Trial Procedures and Res Judicata

Question 1

What places a case on the trial calendar?

Answer 1

A note of issue.

Question 2

What is a note of issue?

Answer 2

It places a case on the trial court calendar.

Question 3

When can a party get a note of issue?

Answer 3

Either party can file for a note of issue when they feel the case is ready for trial.

Question 4

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

Answer 4

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.

Question 5

When does a party in a civil action have a right to a trial by jury?

Answer 5

1. Action seeking solely $ damages
2. Replevin Action
3. Claim to Real Property
4. Annulment of Marriage
5. A divorce action, [can demand jury w/respect to grounds for divorce]

So there is NO JURY for child custody and monetary support.

Question 6

When does a party in a civil action not have a right to a trial by jury?

Answer 6

An action for child custody or monetary support.

Question 7

How many jurors must decide an issue?

Answer 7

A civil jury consists of 6 jurors, and 5 of 6 are necessary.

Question 8

What is res judicata?

What is it’s common name?

What standard does NY use?

Answer 8

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.

Question 9

What is the public policy exception to res judicata/claim preclusion?

Answer 9

Matrimonial disputes that involve a divorce action based on assaultive conduct, followed by a claim for personal injuries arising out of the assaults.

Question 10

What is collateral estoppel?

What is its common name?

Answer 10

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.

Question 11

What is the most important tip to remember in issue preclusion (collateral estoppel?)

Answer 11

YOU CAN’T BIND A NON-PARTY!

Question 12

If P mistakenly initiates special proceeding when he shouldn’t have, will it be dismissed on the merits?

Answer 12

No, court can convert between special proceeding and regular action.

Question 13

What special proceedings exist?

Answer 13

Some are:

1. Probate of a will
2. Election Dispute
3. Summary proceeding by a landlord for eviction
4. Dissolution of a corporation
5. Habeas Corpus
6. Enforcement of an arbitration agreement
7. CPLR Article 78 Proceeding

Question 14

What is the procedure for a special proceeding?

What are the parties called?

Answer 14

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.

Question 15

Are arbitrators bound by the substantive law or the rules of evidence?

Answer 15

No.

Question 16

How does NY view arbitration?

Answer 16

NY PP favors arbitration.

Question 17

What can a party present to the court to try to avoid arbitration?

Answer 17

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.

Question 18

What is the doctrine of severability in relation to arbitration clauses?

Answer 18

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.

Question 19

What is a notice of intention to arbitrate?

Answer 19

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.

Question 20

How can the courts vacate an arbitration award?

Answer 20

Only 3 ways:

1. Corruption, fraud, or misconduct in arbitration
2. Bias of an arbitrator who was chosen to be neutral
3. Arbitrator exceeded his powers

Question 21

Can an arbitrator award punitive damages?

Answer 21

NO. Not in NY.

Question 22

What is ADR?

Answer 22

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.

Question 23

What is mediation?

Answer 23

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.

Question 24

What is neutral evaluation?

Answer 24

Non-binding expert where a neutral expert hears a condensed version of each side and predicts how a court would resolve the dispute.

Question 25

What is a summary jury trial?

Answer 25

A summary jury trial is a condensed version of a real trial in which a judge presides and a real jury is empaneled to hear the case and render a verdict.

Normally limited to one day.

Parties choose whether it will be binding or not (normally not binding)

Requires an agreement for the participation of the court.

Question 26

What is an Article 78 proceeding?

Answer 26

A special proceeding for judicial review of action/inaction of state or local government or quasi-government officers or bodies.

For mandamus purposes, a corporation traditionally qualifies as quasi-government because its privilege of existence comes from the state.

Question 27

What are the 4 grounds for an Article 78 proceeding?

Answer 27

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

Question 28

What is Mandamus to Compel?

Answer 28

Mandamus to Compel is to compel the performance of an act required by law for which no discretion is involved

Example: Election official refuses to issue an absentee ballot, city clerk refuses to issue a marriage license, president of corporation refuses to convene an annual meeting of shareholders {corporation is quasi-government].

Question 29

What is Prohibition?

Examples:

Answer 29

Prohibition is a proceeding to stop a judicial officer from exercising power that exceeds the officer’s lawful jurisdiction [the excess must be GROSS in nature].

Examples of “gross excess” of the exercise of jurisdiction: (a) Judge tries to try criminal defendant a second time after a not guilty verdict. (b) Judge forces lawyers to depose witnesses that neither party wants to depose.

NOTE: This is for gross excesses, NOT simple judicial error.

Question 30

What is Certiorari?

Examples?

Answer 30

A proceeding to challenge a trial type hearing conducted by an administrative agency.

Definition of trial type hearing: One in which testimony was taken under oath with a right of cross-examination.

Question 31

Who is entitled to a trial type hearing for purposes of a certiorari review?

Answer 31

Persons with a vested property or quasi-property right.

Examples: A license holder, a tenured civil service employee.

Question 32

What is the standard of review for underlying hearing results in a certiorari proceeding?

Answer 32

The court must uphold the results if the agency’s determination was supported by substantial evidence.

Question 33

What is Mandamus to Review?

Answer 33

Mandamus to Review is a proceeding to review any type of administrative action not covered by another special proceeding (mandamus to compel, prohibition, or certiorari).

It is normally used to challenge an agency determination that was made without a trial-type hearing (such as when vested rights are not at stake).

Examples: Probationary public employee is discharged, a request for a zoning variance is denied, a gun permit renewal is denied.

Question 34

What is the court’s standard in Mandamus to Review?

Answer 34

Standard is whether the administration’s action was arbitrary and capricious.

Question 35

In what court(s) may an Article 78 Proceeding be brought?

Answer 35

Only in the Supreme Court, even if the respondent is the State of New York. (i.e., not court of claims).

Question 36

What is S/L for an Article 78 Proceeding?

What does the S/L period begin to run?

Answer 36

4 Months.

Begins to run from when the agency action was final and binding.

Question 37

What return date may a party set in an Article 78 Proceeding?

Answer 37

The return date must be 20 days after service of the papers. (Not 8).

Question 38

What type of relief may be sought in an Article 78 Proceeding?

Answer 38

1) Declaratory Relief (annul a determination)
2) Injunctive (reinstatement, etc.)
3) Damages, if they are incidental to the declaratory or injunctive relief (like back pay from a reinstatement)

Question 39

When may a clerk enter a default judgment?

Answer 39

A clerk may enter a default judgment for a sum certain [a clear amount based on something like a contract for the sale of goods at a set price].

A court itself [judge] must be asked to enter a default judgment on something that is not a sum certain, like fraud, breach of warranty, etc.

Question 40

What is proper venue for a replevin action?

Answer 40

The county of residence of any party, OR the county where the replevin property is.