Trial Procedures and Res Judicata Flashcards
What places a case on the trial calendar?
A note of issue.
What is a note of issue?
It places a case on the trial court calendar.
When can a party get a note of issue?
Either party can file for a note of issue when they feel the case is ready for trial.
How does a party who is entitled to a jury obtain it?
1) The party who files the note of issue must make demand in note of issue or the right is WAIVED. 2) Other parties can file their own demand for a jury. If they don’t it is waived.
When does a party in a civil action have a right to a trial by jury?
- Action seeking solely $ damages
- Replevin Action
- Claim to Real Property
- Annulment of Marriage
- A divorce action, [can demand jury w/respect to grounds for divorce]
So there is NO JURY for child custody and monetary support.
When does a party in a civil action not have a right to a trial by jury?
An action for child custody or monetary support.
How many jurors must decide an issue?
A civil jury consists of 6 jurors, and 5 of 6 are necessary.
What is res judicata?
What is it’s common name?
What standard does NY use?
Claim preclusion.
NY uses the transactional approach.
This says that other claims that arise out of the same transaction or occurence as P’s original claim are barred.
What is the public policy exception to res judicata/claim preclusion?
Matrimonial disputes that involve a divorce action based on assaultive conduct, followed by a claim for personal injuries arising out of the assaults.
What is collateral estoppel?
What is its common name?
Collateral Estoppel is issue preclusion.
Issue preclusion avoid relitigating issues that were already decided in a prior proceeding IF:
1) Identical Issue in former and current proceeding.
2) Issue was actually litigated and decided in the former proceeding.
3) Party against whom issue preclusion is asserted had a full and fair opportunity to litigate in the former proceeding.
What is the most important tip to remember in issue preclusion (collateral estoppel?)
YOU CAN’T BIND A NON-PARTY!
If P mistakenly initiates special proceeding when he shouldn’t have, will it be dismissed on the merits?
No, court can convert between special proceeding and regular action.
What special proceedings exist?
Some are:
- Probate of a will
- Election Dispute
- Summary proceeding by a landlord for eviction
- Dissolution of a corporation
- Habeas Corpus
- Enforcement of an arbitration agreement
- CPLR Article 78 Proceeding
What is the procedure for a special proceeding?
What are the parties called?
1) PETITIONER files a petition (analogous to a complaint) to commence the proceeding.
2) P must file the petition and notice of petition (like a summons) on the RESPONDENT.
3) The notice of petition must advise the RESPONDENT to serve an answer and to appear on the specified return date for the hearing) no earlier than 8 days from the service of process).
4) All pleadings and affidavits are submitted to the court on the return date and the matter is decided like summary judgment.
EXCEPTION: For an Article 78 Proceeding, the return date cannot be earlier than 20 days from service.
Note: A petitioner may get an accelerated return date through an order to show cause if there are exigent circumstances.
Are arbitrators bound by the substantive law or the rules of evidence?
No.
How does NY view arbitration?
NY PP favors arbitration.
What can a party present to the court to try to avoid arbitration?
5 Threshold Issues:
1) Did the parties agree to arbitrate? [The agreement must be in writing, must be clear, express, and unequivocal, and the need to arbirate need not be mutual.
2) Is the dispute within the scope of the arbitration clause? [Broad clauses are enforced]
3) Is it valid? Arbitration clauses are presumptively valid. Invalid if made by fraud, duress, or coercion.
4) Is there an express condition precedent to arbitration? The court decides this prior to going to arbitrator.
5) Statute of limitations problem? Court decides this.
What is the doctrine of severability in relation to arbitration clauses?
1) Determine the validity of the arbitration clause first. If it is valid, THEN
2) Send whole contract to arbitrator to determine whether the contract itself is valid.
Interesting.
What is a notice of intention to arbitrate?
What P can send to D if P wishes to arbitrate. Service is made in the same manner as a summons.
Opponent may then commence a special proceeding for a stay of arbitration.
How can the courts vacate an arbitration award?
Only 3 ways:
- Corruption, fraud, or misconduct in arbitration
- Bias of an arbitrator who was chosen to be neutral
- Arbitrator exceeded his powers
Can an arbitrator award punitive damages?
NO. Not in NY.
What is ADR?
ADR is similar to arbitration, but while arbitration resolutions are generally binding, ADR resolutions are generally non-binding and just try to get the partes to reach a voluntary settlement.
What is mediation?
A non-binding process in which a neautral mediator attempts to facilitate a settlement by speaking confidentially to each party and then jointly with both parties present.
Parties may agree to make what is said confidential.
What is neutral evaluation?
Non-binding expert where a neutral expert hears a condensed version of each side and predicts how a court would resolve the dispute.
