NY Practice - Trial Procedure, Res Judicata, Collateral Estoppel

Question 1

When discovery is completed and the case is ready for trial, how is the matter placed on court’s TRIAL CALENDAR?

Answer 1

by filing a “NOTE OF ISSUE” - either party can file it, party who does must serve on other party

Question 2

How does a party entitled to a JURY obtain it?

Answer 2

Party who files “note of issue” can make a DEMAND for jury trial in the Note of issue - if the party filing the note of issue fails to make demand for jury trial, that party WAIVES the right to jury (not not other party)

Other party - can simply file his own separate DEMAND FOR A JURY, again - failure to do so waives his right to jury trial

Question 3

When does a party in a Civil Action have a RIGHT TO A TRIAL BY JURY?

Answer 3

MR. PAD

M - MONEY DAMAGES - an action seeking only money damages

R - REPLEVIN ACTION - action to recover possession of a chattel

P - PROPERTY - a claim to real property

A - ANNULMENT of a marriage

D - DIVORCE ACTION - in a divorce action, either party can demand a jury on the issue of “grounds for divorce” (e.g. for adultery)
BUT no jury w/respect to
(i) monetary support or
(ii)child custody

Question 4

A civil jury consists of 6 jurors. Must the verdict be UNANIMOUS?

Answer 4

No, 5/6th vote is sufficient for verdict in a CIVIL ACTION

Question 5

Res Judicata (Aka “claim preclusion”)

Answer 5

RES JUDICATA (also known as “claim preclusion”)

NY uses the “TRANSACTIONAL APPROACH” to claim preclusion:
– When a claim against a particular D has been brought to a final judgment on the merits, all other claims by P against that D will be barred IF:
“the other claims arise out of the same “TRANSACTION OR OCCURRENCE” as the P’s original claim, even if it is brought on different theory or is seeking a different remedy.

e. g. Alfred was employed by Batman for 2 years without being paid. Alfred sues for breach of contract, but loses on the ground that the contract is unenforceable due to the Statute of Frauds. Can Alfred thereafter bring a second action against Batman for Quantum Meruit (the value of the services rendered)?
- - NO, 2nd action barred bc original claim for breach and quantum meruit claim arise out of the same transaction

Question 6

What are the exceptions to RES JUDICATA in Matrimonial disputes?

Answer 6

POLICY EXCEPTION to Transactional Approach in MATRIMONIAL DISPUTES

(a) S-1 v. S-2 for divorce based on cruel and unusual treatment, including assaultive conduct. Judgment for divorce granted
(b) S-1 v. S-2 for personal injuries arising out of the assaults that occurred during the marriange.

The second lawsuit is NOT barred by claim preclusion/res judicata - we allow Spouse 1 to follow up for her personal injury tort damages

Question 7

COLLATERAL ESTOPPEL (Issue Preclusion)

Answer 7

Issue Preclusion avoids (and prevents) the need for re-litigation of specific fact issues that were decided in a prior proceeding

upon a 3-part showing:
(1) IDENTICAL ISSUES - the issue in the former proceeding and current proceeding are IDENTICAL

(2) ACTUALLY LITIGATED - the issue was actually litigated and decided in the former proceeding (in book, this requirement says “issue must have been NECESSARY to the decision in the prior proceeding)
(3) FULL AND FAIR OPPORTUNITY - the party against whom issue preclusion is asserted had a “FULL AND FAIR OPPORTUNTY” to litigate that issue in the former proceeding

e. g. Larry and Curly, passengers in car driven by Mo, were both seriously injured in collision allegedly caused by Mo. Larry sues Mo for negligence, seeking substantial damages and WINS. In Curly’s separate action against Mo, would Larry’s judgment against Mo provide a basis for summary judgment in Curly’s favor on the issue of MO’s NEGLIGENCE - ie can Curly use issue preclusion against Mo?
- - YES,Curly’s subsequent action he can get summary judgment on negligence issue bc
(i) SAME ISSUE in both cases (Mo’s negligence)
(ii) Mo’s negligence ACTUALLY LITIGATED and decided in 1st action
(iii) Mo had a FULL AND FAIR opportunity to litigate the issue of his negligence
- -but note, issues like Curly’s comparative fault and his damages would still need to be litigated

What if Larry lost 1st action? could Mo use this finding of no negligence against Curly?
NO, ISSUE PRECLUSION CANNOT BE USED AGAINST SOMEONE WHO WAS NOT A PARTY in the prior action - Curly did not yet have his day in court.