CPLR (NY Practice and Procedure) Flashcards

Question

4-year SoL

Answer 1

(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

Answer 2

(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

Answer 3

(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

Answer 4

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

Answer 5

Contract against village

Answer 6

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

Answer 7

(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

Answer 8

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.)

Answer 9

``` 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. ```

Answer 10

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

Answer 11

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

Answer 12

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.

Answer 13

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

Answer 14

(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

Answer 15

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.

Answer 16

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

Answer 17

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

Answer 18

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

Answer 19

Action must be brought within a specific time period

Answer 20

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

Answer 21

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

Answer 22

(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

Answer 23

(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)

Answer 24

(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)

Answer 25

(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

Answer 26

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

Answer 27

(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

Answer 28

``` 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.

Answer 29

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

Answer 30

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

Answer 31

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

Answer 32

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

Answer 33

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)

Answer 34

(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

Answer 35

(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

Answer 36

(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.

Answer 37

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.

Answer 38

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.

Answer 39

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.

Answer 40

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

Answer 41

New facts not in motion or change in the law.

Answer 42

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

Answer 43

temporarily preserves the status quo

Answer 44

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. ```

Answer 45

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

Answer 46

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.

Answer 47

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

Answer 48

Can join all claims between same π and ∆

Answer 49

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.

Answer 50

(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.

Answer 51

∆ 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.

Answer 52

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.

Answer 53

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

Answer 54

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

Answer 55

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

Answer 56

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

Answer 57

Claim of π against π OR ∆ against ∆.

Answer 58

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

Answer 59

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

Answer 60

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.

Answer 61

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.

Answer 62

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

Answer 63

``` 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) ```

Answer 64

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

Answer 65

``` 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 ```

Answer 66

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

Answer 67

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.

Answer 68

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

Answer 69

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.

Answer 70

Remedy. NOT the theory of liability.

Answer 71

State and local government AND coprorations

Answer 72

(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

Answer 73

(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

Answer 74

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.

Answer 75

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

Answer 76

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

Answer 77

120 days after notice of issue is filed.

Answer 78

Joining parties to a case

Answer 79

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

Answer 80

For convenience or to avoid prejudice.

Answer 81

(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.

CPLR (NY Practice and Procedure) Flashcards

(106 cards)