CPLR (NY Practice and Procedure) Flashcards Preview

NYS Bar > CPLR (NY Practice and Procedure) > Flashcards

Flashcards in CPLR (NY Practice and Procedure) Deck (106):
1

Supreme Court's exclusive original jurisdiction

(1) matrimonial actions
(2) Article 78 proceedings (actions of state or local government officials/agencies + corporations)
(3) Declaratory judgment actions

2

Supreme Court lacks jurisdiction over...

Claims against NY state (heard by court of claims)

3

County court jurisdiction

Hears civil actions for money damages that:
(1) are $25,000 or LESS AND
(2) At commencement of action, (a) each ∆ resides in the county OR (b) has business office in the county and the claim arose in the county,
If case involves real property in the county, jurisdiction exists regardless of the amount in controversy.

4

New York City Civil Court

Like county court, jurisdiction limited to claims of $25,000 or less.
May also hear:
(1) action to recover money
(2) replevin actions
(3) real property actions
(4) declaratory judgments against insurer or arbitration awards
(5) rescission and reformation of a contract.

5

Family court original jurisdiction

(1) Family matters (except matrimonial actions for separation, divorce and annulment. These are in Supreme Court.)
(2) adoption and guardianship (shared with surrogate's court)

6

Surrogate court's original jurisdiction

(1) All matters concerning decedent's estates
(2) adoption and guardianship proceedings (shared with family court)

7

District courts

In Nassau and Suffolk counties only.
Claims for $15,000 or less. Otherwise similar to NYC Civil Court.

8

City Courts

In each of the 61 cities in NY.
Hears claims of $15,000 or less. Otherwise like NYC Civil Court.

9

Town and Village Courts / Justice Courts

In towns and villages.
Hears claims of $3,000 or less.

10

Small Claims Jurisdiction

Amount not exceeding $5,000. Informal and simplified procedures apply in small claims actions. Rules of evidence do not apply. Waives jury trial.

11

Court of Claims

Has jurisdiction over tort and contract claims against the State of New York or state agencies.

12

Appellate Terms of the Supreme Court

Appeals by NYC Civil Court is heard by the appellate terms, which exist only in the First and Second Judicial Departments.

13

NY Court Subject Matter Jurisdiction

Supreme Court = general subject matter jurisdiction. From NY constitution, so legislature cannot restrict it.
All other NY courts = limited subject matter jurisdiction

14

Court of Appeals

Highest court in NY state. Review confined to questions of law, not fact.
Only original jurisdiction: (1) attorney supervision and discipline, and (2) other limited areas

15

Removal among NY courts

If improper = File motion in Supreme Court to remove the action. Supreme Court can remove the action on such terms that are "just."
To higher court = removal filed in a court with adequate jurisdiction to grant relief. Court may remove action to itself.
To lower court = Lower court can remove with consent of all parties OR pursuant to a appellate division rule.
Waiver of jury right is inoperative in removal to higher or lower court.

16

General Personal Jurisdiction

Court can entertain any action against that person. Based on:
(1) domicile in NY
(2) physically present in NY (cannot fraudulently entice someone to come to NY)
(3) statutory consent (for authorized corporations) Serve the NY Secretary of State
(4) "doing business" in NY / more than one transaction (for unauthorized corporations). Soliciting business and sales or manufacturing is NOT enough.

17

Specific Personal Jurisdiction

Can entertain action only when there is (1) a sufficient connection to NY and (2) the action "arises out of" that connection. Based on:
(1) Express consent / Forum selection clauses
(2) Statutory consent (e.g., nonresident drivers)
(3) Long-arm jurisdiction

18

Due Process requirements for personal jurisdiction

(1) notice
(2) opportunity to be heard
(3) if ∆ is non-domiciliary, (a) minimum contracts AND (b) case must "arise out of" those contacts.

19

NY Long-arm jurisdiction (for specific jurisdiction)

(1) Transaction of any business in NY (single act counts)
(2) Entry into contract to supply goods or services in NY
(3) Ownership, use, possession of real property in NY
(4) Commission of tortious act within NY
(5) Commission of Tortious act outside NY if causes injury in NY and ∆:
(a) Regularly does/solicits business in NY
(b) engages in persistent course of conduct in NY
(c) derives substantial revenue from NY
Defamation exception: defamation cannot be used for this prong.
(6) Estate of someone over whom NY would have had jurisdiction

20

20-year SoLs

(1) suit by the state to recover real property
(2) support, alimony, maintenance
(3) principle or interest on bonds
(4) enforce a money judgment

21

10-year SoLs

(1) recovery of real property or its possession
(2) redeeming real property for a mortgage
(3) premises after state grant of real property is annulled due to fraud or mistake
(4) affidavit of support amounts paid to on behalf of an alien

22

6-year SoLs

(1) Default SoL if no other limitation applies
(2) Contracts (except contracts for sale of goods = 4 years)
(3) Action on sealed instrument
(4) Action on mortgage of real property or bond/note securing mortgage
(5) Contribution against joint tortfeasors
(6) Misappropriation or spoliation of public property
(7) Equity/Mistake
(8) Derivative action by/for corporation or LLC
(9) Fraud

23

SoLs for crime victim against convicted peretrator

Felony: within 10 years of conviction
Misdemeanor: within 7 years of conviction
Profits of crime: within 3 years of discovery of profits
First-degree rape, sexual assault, aggravated sexual abuse, or conduct against a child: within 5 years (whether or not ∆ is convicted)

24

5-year SoLs

Victim of first-degree rape, criminal sexual assault, aggravated sexual abuse, or conduct against a child, whether or not the perpetrator is convicted

25

4-year SoL

(1) Overcharge of residential rent
(2) breach of contract for sale of goods (all other contracts = 6 years)
(3) Breach of implied warranty for sale of a new home

26

3-year SoL

(1) Negligence
(2) Strict products liability
(3) damages for injury OR damage to property
(4) Annul marriages on ground of fraud
(5) professional malpractice (other than doctors, dentist, podiatrist)
(6) personal property injuries due to strict product liability
(7) sheriff, constable, or other officer for non-payment of funds collected on payment of judgment
(8) statutory liability, penalty, forfeiture
(9) recover chattel or damages

27

What professionals get special SoL for malpractice?

(1) Doctors
(2) Dentists
(3) Podiatrist
These three = two years, 6 months
All others = three years
If against hospital = 2year/6month for malpractice BUT 3-year for negligent hiring
Discovery of object in body = 1 year from discovery

28

2-year SoL

Wrongful death. If wrongful death results from crime, 1-year from termination of criminal prosecution

29

18-month SoL

Contract against village

30

1-year, 90-day SoL

Torts against municipalities
Other requirements:
(1) notice of claim filed within 90 days of accrual
(2) 30 days must pass after filing claim with no payment
(3) villages must be given written notice and reasonable time after receipt of notice before commencing action.
If wrongful death against municipality = still gets 2-year SoL

31

1-year SoL

(1) Intentional torts
(2) Action upon arbitration award
(3) enforcement of statutory penalty
(4) Against sherif, constable, coroner for official act or commission
(5) Against officer for escape of a prisoner arrested by civil mandate.
(6) Recover an overcharge of interest or penalty
(7) Retaliatory eviction
(8) Any action against a village not based on contract or tort

32

4-month SoL

Article 78 proceeding (mandamus actions against government officials). (But challenges to village, town, and city zoning and planning boards must be made within 30 days from date of the decision’s filing.)

33

Can parties change the SoL?

Shorten = Yes, by written agreement. Sale of goods contracts may reduce to no less than on year and may not extend.
Extended = Yes, by written agreement signed y the party against whom extension is sought IF agreement occurs AFTER accrual. No consideration needed.

34

Is SoL waiveable?

Yes. Waived by agreement or failing to timely raise it as a defense.

35

How to commence action (depends on court)

Most courts (supreme, city courts, etc.) = filing
Justice courts (town and village) = service of process

36

Interposing defenses and counterclaims

Interposed when a pleading containing the defense or counterclaim is served.
Deemed timely if it would have been timely the day the π commenced the action.

37

Amending a pleading / relation back

Can raise new claim if original pleading gave ∆ notice (∆ knew or should have known) of the events on which the new claim is based.

38

Two disabilities that toll SoL period

(1) infancy (under 18yo)
(2) insanity
After removal of disability:
If SoL is less than 3 years = π has full limitations period
If SoL is 3 years or more two things:
(1) if SoL has less than 3 years left = extended for 3 years
(2) if SoL has more than 3 years left = SoL is unaffected
10 year = maximum extension for insanity & infant medical malpractice only

39

∆ outside NY in SoL

SoL does not begin to run until ∆ returns to NY
If ∆ spends 4 months or more outside NY, SoL is tolled
Also tolled if ∆ is in NY under a false name.

40

How does a party's death affect SoL?

π dies = representative has 1 year to file an action OR within the usual SoL, whichever is longer
∆ dies = SoL is tolled for 18 months

41

How does adding a ∆ affect SOL?

If after SoL runs, amendment will relate back if :
(1) claims against both ∆s arise out of the same conduct/occurrence/transaction
(2) both ∆s are united in interest AND
(3) added ∆ knew or should have known that the action would have been brought against him but-for π's mistake

42

Borrowing statute

When claims that accrued out-of-state are brought by an out-of-state resident, claim is governed by BOTH the NY state SoL and other-state SoL

43

Statute of repose

Action must be brought within a specific time period

44

After filing, how long does π have to serve process?

Generally 120 days.
For Art. 78 proceeding = within 15 days of expiration of SoL (4 months)

45

Who can serve process?

Two requirements:
(1) 18yo or older
(2) not a party to the action

46

Ways to serve process on individual

(1) personally delivery
(2) leave and mail (leave a copy at business or dwelling + mail copy to last known residence within 20 days)
(3) nail and mail (nail to residence/business door + mail to last known residence/place of business within 20 days + must prove DUE DILIGENCE)
(4) service on designated agent

47

Ways to serve process on corporations

(1) personal service (officer, director, or agent)
(2) serve NY Secretary of State (two copies)
(3) Court-ordered service (if service within 120 days is show impracticable)

48

Ways to serve process on a general partnership

(1) Personal service on any partner
(2) leave and mail
(3) nail and mail
(4) service on agent
(5) court-ordered service (must try all other methods and hold ex parte hearing)

49

Ways to serve process on a limited partnership

(1) personally delivery to managing or general partner
(2) serve other authorized agent or employee
(3) serve designated outside agent
(4) serve on NY Secretary of State
(5) if all else fails, court-ordered service

50

Ways to serve process on a unincorporated association

(1) personally serve treasurer or president (must sue in their name)

51

Ways to serve process on a LLC

(1) serve any member or manager vested with management duties OR
(2) serve any other person or agent designated to receive process
(3) if impracticable, court ordered service
(4) NY Secretary of State

52

Service by First Class Mail

Can serve by first class mail with acknowledgment receipt form. ∆ must complete and return the form within 30 days.
Service complete on the day the acknowledgment is mailed back. ∆ has 20 days from then to file an answer.

If ∆ refuses to mail back acknowledgment, π must serve by alternative mean.

53

Service outside NY

Service can be made by
(1) any person authorized under NY law
(2) any person authorized in that jurisdiction
(3) any attorney, barrister, or equivalent in a foreign jurisdiction

54

Service by Publication

Must include:
(1) notice
(2) brief statement of the action
(3) relief sought (including amount of damages)
Must be published once in each of 4 successive weeks
Must appear in two newspapers, at least one of which is English

55

Types of proof of service

If by sheriff/officer = certificate
If by another person = affidavit
If by mail = signed acknowledgment

56

Proper Venues

If real state (local action) = county where real estate is.
Otherwise (Transitory action):
(1) Any county in which one party resides
(2) if two out-of-state parties, any county in NY is proper

57

Forum non conveniens

Forum is proper but inconvenient. Remedy = dismissal
Factors:
(1) burden on the court
(2) burden on the ∆
(3) location of witnesses/evidence
(4) availability of adequate alternative forum
(5) improper motive
(6) π's choice given weight (must show compelling reason to disregard)

58

Types of provisional remedies

(1) Temporary injunction / preliminary injunction
(2) Temporary restraining order (TRO)
(3) order of attachment
(4) order of seizure of chattel
(5) receivership
(6) notice of pendency

59

Preliminary injunction factors

(1) likelihood of success on the merits
(2) irreparable harm (lack of remedy at law)
(3) balance of equities favors movant
Movant must generally post an "undertaking" / bond

60

Temporary Restraining Order (TRO) factors

(1) immediate and
(2) irreparable injury
Can get ex parte if shows that notice will cause significant prejudice.
Undertaking not required, but court has discretion to require one.

61

Attachment requirements

π must show likelihood of success for money damages AND ONE OF THE FOLLOWING:
(1) ∆ is non-domiciliary / non-resident
(2) ∆ is unauthorized foreign corp.
(3) ∆ cannot be served personally
(4) ∆ has assigned/disposed of/encumbered/concealed property with intent to defraud or frustrate
(5) action is brought by victim of a crime
(6) cause of action is based on judgment, decree, or order
Minimum undertaking = $500
Sheriff levies upon the property.

62

Notice of pendency

Used in action that affects title/possession of real property. Gives constructive notice to a potential purchaser of the property that there is a proceeding involving it.
Effective for 3 years. Court may extend for another 3 years.

63

Motion service rules

8-2 Rule: Notice must be served at least 8 days before hearing, answer served 2 days before hearing
16-7-1 Rule: If want reply, serve 16 days before, answer 7 days before, reply 1 day before.

If service by mail: 5 days added to all requirements. If overnight mail, 2 days.

64

Motion to reargue

Based on matters of fact or law overlooked. Must be made within 30 days of service of prior order

65

Motion to Renew

New facts not in motion or change in the law.

66

Motion to Vacate, Modify, or Resettle

Requests that court withdraw/modify/correct errors in a court order.

67

Stay Order

temporarily preserves the status quo

68

Motion to dismiss

Non-waiveable reasons:
(1) Lack of subject matter jurisdiction
(2) failure to state a cause of action
(3) Failure to join a necessary party

Waiveable reasons:
1) Documentary evidence
2) Lack of capacity
3) Pending action
4) Affirmative defenses
5) Improper counter-claim
etc.

69

Summary judgment

Standard: No material and triable issues of fact presented, and movant is entitled to judgment as a matter of law.
Burden shifting approach
Relies on evidence (or lack thereof)

Motion for SJ in lieu of complaint = only when action is a lawsuit for payment of money on prior judgment

70

What is the joinder of necessary party standard?

A party who ought to be joined if complete relief is to be accorded to the parties OR who might be inequitably affected by the judgment.
Failure to join = dismissal without prejudice OR proceed with action.

71

What is the joinder of permissive joinder of party standard?

Can join permissive party if:
(1) a single event or related series of events involved all the parties AND
(2) at least one question of law or fact links the parties

72

Permissive joinder of claims

Can join all claims between same π and ∆

73

Adding / Dropping parties

Add:
(1) by leave of court
(2) by stipulation of all parties
Drop: by court motion OR on party's own initiative at any time.

74

Class action requirements

(1) Numerocity
(2) Predominance of common questions of law or fact
(3) Typicality of representative's claims
(4) Representative can fairly and adequately protect interests of class
(5) Class action is superior to all other methods.

75

Impleader (third party practice)

∆ can join third-party ∆ if that party is liable to the original π for all or part of claim. Typically for (1) contribution, (2) indemnification, or (3) subrogation.

∆ can freely implead third parties at any time after serving an answer.

76

Contribution

Used for joint and several tortfeasers.
Tortfeaser who settles is NOT entitled to contribution.
Contribution is NOT available in contract actions. Only tort.

NY joint-liability limit: If tortfeaser is 50% or less at fault, only severally liable for non-economic loss. Exceptions:
(1) Motor vehicle accidents;
(2) Intentional or reckless torts;
(3) Non-delegable duties;
(4) Respondeat superior;
(5) Indemnification based on a pre-injury written contract;
(6) Workers' compensation claims;
(7) Environmentally hazardous substance torts; and
(8) Product liability actions when the manufacturer is not subject to personal jurisdiction in New York.
Can modify contribution rules. Workers' compensation follows different rules.

77

Indemnification

Express = by contract
Implied = any time there is vicarious liability

78

Interpleader

Person holding money/property ("stakeholder") starts interpleader action to resolve all claims to the thing at once.

79

Intervention

Nonparty seeks to become an additional π or ∆
Intervention as of right:
(1) statute confers absolute right to intervene
(2) representation of nonparty's interests may be inadequate AND nonparty may be bound by the judgment
(3) action involves property AND nonparty may be adversely affected by judgment.
Permissive intervention:
(1) court's discretion
(2) common questions of law or fact with those in the action
(3) court must consider whether intervention will unduly delay the action

80

Counterclaim

Claim that ∆ asserts against π. Need NOT be part of same transaction or occurrence. Can be unrelated.

81

Cross-claim

Claim of π against π OR ∆ against ∆.

82

Scope of Disclosure

Any mater that is material and necessary to prosecution or defense.

83

Attorney work product

Protects any item prepared with a view toward litigation. Mental impressions of attorneys.
Exceptions: party has (1) substantial need for materials and (2) is unable to obtain them without undue hardship

84

Jury trial procedures

Party must demand jury trial by filing a "note of issue." Any party served with a note of issue that does not demand jury trial can demand one within 15 days. If no demand is made, jury right is waived.

Jury of 6 people in civil actions.

85

Juror Challenges

3 peremptory challenges
For cause grounds:
(1) personal relationship between juror and party
(2) consanguinity
(3) affinity
(4) business relationship
SoL: If blood of marriage, party must object before case is opened. Any other party must object within 6 months after the verdict.

86

Arbitration

NY public policy favors arbitration

To preserve right to litigate, file stay of arbitration within 20 day of service of arbitration notice.

87

Must file for appeal within what time period?

20 days

88

Appeals to Court of Appeals

Appeal by right
(1) dissent by two or more justices of the appellate division on a question of law
(2) constitutional and statutory issues
(3) from a court order
(4) based upon a non-final determination of an appellate division decision
Appeal by permission:
(1) permission of appellate division
(2) permission by court of appeals
(3) direct application (cert)

89

Appeals to Appellate Division

Appeal by right: Any order of the supreme court or county court.
Not appealable by right:
(1) Art 78 proceedings
(2) motion for more definite statements
(3) scandalous or prejudicial material in pleading
(4) denial of motions for leave to reargue

90

Pleadings that must be verified

Complaints:
(1) matrimonial actions
(2) schedule of goods and services
(3) petition for Art. 78 proceeding
(4) recover possession of real property
Answer:
(1) in response to verified complaint
(2) if the complaint alleges common-law fraud
(3) against corporation for non-payment of promissory note
(4) answer does not involve the merits

91

Bill of particulars

Pleading that provides greater detail of a claim or defense than a prior pleading
Only requested of parties with burden of persuasion (usually not ∆)

92

Neglect by π

A π who unreasonably neglects the proceedings or fails to serve and file notice. Remedy is dismissal (NOT on the merits).
Requires: 1 year elapsed since joinder and ∆ served written demand on π to resume action within 90 days.
π can salvage case by showing justifiable excuse for the delay AND good cause of action.

93

Relief from default judgment

Court can relief party of default judgment if party shows:
(1) underlying substantive claim has merit
(2) reasonable excuse for failing to appear.

94

What is the effect of a tolling of the statute of limitations period?

Depends on the length of the SoL:
Less than 3 years = When disability removed, person has the full period to bring an action
3 years or more = If less than three years left to run when disability removed, limitation period extended for three years. If three years or more left to run, limitation is unaffected
10 year max = When the disability is insanity, the limitation period is not extended by the tolling provision beyond ten years after accrual. For infants, there is only a 10-year maximum for medical, dental, or podiatric malpractice claims.

95

When evaluating a statute of limitations, what do you look at to determine what limitation applies?

Remedy. NOT the theory of liability.

96

Who can be sued in an Article 78 proceeding?

State and local government AND coprorations

97

What are the only theories that can be raised in an Article 78 proceeding?

(1) failure to perform a duty
(2) proceeded without jurisdiction
(3) decision violates lawful procedure, was in error, arbitrary or capricious, or an abuse of discretion
(4) decision not supported by substantial evidence

98

When are Article 78 proceedings not available?

(1) decision is not final
(2) decision in civil action or criminal case, UNLESS it is an order summarily punishing a contempt.
(3) Cannot challenge legislative acts

99

If a party files a notice of appeal, but makes a mistake regarding notice, should the appeal be dismissed?

No. If an appellant timely files a notice of appeal, but neglects through mistake or excusable neglect to do another required act within the time limit, the appellate division has discretion to grant an extension to cure the omission.

100

What is a "writ of prohibition"?

Writs of prohibition address whether a body or officer proceeded without or in excess of jurisdiction.

101

What is a "notice of issue"?

An attorney's certification that all preliminary work on the case has been concluded and that the case is trial ready.

102

What is the time limit for a summary judgment motion?

120 days after notice of issue is filed.

103

What is joinder?

Joining parties to a case

104

What is consolidation?

Joining matters into a single case. A single judgment is rendered and all costs are entered on a single bill.

105

What is the standard for severance of claims or separate trials?

For convenience or to avoid prejudice.

106

When can a party by added to a case?

(1) anytime by leave of court
(2) anytime by stipulation of all parties
(3) once without leave if (i) within 20 days of service of original summons; (ii) before the period for responding to the summons expires; OR (iii) within 20 days after service of responsive pleading.