New York Practice Flashcards
(100 cards)
1
Q
Subject Matter Jurisdiction
of the New York Supreme Court
A
**SMJ **= authority to grant relief sought; not waivable by any party.
NYSC = Court of general jursdiction with unlimited power to hear any type of claim and grant all forms of relief, except:
- Exclusive Federal Jurisdiction (Cases for which federal jurisdiction is exclusive, such as bankruptcy, patents, copyrights, etc.).
- Claims for MONEY DAMAGES on tort/contrat claims AGAINST THE STATE* (Must be brought only in the New York Court of Claims. The only defendant that can be sued in Court of Claims is the State of New York.
- **State of NY does not include municipalities or state employees. **
2
Q
Forum Non Conveniens
A
** Defendant must make a motion; **court has discretion to dismiss on grounds of forum non conveniens if action lacks substantial nexus to New York.
3
Q
Exclusive SMJ of NYSC
A
**The following actions can only be brought in the NYSC: **
- **Matrimonial Actions **(divorce, annulment, separation, declaration of validity)
- CPLR Art. 78 Proceedings (judicial review of NY state and local gov’t administrative action)
- Declaratory Judgment Action (judicial declaration of the rights and obligations of parties to an actual controversy before engaging in conduct that could cause liability).
4
Q
Statute of Limitations
(generally)
A
- Affirmative defense to be raised by defendant;
- SOL (w/ exceptions) begins to run when the cause of action accrues (generally, the date of injury, not discovery of injury);
- Action commences with filing of process (summons & complaint or summons with notice) no later than last day of SOL);
- To compute SOL, exclude the day upon which the triggering event occurs. If the last day was a Sunday, Saturday, or public holidy, the plaintiff gets until Monday/next business day.
- **Parties can agree to shorten or extend time for bringing an action by written agreement; part payment, acknowledgement, or promise to pay an obligation starts the start anew from such promise. **
5
Q
SOL:
Personal Injury / Property Damage
A
Three years from date of injury
6
Q
SOL:
Breach of Contract
A
**Six years from date of breach **
(see exception for professionals)
7
Q
SOL -
Medical Malpractice
A
Applies to suits against doctors/ dentists/ nurses/ hospitals for breach of duty of professional medical care.
**SOL = 2.5 years from date of malpractice **
**Except: **
- **Negligent hiring/retention of medical professional **(ordinary tort, 3 years)
- Continuous treatment **for same medical condition **(2.5 years from end of continuous treatment)
- **Foreign object rule **(the longer of 2.5 years from operation or 1 year after plaintiff discovered/should have discovered the object with reasonable diligence)
- Not applicable to chemical substances (e.g., medicine); prostheses; other fixation devices intended to stay; or anything the doctor wasn’t responsible for putting there.
4. If Doctor knowingly hides his malpractice and P reasonably relies on doctor, doctor may be estopped from pleading SOL.
8
Q
SOL -
Non-Medical Professional Malpractice
A
Claims for economic injury against members of a “learned profession” (lawyer, architect, engineer, accountant, but **not **insurance broker, security analyst, plumber):
Exclusive 3 year SOL for torts, breach of contract with period beginning when WORK WAS COMPLETED regardless of P’s lack of awareness. (Med mal “continuous treatment” exception applicable here as well)
EXCEPT:
- Suit for personal injury: 3 year SOL from date of injury.
- If cause of action is for personal injury arising from a building collapse, and more than 10 years has elapsed since the building was completed, special procedure:
- Plaintiff must serve notice on D 90 days before suit
- Plaintiff may obtain pre-trial discovery during these 90 days;
- If D moves for summary judgment, the burden is on P to immediately show a substantial basis for D’s negligence.
9
Q
SOL -
Municipal Tort Liability
A
Action for personal injury or property damage against a state government subdivision:
- One year and 90 days from date of accident
- **Notice of claim within 90 days of the accident. **
- Failure to comply with notice = dismissal for failure to state a claim.
- After service of notice, must wait 30 days to file
- If 90 day period has expired, may petiton court to serve late notice of claim, if no prejudice to D.
10
Q
SOL -
Products Liability
A
When a defective product causes personal injury, plaintiff can assert negligence, strict products liability, and breach of warranty claims.
- **Negligence liability = 3 years from date of injury **as against any D in the chain of distribution.
- **Breach of Warranty = 4 years under the UCC Rule **running from when defendant made its delivery of the product.
- **Indemnity and Contribution Claims = 6 years from payment **(e.g., D pays P’s claim in ful; wants contribution from liable co-Ds)
- Exposure to Toxic Substance = 3 years from _earlier_ of **(1) discovery of symptoms or (2) date when the injury should have been discovered. This is not applicable to med mal cases against medical professionals. **But, IF P does not know cause of injury from toxic substance, AND cause is discovered within 5 years of injury AND could not have been reasonably ascertained by technical/medical knowledge within 3 years of discovery, then P gets alternative of suing within 1 year from discovery of cause. **
11
Q
SOL- Tolling
while D is outside of NY
(and cannot be served outside of NY)
A
If there is no basis for which to serve defendant while outside of New York, the SOL tolls if:
- D is not in NY when the claim accrues (doesn’t begin to run until the defendant comes to New York).
If D is in NY when claim accrues, but leaves and is continuously absent for at least 4 months (toll applies to entire period of absence).
12
Q
SOL - General Tolls
(Infancy/Insanity of Plaintiff)
A
Minors or plaintiffs who are insane may sue within the regular SOL with a competent adult representative, but get the benefit of the toll as well (tolled until disability ends, either by reaching 18 or when the insanity “clears up”).
- **When disability ends: SOL = the longer of the usual SOL running from the date of the claim accrual, or three years from when disability ends. **
- **But outside limit of ten years when: **
- Med Mal claim where P is an infant; or
- Any claim tolled by insanity
13
Q
SOL - General Tolls
(Plaintiff’s Death)
A
- Survival Claim: P could have brought if alive; all damages recoverable by a living plaintiff including pain and suffering. The SOL is the longer of the usual applicable SOL from the date of claim accrual, or 1 year after death.
- Wrongful Death Action: For pecuniary losses of decedent’s statutory distributees, e.g., children, surviving spouse, including punitive damages, but *not *including emotional suffering of distributees or decedent’s pain and suffering. The SOL is within two years of death and the decedent must have possessed a timely cause of action at time of death.
14
Q
SOL - General Tolls
(Defendant’s Death)
A
If a potential defendant dies at any time before the relevant SOL expires, 18 months are always added to the relevant SOL period, regardless of whether or not P needs the extra time.
15
Q
SOL - General Tolling
(6 month grace period)
A
Plaintiff can get six extra months from the date of any dismissal of his action in order to refile the same action and serve process on the same Ds, **IF: **
- The New York action is timely commenced, and is dismissed before trial for a reason other than the following reasons, and
- The SOL has expired or P has less than 6 months remaining on the SOL.
EXCEPTIONS TO THE GRACE PERIOD.** If the action was dismissed for any of the following reasons, there is **no six month grace period:
- Dismissal on the merits;
- Prior dismissal based on voluntary discontinuance;
- Dismissal for P’s neglect to prosecute, if part of general pattern of conduct;
- Prior dismissal based on lack of personal jurisdiction (including improper service, lack of basis, improper summons).
16
Q
SOL - The Borrowing Statute
A
If the cause of action arises outside of New York, and plaintiff is not a resident of New York, the New York court will apply the shorter statute of limitations as between the alternative state forums, to prevent forum shopping.
If the plaintiff is a New York resident, the court will always apply the New York SOL.
17
Q
Commencement Procedures
A
An action is commenced** by filing process with the Clerk of the Court (this is **not the same as the “Supreme Court Clerk.” Filing process consists of:
- Summons & notice** or **summons & complaint;
- Payment of fees for the index number;
-
Service of process on defendants** no later than **120 days of filing with the clerk (same time frame for fed jur).
- Service time may be extended by the court if plaintiff has trouble serving defendant and can show either (1) due diligence or (2) interests of justice.
**NOTE THAT D WAIVES AN UNTIMELY SERVICE DEFENSE IF HE FAILS TO RAISE IT IN THE MOTION TO DISMISS. A JUDGE CAN PERMIT PLAINTIFF’S CORRECTION OF ERROR IF NO PREJUDICE TO D, FILING OCCURS WITHIN SOL, AND FEE PAID. **
18
Q
FORM OF PROCESS
A
- Summons and Complaint. Advises D that P is suing in that particular court, and essential elements of the cause of action (the complaint); - **- OR - **
-
Summons with Notice. In lieu of a complaint, P may provide:
- A brief statement of the nature of the action;
- Specifying the type of relief being sought; and
- Specifying the amount of damages, if applicable, except that** in a personal injury action or wrongful death suit, **no damage amount may be specified (part of tort reform law).
19
Q
“Bare” or “Naked” Summons
A
If Plaintiff commences an action with a “naked” summons, unaccompanied by complaint on notice, it can be dismissed for lack of personal jurisdiction (assuming timely objection by defendant).
20
Q
Serving Process
(Generally)
A
- Process may be served by any person at least 18 years old not a party to the action (Spouse/lawyer okay)
- Process may be served any day of the week except Sunday (including Holidays, except that Saturday service is not permitted if P knows D observes the Sabbath)
- Actual notice to defendant is irrelevant (what’s important is that P complies with the formalities of property service of process)
21
Q
Service
Personal Delivery Method
A
Service by personal delivery is “complete” upon the process server’s tender of summons directly to defendant.
- Defendant’s response time is measured from the date that service is complete.
- Defendant cannot refuse to accept delivery of process; server may leave in defendant’s immediate vicinity.
- Under this method, service must be to the defendant himself.
22
Q
Service:
Leave and Mail Method
A
**Process Server may “leave and mail” by: **
- **Delivering process to a person of suitable age and discretion **(including teenagers), at defendant’s actual dwelling or actual place of business (guard of lobby in apartment building okay).
- **Mailing process to defendant’s actual place of business or last known residence **by regular first-class mail.
- These must take place within 20 days of each other (doesn’t matter which comes first).
- All defendants to the action must get their own copies, even if they reside or work at the same place.
23
Q
Service of Process –
Affix and Mail Method
A
If, after exercising due diligence to use other service method (several attempts at different times / days of the week and effort to determine actual place of business or residence), plaintiff may use the affix-and-mail method:
- **Affix to Defendant’s Door **(actual dwelling or actual place of business); - and -
- Mail to Defendant’s Actual Place of Business or Last Known Residence
- These must happen within twenty days of each other
24
Q
Service -
Filing Proof of Service
A
For both leave & mail and affix & mail methods, proof of service must be filed. Proof is an affidavit by process server describing details of service.
- Service is complete 10 days after proof of service is filed.
- Failure to file proof of service is not a jurisdictional defect, but it postpones D’s time to respond.
- Proof of service is not required for personal service on defendant.
25
Service -
Court-Ordered Service
If other methods of service are not practicable, plaintiff may make an ***ex parte motion*** for a court order allowing an improvised method of service, some ***expedient alternative method*** appropriate under the circumstances.
* E.g., service via email or on a family member / business associate, etc.
26
Service –
Designated Agent
Service can be made upon a **_specifically designated agent_**, as in a written commercial contract.
* For NY corps, and foreign corps authorized to do business in NY (a licensed corp), service may be made on the NY Secretary of State (2 copies must be mailed to the Secretary).
* For an unlicensed foreign corp: personally deliver one copy to the New York Secretary of State, plus mail one copy to the corporation by certified mail, return receipt requested.
27
Service –
Infants and the Mentally Incapacitated
**_INFANT:_** Infants name is on the summons, but process must be served on
* A parent;
* Guardian;
* Person with legal custody;
* An adult spouse with whom married infant resides
If D \> 14, two copies are necessary and infant must also be served.
**_MENTALLY INCAPACITATED PERSON:_** Two sets of process must be served (on the defendant and the guardian). If no guardian has been appointed by the time of serving process, D is served just like anyone, but a guardian ad litem may be appointed.
28
Service –
D outside of New York
Same methods used in New York, but may be performed by:
1. Any resident of New York at least 18 years old; or
2. Anyone authorized **in that jurisdiction*** *to serve process; or
3. Any attorney authorized in that jursidiction.
29
Service on a Corporation
**_Two Methods:_**
1. **_Personal delivery to a corporate representative_**, being: any **officer**, **director**, **designated agent**, or **managing agent** (person with supervisory authority in corp.) - OR -
2. **_Service on New York Secretary of State_** (domestic corps and licensed foreign corps) (send two copies).
* Unlicensed foreign corp., send 1 copy to NY secretary of state and 1 copy mailed to corp.
***Leave & Mail; Affix & Mail Methods NOT OKAY. ***
30
Service –
Non-Traditional Method
Service by **First Class Mail + Acknowledgement **
* Enclose 2 copies of acknowledgement form and return envelope, postage pre-paid;
* Service _only_ effective if defendant signs/returns form within 30 days (same time frame in fed court). If not, must use other service methods, but D must pay expenses if bad faith.
* May be used regardless of whether D is within or outside of NY.
* Cannot be used for infants/mentally incompetent
* D's response is not a concession that court has jurisdiction.
31
Bases for Personal Jurisdiction
**_All Purpose / General Jur _**
* Presence in NY at the time of process;
* Domicile in NY
* Corporation "at home" in NY
**_Specific Jur (to NY Activity)_**
* Long-arm jurisdiction
* Non-resident motorist statute
* Matrimonial jur
**_Consent _**
* Forum selection clause
* Corp. license in NY (some constitutional doubt)
32
**Personal Jurisdiction **
Physical Presence in NY
## Footnote
Valid personal jurisdiction where D is served with process while in the state, regarding any claim, no matter the duration or purpose of the stay.
33
## Footnote
**Personal Jurisdiction - **
**Domiciliary **
## Footnote
A defendant who is a domiciliary in NY when the action is commenced may be subject to general personal jurisdiction in NY regardless of where the claim arose.
Domicile is not the same as residence. It implies an intent to remain there indefinitely as principle home (only have one domicile).
34
**Personal Jurisdiction **
THE LONG ARM STATUTE
* CPLR 302: "Minimum contacts" standard of jurisdiction, allowing out-of-state service conferring personal jurisdiction on the basis of acts **taken by D** with sufficient connection to NY, provided that **_P's claim arises out of those contacts_** with New York.
* Applies to all types of Ds (corps, individuals, partners, etc.)
* Acts giving rise to jurisdiction can be performed by D or D's agent/employee.
* If D dies, decedent's estate representative can be served out of NY.
* Service - P must use the same methods of service on D outside NY as would be used in NY.
* Mere possession of driver's license in NY too insubstantial to give rise to long-arm jur
CATEGORIES:
1. **_Transaction of Business in New York._** Even if business *will be *outside of NY, the transaction (active negotiation, or contract signing, etc.) is sufficient. Defendendant's phone/email/mail contacts *to *NY can arise to the a "transaction" in NY if substantial in number/time and a significant contract.
2. **_Contract Transacted Anywhere to Supply Goods/Services in New York._** Not a payment of debt; must be to send the goods/services to NY (not send the payment).
3. **_Tortious Act Within New York.**_ Personal jurisdiction over the act (_**does not apply_** to defamation). The injury must _originate_ in New York.
4. **_Tortious Act Outside of New York that Causes Injury in New York + Additional Link:**_ Either - D regularly does business in NY; or solicits business, or engages in other persistent contact; - D derives substantial revenue from goods/services sold in NY; or - D reasonably should have expected the NY injury and dervies substantial revenue from interestate/international commerce. (_**does not apply to defamation_**). Physicians' services are NOT considered "interstate" even if physician services people from all around the country.
5. **_Defendant's Ownership/Use/Possession of Real Property in New York._** For suit related to the property.
35
## Footnote
**Personal Jurisdiction **
**The Non-Resident Motorist Statute **
Confers personal jurisdiction over an accident claim arising from a non-domiciliary motorist's ownership or use of an auto on a NY roadway.
1. **Service.** P serves process on D by delivering one copy on the NY Sec. of State as "implied agent" _and_ mailing second copy to D by certified mail to D's out-of-state residence.
2. **Owner. **This statute applies to a non-domiciliary vehicle owner who gave tortfeasor *permission *to drive in NY; agency/business relationship not required.
36
**Personal Jurisdiction**
**Consent **
1. **Forum Selection Clause. **D may consent in advance in contract to adjudicate future contract dispute in NY; generally upheld if not fraudulent/unreasonable/ overreaching.
* *contractual choice of NY law for non-resident foreign corporation enforceable if it involves at least $1m and some agreement to submit to NY Jur. *
2. **By Corporate Licensing. **Authorization to do business usually requires registration within NY Sec. of State and designating secretary as agent for service of process.
37
## Footnote
**Personal Jurisdiction **
**Matrimonial Jurisdiction **
**_Only proper method of service of process for matrimonial actions is PERSONAL SERVICE unless other method is authorized by court order._**
1. **New York Supreme Court** is _exclusive_ New York Forum
2. **Personal Jurisdiction is satisfied by _in rem_ jurisdiction** over marriage for divorce actons (_but see_ durational residency requirements).
3. **Matrimonial Long-Arm Statute **(actions for support):
* NY was matrimonial domicile shortly prior to separation; or
* D abandoned P in NY; or
* D's monetary obligation accrued under an agreement executed in NY; or
* D's monetary obligation accrued under the laws of NY.
38
## Footnote
**Personal Jurisdiction **
**Durational Residency Requirements in Matrimonial Actions **
**Failure to properly allege is grounds for dismissal**
**These requirements are not applicable to _support_ actions**
New York imposes additional residency requirements for actions seeking to afect marital status (divorce, separation, annulment). These are separate from personal jurisdiction concerns. P's complaint must allege one of:
1. **_Both parties are NY residents at time of action and grounds for action arose in NY._**
2. **_One-Year Residency:**_ If either party has been a NY resident for a continuous period of at least 1 year immediately prior to the action _**and_** (a) marriage took place in NY; or (b) NY was matrimonial domicile at one point; or (c) grounds for divorce arose in NY.
3. **_Two-Year Residency:_** Can automatically bring suit.
39
## Footnote
**Personal Jurisdiction **
**Corporation is "At Home" In NY**
Analogize to domiciliary. Corporation can be subject to general jurisdiction in NY when it is "at home" in NY, as in one of three situations:
1. New York is the state of incorporation;
2. New York is principal place of business;
3. Exceptional case where NY activities are so substantial as to render the corporation "essentially at home," based on a comparison of NY activities to the entire nation and world-wide activities.
**The presence of corporate officer in NY is NOT the same personal jurisdicton over the corporation. **
40
## Footnote
**Venue **
Plaintiff **chooses** venue and specifies in summons:
1. **Actions where judgment affects title/possession of real property, **proper venue is the county in NY where the property is.
2. **All other actions,** proper venue is any county where a party resides; if neither, then any county. This is a party residence test not a cause of action test.
Plaintiff's improper venue is not a jurisdictional defect / not a basis for dismissal.
**_Defendant's demand for change of venue_** must be before/with the answer. If P consents, automatic change; If P objects/fails to respond, D must motion for change; granted as of right **if** P's venue was wrong **and** D's is proper.
**Discretionary: ****at any time, any party may move for change of venue for convenience of witnesses or impartial trial. **
41
**Defendant's Response – Answer to**
**Summons and Complaint **
D must respond to avoid default: either by *answer *or *pre-answer motion to dismiss *
* Answer must contain denials of allegations (otherwise implied admission) *and *affirmative defenses (those not raised in answer / answer as amended are **waived **except non-joinder of necessary party; failure to state a cause of action; and lack of SMJ - never waived).
* Counter-claims/cross-claims asserted at this time.
* Papers must be served on all parties to the action by first class mail on the **attorneys **to the proceeding.
* Service deemed made upon mailing (mailbox rule).
* **Timing Based on Service Method: **
* **If service made by personal service (answer within 20 days)**
* **Mail + acknowledgement (answer within 20 days) **
* **Other methods (answer within 30 days) **
* (Note: in fed court it's different –– either 21 days for most service or 60 days if based on mailed waiver service)
42
Defendant's Response
Pre-Answer Motion to Dismiss
Pre-answer motion to dismiss allows D to assert 8 affrmative defenses prior to filing an answer (all defenses may also be raised in the answer _except_ personal jurisdiction)
* Following _answer_ rules for timing; if motion denied, 10 more days to file answer.
* The only defense waived if not in MTD is personal jurisdiction; but remember that failing to assert affirmative defenses in _answer_ results in waiver except non-joinder of necessary party; failure to state a claim; and lack of SMJ.
**D O W N F A L L **
**D **ocumentary evidence (legally operative documents)
**O **ther action pending b/w same parties, same cause
**W **ant of capacity
**N **on-joinder of necessary parties
**F **ailure to state a claim (decide w/ weight in favor of P)
**A **ffirmative defenses
**L **ack of personal jurisdiction
**L **ack of SMJ
*Other affirmative defenses ("A"): *** S P A R E R I B S **
**S **tatute of limitations
**P **ayment (already paid claim)
**A **rbitraton award
**R **elease of claim
**E **stoppel (collateral)
**R **es judicata
**I **nfancy
**B **ankruptcy discharge
**S **tatute of frauds
43
Defendant's Defense of Improper Service of Process
* Even if improper service is properly raised in answer or MTD, it will be **waived** if D does not make a follow-up motion for summary judgment within **60 days of serving the answer**.
44
Defendant's Response to Summons with Notice
(not complaint)
[If personally served, within 20 days; if mail & acknowledgement, within 20 days of acknowledgement; other method, within 30 days]:
**D must serve *either ***
1. Demand for a complaint; or
2. Notice of appearance (not waiver of personal jur)
**P must then serve _complaint_ within 20 days **
**- THEN - **
**D has 20 days to _answer or serve MTD_** (now can object based on personal jurisdiction)
* If P fails to file a complaint within 20 days, D may move to dismiss. To avoid dismissal, P must show a reasonable excuse for delay and make an evidentiary showing with an affidavit of merit for cause of action.
45
Amendments to Pleadings
1. **Once as of right **(no need for court permisson) within 20 days of defendant's service of answer (*note: Federal rule = 21 days). *The amendment may include anything the party could have put in the answer/complaint originally (e.g., personal jur could be added as an amendment if not included in the orginal answer, **_except that if D served pre-answer MTD and did not include personal jur, defense is waived)_**
2. **If time has expired or amendment was used already, **party may make a motion for leave to amend. Courts will generally grant such motions as long as the opponent will not suffer incurable prejudice (detrimental change in position due to delay) or that the change has no merit.
46
Impleader
Procedural device used by D to join other party to be liable, in whole or in part, for damages that D may have to pay P. Typically D impleads third party defendant (TPD) for indemnity or contribution. D is a third party plaintiff.
* D may implead TPD at _an time_ without a court order (in fed court, must implead within 14 days of serving answer).
* D must file summons and third party complaint
* Service must be within 120 days of filing (P entitled to copies)
* TPD must serve third-party answer on D and P and all other parties; time limit the same as other Ds.
* After TPD is joined, P may amend the complaint to assert claim against TPD ***as long as statute of limitations has not run or tolling applies ***(see other card).
47
48
P's SOL tolling for impleading TPD
*Generally *the date of amending the complaint to include TPD must be within the SOL of the plaintiff's claim against TPD, **_but_**
There is relation back to the date TPD was impleaded when:
1. P's claim was based on the same transaction/occurrence as impleader claim; and
2. P's claim would have been timely on date of impleader
49
Indemnity
(MBE + NY)
Allows one party to shift 100% responsibility to another party, by:
1. Contract
2. Implied-in-law
* Products liability: retailer to manufacturer
* Vicarious liability: employees; owner of a car to driver of a car, etc.
50
Contribution
Joint and Several Liability (Generally)
* Contribution - sharing the loss (apportionment) among multiple tortfeasors. The purpose is to mitigate the harsh rule of joint and several liability, in which each tortfeasor is held liable for the full amount of damages to plaintiff regardless of whether other tortfeasors contributed to the harm.
* A defendant held liable for full amount of damages may sue other tortfeasors for contribution.
* **NOTE: on the MBE, an intentional tortfeasor MAY NOT receive contribution from other tortfeasors. \*NY this rule does not apply. **
51
Contribution:
Procedures and Distribution
1. If P joined Co-Ds as tortfeasors, they may cross-claim
2. If P omits a tortfeasor, a D can implead outsider as TPD
3. Tortfeasor may sue TPD in separate action, but no collateral estoppel regarding issues adjudicated in the P v. D claim will apply to the D v. TPD claim.
This can apply to successive tortfeasors (e.g., doctor who is negligent after D causes an accident)
* Contribution has a 6 year SOL from date of _payment_
**DISTRIBUTION OF PAYMENT **
* ***MINORITY VIEW (MBE ONLY): EQUAL SHARES FORMULA. ***Evenly divided liability as between tortfeasors.
* ***MAJORITY / NY RULE: ***A party suing for contribution is entitled to recover the excess actually paid by D over his equitable share of the judgment.
* A party from whom contribution is being sought cannot be require to pay more than her own % of fault.
* This rule does not change P's right to sue one D for J+S liability.
52
Contribution:
Substantive Law
Generally, there is a right to contribution when TPD breached a duty in tort which contributed to or aggravated the damages for which D may be liable to P. Thus, D may seek contribution from TPD even if injured party P has no right of recovery against TPD.
_Except_ there are limits on contribution/indemnity for **worker's comp**. A plaintiff **may** sue a third party also responsible for the damages (not the employer) for injuries. In that case:
* **MBE Rule: Third party MAY NOT sue employer for contribution/indemnification **
* **NY: Third party MAY ONLY SUE EMPLOYER IF plaintiff suffered a grave injury, **being strictly defined as death, total loss of arm/leg/foot/hand/index finger, paraplegia/quadraplegia, severe facial disfigurement, total deafness/blindness, brain damage causing total disability.
53
Settlement in Cases Involving Multiple Tortfeasors
1. Plaintiff's partial settlement of a claim against one defendant _does not_ discharge other claims against other tortfeasors; but
2. If Plaintiff settles with a defendant, plaintiff's recover against other Ds at trial will be _reduced by_ the LARGER of:
* The amount of settlement; or
* The settling tortfeasor's equitable share of fault.
A settling D **cannot** sue or be sued for **contribution**, but
A settling D **CAN** be sued or be sued for **indemnity**.
[E.g., D1 settles with plaintiff for $30,000. At trial against D2, plaintiff receives award of $50,000, with liability apportioned at 50% for D1 and 50% for D2. Plaintiff can obtain $20,000 from D2, because the settlement was for more than D1's share, so the $50,000 award is reduced by the amount of the settlement. D1 cannot sue D2 for the $5,000 contribution, but can sue for indemnity if valid claim].
54
CPLR Art. 16
NY Rule modifying the rule of joint and several liability **only where: **
* Personal injury claims;
* Where defendant is _less than 50%_ at fault;
* 51%+ at fault, regular rule applies
* Where P has sustained _non-economic damages_.
Joint tortfeasors can only be required to pay her own share of plaintiff's non-economic damages (pain & suffering; mental anguish; non-consortium).
**\*Exceptions: **N/A to wrongful death; property damage claims; tortfeasors acting with intent/reckless disregard for safety of others; tortfeasors who release hazardous substances into the environment; or drivers/owners of vehicles ***other than*** police/firefighter.
55
Motion on Notice
1. **Serve a notice of motion advising opposing party of nature of motion and specifying a return date, **which must be no fewer than 8 days after the service on the other party. Motion is "made" when papers dropped in the mail.
2. The notice must contain affidavits of fact showing why the motion should be granted.
3. **The return date / "hearing date" **is the day upon which the motion papers are presented to the court / decision-making begins.
4. **Order to Show Cause: **alternative way to make a motion on notice. Ex parte motion for order to show cause as to why the motion should not be granted, on a date specified by the judge (can be earlier than 8-day minimum). Judge can grant a TRO; statute may require to proceed this way.
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Deciding Order
* Court's decision must be embodied in a written order *signed *by the court and entered with the court;
* The prevailing party (whether moving party or opponent) must **_serve a copy of the order_** on the losing party, with notice of entry of order, even if the court provides parties with notice.
* **_Effects of service: _**
* **__**Gives effect to the order;
* Starts running a 30-day time limit for taking an appeal from the order.
* **_Interlocutory Appeals:_** Can be taken immediately from interlocutory orders, as long as the party files and serves the notice of appeal within 30 days of service of order of judgment, with notice of entry. Interlocutory apeal is permissive, not required; can be taken later after judgment.
* Art 78 proceeidng -- only appealable by permission
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Ex Parte Motion
* Motion in which **_no advance notice_** is given to the adversary; the moving party goes straight to court with the request for relief.
* This is permitted in rare circumstances and not without express statutory authorization. E.g., a request for extension of time to serve process, when party seeks expedient court-ordered service, or for provisional remedies.
* The aggrieved party cannot appeal from the ex parte order. He must make a motion on notice to vacate; if that motion is denied, can appeal from that order.
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Motion for Summary Judgment
(Post-Answer)
* **_STANDARD:_** Judgment as a matter of law where there is no genuine issue of material fact requiring trial of issues. Denial means proceeding to trial on merits.
* **_TIMING:_** Any party may move after service of answer, and in any case no more than 120 days from filing the note of issue (scheduling the trial on the court calendar). *Exception - where moving party shows "good cause," e.g., law office failure, etc., not good merits*.
* **_EVIDENCE:_** Moving party must meet burden by submitting evidence in the form of affidavits, based on actual knowledge of facts (no lawyer). Opponent must produce contrary evidence; **pleadings are insufficient**. If D can't produce affidavit, can have continuance or proceed on motion.
* **_SEARCHING THE RECORD:_** Court can conclude the opponent is entitled to summary judgment even if there was no cross-motion for such relief.
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Pre-Answer Motion for Summary Judgment
1. **Court Conversion **of pre-answer MTD for failure to state a cause of action. Allows the decision on the basis of evidence rather than the face of the pleadings. At least one party must have submitted factual affidavits in connection with the MTD. Court must give notice to all parties of the conversion and give opportunity to submit add'l evidence.
2. **Motion for Summary Judgment in Lieu of a Complaint: Allowed in TWO TYPES OF ACTONS – **
* ****Action on an _instrument for payment of money only_ (promissory note)
* Action on a judgment in another state to enforce judgment in NY
* **The return date must be at least 20 days later (personal service); at least 30 days later (other methods). **
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Provisional Remedies
(Generally)
_While a matter is pending:_
* Attachment;
* Preliminary injunction;
* Temporary receivorship;
* Order to seize chattel (replevin action);
* Notice of pendency
**Court order is required for all provisional remedies except notice of pendency.**
Each can be used only in certain types of actions.
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Provisional Remedies:
ATTACHMENT
**Available If: **
**(1) P seeks money damages; and **
**(2) D is a "security risk" (nonresident or unlicensed corp., fraudulent transfer risk)**
PROCEDURE:
* Motion (on notice or ex parte) showing:
* The above grounds;
* Probability of success on the merits; and
* Posting of bond ("undertaking") to indemnify D for damages *if *improper procedure or D wins.
* If motion is made ex parte, due process requires a prompt hearing after the levy. An ex parte order is _automatically void_ if P fails to make a follow-up motion to confirm:
* Non-residents: no later than 10 days after levy;
* Fraud risk: no later than 5 days after levy.
* Levy occurs by sheriff's filing order of attachment on D's property in NY (real or personal) (tangible/intangible, e.g., bank account or money owed to D held by "garnishee") *with the county clerk of the county in which the property is located.*
* This gives P a security interest in the property **_superior to that of any subsequent lienholder._**
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Provisional Remedies:
Preliminary Injunction
Temporary Restraining Order
* Plaintiff must seek **_equitable relief_** (permanent injunction; harm to P's interest in action. Action solely seeking money damages cannot result in preliminary injunction).
* **_Procedure:_** Motion on Notice served _with_ or _after_ the summons.
1. P's affidavits must show grounds for equitable relief, including threat of irreparable injury;
2. P must provide undertaking to indemnity if later determined the injunction should not have been granted;
3. P must show probability of success on the merits.
**_Temporary Restraining Order:_** To maintain status quo while motion for preliminary injunction is being litigated. To obtain, make a motion for preliminary injunction by _order to show cause_; a judge can include a TRO in the order. If the order to show cause w/ TRO is served on a D, immediate injunction pending resolution of the preliminary injunction motion.
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Provisional Remedies:
Temporary Receivorship
**Plaintiff must be asserting:**
* An EQUITY CLAIM in which SPECIFIC PROPERTY is the subject of the action; and
* There is danger that D will INJURE OR DESTROY the value of the property while the action is pending.
Not available if P seeks solely money damages.
** A temporary receivorship is a person appointed by the court to manage property in D's possession. **
**PROCEDURE: MOTION ON NOTICE**
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Provisional Remedies:
Seizure of a Chattel
*Available in **actions to recover chattel **(personal property) *
* **_Procedure:_** On notice or ex parte, showing:
* Probability of success on the merits; and
* Undertaking / bond to indemnify for damages, if wrongful
* But **_IF MADE EX PARTE_**:
* Additional showing of *threat of immediate loss of chattel, *&
* Follow-up motion on notice within 5 days of seizure to confirm ex parte order.
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Provisional Remedies:
Notice of Pendency
Available in ***equity action*** in which judgment will have a** *direct effect on real property***. Notice of pendency ***gives record notice** *to any potential buyers or mortgagees that any interest they acquire in the property will be subordinate to that of the Plaintiff (renders title unmarketable).
***Statutorily Required in Mortgage Foreclosure Actions ***
**NO COURT ORDER OR BOND POSTING REQUIRED**
* **If improperly filed: **D may file motion to cancel
* **Duration: **3 years after filing; may be extended only on date prior to expiration. Failure to do so void notice of pendency and plaintiff cannot obtain another notice on same property/same cause of action. ***Except in mortgage foreclosure action: court may grant motion to renew notice if late.***
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Jury Trial Right
* Either party may file note of issue and serve other parties.
* The filing party must make a demand for jury trial in the note of issue, or else the jury right is waived by that party.
* Other party can file separate demand for jury.
* **Six jurors, requires 5 votes of 6 to hold liable. **
**_Jury Trial in Civil Action Available In:_**
1. Action seeking money damages;
2. Action for replevin (recovering chattel);
3. Claims to real property;
4. Annulment of marriage;
5. Divorce (on issue of grounds, not monetary support or child custody).
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Res Judicata
**NY: Transactional Approach **
1. Final judgment on the merits
2. Same transaction/occurrence
3. Same plaintiff
* Further litigation barred even if on different theories of liability.
* Exception for Matrimonial Disputes *
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Collateral Estoppel
Issue preclusion avoids need for re-litigation of specific fact issues decided in a prior proceeding upon a showing –
1. Issues in current and prior proceedings **identical**;
2. Issue was **actually litigated** in prior proceeding;
3. Party against whom issue preclusion is asserted had **full and fair opportunity** to litigate in prior proceeding.
Party must have had its day in court.
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Special Proceedings
* Speedy, stream-lined procedure akin to motion practice, the purpose of which is to obtain a judgment as a final resolution of a dispute. E.g.,
* Probate of a will;
* Election disputes;
* Summary proceeding by a landlord for eviction;
* Dissolution of a corporation;
* Habeas corpus;
* Enforcement of arbitration agreement;
* Art. 78 proceeding.
* Procedure: filing of a petition by itself is commencement of special petition. Petition & notice must be served on respondent by the same methods for ordinary service of process.
* Must specify a return date no sooner than 8 days for service of process. Can file special proceeding by order to show cause to accelerate this date.
* **Exception for Art. 78 Proceedings: no sooner than 20 days. **
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Article 78 Proceeding
* **Authorizes special proceeding for judicial review of action/inaction by state/local government or quasi-governmental action (corporation). **
* **Grounds: **
* **Mandamus to compel:** to compel performance of an act required by law where _no discretion_ is involved (e.g., issuing marriage license/absentee ballot).
* **Prohibition:** to stop judge from exercising power that grossly exceeds power.
* **Certiorari: **to challenge results of trial-type hearing conducted by administrative agency (upheld ***if supported by substantial evidence***).
* **Mandamus to review: **to review any other administrative action without a hearing, etc. (upheld unless ***arbitrary and capricious***).
**_Supreme Court Exclusive Forum:_** 4 months SOL from date of notice that action is final and binding. Relief = declaratory, injunctive; and damages if incidental to he declaratory, injunctive relief.
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Arbitration / ADR
* Arbitration of disputes: Privately contracted-for procedure for binding resolution.
* Arbitrators are not bound by substantive law;
* Scope of judicial review very narrow;
* NY policy favors arbitration.
* Procedure:
* Motion to compel arbitration and stay action;
* Notice of intention to arbitrate
* Motion to stay arbitration (made within 20 days of notice of intention to arbitrate).
* Judge may review threshold issues:
* Was there an agreement to arbitrate? (In writing, clear/unequivocal, doesn't need to be mutually enforceable)
* Agreement within scope of arbitration clause? (Very broad generally but can be narrowed by contract)
* Arbitration clause valid? (Yes unless fraud, coercion, duress. Severable so valid even if contract is invalid).
* Express condition precedents, if any, complied with?
* SOL?
Vacating award only for fraud/misconduct of arbitrator. Exceeded agreed-upon powers. Punitive damages not okay in arbitration.
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Bill of Particulars
* A bill of particulars is the process by which a party seeks to particularize the general statements in the pleadings. The bill of particulars for any pleadings with respect to a cause of action for negligence must always be verified. The bill of particulars must also be verified whenever the pleading it particularizes is verified.
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Depositions
**obtained by service of notice on party at least 20 days prior to deposition date.**
1. A court can compel a former employee of a corporation to be deposed.
2. A deposition may be obtained prior to service of the complaint if P can show he has cause of action but is as yet uncertain as to the details (but needs to petition court).
3. The court can compel a party to respond to a deposition after trial has begun (party seeking depo must move in court).
4. The CPLR requires plaintiff to secure leave of the court if he wishes to depose a party before the party's time to serve an answer to the complaint as expired, but no such restriction applies to the defendant. However, any party may notice another party to produce records at any time after commencement of the suit.
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Default Judgment
A default judgment may be entered by the clerk only for a sum certain (e.g., contract for the sale of goods at a set price) or a sum that can be made certain in the causes of action in the complaint. In other cases, the moving party must apply to the court for a judgment by default. Damages arising from fraud or breach of warranty are not for a sum certain.
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SOL:
Action on Judgment
20 years
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SOL:
Action by crime victim against convicted D for most crimes
7 years from date of CRIME
77
SOL:
CONTRACTS (NON-UCC)
6 YEARS
from actual breach, regardless of lack of knowledge
78
SOL:
INDEMNITY & CONTRIBUTION
6 YEARS
from date of payment for which contribution/indemnity is sought
79
SOL:
FRAUD
6 years of COMMISSION;
or 2 years of DISCOVERY (actual or imputed);
whichever is longer
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SOL:
EQUITY ACTIONS
(rescission, reformation, accounting)
6 years
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SOL:
ACTION BY VICTIM OF RAPE-RELATED FELONY
5 YEARS
running from date of crime; and if perpetrator is prosecuted, then an EXTRA 5 YEARS from termination of criminal proceeding, whether conviction or aquittal.
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SOL:
UCC ARTICLE 2-RELATED ACTIONS
4 YEARS
BREACH OF WARRANTY ACCRUES UPON TENDER OF DELIVERY
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SOL:
PERSONAL INJURY BASED ON NEGLIGENCE;
STRICT PROD LIABILITY
3 YEARS
ACCURING ON DATE ORIGINAL INJURY OCCURS
(NO DISCOVERY DATE _EXCEPT_ CASES OF TOXIC SUBSTANCES)
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SOL:
PROPERTY DAMAGE (CONVERSION, REPLEVIN, ETC.)
3 YEARS
ACCRUING FROM DATE OF DAMAGE
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SOL:
PROFESSIONAL MALPRACTICE
3 YEARS FROM DATE OF SERVICES;
EXCEPT IN CASES OF PERSONAL INJURY --\> 3 YEARS ACCRUING FROM DATE OF INJURY
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SOL:
MED MAL
(DOCTORS, DENTISTS, PODIATRISTS)
2.5 YEARS FROM DATE OF MALPRACTICE
(EXCEPTIONS: CONTINUOUS TREATMENT (2.5 YEARS FROM END OF TREATMENT), FOREIGN OBJECTS (1 YEAR FROM DATE OF DISCOVERY)
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SOL:
WRONGFUL DEATH
2 YEARS FROM DATE OF DEATH + SHOWING THAT DECEDENT'S CAUSE OF ACTION HAS NOT YET RUN
But if Criminal Proceeding was brought against D, executor gets optional one-year period (independent) from termination of criminal proceedings regardless of outcome.
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SOL:
PERSONAL INJURY/PROPERTY DAMAGE CLAIMS AGAINST MUNICIPAL DEFENDANTS
1 YEAR, 90 DAYS
(+ notice of claim within 90 days of accidnt; discretion to allow late notice but not beyond SOL + any tolling)
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SOL:
INTENTIONAL TORTS
1 YEAR
NOTE -
negligent entrustment is NOT intentional tort; 3 year SOL
republication of defamatory statement does not re-start SOL (unless "new edition" seeking to reach a different audience).
90
SOL:
ARTICLE 78 PROCEEDINGS
4 MONTHS
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SOL:
ACTION BY CRIME VICTIM FOR SERIOUS OFFENSES
10 YEARS FROM DATE OF CONVICTION
VIOLENT FELONIES;
EXTORTION
LARCENY \>$50,000
+ 3 years from discovery of D's rceipt of $ or property from any source.
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SOL:
ACTIONS FOR WHICH THERE IS NO SPECIFIC SOL
6 YEARS
93
SOL:
SHAREHOLDER DERIVATIVE ACTIONS OR ACTIONS BY CORP AGAINST PRESENT/FORMER DIRECTORS, OFFICERS, OR SHS
6 years
94
SOL:
ACTION TO ANNUL MARRIAGE ON GROUNDS OF FRAUD
3 YEARS
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Transfer and Removal Between NY Courts
* Removal upward to Supreme Court can be accomplished by motion to the supreme court; application to the transferee court.
* However, where the original court HAD SMJ and a court of LESSER jurisdiction has authority to dispose of the matter, consent of the adversely-affected party is required b/c can get smaller amount recoverable.
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Service on Partnership or other ass'n
* Obtained by service on any parter or agent authorized to receive service; delivery, and mailing to a managing or other agent; affixing and mailing (if previous methods cannot be used) or some other expedient method upon court order). A judgment or decree against a partnership may be executed against the property of any partner served and against the partnership property.
* An unincorporated associaton cannot be sued in the association name; rather in the name of its president or treasurer, and jur obtained by serving either president or treasurer.
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Appeal of Interlocutory Orders
* Motions on notice - appealable as of right except Art 78 proceedings (need permission)
* Ex parte motions - not appealable (must move to vacate then appeal that denial)
* Renewal - order granting/denying motion to renew is appealable
* Reargument - granting/denying reargument is not appealable (but if granted, order made after reargument appealable)
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Default
* If D fails to appear, plead, or proceed to trial when th action is reached and called for trial, P may seek a default judgment.
* P may make an application to the court (where action is for a sum certain) within 1 year aftr default. Actions for relief other than money damages --\> may not differ in type from that demanded.
* Failure to seek judgment within 1 year permits dismissal of complaint (sua sponte or by D unless P shows good cause).
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Depositions
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Appeal
* Must be taken within 30 daysafter appellant is served with copy of judgment. Cannot be extended by parties or court except provided by statute.
* Atty for aggrieved party disabled;
* potential appellant dies /transfer of interest befor 30 day period runs
* alternative method of appeal available after initial appeal dismissed or motion to appeal denied.
* Generally appeals can be taken as of right.
* If appeal can only be taken by permission, motion for leave to appeal must be made within 30 days.
