NY Procedure

Question 1

Supreme court jurisdiction

Answer 1

EXCLUSIVE over:

1) matrimonial actions
2) article 78 proceedings
3) declaratory judgments

CONCURRENT over everything else, EXCEPT claims against state of NY and federal matters.

Appeal process: Supreme Court –> Appellate Division –> Court of Appeals (writ of certiorari).

Question 2

County courts jurisdiction

Answer 2

Original:

1) civil actions for money damages $25k or less AND each defendant resides in county or has business office there.
2) replevin for chattel less than $25k
3) real property, regardless of amount
4) incompetency proceedings for country resident
5) action to enforce own judgment

Appeals: appellate division.

Question 3

NYC Civil Courts jurisdiction

Answer 3

Just like County Court, for NYC:

1) value of property less than $25k
2) actions to acquire money
3) replevin
4) partitions and mortgage foreclosure actions
5) declaratory judgment actions
6) rescission and reformation of K
7) summary eviction
8) judgment for rent

Appeals: Appellate Term

Question 4

Family Court jurisdiction

Answer 4

Original:

1) spousal support
2) child custody and visitation
3) child neglect and abuse
4) paternity
5) termination of parental rights
6) guardianship over minors
7) juvenile delinquency
8) persons needing supervision
9) protection orders
10) adoption

Appeals: Appellate Division

Question 5

Surrogate’s Court

Answer 5

1) Will
2) Trusts
3) Probate
4) Adoption and guardianship

Appeals: Appellate Division

Question 6

District Courts (NY State)

Answer 6

Same as NYC Civil Courts, but limited to $15k or less

Question 7

City Courts

Answer 7

Limited to $15k or less, otherwise like NYC Civil Courts.

Question 8

Town and Village Courts / Justice Courts

Answer 8

1) recover money or chattels $3k or less

2) landlord actions to evict tenant or collect rent.

Question 9

Small Claims

Answer 9

Money judgments less than $5k

Defendant must reside, have business office, or be employed in court’s jurisdiction.

Informal procedures.

Question 10

Court of Claims

Answer 10

EXCLUSIVE:
1) contract and tort claims against NY State

Appeals: Appellate Division

Question 11

NY Court of Appeals

Answer 11

highest court

Question 12

Appellate Division of Supreme Court

Answer 12

ORIGINAL:
1) attorney supervision and discipline

APPELLATE:: Supreme Court, county Court, Surrogate’s Court, Family Court, Court of Claims.

Question 13

Appellate Terms of the Supreme Court

Answer 13

For NYC Civil Courts and other courts in 2nd department ONLY.

Question 14

Removal for SMJ

Answer 14

1) mistake in choice of court
- file motion in supreme court to remove to proper court.
- subject to “such terms that are just”

2) to higher court for higher relief
- file with higher court, which removes to itself.
- waiver of jury trial inoperative after removal.

3) to a lower court
- by party consent OR rule of court.
- initial jury waiver inoperative

4) removal from supreme court
- if affecting decedant’s estate, then to surrogate’s court.

5) district court, justice court, city court
- judge may order removal to adjoining county if case unlikely to be disposed of in time.

Question 15

PJ over foreign unauthorized corporations

Answer 15

business dealings systematic and continuous with “a fair measure of permanence and continuity”

NOT for a subsidiary, UNLESS:

1) mere department doctrine
2) agency doctrine

Question 16

Long-arm jurisdiction

Answer 16

1) Transaction of any business in New York.
- quantity + quality. need NOT enter NY.
2) Entry into K to supply goods or services to NY.
- some relevant act in NY.
- product liability: substantial revenue + foreseeability.
3) Ownership, Use, or possession of any real property in NY.
4) commission of tortious act in NY.
5) commission of tortious act outside NY that causes injury in NY if: doing business OR soliciting business OR course of conduct OR substantial revenue.
- NOT for defamation.
- key to substantial revenue is conscious and specific direction at NY market.
- NO fiduciary shield doctrine.
6) estate and executor of estate if NY would have had jurisdiction over decedent.

Question 17

Minimum contacts

Answer 17

“reasonably anticipate being sued” + “purposefully avail”

Plaintiff bears burden of showing minimum contacts exist.

Question 18

Fair Play and Substantial Justice

Answer 18

1) burden on defendant
2) interest of the plaintiff
3) interest of the forum state
4) interstate judicial system interest
5) fundamental social policies

Defendant bears burden of showing unfairness.

Question 19

20-year SOL

Answer 19

1) principal or interest on bonds
2) enforce a money judgment
3) by state or its grantee to recover real property.
4) support, alimony, maintenance.

Question 20

10-year SOL

Answer 20

1) recovery of real property or possession

2) redeem real property from a mortgage

Question 21

7-year SOL

Answer 21

Action by crime victim to recover from convicted perpetrator.

• felony = within 10 years of conviction.
• within 3 years of discovery of profits from crime.
• 1st degree rape, criminal sexual assault, conduct against child = 5 years

Question 22

6-year SOL

Answer 22

*DEFAULT

1) Contracts, EXCEPT sale of goods (4 years)
2) action on sealed instrument
3) action on mortgage of real property
4) equity-mistake
5) derivative action for corporation/LLC
6) fraud
7) contribution against joint tortfeasors

Question 23

5-year SOL

Answer 23

1st degree rape, etc., whether or not perpetrator is convicted criminally.

Question 24

4-year SOL

Answer 24

1) Overcharge of residential rent
2) breach of K for sale of goods
3) implied warranty of sale for new home

Question 25

3-year SOL

Answer 25

1) negligence
2) strict products liability
3) statutory liability
4) recover chattel or damages
5) injury or damage to proeprty
6) personal injuries
7) annul marriage for fraud
8) professional malpractice, EXCEPT doctors, dentists, or podistrists, regardless of K or tort.
9) personal property damage due to strict products liability

Question 26

2.5-years SOL

Answer 26

• doctor, dentist, podiatrist
  1) Negligent medical treatment, BUT for hiring or procedural issues, 3 years.
  2) lack of informed consent
  3) completely unauthorized procedure = 1 year (battery).
  4) discovery of foreign object = 1 year from discovery.

Question 27

2-year SOL

Answer 27

1) wrongful death
-if for crime, extended 1 year from end of criminal prosecution.
2)

Question 28

18 month SOL

Answer 28

Contract claim against village

Question 29

1 year 90 day SOL

Answer 29

tort action against municipality, EXCEPT wrongful death (2 year)

Notice within 90 days, then wait 30 days before filing.

Question 30

1-year SOL

Answer 30

1) intentional torts
2) arbitration awards
3) enforcement of statutory penalty
4) against sheriff for official act
5) against officer for prisoner escape
6) overcharge or interest penalty
7) tenant damages for retaliatory eviction

Question 31

4-month SOL

Answer 31

Article 78 Proceedings

Question 32

Extension of SOL period

Answer 32

1) in writing, signed by party against whom enforcement is sought
2) agreed to after cause of action accrued
3) need not have consideration
- -> period commenced anew on date of extension agreement.

• court may NOT renew.
• estoppel by accord: if plaintiff relied on affirmative misconduct by defendant, defendant cannot assert SOL defense.

Question 33

When do actions accrue for SOL

Answer 33

1) Contracts: date of breach.
- construction = date of completion.
- sale of goods = when breach occurs.
- breach of warranty = delivery.

2) Torts = date of injury.
- property damage = performance of work.
- Continuous treatment exception
- Ongoing relationship exception
- defamation = date of publication
- replevin = date of demand for return.
- conversion = time conversion occurs.
- contribution = when tortfeasor pays injured party.
- toxic substances = discovery rule
- agent misconduct = when judgment entered against principal.
- purpose agent = discovery of facts showing lack of authority.
- seisin = date of eviction.
- fraudulent marriage = when fraud discovered.

Question 34

When actions interpose for SOL

Answer 34

• Claims
• most courts = date of filing.
• Justice Courts = service of process.
• Defenses/ counterclaims
  = when a pleading containing it is served.
• time IF would have been timely on day plaintiff filed the action.
• even untimely claims may be used for set-off.

Question 35

Special SOL rules for infants and incompetents

Answer 35

1) If SOL less than 3 years, then clock starts from 18 birthday or disability.
2) If SOL more than 3 years, than +3 years from 18 birthday or removal of disability.

• BUT
• incompetents capped at 10 years after claim accrues.
• infants capped at 10 years ONLY for medical malpractice.

3) Third party actions/ derivative actions: NOT tolled.
4) All claims tolled for military service.

5) defendant not in state/fake name.
- not tolled during absence unless absence 4+ months.
- tolled for false names.

6) file by estate
- executors may file within one year of death OR within applicable period, whichever is longer.
- if potential defendant dies, limitations period is tolled for 18 months.

Question 36

Special SOL rules for defendants

Answer 36

• Filing against new defendant relates back to complaint against original defendant IF:
  1) same conduct, transaction, or occurrence.
  2) both defendants united in interest;
  3) new defendant knew or should have known he would be sued but for plaintiff’s mistake.
• Multiple filings against same defendant tolled for 6 months if same transaction or occurrence, UNLESS suit was dismissed through:
  1) voluntary discontinuance
  2) Failure to obtain personal jurisdiction
  3) Dismissal for failure to prosecute
  4) final judgment on the merits
• defendant counterclaims in second suit also get tolled.
• sale of goods: multiple causes for breach survive if at least one is timely filed, and the suit is not voluntarily dismissed.

Question 37

Borrowing Statute

Answer 37

SHORTER of two limitations periods.

Question 38

Architect or Engineer Malpractice

Answer 38

1) If 10+ years old, must first serve notice of action 90 days before filling. SOL tolled for 120 days.
- may conduct discovery after notice but before filling.

Question 39

Mischellaneous SOL tolling

Answer 39

1) Court stays
2) Demand for arbitration: max 1 year
3) discovery: 2 years OR applicable period.

Question 40

How to raise SOL defense

Answer 40

Motion to dismiss OR affirmative defense in answer.

NOT by the court.

Question 41

Statute of Repose

Answer 41

Requires claim to be brought in time period, NOT waivable by defendant.

Question 42

Service of process - timing

Answer 42

Must serve within 120 days of filing OR 15 days of filing if SOL less than 4 months.

Question 43

Service on individuals

Answer 43

1) personal service
2) leaving copy with competent person of age at NY abode AND within 20 days mailing to last known residence.
3) Service on designated agent - executed and acknowledged in manner of deed.
4) “Nail and Mail”
5) Court-ordered service

7) Service on infant
- to parents or guardian.
- if over 14, then to infant.

8) Service on incompetents
- service incompetent + caregivers.

9) Non-resident driver: sec. of state. AND service defendant in person or by mail within 30 days.

Question 44

Service on corporations

Answer 44

1) personal service to officer/director

2) Sec. of State (authorized foreign corps.)
- 2 copies
- for unauthorized corps, must also mail copy to corporation OR personally serve.

3) court-ordered service if other methods are impractical.

Question 45

Service on partnership

Answer 45

1) personal service on any partner
2) leave and mail
3) nail and mail at actual place of business.
4) designated agent.
5) court-ordered service.
6) LP: NY Sec. of State

Question 46

Service on unincorporated associations

Answer 46

MUST service president OR treeasurer in their own names, NOT association name.

Question 47

Service on LLCs

Answer 47

1) personal service to:
- member vested with management duties.
- any other person or agent designated to receive process.

2) court ordered service if impractical.
3) NY Sec.of state

Question 48

Service by 1st class mail

Answer 48

NOT for infants, incompetents, or people served through Sec. of State.

1) include acknowledgement of receipt form.
2) signed acknowledgment must be returned within 20 days.
- by answering, defendant does NOT waive PJ objections.

Question 49

Service by Publication

Answer 49

1) state action + relief
2) must state money to be taken in default, EXCEPT for medical malpractice.
3) descriptions of any real property
4) in two newspapers, at least 1 in english.
5) once per week for 4 consecutive weeks.

Question 50

Completion / Sservice of process

Answer 50

• No proof, deemed complete:
  1) leave and mail/nail and mail: 10 days after filing.
  2) Service of unauthorized corporation: after 10 days.
  3) NR driver: compete on filing.
• Forms of proof
  1) sheriff or officer: certificate
  2) other person: affidavit
  3) mail: signed acknowledgment of receipt.
• -> prima faciae evidence. if defendant objects, must show by preponderance of evidence.

Question 51

Proper venue

Answer 51

1) Local action –> county where real property is located.

2) Transitory action –> county where one party resides.
- if out of state residents, then any county.
* special resident rules
- executor/trustee = county of appoinment OR county of residence.
- corp = principal place of business
- partnership = principal office OR owner residence.
- Gov. entities: for NYC, county of NY.

Question 52

Special venue rules

Answer 52

1) replevin: where chattel is located
2) consumer credit: collateral OR county where transaction took place.
3) forum selection enforceable
4) may transfer venue following joinder.

Question 53

Changing venue

Answer 53

1) Defendant objects in answer, plaintiff does not reply in 5 days, defendant files in 15 days, court MUST transfer.
2) Discretionary: fair trial OR convenience of material witnesses and interests of justice.

Question 54

Forum Non Conveniens factors

Answer 54

1) Burden on court
2) burden on defendant
3) location of witnesses
4) availability of adequate alternative forum
5) improper motive
6) plaintiff’s choice given deference, defendant must give “compelling evidence” why not.

• special requirements for unauthorized foreign corporations:
  1) corp. pay all taxes, etc., due in NY.
  2) if nonresident is suing unauthorized foreign corp, then must have:
  i) K made in NY, or relates to property that was in NY when K was made.
  ii) subject matter of case is in NY.
  iii) claim arose in NY.
  iv) defendant long-arm jurisdiction
  v) defendant doing business in NY.

Question 55

Preliminary injunction

Answer 55

Moving party must show:

1) likelihood of success on the merits
2) irreparable harm
3) balance of equities

Plaintiff must give undertaking to compensate defendant in case the injunction is wrong.

Question 56

Attachment

Answer 56

1) NOT in matrimonial actions
2) plaintiff would be entitled to money judgment.
3) result is quasi in rem jurisidiction.

• Must meet ONE of the following:
  1) defendant is nonresident
  2) defendant is unauthorized foreign corp.
  3) no service despite diligence
  4) defendant fraudulently transferred res.
  5) plaintiff is victim of a crime.
  6) claim is based on NY judgment.

If granted ex parte, must notify defendant within 5 days.

• Must show by affidavit or written evidence:
  1) there is cause of action
  2) probable success on merits
  3) on or more grounds for attachment
  4) amount demanded exceeds counterclaims
• must give at least $500 bond

File with sheriff within 10 day. Valid for 90 days.

Question 57

Receivership

Answer 57

ONLY in supreme court OR county court.

Danger property will be lost, removed from state, materially injured, or destroyed.

Question 58

Notice of Pendancy

Answer 58

May be filed if interest in real property would be affected, BUT NOT actions for possession. NOT for control of an entity.

Effective for 3 years. Serves as constructive notice of encumbrance.

Question 59

Replevin

Answer 59

Must identify chattel and value and that:

1) plaintiff is entitled
2) defendant is wrongfully holding
3) plaintiff in unaware of counterclaims
4) probability of success on merits.

granted on notice OR ex parte.

undertaking at least 2X value.

Question 60

Several liability

Answer 60

Not liable for contribution on non-economic damages if 50% or less at fault, EXCEPT for:

1) car accidents
2) intentional or reckless torts
3) nondelegable duty
4) respondeat superior
5) indeminification
6) worker’s compy
7) environmentally hazardous substances
8) products liability

• release from liability as part of settlement effective if:
  1) good faith
  2) plaintiff gets compensation
  3) terminates disputes
  4) entered prior to judgment
• -> settling tortfeasor has NO right to contribution.
• -> plaintiff’s recovery reduced by greater of settlement amount OR amount paid OR settling tortfeasor’s equitable share.

Question 61

Third party contributions against employers under worker’s comp

Answer 61

1) grave injury to worker

2) written indemnity agreement

Question 62

Intervention as a right

Answer 62

1) statutory right
2) interest inadequately represented and may be bound by judgment.
3) action involves property and nonparty may be adversely affected.

Question 63

Counterclaims

Answer 63

Unlike fed system, in NY, all counterclaims are permissive.

Question 64

Disclosure (Discovery)

Answer 64

Scope determined by rules of evidence

Exceptions to work product:

1) substantial need = undue hardship
2) party statements
3) insurance
4) photos, films, audio of party
5) expert witnesses

Question 65

Time to respond to discovery requests

Answer 65

20 days

Question 66

Reasons for pre-action disclosure

Answer 66

1) aid in bring actions
2) preserve the information
3) aid an arbitration

Question 67

When are issues of fact tried by Jury?

Answer 67

1) money only
2) ejectment, dower, waste, abatement, nuisance, replevin, claim to real property.
3) others as per constitution

MUST demand within 15 days, otherwise deemed waived.

MAY consent to jury of less than 6 person.

Question 68

Special verdicts

Answer 68

1) if consistent answer, inconsistent verdicts:
(1) direct judgment in accordance with answers
(2) ask more questions of jury
(3) order new trial.

2) if inconsistent answers and verdict:
(1) order jury to reconsider
(2) order new trial

3) itemized damages in tort cases
- jury must specify elements AND amount.
- must separate past and future damages, and pain and suffering damages.

Question 69

Notice for parties

Answer 69

if time not specified in agreement, must give 8 days notice to parties.

Question 70

Gatekeeping questions for arbitration

Answer 70

1) did the parties actually agree?
2) what issues did they agree to submit?
3) is the agreement valid?
4) have they complied with conditions precedent?
5) has statute of limitations expired?
6) does public policy preclude this arbitration.

Question 71

Enforcement and modification of arbitration awards

Answer 71

Enforcement within 1 year of delivery of judgment.

• Modification if:
  1) miscalculation of figures
  2) award was made on matters not before the tribunal
  3) award is imperfect as to form

Question 72

Vacating arbitral awards

Answer 72

ONLY if rights of parties were prejudiced by:

1) corruption, fraud, misconduct
2) arbitrator bias
3) arbitrator exceed power
4) failure to follow statutory procedure.

• vacated by third party if:
  1) prejudiced by one of grounds above
  2) no valid agreement to arbitrate
  3) agreement not complied with
  4) barred by SOL

Question 73

Time for appeal

Answer 73

As of right: 30 days from service of order appealed from (+5 days if mailed).

By permission: 30 days from entry.

Question 74

Appeals to Court of Appeals

Answer 74

By Rights:

1) two or more justices of appellate division dissent on matter of law.
2) constitutional or statutory grounds.
3) court order.
4) non-final determination of appellate division.

• By permission:
  1) permission of appellate division
• nonfinal orders
• actions originating in other courts
  2) permission of Court of Appeals
• by or against public officers from non-final orders

Question 75

Matters NOT appealable as of right to the Appellate Division

Answer 75

1) Article 78 Proceedings
2) More definite statements
3) Scandalous material in a pleading
4) Denies motion for leave to reargue

Question 76

Stay pending appeal

Answer 76

Automatic for:

1) states files motion of appeal
2) defendant gives undertaking for money
3) real property posted as undertaking
4) appellant complies with order directing performance.

• Discretionary
• by either trial court of appellate court.
• Continuation
• 5 days after determination

Question 77

When do fillings need to be verified?

Answer 77

Pleadings:

1) Matrimonial action
2) schedule of goods or services
3) petition in an article 78 proceeding
4) to recover possession of real property

Answer:

1) if initial pleading verified
2) common-law fraud
3) corporation nonpayment of promissory note
4) does not involve merits

Question 78

Bill of particulars

Answer 78

1) demand in writing to party bearing burden of proof.
2) recipient must answer unobjectionable requests, and state objections with particularlity.
3) must answer within 30 days.
4) must be verified if pleading was verified OR there is a negligence claim.

Question 79

Substance of Article 78 Proceedings

Answer 79

1) Failure to perform duty
2) Exceeded jurisdiction
3) determination made: in violation of lawful procedure OR by error of law OR arbitrary and capricious OR abuse of discretion.
4) determination unsupported by evidence

NOT:

1) non-final or appeallable matters.
2) civil or criminal, EXCEPT contempt.
3) validity of legislative act.

• includes state-chartered corporations.

Question 80

Article 78 Procedures

Answer 80

Petition 20 days, answer 5 days, reply 1 day before hearing.
SOL = 4 months.
Restitutionary damages ONLY IF incidental to other relief.

Question 81

Default and Neglect

Answer 81

1) Default by defendant
- if sum certain, automatic judgment, all others must apply to court.
- must apply within 1 year of default.
- for K with natural person, must give notice 20 days before judgment of default.

2) plaintiff neglect = unreasonable delay or failure to serve and file notice.
- requirements: issues joined in action + 1 year elapsed + 90 day notice to plaintiff to resume action.
- plaintiff has defense of justifiable excuse.
- defendant may seek costs within 1 year.

3) relief from default
- excusable default: meritorious underlying claim + reasonable excuse for failure.
- “law office failure”
- didn’t receive summons.