Trial Procedures

Question 1

How is a matter placed on a court’s calendar?

Answer 1

When discovery is completed & case is ready for trial:

- EITHER party may file a Note of Issue
- Filing party has to serve copies on opposing parties

Question 2

How does a party who is entitled to a jury obtain it?

Answer 2

1) Party who files notice of issue can make a demand for a jury trial

NOTE: If jury trial is not demanded in notice of issue, then it iS WAIVED by moving party (but not binding on other parties)

2) Other parties&raquo_space; assuming no jury demand made in the Note of Issue, other party must file his own separate demand for a jury (IF NOT demanded, jury is waived as to other parties as well)

Question 3

When does a party in a CIVIL ACTION have a RIGHT to a jury trial?

Answer 3

1) Action seeking SOLELY money damages
2) A replevin action (i.e. action to recover chattel)
3) Claim to real property
4) Annulment of a marriage
5) Divorce action ON THE ISSUE of grounds for the divorce (but NO jury wrt alimony or child custody)

Jury composition
Civil jury = 6 jurors, need at least 5 votes (i.e. don’t need unanimous verdict)

Question 4

What is res judicata?

Answer 4

Purpose of res judicata (or claim preclusion) is to avoid & to prevent relitigation of the same claim

NY uses “transactional approach”: when claim against the ∆ gets final judgment on the merits, all other claims by the π against the same ∆ are barred if they arise out of the same TRANSACTION

** True EVEN IF other claims based on different theory or seek a different remedy

(POLICY) EXCEPTION: matrimonial action based on domestic abuse (e.g. first a divorce is granted by the court, THEN π spouse can still bring assault charges even though comes from same marriage (transaction))

Question 5

What is collateral estoppel?

Answer 5

The purpose of collateral estoppel (issue preclusion)isto avoid & prevent relitigation of specific fact issues that were decided in a prior proceeding

Issue is PRECLUDED (entitled to SJ) if 3-part showing met…

- IDENTICAL issue in current and prior proceeding
- issue was ACTUALLY litigated & decided in the former proceeding
- party against whom issue preclusion is asserted had a FULL & FAIR OPPORTUNITY to litigate the issue in the former proceeding (NOTE: be careful and watch the parties to see if there was a full and fair opportunity to litigate the issue)		

Question 6

What is a special proceeding?

Answer 6

Special proceeding = a SPEEDY, STREAMLINED procedure (akin to motion practice) meant to obtain judgement as a FINAL resolution of a dispute

E.g. probate of a will; election disputes; summary proceeding by a landlord for a eviction; dissolution of a corporation; habeas corpus; enforcement of an arbitration agmt; CPLR Art. 78 proceeding

** A special proceeding MUST have specific statutory authorization

** NOTE: If a MISTAKE is made in form of proceeding, court has authority to CONVERT a SP into an action (and vice versa)

Question 7

What is the procedure necessary for aspecial proceeding?

Answer 7

1) “Commencement of a special proceeding” = the PETITIONER (the party w/ the grievance) files a PETITION (~complaint)
2) PETITION and NOTICE OF PETITION must be served on the RESPONDENT (the person from whom relief is sought) by using the same methods to serve process as in an action (REVIEW!); need jurisdiction over respondent
3) Notice of peitition advises the respondent to SERVE AN ANSWER and to appear on the specified RETURN DATE for the hearing

** NOTE: The return date in a SP can be NO SOONER than 8 DAYS from the service of process

** EXCEPTION: Art. 78 Proceeding, where return date can be no sooner than 20 DAYS from service of process

** If petitioner needs an accelerated return date, he must initiate the special proceeding by ORDER TO SHOW CAUSE

4) AFFIDAVITS in support of/in opposition to the petition are submitted to court on the return date for a decision

** Dispute is decided in the same manner as SUMMARY JUDGMENT

Question 8

What are the grounds for an Art. 78 Proceeding?

Answer 8

Art. 78 authorizes a special proceeding for judicial review of (in)action by govt. or quasi-govt. officers or bodies of any kind(i.e. administrative agency review).

4 grounds to provide right to relief:

1) Mandamus to compel
2) Prohibition
3) Certiorari
4) Mandamus to Review

Question 9

What is the Mandamus to Compel underArt. 78?

Answer 9

Mandamus to Compel – to compel performance of act required by law (e.g. election official refuses to issue absentee ballot; city clerk refuses to issue marriage license)

NOTE: corporations qualify as quasi-govt. body(b/c gets right to exist from the state) (e.g. refusal to convene annual meeting of shareholders–subject to Art. 78 proceeding)

Question 10

What isProhibition underArt. 78?

Answer 10

Prohibition= proceeding to stop a judicial officer from exercising power that exceeds his lawful jurisdiction ONLY for “gross excess” of jurisdiction

E.g. judge denies ∆’s motion to dismiss for clear violation of double jeopardy

Question 11

What isCertiorari underArt. 78?

Answer 11

Certiorari= proceeding to challenge the results of a “trial-type” hearing conducted by an administrative agency

“Trial-type” hearing = testimony taken under oath with a right of cross-examination

** Persons with a vested property or quasi-property right are ENTITLED to trial-type hearing prior to divestiture (due process)

Standard = Court must uphold determination if it was supported by substantial evidence

Question 12

What is Mandamus to ReviewunderArt. 78?

Answer 12

Mandamus to Review = proceeding to review ANY type of administrative action not covered by other 3 (usually used to challenge agency determination w/o trial-type hearing; i.e. informal rule making) (E.g. zoning permit denied, gun permit renewal denied)

** Agencies may determine such matters without trial-type hearing because no vested rights. are at stake

Standard = Court must uphold determination UNLESS it was “arbitrary & capricious”

Question 13

What is the procedure for an Art. 78 Proceeding?

Answer 13

ONLY the Supreme Court can hear Art. 78 Proceeding
** Even the State can be sued here (if for damages from K breach or tort&raquo_space; jurisdiction is in the Court of Claims)

SOL = 4 months running from the date the agency action is final and binding

The papers in an Art. 78 porceeding MUST be served 20 DAYS before the return date

Types of relief that may be sought…

1) May only seek declaratory or injunctive relief
2) Damages are ONLY recoverable IF they are incidental to the main relief being sought (i.e. injunctive or declaratory relief)