NY Practice Flashcards
PERSONAL JURISDICTION:
What can be the basis for Specific Personal Jurisdiction?
- D is nondomiciliary subject to long arm statute (served anywhere) and jurisdiction would not offend Due Process
- D is a nondomiciliary driver or car owner (served via NY Sec. of State & certified mail)
- D consents
PERSONAL JURISDICTION:
What can be the basis of general personal jurisdiction?
D is individual physically present in NY when served w/ process
D is “doing business” in NY (served anywhere)
D is NY domiciliary (served anywhere)
➩ does not matter where claim arose
DOMICILE:
What is the difference between domicile & residence?
- Domicile: intends to remain indefinitely & treated as principal home (only 1)
- Residence: place person lives for fair amount of time w/ some degree of permanency (multiple possible)
“DOING BUSINESS”:
What qualifies as “doing business” in NY?
- Domestic corp. or foreign corp. licensed in state – any claim whatsoever can be brought in NY
-
Unlicensed foreign corp. – at the time action commenced corp.’s employees or agents are in NY engaged in business activity for the corp. on a continuous, regular & systematic basis (must maintain an office/other facility continuously staffed by 1+ employees)
- form of presence so claim need not arise from NY business
PERSONAL JURISDICTION:
What are the 5 long-arm categories?
5 Long-Arm Categories:
- business transaction in NY
-
contracts to supply goods or services in NY
- must be economically significant
- tortious act in NY
-
tortious act outside NY, causing injury inside NY, if D has add’l ties w/ NY:
- regularly solicits business;
- substantial revenue from goods or services used or consumed; or
- D expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or int’l commerce (must purposefully include NY)
- D’s ownership, use or possession of real property in NY
PERSONAL JURISDICTION:
What is the method for serving process outside of NY?
Same method for serving process in and out of NY
PERSONAL JURISDICTION:
Can decendent’s estate be served outside of NY?
Yes, if ∆ dies, decedent’s estate rep can be served outside NY
PERSONAL JURISDICTION:
Does vicarious liability apply?
Yes, vicarious liability applies (i.e. agents & employer can be liable)
PERSONAL JURISDICTION:
What does it cover?
Covers all types of Ds
PERSONAL JURISDICTION:
WHEN IS DUE PROCESS SATISFIED?
For long arm jurisdiction, due process is satisfied if:
the P’s claim arises out of conduct by D that is so purposefully directed toward NY that the D should reasonably anticipate being sued in NY.
PERSONAL JURISDICTION:
APPROACH TO AN ESSAY QUESTION.
PJ Essay Question Approach:
- o 1st – discuss if P can estab. general personal jurisdiction
- o 2nd – discuss where facts of P’s case fall w/in 1 or more of the long-arm categories.
- o 3rd – briefly discuss whether assertion of jurisdiction would satisfy due process
PERSONAL JURISDICTION:
What is consent?
Voluntarily appearing in court, OR
When parties to a contract consent in advance (usually in “forum selection clause”) to personal jurisdiction in NY.
• Enforceable unless fraud, overreaching or unreasonableness.
PERSONAL JURISDICTION:
What is the non-resident motorist statute?
personal jurisdiction over nondomiciliary motorist’s ownership or use of a car on a NY roadway
Service of process – personally serve 1 copy on NY Sec. of State PLUS mail 2nd copy by certified mail to D
➩ must have permission from owner
MATRIMONIAL JURISDICTION:
How can a resident P gain personal jurisdiction over D in a matrimonial action?
When P-spouse is a resident of NY, long-arm jurisdiction can be acquired over D-spouse for Monetary Support(maintenance) if:
D is served in NY
D is NY domiciliary (served anywhere)
was their matrimonial domicile before separation
D abandoned P in NY
D owed P money under an agrmt executed in NY (e.g. separation agrmt)
D owed P money “under the laws of NY”
MATRIMONIAL LONG-ARM:
What is necessary for a valid basis of jurisdiction in a matrimonial action?
Must be in Supreme Court
P must be a domiciliary (means marital status is located in NY & gives court in rem jurisdiction)
Do not need personal jurisdiction unless P is seeking monetary support.
Compliance w/ Durational Residency Requirements
Serve process personally; all other methods require ct. order.
MATRIMONIAL “JURISDICTION”:
Durational Residency Requirements Generally.
Part of the substance of a matrimonial action – NOT an element of the court’s jurisdiction.
Purpose – ensure NY has sufficient interest to adjudicate the marital status of the spouses.
Must allege & prove in complaint.
o If P fails to allege & prove in complaint, the proper defense is failure to state a cause of action (not lack of jurisdiction b/c this is substantive).
MATRIMONIAL “JURISDICTION”
What are the Durational Residency Requirements.
P’s complaint must allege satisfaction of:
BOTH parties are (i) NY RESIDENTS (ii) At The **TIME **the (iii) Action is Commenced, AND the (iv) GROUNDS for the action (v) Arose in NY.
EITHER party is a resident of NY for 1 year or more immediately prior to the action AND NY has a PRIOR LINK to the marriage. (e.g. married in NY, NY was matrimonial domicile, grounds for action arose in NY)
EITHER party has been a NY resident for a continuous period of at least 2 years immediately prior to action.
VENUE
What is proper venue?
Action affecting title/possession to real property – county where Real Property located
Any other action – county of residency of one of the parties at time action is commenced
If neither party resides in NY – any county
VENUE
How is venue determined?
- _P choose_s venue & specifies it in summons.
- If venue is improper, D must serve a demand w/ or before the answer on P.
- If P concedes: automatic change
- P objects or fails to respond:
- D must move for Change of Venue –
- Must be granted as a matter of rt. (1) if P chose improper venue & (2) D chose proper venue.
- EITHER party, by motion, may request change of venue to a county most convenient for Ws
ANSWER
What should be in the answer?
- Denials of allegations (failure to deny is an admission)
- Affirmative defenses (failure to raise is a waiver)
- Can also include counterclaims or cross claims.
MOTION TO DISMISS
What are additional affirmative defenses that may be included?
SPARE RIBS
- Statute of Limitations
- Payment (debt has been paid)
- Arbitration award
- Res judicata
- Estoppel (collateral)
- Release (D signed one before)
- Infancy of D (K defense)
- Bankruptcy discharge
- Statute of Frauds
MOTION TO DISMISS
What are affirmative defenses that may be included?
DOWNFALL
- Documentary evidence (e.g. mortgage, deed of trust)
- Other pending action (same parties, same COA)
- Want of capacity
- Non-joinder of nec. party (joint owners)
- Failure to state a COA (substantive)
- Add’l Affirmative Defenses
- Lack of Subject Matter Jurisdiction
-
Lack of Personal Jurisdiction
- commencement defects
- improper service
- lack of basic jurisdiction
MOTION TO DISMISS
Timing & Procedural Aspects?
- May only make 1 pre-Answer MTD.
- Must make before service of Answer.
- W/t same time constraints governing Answer.
- Motion denied → must serve Answer w/in 10 days.
- MTD on any grounds does not preclude raising other 3211 grounds in Answer EXCEPT lack of personal jurisdiction.
Note: always RAISE lack of personal jurisdiction** IN** the First Reply or–> it’s Waived.
MOTION TO DISMISS
What is the standard used for failure to state a cause of action?
Standard for Failure to State a Cause of Action:
“The P is entitled to every favorable inference that can be drawn from the allegations of the complaint and therefore this motion must be denied if there is any basis for relief under the substantive law.”
➩ TIP – when discussing whether a Motion to Dismiss should be granted for this reason, make sure to talk about the substantive law too.
PERSONAL JURISDICTION
What are 3 defenses that are never waived?
Defenses that can be raised at Any Time:
Non-Joinder of a Necessary Party
Failure to State a COA
Lack of Subject Matter Jurisdiction
PERSONAL JURISDICTION
How can the D preserve the defense of lack of personal jurisdiction?
2 Ways:
- affirmative defense in Motion to Dismiss
- do not make a Motion to Dismiss on any ground and raise it as affirmative defense in the Answer
- AND, if the lack of PJ defense is based on Improper Service of Process –
- Make a follow-up motion for summary judgment on that ground w/in 60 Days after serving the answer (or it is waived)
AMENDMENTS TO PLEADINGS
Party Rights? Time Limit? Inclusion of Defenses?
- Each party can amend 1 time, as a Matter of Right.
- Time limit – w/in 20 days of service of Answer.
- Can put anything that could have been put in the original.
- This means D can assert lack of personal jurisdiction in the Amended Complaint (as long as he did not make a Motion to Dismiss before).
SUMMONS WITH NOTICE
How does D respond to summons w/ notice?
D’s goals are to avoid default & force P to serve the complaint so…
Serve a demand for the Complaint, or
Serve a notice of appearance
• Same time constraints as serving Answer
P must then serve the complaint w/in 20 days
D then must serve the Answer or MTD w/in 20 days (can still object to PJ)
If P does not serve the Complaint w/in the 20 days, D can move for dismissal on the basis of noncompliance (i.e. failure to prosecute the claim)
• To avoid dismissal, P would have to show there was reasonable excuse for the delay and make an evidentiary showing that there is merit to his claim in Affidavit of Merit.
IMPLEADER
Definition and Timing?
- Procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P.
- D may implead 3rd party any time AFTER D serves the Answer.
AMENDMENTS TO PLEADINGS
What is a Motion for Leave to Amend?
Either party can request the right to amend if:
As a matter of right amendment has passed, or
The party has already used his right to amend once
Standard: amendment allowed as long as n_o incurable prejudice_ to opponent
- o To estab. prejudice – opponent has burden of showing that b/c of the delay in amending, the P has suffered a detrimental change in position (e.g. key W died, key docs destroyed)
IMPLEADER
What happens after a TPD is impleaded?
TPD must serve an Answer on D, P & all other parties.
After TPD joined, P can amend her complaint to assert complaints directly against TPD.
- w/in 20 days – w/o judicial permission
- after 20 days – needs permission
➩New claims by P “relate back” to date D filed impleader papers as long as based on same transaction or occurrence as D’s impleader claim
CONTRIBUTION
What is contribution & what is its purpose?
Contribution: the sharing or apportionment of loss among multiple tortfeasors (who are actually part of the tort or aggravated the damages).
Exceptions:
- CPLR Article 16
- MBE – not available when liability is based on an intentional tort
Purpose – mitigate the harshness of joint & several liability
INDEMNITY
What is indemnity & how can it be asserted?
_Indemnity: _ Allows D to shift 100% of the responsibility or damages to another party.
Can be accomplished:
- o By K (e.g. sub-contractor)
- o Implied in Law
- Products Liability – manufacturer must indemnify retailer
- Vicarious liability – driver indemnifies owner of car
Settlement does NOT extinguish claims for indemnity by or against a settling tortfeasor
CONTRIBUTION & INDEMNITY
How can D assert a claim of contribution or indemnity?
Tortfeasors already co-Ds → Crossclaim
Tortfeasors not part of suit → implead or sue in a separate action
➩ If D sues outside tortfeasors in a separate action, the findings of liability in the 1st action are not binding on 2nd action. Collateral estoppel & res judicata cannot be used against tortfeasors who were not joined as D’s in 1st action.
CONTRIBUTION
What is joint & several liability?
Each tortfeasor is liable to P for the whole amount of damages regardless of the individual tortfeasor’s percentage of fault.
CONTRIBUTION
Comparative Degrees of Fault formula.
Comparative Degrees of Fault:
- Each tortfeasor is liable for his actual fault.
- Each D cannot be compelled to pay more than his own equitable share by another tortfeasor.
- P can force one tortfeasor to pay the entire amount of damages if the others are insolvent.
CONTRIBUTION
Equal Shares Formula.
Equal Shares Formula (MINORITY VIEW):
- All liable tortfeasors pay an equal share of the damages.
➩TIP: only on MBE – will say “in an equal share jurisdiction”
CONTRIBUTION
What is an exception to contribution?
Workers Compensation → may not sue employer if you are injured on the job.
Injured P may sue other 3rd party tortfeasor, such as manufacturer of machine used, etc.
D may not implead the employer for contribution UNLESS it was a grave injury.
Grave injury:
- • Death
- • Total loss of arm, leg. hand, foot, ear, nose, index finger
- • Total loss of multiple fingers or toes
- • Paraplegia, quadraplegia
- • Total blindness or deafness
- • Sever facial disfigurement
- • Brain damage causing total disability
CONTRIBUTION
What is the liability of TPD who has no direct liability to Plaintiff?
TPD who is not directly liable to P may still be liable to D.
Example: Manufacturer of smoke alarm, fire protection service. Fire protection service not liable to P b/c of clause in K but manufacturer-D can still implead him for aggravating the damages.
➩So contribution can be broader than liability.
CONTRIBUTION
Settlement with one Tortfeasor.
Rule: P’s pretrial settlement w/ 1 tortfeasor in partial satisfaction of the claim does not discharge P’s claim against other tortfeasors.
Law prohibits excessive recovery so P can only collect up to total amount of damages.
Any damages awarded must be reduced by the LARGER of:
- • the amount of settlement, or
- • the settling tortfeasor’s equitable share of fault
- o E.g. P settles w/ A for $30k. P wins $100k in trial. Ct. says A 10% liable & B 90%. B only owes $70k. If A 40% liable, P could only collect $60k from B.
➩ Pre-trial settlement extinguishes claims by & against settling party.
CONTRIBUTION
Successive Tortfeasors.
Rule: tortfeasor is liable to P for all injuries that proximately flow from the accident but he may claim contribution from a successive tortfeasor.
E.g. subsequent malpractice by a doctor who negligently treats P.
NY CPLR ARTICLE 16
What are the exclusions from Article 16?
Exceptions from Article 16 (i.e. tortfeasors always liable for J&S liability):
Intentional tortfeasors or those who act w/ reckless disregard.
o If multiple tortfeasors - only intentional ones are J&S liable.
Tortfeasors who release hazardous substance into the environment.
Drivers & owners of cars except police or fire cars.
- Note: police officer driving vehicle also gets benefit of Article 16
NY CPLR ART. 16
Rule and Treatment of Damages?
Rule: in a personal injury claim a joint tortfeasor whose fault is found to be 50% or less Cannot Be Required to Pay the P more than his equitable share of the P’s noneconomic damages.
- Noneconomic damages – paint & suffering, mental anguish, loss of consortium, loss of companionship (but NOT wrongful death)
-
Economic damages – all tortfeasors are J&S liable for full judgment
- e.g. medical expenses, lost income
- Ex: P sues A & B. A = 60% liable & B = 40% liable. A is J&S liable for all of the damages but B is only liable up to $40k.
*
*MOTION PROCEDURE
Why is an order to show cause used instead of a notice of motion?
An order to show cause is an accelerated Motion on Notice.
- accelerates the return date (used in exigent circumstances)
- judge can grant an immediate stay of the proceedings or a temporary restraining order
- statute which governs the particular motion may require it
- can also be used in a special proceeding
*MOTION PROCEDURE
What is the process and what is required of each side? End Result?
- Moving party serves Notice of Motion & supporting affidavits on other party
- Tells opponent nature of motion & specifies return date/hearing date, which is day motion is presented to court
- Opponent must get motion papers at least 8 days prior to the return date
- Both sides file papers w/ court by return date
- Court then makes a decision & issues an order
*MOTION PROCEDURE
Deciding Order
Winning party serves a copy of the order on the losing party.
Service gives effect to the order.
Service starts the running of a 30-day time limit to appeal from the order.
*MOTION PROCEDURE
Order to Show Cause
Moving party drafts order to show cause & submits it directly to the judge along w/ affidavits for the underlying motion.
Judge sets the return date in the order & specify the method of service on the adversary (usually personal delivery).
➩Ex: Proposed order to show cause is signed by the judge on May 1, 2008, and it states, “Let D show cause on May 5, 2008 why an order should not be granted requiring D to produce docs x, y, & z.” After the order is signed, the order & the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.
*MOTION PROCEDURE
Ex parte.
Moving party goes straight to court & requests an order granting the relief sought.
Need specific statutory authorization.
- e.g. order for expedient service of process, P seeks extension of time to serve process
No appeal may be taken from an ex parte order (but can make a motion on notice to vacate the ex parte order & if this is denied the aggrieved party can appeal from the denial).
*MOTION PROCEDURE
NY Rule on Appeals of Orders
NY allows an immediate appeal of an order from the Supreme Court to the Appellate Division as a matter of right w/in 30 days of service of any order determining a motion on notice.
- e.g. order denying change of venue or change of jurisdiction
MBE – CANNOT appeal immediate orders until final judgment entered
➩ NY bar loves this
MOTION FOR SUMMARY JUDGMENT
Evidence used to decide Motion for SJ.
Moving party must submit evidence in the form of affidavits, relevant docs or discovery materials. Must come from party himself or W – personal knowledge.
Opponent can defeat motion using same type of evidence to show material issue of triable fact exists.
Opponent can also submit affidavit est. that he is not yet able, through no fault of his own, to produce opposing evidence. Court can grant a continuance (adjournment).
Court “searches the record” (i.e. looks at all the evidence in the record).
- • “Boomerang Effect” – court can grant opposing party SJ even w/o a cross-claim
MOTION FOR SUMMARY JUDGMENT
Rule? Outcome? Time Limit?
-
Rule: party may show, before trial. that even thought the pleadings are sufficient on their face “there is no genuine issue of material fact requiring trial”
- If motion is denied it means that triable issue of material fact exists EXCEPT if the only issue is as to damages, ct. can grant SJ on liability & then order an immediate trial on the issue of damages.
- After Answer served, EITHER party can move for SJ w/ respect to any claim or defense asserted in the pleadings
- Time limit: 120 days from the notice of issue (i.e. cases is marked on trial calendar) unless moving party shows “good cause.”
PROVISIONAL REMEDIES
Provide what? Relation to Essays?
- Provide P a measure of security pending the outcome of the case so that ultimately the judgment may be enforced.
- TIP – type of action & grounds for using remedy tested
- TIP – court order required so motion procedure pervades this area
MOTION FOR SUMMARY JUDGMENT
What are the exceptions to serving the Motion for SJ after the Answer?
Court converts Motion to Dismiss for failure to state a COA into Motion for SJ (this allows fro decision on basis of evidence instead of just on pleadings)
- 2 Reqs – at least 1 party submitted factual affidavits & ct. gives notice to parties so they can submit add’l evidence
Motion for SJ in Lieu of Complaint
- o Action on an instrument for the payment of money only – instrument must contain uncond’l promise to pay $$
- very few docs count – e.g. promissory note
- cannot use this for ordinary breach of K
- o Action on an out-of-state judgment
PROVISIONAL REMEDIES
Attachment - What it provides and Types?
- Provides security for the enforcement of a money judgment.
-
Types of actions: P must be seeking money damages AND:
- D is an unlicensed foreign corp. or a non-domiciliary of NY; or
- D is about to conceal or remove assets from NY w/ the intent to defraud creditors or frustrate the enforcement of a judgment
➩okay to seek equity damages too, just must have $$
PROVISIONAL REMEDIES
What are the 5 provisional remedies?
Provisional Remedies
Attachment
Preliminary Injunction
Temporary Receivership
Order to Seize to Chattel in an action to recover the chattel (replevin)
Notice of Pendency (lis pendens)
