Procedure & Misc.

Question 1

NY SoL - 20 years

Answer 1

1. recover on bonds
2. enforce monetary judgment
3. by state to recover real property
4. support or maintenance

Question 2

NY SoL - 10 years

Answer 2

1. recover real property

2. redeem real property from a mortgage

Question 3

NY SoL - 7 years

Answer 3

1. Action by crime victim to recover damages (from date of crime). BUT victim of sex crime only has 5 years.

Question 4

NY SoL - 6 years

Answer 4

1. Default if not specified
2. K (EXCEPT for sale of goods)
3. Action on mortgage
4. Fraud
5. For contribution from joint tortfeasors
6. Derivative action

Question 5

NY SoL - 4 years

Answer 5

1. Overcharge of residential rent
2. Breach of K for sale of goods
3. Against housing merchant for breach of warrant of suitability

Question 6

NY SoL - 3 years

Answer 6

1. Action for statutory liability or penalty
2. Default for negligence actions (including toxic exposure - BUT “discovery rule” says this starts running 3 years after injury manifests)
3. Annual marriage for fraud
4. Strict products liability
5. Non-medical professional malpractice
6. Conversion/trespass to chattels

Question 7

NY SoL - 2.5 years

Answer 7

1. Medical/dental/podiatric malpractice (including lack of informed consent)

NB: Foreign object extension: must be brought w/in 1 year of discovery.

Question 8

NY SoL - 2 years

Answer 8

1. Wrongful death

Question 9

NY SoL - 1 year + 90 days

Answer 9

1. Tort action against municipality iff written notice filed w/in 90 days of tort + waited 30 days w/out payment.

Question 10

NY SoL - 1 year

Answer 10

1. Intentional torts
2. Action on arbitration award
3. Action by tenant for retaliatory eviction

Question 11

Accrual of CoA

Answer 11

K claims - date of breach but for construction Ks, date of completion.

Tort - date of tortious conduct, although continuing treatment exception for med mal, and defamation is date of publication.

NB1: SoL tolls for infancy & insanity.
NB2: Must be raised on motion by ∆ or else is waived.

Question 12

Service of Process

Answer 12

• Made w/in 120 days of commencing action, by someone over 18 and not on a Sunday
• Methods: personal delivery in NY (to corp, officer/director/or authorized agent), service on designated agent, “leave and mail,” “nail and mail” w/ ct OK
• Outside NY: if domiciliary or subject to long-arm statute, same methods work out of state.

Question 13

Response Motions

Answer 13

Answer must raise all affirmative defenses as well as admit/deny allegations in complaint.

Question 14

Bill of Particulars

Answer 14

A party can request other party to furnish bill as to claim or defense for which that party bears the burden of proof. Can’t be done w/ interrogatory w/out ct permission.

Question 15

Prelim Injunction & TRO

Answer 15

PI reqs moving party show: 1) likelihood of success on the merits, 2) irreparable harm unless PI is granted, and 3) balance of equities in favor of PI.

TRO: may be granted ex parte when immediate and irreparable harm will result unless ∆ is restrained.

NB: Each can be sought at any time.

Question 16

Service on Motions

Answer 16

8-2 Rule: If notice personally served, notice of motion + supporting affidavits must be sevred 8 days before hearing, and reply must come 2 days before hearing.

16-7-1: to preserve right to reply.

Question 17

Motion to Dismiss

Answer 17

1. Doc defense: doc is dispositive
2. No smjx or pjx
3. Affirmative defenses
4. Another action pending b/w same parties on same claim
5. Non-joinder of nec’y parties
6. Failure to state a claim: even if every allegation taken as true, there is no cause of action stated.

-Decision may be appealed as matter of right.

Question 18

Motion for Summ. Judgment

Answer 18

Standard: upon proof submitted, there is “no material issue of fact” and ct can issue judgment as a matter of law.

Question 19

Bases for General PJX

Answer 19

1. Person domiciled in NY
2. Person physically present in NY (unless fraudulently enticed or solely in NY to attent legal proceeding)
3. Corp has statutorily consented or is “doing business” in NY

“Doing business” = “continuous and systematic” biz activity such as having an office here. Solicitation or substantial sales NOT enough.

Question 20

Bases for Specific PJX

Answer 20

1. Express consent (e.g., forum clause in K, which is generally enforceable unless it would be unjust)
2. Waiver - by not objecting
3. Statutory Consent: filling suit in NY, nonresident driver/owner of vehicle, long-arm statute

Question 21

NY Long-Arm Statute

Answer 21

NY ct can exercise PJX over ∆ who is not an NY domiciliary if CoA arises from:

1. transaction of any biz in NY
2. K to supply goods/services in NY
3. Ownership/use of real property in Ny
4. Commit tort in NY
5. Commit tort outside NY causing harm in NY if ∆ reg does biz in NY, makes sig $ from biz in NY, or should expect his acts to have consequences in NY

Defamation Exception: long-arm jx can’t be based solely on Nos. 4 or 5.

Question 22

Constitutional Reqs of PJX

Answer 22

After analyzing statutory factors, remember that Due Process reqs “minimum contacts” and “fair play and substantial justice.”

Min contacts = are they such that ∆ should reasonable expect being hauled into ct there?

FPSJ: balance burden on ∆, interest of π, and interest of forum state + interstate judicial system’s interest in efficient resolution.

Question 23

Neumeier Doctrine

Answer 23

Tort suit in NY, ct applies gov’t interest approach to see which jx has greater interest. To determine this, ct asks:

• Law’s purpose to reg conduct? Location of tort
• Purpose to allocate loss? Apply law of parties’s common domicile OR, if split doms, location of tort unless advancing underlying interests reqs otherwise (Neumeier)

Question 24

Nonrefundable fee agreements

Answer 24

Nonrefundable fee agreements are unethical because they violate the lawyer’s obligation to promptly refund any part of a fee paid in advance that has not been earned because of discharge by the client or other reasons. Although Attorney may not enter into an arrangement for a nonrefundable retainer, he may enter into a fee agreement that contains a reasonable minimum fee as long as it defines in plain language the circumstances under which the fee is incurred and how the fee is calculated. Attorney-client fee agreements are enforceable and affected by ethical principles different from those applicable to ordinary commercial contracts.

Question 25

Art. 78 proceedings

Answer 25

Mandamus-type actions against state or local officials or agencies for final decisions - seeking injunctions. (Does NOT include claims against NY for $ - these go to Ct of Claims)

S.Ct. has exclusive jx.

Question 26

Preclusion

Answer 26

Res judicata/claim preclusion: no relitigating claims that should have been brought b/w the parties earlier. NY cts apply a “transactional analysis” to bar all claims arising out of same transaction/occurence.

Issue preclusion: No relitigating issue if 1) it was nec’ly decided in prior action, and 2) full & fair opportunity by party against whom it’s invoked to have contested the issue beforehand.