New York Practice (j)

Question 1

SMJ

Answer 1

The authority to grant the relief a party seeks

Question 2

Statute of Limitations

Answer 2

Fixed period of time within which an action must be commenced
- it is an affirmative defense raised by D

Question 3

Survival Claim

Answer 3

Any CoA P herself could have brought if alive

- pain and suffering are recoverable

Question 4

Wrongful Death

Answer 4

Tort CoA for pecuniary damages of decedent’s survivors

• punitive damages recoverable
• decedents pain and suffering NOR emotional suffering of survivors

Question 5

Summons

Answer 5

Advises D that P is suing D in a particular court

Question 6

Complaint

Answer 6

P’s pleading- specifies transaction or occurrence that is the subject matter of the action and spells out essential elements of P’s CoA

Question 7

Notice

Answer 7

• brief statement of the nature of the action, statement of relief sought, if money damages (amount sought)

Question 8

Basis of Jurisdiction Over D’s Person

Answer 8

1. Personal Delivery to D While Physically Present in NY
2. “Doing Business” in NY
3. Domicile
4. Long-Arm Jurisdiction
5. Non-Resident Motorist Statute
6. Consent
7. Matrimonial Jurisdiction

Question 9

Long-Arm Jurisdiction

Answer 9

jurisdiction limited to a cause of action arising from the commission of certain acts by nondomiciliaries within the state

Question 10

Long-Arm Jurisdiction

Answer 10

a. Transaction of Business Within New York
b. Tortious Act in New York
c. Tortious Act Outside NY Producing Injury in NY
d. Ownership/Possession of NY Realty
e. Matrimonial Actions or Family Court Proceedings

Question 11

Specific Jurisdiction

Answer 11

The claim is specific to the acts of the defendant related to NY

Question 12

Venue

Answer 12

Rules of venue regulate the appropriate county in NY for trial

Question 13

Answer

Answer 13

D’s pleading in which she admits/denied P’s allegations and sets forth affirmative defenses

Question 14

Pleadings

Answer 14

Formal written allegations by the parties of their respective claims and defenses

Question 15

Reply

Answer 15

P’s pleading in response to a counterclaim

Question 16

Interlocutory Papers

Answer 16

All litigation papers besides P’s initial service of process

- these include answer, discovery notice, motions, all other pleadings

Question 17

Impleader

Answer 17

a. A procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay to P

Question 18

Indemnity

Answer 18

Allows one party to shift 100% of the responsibility to another party

Question 19

Contribution

Answer 19

a. Involves sharing of the loss among multiple tortfeasors who are all actual participants in the tort.

Question 20

Joint And Several Tort Liability

Answer 20

Each tortfeasor can be liable to the P for the full amount of P’s damages without regard to the individual tortfeasors percentage of fault.

Question 21

Comparative Fault

Answer 21

The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share (%) of the judgment

Question 22

Motion

Answer 22

An application for an order of the court

Question 23

Motion on Notice

Answer 23

Motion on notice gives the adversary an opportunity to be heard in opposition

Question 24

Notice of Motion

Answer 24

Advices opponent of the nature of the motion and specifies a return date

Question 25

Ex Parte Motion

Answer 25

A motion in which no advance notice is given to the adversary - moving party goes straight to the court with the motion papers and requests an order granting the relief sought

Question 26

Motion for Summary Judgment

Answer 26

A motion for summary judgment is used when the pleadings, on their face, state a cause of action but in reality there is no genuine issue of material fact requiring trial and a party is entitled to a judgment as a matter of law - may be made after service of an answer or reply

Question 27

Provisional Remedies

Answer 27

Provisional remedies provide a measure of security to the plaintiff for the ultimate enforcement of a potential judgment. - There are five: (1) Attachment, (2) Preliminary Injunction, (3) Temporary Receivership, (4) Order to Seize Chattel in an action to recover it (replevin), (5) Notice of Pendency (lis pendens)

Question 28

Attachment

Answer 28

the main purpose is to provide security for the enforcement of a money judgment

Question 29

Preliminary Injunction

Answer 29

A preliminary injunction is used to maintain the status quo while an equity action is pending

Question 30

Notice of Pendency

Answer 30

In an equity action in which the judgment will have a direct effect on real property, the filing of a 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 P.

Question 31

Special Proceeding

Answer 31

A special proceeding is a speedy, streamlines procedure, akin to motion practice, the purpose of which is to obtain a judgment as a final resolution of a dispute

Question 32

Arbitration

Answer 32

Arbitration is a private procedure, based on contract, for the binding resolution of disputes - arbitrators are not bound by the substantive law or the rules of evidence - the scope of judicial review is extremely narrow

Question 33

Five threshold issues can be presented to the court in an effort to avoid arbitration:

Answer 33

i. Did the parties agree to arbitrate? ii. Is the dispute within the scope of the arbitration clause? iii. Is the arbitration clause valid? iv. Is there an express condition precedent to arbitration, and has it been complied with? v. Statute of Limitations

Question 34

Mediation

Answer 34

A non-binding process in which a neutral mediator attempts to facilitate a settlement by speaking confidentially to each party and then jointly with both parties present.

Question 35

Neutral Evaluation

Answer 35

A non-binding process in which a neutral expert in the subject matter at issue receives a condensed presentation about the merits from each side, evaluates the presentations and predicts how a court would decide the dispute.

Question 36

Summary Jury Trial

Answer 36

The SJT requires an agreement that includes the participation of the court. The SJT is a condensed version of a real trial in which a real judge presides and a real jury is empanelled to hear the case and render a verdict. Can be binding or non-binding.

Question 37

Article 78 Proceeding

Answer 37

Article 78 of the CPLR authorizes a special proceeding for judicial review by state and local governmental officers.

Question 38

Art. 78: Mandamus to Compel

Answer 38

To compel the performance of an act required by law- an act as to which no discretion is involved - applies to corporations

Question 39

Art. 78: Prohibition

Answer 39

A proceeding to stop a judicial officer from exercising power that exceeds the officer's lawful jurisdiction. - the excess must be gross in nature

Question 40

Art. 78: Certiorari

Answer 40

A proceeding to challenge the results of a “trial-type” hearing conducted by an administrative agency.

Question 41

Art. 78: Mandamus to Review

Answer 41

A proceeding to review any type of administrative action not covered by the other grounds for an Art. 78 proceeding.

Question 42

Bill of Particulars

Answer 42

The 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 CoA for negligence must always be verified.