D wants to challenge the timeliness of a case - what defense should he raise?

A

Statute of Limitations

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21
Q

Accrual

A

When SOL begins to “run.” Typically, when injury first occurs.

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22
Q

SOL for personal injury or property damage action.

A

3 years

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23
Q

SOL for breach of contract action

A

6 years

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24
Q

SOL is NOT measured from …

A

date that P discovers the injury, accrual occurs from the date of injury/breach EVEN IF P IS UNAWARE of injury.

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25
Q

Satisfying the SOL requires…

A

The action must be COMMENCED no later than the last day of the prescribed period of limitations.

Commencement consists of filing process.

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26
Q

What are the two exceptions to the standard medical malpractice SOL?

A

(1) Continuous treatment exception

(2) Foreign objections exception

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27
Q

What is the SOL period for medical malpractice?

A

2 1/2 years and the date of accrual runs from the date of malpractice.

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28
Q

If the P wants to assert a cause of action against a hospital for negligent hiring - what is the SOL?

A

3 YEARS. Because this is an ordinary negligence claim, NOT med mal.

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29
Q

Medical malpractice SOL applies to…

A

Doctors, dentists, podiatrists, nurses and hospitals

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30
Q

The last timely date for commencement of A’s action against Mercy Hospital on a theory of respondent superior (vicarious liability) is?

A

2 1/2 years. Same as required under typical medical malpractice case

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31
Q

What are the two exceptions to the standard medical malpractice SOL?

A

(1) Continuous treatment exception

(2) Foreign objections exception

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32
Q

If a physician continues to treat the patient, after an operation, for the exact same medical condition that gave rise to malpractice - what exception will likely apply?

A

Continuous treatment

P gets 2 1.2 years from END OF CONTINUOUS TREAMENT.

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33
Q

What is the foreign objections rule?

A

If the physician was responsible for introducing a foreign object into the patient’s body and then leaves it behind, P gets whichever is longer:

(1) 2 1/2 years from date of operation
(2) 1 year from date of discovery or date P should have discovered object with reasonable diligence.

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34
Q

What is a foreign object?

A

Something the doctor did not intend to leave behind (ex temporary surgical clamps, sponges).

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35
Q

Chemical substance, prosthetic devices and fixation devices are all examples of?

A

Items NOT CONSIDERED foreign objects.

All three exclusions, the SOL period runs not from date of discovery but from DATE OF DOCTOR’S Malpractice.

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36
Q

What professions can also be held liable for malpractice besides doctor’s?

A

Members of LEARNED PROFESSIONS, which includes architects, engineers, accountants, attorneys

BUT DOES NOT INCLUDE insurance brokers, securities analysts, plumbers, etc.

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37
Q

Non-medical malpractice SOL

A

EXCLUSIVELY 3 yrs.

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38
Q

What are the special procedures regarding personal injury actions against architects and engineers when action is brought MORE THAN 10 years after the building was completed?

A

(1) P must serve a notice of claim on the architect or engineer at least 90 days before suit
(2) P may obtain pre-action discovery from the potential D during the 90 day waiting period, and
(3) After suit is commenced, if D moves for SJ, the burden will be on P to make immediate evidentiary showing that there is a “substantial basis” to believe that D’s negligence was the proximate cause of injuries.

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39
Q

Municipal tort liability SOL

A

1 year, 90 days.

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40
Q

Municipal tort liability and separate “notice of claim” prerequisite.

A

Condition precedent to a tort action against a municipal D, P must serve a notice of claim on the potential municipal D no later than 90 days from the date of the accident.

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41
Q

If the P commences an action re municipal tort liability WITHOUT a timely notice of claim, what result?

A

D is entitled to have action dismissed on FTSC grounds.

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42
Q

After notice of claim is served (municipal tort), how long must P wait to commence the action?

A

Must wait 30 days.

P must plead compliance with notice of claim requirement, without which = FTSC.

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43
Q

What are the possible COAs for products liability?

A

(1) Negligence
(2) Strict Products Liability
(3) Breach of Warranty

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44
Q

What is the SOL regarding Products Liability claim for Negligence and/or Strict Products Liability?

A

Both = 3 yr SOL running from date of Ps injury

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45
Q

What is the SOL regarding Products Liability and a breach of warranty claim?

A

(governed by UCC) 4 year SOL begins to run when particular D MADE ITS DELIVERY OF THE PRODUCT.

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46
Q

SOL regarding indemnity/contribution claims.

A

SOL of 6 years running from the date of actual payment of the judgment for which indemnity or contribution is sought.

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47
Q

How is the SOL measured in a toxic substance cases?

A

(1) Discovery of the injury (when P becomes aware of symptoms)

OR

(2) Date injury should have been discovered with reasonable diligence.

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48
Q

Does the toxic substance discovery rule apply to med mal cases?

A

No.

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49
Q

What are the relevant tolls and extensions?

A

(1) Tolls for Ds absence

2) Tolls for legal disability (infancy and insanity

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50
Q

What are two legal disabilities that act to extend the SOL?

A

(1) Infancy and

(2) Insanity

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51
Q

When the disability ends, how long does the P have to sue?

A

IF ORIGINAL SOL WAS 3+ Years or more, whichever is longer of the two:

(a) Usual SOL period running from usual date of accrual, or
(b) 3 years from date legal disability ends

IF ORIGINAL SOL WAS LESS THAN 3 YEARS — when disability ends, P gets specified statutory period, measured from date disability ends.

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52
Q

What two situations have an outside limit of 10 years for commencement of the action?

A

(1) INFANCY & MEDICAL MALPRACTICE CLAIMS; when relying on the roll of infancy, claim for med mal must be commenced no later than 10 years from date of accrual.
(2) INSANE Ps REGARDLESS OF CLAIM, become time barred after 10 years.

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53
Q

What is a survival claim?

A

Any COA P could have brought herself if she were alive.

It is not limited to torts and recoverable damages include all damages incurred by P prior to death, eg pain and suffering.

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54
Q

What is a wrongful death claim?

A

Cause of action that is a TORT CLAIM for pecuniary (economic) damages of decedent’s statutory distributees.

Punitive damages are also recoverable BUT NOT THE emotional suffering of distributees or decedent’s personal pain and suffering.

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55
Q

What is the SOL for wrongful death action?

A

2 years from the date of death BUT IT MUST ALSO be shown that decedent possessed a timely cause of action of death.

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56
Q

What is the SOL for survival claims?

A

If P dies BEFORE SOL expires, the estate representative gets whichever is longer:

(a) The time remaining on the applicable SOL running from the date of accrual, or
(b) 1 year from Ps death.

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57
Q

What result when a potential D dies?

A

If potential D dies any time before SOL

expires, 18 months are always added to the relevant limitations period.

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58
Q

What is the effect of the 6-month grace period?

A

If NY action is timely commenced, but then dismissed AND at the time of dismissal the SOL has either EXPIRED of has less then 6 MONTHS remaining — P gets 6 months from date of dismissal to re-file the same action and serve process on same D.

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59
Q

What are 4 types of dismissals to which the 6 Month Grace Period does not apply?

A

(1) Dismissal on Merits
(2) Dismissal was Voluntarily Discontinued by P
(3) Dismissal based on P neglect to prosecute
(4) Dismissal for lack of personal jurisdiction

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60
Q

Is a dismissal for lack of subject matter jurisdiction entitled to the six month extension (grace period)?

A

Yes.

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61
Q

If the dismissal was due to a defect in the form of the summons - does 6 month extension apply?

A

NO - this is a defect of personal jurisdiction.

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62
Q

What is the purpose of the “borrowing statute?”

A

Intended to prevent forum shopping by non-resident Ps seeking a longer SOL in NY.

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63
Q

Under the borrowing statute, if P was a NON-RESIDENT of NY when a out of state claim arose, which SOL will apply?

A

WHICHEVER IS SHORTER.

NY Court will apply SOL of the state where CLAIM AROSE if the other state’s is shorter than that of NY.

NY SOL will apply if it is shorter than the other state’s SOL.

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64
Q

Under the borrowing statute, if P was a NY RESIDENT, when the out of state claim arose, which SOL will apply?

A

NY will always apply NY SOL regardless of which is short, when P is NY RESIDENT.

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65
Q

In addition to SMJ, what additional elements must be satisfied for NY Court to render a valid judgment?

A

(1) Proper commencement of the action
(2) Proper service of process on D, and
(3) Proper basis of jurisdiction over the person or property involved in the action.

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66
Q

When is an action commenced?

A

By Filing process with the clerk of the court. Followed by payment of a fee for the purchase of an index number. Followed by service of process on D provided service made within 120 days from filing with clerk.

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67
Q

What is process?

A

Summons and notice OR summons and complaint

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68
Q

What is the time limit for service of process?

A

120 days from date of filing with clerk.

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69
Q

Under what circumstances will the court use its discretion to extend the time to make service?

A

If P can demonstrate either:

(a) good cause, or (b) interests of justice.

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70
Q

What are the forms of process?

A

(a) Summons and complaint or

(b) Summons with notice.

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71
Q

If P files summons with notice, what does the notice consist of?

A

(1) Brief statement of nature of action
(2) Type of relief sought
(3) If damages sought, the amount of damages. (Note exception).

Exception - In a personal injury or wrongful death action, neither the notice nor complaint may specify the amount of damages being sought.

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72
Q

If P commences a “naked summons” - what result?

A

Naked = summons unaccompanied by either complaint or notice.

Result = defect in jurisdiction and action is subject to dismissal for that reason alone.

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73
Q

What is required of person who may serve process?

A

Must be at least 18 and not a party to the action.

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74
Q

When may process be served?

A

Any day of the week, EXCEPT

(a) Sunday or
(b) Saturday for sabbath observers

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75
Q

May service be made on a holiday?

A

Yes (provided it does not fall on a sunday).

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76
Q

What are the traditional methods of service to NATURAL PERSONS?

A

(1) Personal Delivery
(2) Leave and Mail
(3) Affix and Mail
(4) Expedient service (“Court Invented Service”)

77
Q

What is required for complete service via personal delivery on a natural persons?

A

Service by personal delivery is COMPLETE upon process server’s TENDER OF SUMMONS directly to D.

(D’s response time is measured from date that service is complete).

78
Q

What result if D refuses to accept delivery of process via personal delivery?

A

Leave process in immediate vicinity - this is ok.

79
Q

What is required for complete service via LEAVE AND MAIL delivery?

A

Process server may (1) DELIVER process to person of suitable age and discretion at D’s actual dwelling place or actual place of business, plus

(2) MAIL A COPY by regular mail to D at D’s actual place of business or Last-known residence.

80
Q

If P elects to use LEAVE AND MAIL service of process, what are the time limits?

A

The two-step process must be performed within 20 days of each other, and both steps must take place within 120 days from filing process.

(Two-step process: deliver process to person of suitable age + mail a copy via regular mail).

81
Q

Who is considered a “person of suitable age and discretion?”

A

Does not have to be adult, can include teenagers, however court is wary of including delivery to children under 12.

82
Q

What is required for complete service of process via the AFFIX AND MAIL delivery?

A

Process server may AFFIX process to the door of D’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to D at D’s actual place of business or last-known residence.

83
Q

What is the additional step required for complete service via AFFIX AND MAIL?

A

Process server must first exercise DUE DILIGENCE by: (1) Making an attempt to serve D directly and, if that fails (2) try to leave process with a person of suitable age and discretion at the home or place of business.

84
Q

What is required under due diligence requirement for affix and mail service of process?

A

Due diligence requires P to try and get process into the hands of a live human being to ensure notice to D.

85
Q

What types of service require PROOF OF SERVICE to be filed after the 2-step delivery process is complete?

A

(1) Leave and Mail

(2) Affix and Mail

86
Q

What is the only consequence of Ps delay in filing proof of service?

A

Postpones Ds time to respond.

87
Q

When is service complete once PROOF OF SERVICE is filed?

A

For both leave and mail AND affix and mail service is complete - 10 DAYS AFTER PROOF OF SERVICE IS FILED.

88
Q

Is there requirement that proof of service be filed when service is made by personal delivery to D?

A

No - service is complete on tender of delivery.

89
Q

What is expedient service?

A

Court invented service, if the traditional methods of service are NOT PRACTICABLE, P may make ex parte motion to court for AN ORDER allowing improvised service.

90
Q

When D is an infant, process must go to one of the following…?

A

(1) Parent,
(2) Guardian
(3) Any person having legal custody
(4) If infant is married, upon adult spouse with whom infant resides.

Remember, infant’s name goes on summons, but process must be served on adult.

91
Q

At what age must service on infant be served to eligible adult AND infant?

A

Age 14 - then two sets of process will be necessary.

92
Q

Who may serve process in other jurisdictions?

A

(1) Any NY resident who is at least 18 years old
(2) Anyone authorized to service process by the laws of other state jurisdiction
(3) Any attorney who is licensed in jurisdiction where service is made.

93
Q

What are the two traditional methods for service on corporations?

A

(1) Personal delivery to corporate representative, or

(2) Service on NY Secretary of State

94
Q

What are the recognized corporate representatives that can receive personal delivery on behalf of the corporation?

A

(1) Officer of the Corporation
(2) Director
(3) Designated Agent
(4) Managing Agent

95
Q

What is required for complete service of process on corporation via the NY Secretary of State?

A

(a) For a domestic corporation OR foreign corporation authorized to do business in NY P must:

Personally delivery 2 copies of process to office of Secretary of state

(b) For an unlicensed foreign corporation, P must:

Personally deliver one copy of process to the NY Secretary of State office AND mail one copy to corporation by certified mail, return receipt requested.

96
Q

What is the non-traditional method of service?

A

Service by First-Class mail PLUS acknowledgment

97
Q

What types of Ds can receive service by first-class mail plus acknowledgement?

A

All Ds EXCEPT infants and mentally incapacitated persons for whom guardians have been appointed.

98
Q

What is personal jurisdiction?

A

Territorial connection between D and NY State.

99
Q

What is general jurisdiction?

A

NY Courts have jurisdiction over a D REGARDLESS OF WHERE THE CLAIM AROSE.

100
Q

What is specific jurisdiction?

A

NY Courts have jurisdiction over the case, provided claim is specific to D’s NY activity or within terms of NY contract.

101
Q

What are the three ways NY Courts obtain general jurisdiction over a D?

A

(1) Physical presence in NY
(2) Doing Business in NY
(3) Domiciled in NY

102
Q

What are the three ways NY Courts obtain specific jurisdiction over a D?

A

(1) Long Arm Jurisdiction
(2) Non-Resident Motorist Statute
(3) Consent

103
Q

What constitutes “doing business” in NY?

A

Domestic and foreign corporations are ALWAYS deemed as present in NY. HOWEVER, an UNLICENSED FOREIGN CORPORATION is doing business when

(a) the corporation’s employees/agents are in NY
(b) engaging in commercial activity for corporation on a regular and systematic basis.

104
Q

If a corporation is deemed to be “doing business” in NY, where can service of process be properly made?

A

(1) To a proper corporation representative anywhere in the US or
(2) NY Secretary of State

105
Q

What are three limitations to jurisdiction based on corporation allegedly “doing business” in NY?

A

(a) Mere sales of corporation’s products
(b) Mere advertising
(c) Mere transient presence of corporate officer

None of the above are sufficient to qualify as “doing business” in NY

106
Q

What is the most significant factor in determining whether a corporation is doing business in NY?

A

Presence of office or facility in NY with employees working on a regular, continuous basis.

107
Q

What is domicile?

A

Basis for general personal jurisdiction.

Person only has one domicile –> its the one residence at which a person intends to remain indefinitely AND is treated as her principal home.

108
Q

What is the standard for long arm jurisdiction?

A

Jurisdiction is allowed on the basis that Ds actions have a sufficient connection with NY, provided Ps claim ARISES FROM THOSE ACTS, of D that are specifically related to NY.

109
Q

What are the 5 categories on LAS? (NY related activity must arise from one of these categories).

A

(1) Transaction of business
(2) K where D agreed to supply goods or services in NY
(3) Tortious act in NY
(4) Tortious act outside of NY which causes injury to NY
(5) D’s ownership, use or possession of real property located in NY

110
Q

How do you distinguish “Transaction of business” in NY (LAS) from “doing business in NY” (general jurisdiction)?

A

Transaction of Business -> single commercial event in NY that must give rise to COA sued upon.

Doing Business –> continuous NY business activity which confers general personal jurisdiction.

111
Q

What is sufficient to constitute a “transaction of business” under the LAS?

A

Generally, negotiations are enough.

Rarely, electronic transmissions (such as emails/phone calls) if substantial in number and in connection with significant K.

112
Q

What is required of a contract for goods and services in NY to constitute jurisdiction under the LAS?

A

K must be economically significant.

This does not include:

(a) one boiler plate phone call
(b) mere promise to pay money (this is not goods/services)
(c) payment of debt in NY

113
Q

Driving negligently on a NY roadway – is an example of what regarding jurisdiction (provided D is not a NY resident)?

A

Specific jurisdiction, under the LAS, regarding a TORTIOUS ACT IN NY.

114
Q

What is the 2-part test for establishing LAS jurisdiction arising from D’s tortious act outside NY?

A

(1) D commits tortious act outside NY causing injury in NY, and
(2) PLUS there exists an additional link between D and NY.

115
Q

D manufactures a defective product in WI and its explodes in NY – this is an example of?

A

Tortious act committed outside NY which causes injury in NY

116
Q

What are possible examples of the required ADDITIONAL LINK for jurisdiction over Ds tortious act committed outside NY?

A

(1) A regularly solicits business or engages in any other persistent conduct in NY
(2) D derives substantial revenue from goods used or consumed, or services rendered in NY, or
(3) D should have expected act to have consequences in NY AND derives substantial revenue from interstate commerce.

117
Q

Regarding LAS jurisdiction for tortious act committed outside NY within injury in NY, what is required to constitute “injury?”

A

Injury must originate in NY.

For commercial tort – NY is situs in injury ONLY IF P suffers direct financial effects in NY (loss of customers or NY sales).

Suffering in hospital does not quality.

118
Q

What is the rule regarding LAS jurisdiction, tortious acts (committed either in NY or creating injury in NY) and defamation?

A

Defamation claims are EXCLUDED from both tortious act categories.

Policy - legislature wanted to prevent chilling speech.

119
Q

Does LAS cover all types of Ds?

A

Yes.

Corporations, individuals and partnerships.

120
Q

Can LAS be applied to the agent or employees of D?

A

The acts giving rise to jurisdiction can be performed by D herself OR her AGENT OR EMPLOYEE.

121
Q

What is the due process test for LAS jurisdiction?

A

DP satisfied if the claim arises out of conduct of D that is so purposively directed toward NY, that D should reasonably anticipate being sued on that claim in NY.

122
Q

What are the unique features of the non-resident motorist statute?

A

(1) Service of Process – P must serve process on D by personally serving process on Sec. of State PLUS mailing second copy by certified mail to D’s out of state residence.

and

(2) Applies to non–domicilliary vehicle owner who gave permission

123
Q

What is the proper court for matrimonial actions?

A

NY Supreme Court.

124
Q

What is the key element required to obtain a divorce, separation or annulment in NY?

A

PLAINTIFF SPOUSE must be a domicilliary of NY.

125
Q

What is the matrimonial long arm statute?

A

When a spouse is a resident of NY, LAS jurisdiction can be acquired over a D spouse for monetary support if:

(1) NY was the matrimonial domicile of P and D prior to separation, or
(2) D abandoned P in NY, or
(3) Ds monetary obligation accrued under an agreement executed in NY, or
(4) Ds monetary obligation accrued “under the laws of NY.”

126
Q

What are durational residency requirements?

A

Part of merits (elements) of Ps claim.

Purpose is to ensure NY has sufficient connection to marriage.

127
Q

What are the three optional durational residency requirements?

A

(1) If both parties are NY residences at the time the action is commenced AND the grounds for matrimonial action arose in NY – then no NY residency required.
(2) One year residency
(3) Two year residency

128
Q

What conditions are required under the ONE YEAR residency requirement for matrimonial durational residency requirements?

A

Either party has been a NY residence for at least 1 year prior to the action AND NY has 1 of 3 possible LINKS TO THE MARRIAGE:

(a) Marriage took place in NY, or
(b) NY was the matrimonial domicile of spouses at some point, or
(c) grounds for divorce arose in NY.

129
Q

What conditions are required under the TWO YEAR residency requirement for matrimonial durational residency requirements?

A

If either party has been a NY resident for a continuous period of at least 2 YEARS immediately prior to the action - this is sufficient.

No connection requirements.

130
Q

If matrimonial P fails to allege/prove one of the available residency requirements, what is the proper defense?

A

FTSC.

131
Q

What are the two key rules for proper venue?

A

(1) In action regarding title/possession of real property - proper venue is county in NY where real property is LOCATED.
(2) In any other action - proper venue is any county in NY in which on of the parties resides at the time the action is commenced.

132
Q

If Ps choice of venue is improper, what result?

A

Improper venue IS NOT a jurisdictional defect, and therefore not a basis for dismissal.

Ds remedy = serve demand for change of venue to a proper county designated by D. Must be served before answer.

133
Q

D has served demand for change of venue to proper county - what possible results?

A

(a) P consents – then change of venue will be automatic.

(b) P objects to demand or fails to respond – then D has to make motion for change of venue.

134
Q

Court may consider what discretionary grounds for change of venue?

A

(1) convenience of material witnesses

(2) Risk of impartial trial

135
Q

Once D is properly served a summons + complaint, what are Ds possible responses?

A

(1) Serve an answer or

(2) Make pre-answer MTD.

136
Q

What are the possible contents of D’s answer?

A

(1) Denials
(2) Affirmative Defenses
(3) Counterclaims

137
Q

How are interlocutory papers served?

A

Regular first class mail. Personal delivery allowed but not required

138
Q

When is service of an interlocutory made?

A

Upon mailing, not receipt.

139
Q

What is the time limit for serving the answer, if D was served w/ process by PERSONAL DELIVERY within NY State?

A

D must serve answer WITHIN 20 DAYS.

140
Q

What is the time limit for serving the answer, if D was served w/ process by any process besides personal delivery?

A

D must serve answer WITHIN 30 days.

141
Q

What are the 8 CPLR 3211 MTD defenses?

A

DOWNFALL

Documentary Evidence
Other Action Pending
Want of Capacity of P
Non-Joinder of Necessary Party
FAILURE TO STATE CAUSE OF ACTION
Additional Affirmative Defenses
Lack of Personal Jurisdiction
Lack of SMJ
142
Q

What standard does the court apply when reviewing a MTD for FTSC?

A

P is entitled to “every favorable inference that can be drawn from allegations of complaint.”

The motion should be denied if there is ANY BASIS FOR RELIEF under substantive law.

143
Q

What are the additional affirmative defenses used within a CPLR 3211 MTD?

A

SPARERIBS

Statute of Limitations
Payment
Arbitration Award
Release
Estoppel (Collateral Estoppel)
Res Judicata
Infancy of D
Bankruptcy
Statute of Frauds
144
Q

What does mnemonic SPARERIBS stand for?

A

List of additional affirmative defenses under CPLR 3211 MTD.

145
Q

What does mnemonic DOWNFALL stand for?

A

8 Affirmative defenses singled out for a CPLR 3211 MTD.

146
Q

What are the procedural aspect of pre-answer MTD?

A

Making the MTD extends Ds time to answer.

147
Q

What is the general rule on pre-answer MTD and waiver of defenses?

A

MTD on any 3211 ground does not preclude raise other 3211 grounds in answer, EXCEPT lack of personal jurisdiction.

148
Q

What are three MTD defenses that are NEVER waived?

A

(1) Non-Joinder of Necessary Party
(2) FTSC
(3) Lack of SMJ

149
Q

How cainclun personal jurisdiction defenses be preserved?

A

(1) Before serving answer, make MTD that includes lack of personal jurisdiction.
(2) Make no 3211 MTD on any ground and include lack of personal jurisdiction as affirmative defense in answer.

150
Q

What is required to preserve an objection for improper service (as a defense)?

A

D MUST FOLLOW UP with a motion for summary judgment no later than 60 days after serving answer.

151
Q

How may a party amend pleadings?

A

(a) One amendment as a matter of right if made w/in 20 days.

b) Motion for leave to amend (standard – allows amendment if opponent will suffer no incurable prejudice

152
Q

What is an impleader?

A

A procediral 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

153
Q

What is the usual claim in impleader circumstances?

A

Indemnity OR contribution

154
Q

What is a claim for indemnity or contribution usually classified as?

A

Impleader

155
Q

What is the purpose of an impleader action?

A

Impleader enables D to join the other party as a 3PD, rather than forcing D to wait until after she has paid judgment to P.

156
Q

What are the steps for joining a 3PPD in impleader claim?

A

(1) File summons + 3P complaint
(2) Serve w/in 120 days of filing on 3PD.

3PD must serve 3P answer.

157
Q

What is the general rule for measuring compliance w/ SOL for claim in amended complaint?

A

To comply, date of amendment must occur within SOL.

158
Q

What is the exception to the general rule regarding SOL and amended complaints?

A

Relation back benefit for impleaded-related claims.

159
Q

What is an indemnity claim?

A

Allows one party to shift 100% of the responsibility to another party.

160
Q

Where is a claim for indemnity most commonly seen?

A

(1) By contract

(2) Implied in Law

161
Q

What is a common example of indemnity by contract?

A

Construction contracts.

Sub agrees to indemnify general contractor for any losses that contractor has to pay as a result of sub’s inadequate performance in project.

162
Q

What is a common example of implied in law indemnity?

A

(1) Products Liability – retailer held liable for selling defective product is entitled to indemnity from manufacturer.
(2) Vicarious Liability Situations

163
Q

What is a contribution claim?

A

Contribution involves a sharing of the loss – apportionment – among multiple tortfeasors who are actual participants in the tort.

164
Q

What is the purpose of contribution?

A

To mitigate the harshness of the law of JOINT AND SEVERAL tort liability.

165
Q

What is joint and several tort liability?

A

Each tortfeasor can be held liable to P for the full amount of Ps damages w/o regard to individual tortfeasor % of fault.

166
Q

What is the relationship of contribution for a judgment for joint and several liability?

A

P can recover full awarded judgment from each D.

D can collect partial reimbursement from the other tortfeasors.

167
Q

True or false: D may implead 3PD at ANY TIME after D serves answer to complaint?

A

True.

168
Q

True or False: P is also entitled to a copy of all papers served on 3PD?

A

True.

169
Q

What is the SOL for contribution?

A

6 years that run from the date of payment of the judgment for which contribution is sought.

Also applicable to indemnity.

170
Q

What is the basic rule regarding comparative degrees of fault?

A

The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share (percentage) of the judgment.

Party cannot be forced to pay more than her equitable share.

171
Q

V, S, and D are all 3PDs to Ps claim. V is 45%, S is 35% and D is 20% liable. If V and S are insolvent can be require D to pay the full amount?

A

Yes, D is not protected from full 100% liability to P. Contribution only effects the reimbursement rights of D.

172
Q

Can contribution claim apply when P has no right of recovery against 3PD?

A

Yes.

A right to contribution exists whenever 3PD breached a duty in tort which contributed to or aggravated the damages for which D may be liable to P.

173
Q

What is the MBE rule regarding the limitation on contribution in worker’s compensation cases?

A

3P has no right of contribution/indemnity from P’s employer.

NY Distinction –> 3P has no right of contribution/indemnity from employer UNLESS 3P suffered a grave injury.

174
Q

What is the effect of settlement on contribution claims?

A

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

But a settling party also forfeits his own contribution claims.

175
Q

What is the effect of settlement on an indemnity claim?

A

A party who settles can be sued for indemnity.

176
Q

True or False: The law prohibits excess recovery for P, so any judgment for P against a non-settling tortfeasor will have ot be reduced to take in account settlements.

A

TRUE.

177
Q

What is the reduction formula for contribution claims post settlement?

A

Any judgment for P against a non-settling tortfeasor must be reduced by either:

(1) The amount of settlement or
(2) The settling tortfeasors equitable share of the fault, whichever is LARGER.

178
Q

What is the CPLR Art 16 rule regarding a modification of the law on joint and several liability?

A

In a personal injury claim, when a joint tortfeasor is 50% or less at fault and P has sustained non-economic damages, then the joint tortfeasors can only be required to pay her own share of Ps economic damages.

179
Q

What is an order to show cause?

A

Preliminary order, signed by ex parte judge, directing the adversary to show cause, on a date specified by the judge, why the motion should not be granted.

Alternative way to make motion on notice.

180
Q

What is a motion for summary judgment?

A

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

181
Q

How can an opponent defend against a motion for SJ?

A

By presenting contrary evidence.

182
Q

What is the remedy of attachment?

A

Provides security for the enforcement of a money judgment.

A third person who holds D’s property interest is called a garnishee.

183
Q

What type of provisional remedies require a court order to be enacted?

A

(1) Attachment
(2) Preliminary Injunction
(3) Temporary Receivership
(4) Replevin

184
Q

What type of provisional remedy does not require a court order?

A

Lis Pendens.

185
Q

What is lis pedens?

A

Provisional Remedy –> an equity action in which the judgment will have a direct effect on real property.

Filing notice of pendency gives record notice to any potential buyers

Duration - effective for 3 years.

186
Q

What is res judicata?

A

Claim preclusion – avoid and prevent relitigation of same claim.

187
Q

What is collateral estoppel?

A

Issue preclusion – avoid and prevent the need for relitigation of specific facts issues that were decided in prior proceeding.

188
Q

What must be demonstrated to defeat a motion for summary judgment?

A

(1) triable issue of fact OR

(2) opponent is not entitled to motion.

188
Q

What is an Article 78 proceeding?

A

Special proceedings for judicial review of state action.

SOL 4 months

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