NY Practice - Special Proceedings, Arbitration and other forms of ADR Flashcards
Special Proceedings - OVERVIEW
A special proceeding is a SPEEDY, Streamlined procedure, akin to motion practice, the purpose of which is to obtain a judgment as a FINAL RESOLUTION of a dispute
e.g. Probate of a will; election disputes; summary proceedings by a landlord for eviction; dissolution of a corporation; habeas corpus; enforcement of an arbitration agreement; CPLR article 78 Proceedings.
Pursuit of a remedy by means of a SPECIAL PROCEEDING requires specific statutory authorization
IF you erroneously try to sue using a SPECIAL PROCEEDING is the other side entitled to DISMISSAL?
NO
e.g. If A erroneously sues B for negligence by way of a special proceeding, would B be entitled to dismissal of the proceeding?
NO, NOT GROUNDS FOR DISMISSAL
when mistake is made with type of proceeding, the court has authority to CONVERT the SPECIAL PROCEEDING into an action and vice versa - ie court will put the suit in the right place
PROCEDURE to Commence a SPECIAL PROCEEDING
(i) COMMENCEMENT - To commence a special proceeding, the PETITIONER (the party with the grievance) files A PETITION (analogous to a complaint), which filing constitutes COMMENCEMENT of the SPECIAL PROCEEDING
(ii) SERVICE OF PETITION AND NOTICE OF PETITION – Next, the petition and notice of petition (analogous to a summons) must be served on the RESPONDENT (the person from whom relief is sought)
- – USE SAME SERVICE METHODS used to serve process in an action, bc require jurisdiction over respondent
(iii) ANSWER (have 8 days) -Notice of Petition advises he respondent to serve an ANSWER and to appear on the specified return date for the hearing
- –Return date in a SPECIAL PROCEEDING can be no sooner than 8 days
- –EXCEPTION FOR ARTICLE 78 PROCEEDINGS - return date can be no sooner than 20 days from service of process - (to give govt more time)
If petitioner needs an ACCELERATED RETURN DATE, initiate special proceeding by an “Order to Show Cause”
(iv) AFFIDAVITS - affidavits are usually served in support of, and in opposition to, the petition. All pleadings and affidavits are submitted to the court on the RETURN DATE for decision by the court.
(v) DECISION - The dispute is decided in the same manner as summary judgment
ARBITRATION - Overview
Arbitration is a private procedure, based on contract, for the binding resolution of disputes. Two parties may agree to submit an existing or future dispute to arbitration - e.g. arbitration clauses are common in commercial transactions.
- *PUBLIC POLICY of NY** FAVORS ARBITRATION. The courts are guided by this principal when deciding whether particular disputes are arbitrable
- ** put this in essay
ARBITRATION: Judicial Gatekeeping
When one of the parties to an arbitration agreement resists arbitration in an effort to resolve the case by a conventional judicial proceeding, the courts may be called upon to decide the “threshold issue” as to whether the arbitration should proceed.
If threshold issues are resolved in favor of the particular arbitration, the court’s involvement ends, and the merits of the dispute are for the arbitrator to decide
What are the 5 Threshold Issues that can be presented to the court in an effort to AVOID arbitration?
VASES
(1) Did the parties AGREE to arbitrate?
(i) agreement must be IN WRITING (doesn’t have to be signed)
(ii) Agreements must be CLEAR, EXPRESS and UNEQUIVOCAL
(iii) right to arbitrate NEED NOT BE MUTUAL to be enforceable (sufficient if only 1 party has right to demand arbitration)
(2) Is the dispute WITHIN THE SCOPE of the arbitration clause?
e. g. broad clause: “all disputes or claims arising out of or in connection with this contract shall be resolved by arbitration.” - if clause like this, arbitrator will decide virtually everything —parties could, by contract, narrow the scope if they want to
(3) Is the ARBITRATION CLAUSE VALID?
Arbitration clauses are PRESUMPTIVELY VALID. An arbitration clause is INVALID and therefore unenforceable ONLY IF:
(i) arbitration clause was induced by Fraud, Duress, or coercion, or
(ii) if arbitration of the particular matter is barred by PUBLIC POLICY
— validity determined pursuant to “DOCTRINE OF SEVERABILITY”
(4) Is there an EXPRESS CONDITION PRECEDENT to arbitration, and has it been complied with?
- e.g. construction contract says “dispute must be submitted to an architect before demand for arbitration
(5) Statute of Limitations
Arbitration Hypo:
Leno sues Letterman for damages for fraud and breach of written contract in which they agreed to share their jokes. Letterman moves for an order to stay the action and compel arbitration on the ground that the agreement between them contained an ARBITRATION CLAUSE requiring all disputes arising under contract to be submitted to arbitration. Leno asserts that the agreement to arbitrate is unenforceable bc the overall contract was induced by fraud.
—LENO’s argument rejected bc we apply Doctrine of Severability. Contractual duty to arbitrate is enforceable separate and apart from remainder of contract. so IF VALID, MUST ARBITRATE (only way to get out of this for Leno, would be to show that Letterman lied about the contents of the arbitration clause itself - VERY TOUGH)
ARBITRATION CLAUSES: Doctrine of Severability
The validity of an arbitration clause is determined pursuant to the DOCTRINE OF SEVERABILITY
Validity of an arbitration clause is determined separately from the validity of the overall contract in which the Arbitration Clause appears.
How to bring Threshold issues to court
If issue of arbitration arises in In a pending action, the D makes a “motion to compel arbitration and to stay the civil action.”
If no action is yet pending, the PROPONENT of arbitration typically seeks to invoke arbitration by serving the OPPONENT with a “notice of intention to arbitrate.” (Service of the notice must be made in same manner as a summons OR by CERTIFIED MAIL)
The OPPONENT may then commence a SPECIAL PROCEEDING for a stay of arbitration
– In this special proceeding for stay of arbitration, the arbitration opponent can raise any of those 5 threshold issues but must act quickly
TIME LIMIT to commence a special proceeding to stay arbitration — WITHIN 20 days of receipt of notice of intention to arbitrate, otherwise OPPONENT WAIVES THE THRESHOLD OBJECTIONS.
JUDICIAL REVIEW of ARBITRATION AWARDS
Basically, only 3 grounds provide a basis for vacating an arbitration award
CBA
(1) CORRUPTION, FRAUD, or MISCONDUCT in the arbitration proceedings
(2) BIAS OF AN ARBITRATOR who was chosen to be neutral
(3) ARBITRATOR has exceeded his powers (usually arbitrator has unlimited power unless parties have agreed otherwise
Note: Under ***NY arbitration law, an arbitrator does NOT have the power to award PUNITIVE DAMAGES
Other Forms of ADR: Mediatin, Neutral Evaluation, and Summary Trial
GENERAL POINTS
(a) Like arbitration, the other ADR devices are creatures of contract and are enforced in accordance with the terms of the agreement
(b) NY PUBLIC POLICY favors ADR
(c) The court can recommend, but generally cannot require, the parties to agree to ADR
(d) Two major differences from arbitration
- —(i) NONBINDING RESOLUTION - unlike arbitration, which usually produces a BINDING RESOLUTION of a dispute, the three additional ADR devices are usually NON-BINDING (unless the parties agree otherwise)
- —(ii) NO SPECIFIC STATUTORY RULES governing the mechanics of enforcing the other ADR agreements
MEDIATION
A non-binding process in which a NEUTRAL MEDIATOR attempts to facilitate a settlement by speaking confidentially to each party and then jointly with both parties present.
The mediator encourages the parties to consider PRACTICAL concerns as well as the merits of each side’s position.
The mediation agreement may specify (but is not required to) that if no settlement is reached, the mediator’s confidential conversations shall NOT be disclosed in litigation. If the parties include a provision for confidentiality, they may also agree on the standard for waiver of such confidentiality (e.g. if both sides consent)
NEUTRAL EVALUATION
A non-binding process in which a NEUTRAL EXPERT in the subject matter at issue receives a condensed presentation about the merits of each side, evaluates the presentations and predicts how a court would decide the dispute.
The neutral expert’s prediction is intended to help the parties reach a voluntary settlement
Note: For both mediation and neutral evaluation, the parties themselves choose the facilitator from either the private sector or a roster maintained in most courthouses
Summary Jury Trial
The SJT requires an agreement that includes the participation of the court. The SJT is a condensed version of a real trial in which a real judge presides and a real jury is empanelled to hear the case and render a verdict.
Typically, SJT limited to one day - each side is limited to 2 or 3 hours for its presentation. technical rules of evidence are relaxed
After the jury verdict is rendered, the parties may question the jurors about their thought processes.
The parties must agree in advance whether the jury’s verdict will be binding or non-binding. But in practice, most litigants choose the non-binding format and use SJT solely for the purpose of assiting in reaching a voluntary settlement
ARTICLE 78 PROCEEDINGS - Overview
Article 78 of the CPLR authorizes a special proceeding for judicial review of action (or inaction) by state and local governmental or quasi-governmental officers or bodies of any kind. Respondent is usually a local government entity or officer.
For mandamus purposes, a corporation traditionally qualifies as a quasi-governmental entity because a corporation’s privilege of existence comes from the state
What are the 4 grounds for relief under an Article 78 Proceeding?
The RIGHT OF RELIEF in an Article 78 proceeding depends upon a showing that the petitioner’s case would have been subject to review under one of the 4 common law “PREROGATIVE WRITS.” Thus there are 4 grounds for an Article 78 Proceeding
(1) MANDAMUS TO COMPEL
(2) PROHIBITION
(3) CERTIORARI
(4) MANDAMUS TO REVIEW
