Trial Procedures & Res Judicata Flashcards
NOTE: Any time after joinder of issue, or at least 45 days after service of a summons has been completed irrespective of joinder of issue, any party may place a case upon the calendar by filing NOTE OF ISSUE. BUT Rarely filed this early b/c it almost always has to be filed w/ certificate of readiness, and you usually wont be ready that early.
NOI- puts the case on calendar; contains the basic data a/b the case and whether a preference is claimed; must be served on other parties
How does a party who is entitled to a jury obtain it?
If party filed the NOI he should state he wants a jury in the NOI.
If the NOI does not ask for a jury, and the other party wants one, then that party must serve a demand for jury w/in 15 days after being served w/ NOI.
When does a party in a civil action have a right to trial by jury?
1- action seeking solely money damages 2- action for replevin 3- action for annulment of a marriage 4- divorce action (either party can demand a jury on the sole issue of the ground for the divorce) 5- claim to real property
How big is a civil jury & what vote is needed?
6 person jury
5/6 is enough for a verdict
Res Judicata (claim preclusion) in NY
- NY uses the transactional approach
- when a claim against a particular D has been brought to a final judgment on the merits, all other claims by the P against that D are barred if they arise under the same T/O as Ps original claim (even if different causes of action)
EXCEPTION- policy exception to transactional approach on matrimonial disputes based on abuse
Burden is on party trying to assert issue preclusion to show:
- prior judicial/arbitral/administrative decision
- on the MERITS
- identity of ISSUES
- issue was ACTUALLY LITIGATED in the former proceeding
- party AGAINST WHOM issue preclusion is asserted had a full and fair opportunity to litigate that issue in the former proceeding (whether taken or not).
