NY BAR REVIEW - civil practice and procedure 2019 Flashcards
(327 cards)
1
Q
court of appeals
A
hightest court in court system. no original jurisd. ONLY appellate. without regard to amount in controversy.
limited to questions of law.
2
Q
appellate division of sup ct - 1st 2nd 3rd and 4th judicial depts
A
single statewide appellate ct divided into 4 judicial depts.
principal intermedicate appeals ct.
trial cts in dept are required to follow precedent set by another dept until ct of appeals or dept. in which trial ct sits pronounces a contrary rule - STARE DECISIS. appellate division should accept decisions of sister depts. as persuasive authority, but are free to reach contrary results.
3
Q
appellate terms of sup ct in 1st and 2nd jud depts
A
first - 2 counties within NYC.
2nd- 3 counties within NYC plus 7 others.
hear appeals from civil and criminal cts on NYC and of 2nd dept hears appeals also from district, county - excluding felony, city town, village cts.
4
Q
sup ct
A
general original jurisdiction of all cases in law and equity without monetary limitation UNLESS jurisdi has been specifically proscribed.
at times, jurisd concurrent w that of other cts.
exclusive subj matter jurisdi over matrimonial actions and wrongful death claims.
in NYC - hears ALL felonies.
5
Q
commercial divis of sup ct handles which types of claims?
A
those meeting a monetary threshold and involving a multitude of commercial disputes. shortly after commencement of action, any party MAY seek assignment of commercial case to commercial divisi and upon transfer, parties subject to specific rules of practice for comm divis. electronic submission and form of papers, atty appearances, limitations on discovery, discovery of electronically stored info, adherence to discovery schedules and discovery disputes, motions, trials
6
Q
court of claims
A
COURT OF CLAIMS ACT.
exclusive jurisd over tort and contract claims ag STATE OF NY.
may NOT exercise equitable jurisdic and does NOT have jurisdi over NON STATE ACTORS
7
Q
county court
A
only in 2nd dept outside NYC and long island and 3rd and 4th judic depts, which include counties that are all outside NYC.
have jurisd over ALL cirminal matters, but hear primarily FELONIES.
limited jurisd over civil cases where amt to be recovered isnt over 25K and have jurisd over summary proceedings to recover possession of real prop.
has jurisd over appeals from city, town, village cts
8
Q
surrogate’s court
A
SURROGATE COURT PROCEDURE ACT.
has jurisd over all proceedings relating to affairs of decedents, probate of wills, admin of estates, guardianship of prop of minors.
has concurrent jurisd w family ct over adoptions and concurrent jurisd w sup ct over admin of decedent’s estate, although matters are generally disposed of in surrogate’s ct, and over allocation and distribution of proceeds of wrongful death actions. full equity powers in matters over which it has jurisd
9
Q
family court
A
jurisd over child abuse and neglect proceedings, spousal support, child support proceedings, proceedings to determine paternity, proceedings for permanent termination of parental rts, person in need of supervision proceedings, family offense proceedings, concurrent and simultaneous w criminal ct, juvenile delinquency proceedings, adoptions, custody and support proceedings when referred by sup ct
10
Q
NYC CIVIL CT.
NYC CRIM CT.
A
nyc civil ct has jurisd within city of ny over monetary actions where recovery is up to 25k and over summary proceedings to recover possession of real prop.
nyc crim ct has crim jurisd within city of ny over misdemeanors and violations
NY CONSTITUTION
11
Q
district ct.
city ct.
town ct.
village ct.
A
district cts - ONLY in nassau and suffolk counties in 2nd judic dept., and city cts have jurisd over monetary actions where amt to be recovered doesnt exceed 15k.
town cts and village cts have jurisd over monetary actions where amt of recovery doesnt exceed 3k.
these all have crim jurisd over misdemeanors and violations
NY CONSTITUTION.
UNIFORM CT ACTS.
12
Q
commencement by filing, including electronic
A
excluding town and village cts, action commenced by paper filing or where authorized , electronic filing of summons and complaint or summons w notice w clerk of ct in county where action is brought
13
Q
special proceeding commenced by
A
paper filing, or electronic filing where authorized, of a NOTICE OF PETITION and PETITION w clerk of ct in county where special proceeding is brought
14
Q
in some counties, certain types of actions, commencement by electronic filing is
A
MANDATORY.
in others, authorized.
15
Q
nondomiciliary who commences action in NY, even if he is NOT otherwise subject to personal jurisd in NY, submits himself to
A
personal jurisdic in any separate action brought ag him by any party to pending action and is deemed to have designated his NY atty as agent upon whom process MAY be served in such sep action. def can use CPLR 303 to acquire jurisd over pl in separate action instead of interposing a counterclaim
16
Q
commencement by filing, service in action MUST be made within
A
120 days.
CPLR
17
Q
if method of serving process requires 2 acts, such as deliver and mail or affix and mail,
A
BOTH acts MUST be performed within 120 day period
18
Q
in action/proceeding where statute of limitations is 4 months and less (like art 748 proceeding), service of process is to be made no later than
A
15 days after date on which relevant statute of limitations expires
19
Q
if service NOT timely, court will
A
UPON MOTION, MUST dismiss action without prejudice as to def not served or upon good cause shown or in interest of justice, extend time for service
20
Q
if statute of limitations expired since, pl MUST make motion or raise issue in response to def’s motion to dismiss, for
A
extension of time to serve while action / proceeding is still pending or commencement of new action will be TIME BARRED
21
Q
application for extension of time to serve
A
GOOD CAUSE requires threshold showing of reasonable diligence in attempting to effect service on def
22
Q
interest of justice std
A
broad and flexible ground for extension.
23
Q
one factor ct MAY consider along w other relevant factors
A
diligence in effecting service. expiration of statute of limitations. meritorious nature of claim. length of delay. promptness of request. prejudice to def. and other relevant factors.
24
Q
personal service in action upon natural person MUST be made pursuant to cplr 308
A
personal delivery. deliver and mail. service upon agent. affix and mail. court ordered service.
25
each method of personal service requires
adherence to provision.
26
delivery of process to person of suitable
age and discretion at actual place of business, dwelling place, usual place of abode of def.
mailing process to def at his last known residence or actual place of business, and filing proof of service.
27
service that requires affixing process to door of
actual place of business, dwelling place, or usual place of abode of def, mailing to def at his last known residence or actual place of business, then filing proof of service
28
SERVICE UNDER CPLR 308 4 is NOT available UNLESS
service under subsection 1 and 2 CANNOT be made w due diligence
29
personal service upon partnership
```
serving process on any of partners.
serving the managing or general agent of partnership or person in charge of partnership office within state at such office.
mailing process to partner intended to be served by first class mail to his last known residence or partnership place of business, then filing proof of service
```
30
if method of service requires filing of proof of service, it is a
prerequisite to completion of service and service is complete 10 days after filing. def's time to respond does NOT begin to run until service is complete
31
personal service upon domestic or foreign corp by serving
```
officer.
director.
managing agent.
general agent.
cashier.
assistant cashier.
service upon registered agent or sec of state.
```
32
personal service upon domestic or foreign limited liability company by
serving process on any member of LLC if mgt of LLC is vested in its members or any manager of LLC if mgt of LLC is vested in one or more managers, or service upon sec of state.
LIMITED LIABILITY COMPANY LAW.
33
person domiciled in state or subject to personal jurisd under LONG ARM statute may be served
outside state in same manner as service is made within state by same parties authorized to make service within or without the state.
papers MAY be served by any person over 18 whos NOT a party in the action
34
personal juris
in personam.
in rem.
quasi in rem.
35
in personam jurisd
```
presence.
consent.
domicile.
doing business.
LONG ARM.
```
36
personal juris over a def, pl MUST have
either general juris or LONG ARM juris .
37
general juris
permits court to hear all claims ag entity,
38
specific juris
permits ct to hear ONLY those claims that arise out of entity's contacts within the state
39
foreign corp is subject to
general personal juris in NY if it is present and doing business in the state.
if it is engaged in continuous, permanent, substl activity in NY.
40
general personal juris can NO longer be asserted ag foreign corp based solely on its
continuous and systematic business activity in NY.
| due process limits exercise of general juris to state in which corp is at home.
41
if corp is NOT incorporated in NY or maintaining principal place of business there, NY cts will only exercise general personal jurisd
in exceptional case, when foreign corp's operations are so substl and of such a nature as to render corp essentially at home
42
traditional jurisdictional bases of presence, domicile, doing business, confer
general jurisd
43
state LONG ARM statute confers ONLY
specific juris
44
specific jurisd
cause of action MUST arise out of def's state connected activity
45
state directed activities that permit assertion of IN PERSONAM jurisd as to cause of action arising from those acts. cts MAY exercise personal juris over non domiciliary who in person or through an agent:
transacts business w NY or contracts to supply goods or services here.
commits tortious act within NY, except as to cause of action for defamation.
commits tortious act outside NY that causes injury within NY - injured person or damaged property MUST be located in state at time of injury or damage, except as to cause of action for defamation, if def regularly does or solicits business, or engages in other persistent course of conduct in NY, or derives substl revenue from goods used or consumed or services rendered in NY or expects or reasonably should expect act to have consequences in NY and derives substl revenue from interstate or intl commerce.
OR
owns uses or possesses real prop within NY.
46
personal juris over non resid def in ____ action
matrimonial.
| IF prerequisites are satisfied
47
if pl's case falls within particular statutory grant of LONG ARM jurisd, particular assertion of LONG ARM jurisd MUST NOT exceed what?
limits imposed by due process clause of US CONST and NY CONST.
48
place of trial is ___ in which pl or def resides at time of commencement of action, in which substl part of events or omission giving rise to claim occured, or if neither party resides in the state, in any ___ designated by pl.
county
49
corp is a resident of _____ in which its principal office is located
county
50
partnership is deemed resident of ____ in which it has its principal office and _____ where partner suing or being sued actually resides
county
51
place of trial of all actions ag MUNICIPAL def's is ______ in which such municipal def is located
county
52
place of trial of any action in which judgment would affect title to real prop is the ______ where real property is situated
county
53
ct upon motion may change venue upon grounds that venue was what?
improperly placed.
impartial trial cannot be had in proper county.
OR
if convenience of material witnesses and ends of justice will be promoted by the change.
54
ct is permitted, even though has jurisd, to decline to entertain action after what?
examining all relevant factors of private inconvenience and public interest, including whether chosen forum is significantly inconvenient for trial of action and whether a more appropriate forum is available
55
NY , unlike federal cts, does NOT necessarily require alternative forum as what?
precondition to forum non conveniens dismissal
56
ct may stay or dismiss action it entirety or in part upon what?
any just conditions
57
what are just conditions?
waiver of defenses - lack of jurisd or state of limitations
58
if alternate venue is another NY court, ct may not transfer the case, unlike fed procedure which what?
permits such a transfer
59
action MUST be commenced within limitations period in ART 2 unless what?
diff time is prescribed by law or shorter time is prescribed by written agreement
60
ct CANNOT extend time limit limited by law for what?
commencement of an action
61
borrowing statute
if nonresident pl's claim accrued outside NY, claim MUST be timely under both NY law and that of place of accrual
62
out of state claim that accrues in favorof NY resident will be governed by NY statute of limitations regardless of whether what?
other state's statute of limitations is shorter than that of NY
63
pl MUST interpose claim within applicable what?
statute of limitations
64
in all cts, except justice cts, claim is deemed interposed when?
initiatory papers are filed w clerk
65
if there are several def's and they are united in interest, commencement as to one will what?
preserve action as ag others
66
UNITED IN INTEREST doctrine
assertion of claim ag def after expiration of statute of limitations will relate back to commencement date of timely action ag related party under circumstances
67
relate back to commencement date of timely action ag related party under which circumstances?
claims ag parties arose out of same conduct / transaction / occurrence.
def reasonably should have known that pl made a mistake in failing to timely identify proper parties.
AND
def and party originally sued have such a unity of interest that by reason of their relationship, def can be charged w such notice of action that he will not be prejudiced in defending the case
68
def or counterclaim is interposed when?
pleading containing it is served and it is NOT barred if it was NOT barred at time claims asserted in complaint were interposed
69
if def or counterclaim arose from transactions or occurrences upon which a claim in complaint depends, then?
defense or counterclaim is NOT barred to extent of demand in complaint even if time barred at time claims asserted in complaint were interposed
70
claim asserted in amended pleading is deemed to have interposed when?
at time claims in original pleading were interposed provided original pleading gave notice of same conduct, transaction, occurrence
71
limitations period measured from discovery of wrong, action MUST be commenced when?
within stated limitations period from wrong itself or 2 years from discovery of wrong, whichever longer
72
ten year limitation period
adverse possession claim
73
six year limitation period
action for breach of contract, express or implied (except as otherwise provided).
action based upon fraud - greater of 6 years from time fraud was perpetrated or 2 years from time it was discovered or could w reasonable diligence have been discovered.
action for which NO limitation is specifically prescribed by law.
74
three year limitation period
action to recover damages for personal injury.
action to recover damage for injury to property.
action to recover damages for malpractice (NOT medical / dental / podiatric) regardless of whether underlying theory is based in contract or tort
75
two years and six months limitation period
medical malpractice.
dental malpractice.
podiatric malpractice.
alleged act / omission / failure.
76
one year limitation period
action to recover damages for intentional torts - assault , defamation.
action upon arbitration award.
77
if continuous treatment for the illness / injury / condition that gave rise to act / omission,
statute is tolled until date of last treatment.
78
if action is based upon discovery of a foreign object left in patient's body, excluding devices placed in patient for ongoing treatment, commencement period is
tolled until earlier of one year of date of discovery or of date of discovery of facts which would reasonably lead to discovery.
79
if action based upon failure to diagnose cancer or malignant tumor, by act oromission, comencement period is
tolled until later of either - when person knows or reasonably should have known of act / omission and knows or reasonably shoujld have known that act or omission has caused injury, NO later than 7 years from act or omission OR date of last treatment where there is continuous treatment
80
4 months limitation period, after determination to be reviewed becomes final and binding
special proceeding under ART 78 (unless shorter time provided in law authorizing proceeding,)
CPLR
81
one year and 90 days limitation period
action ag municipalities to recover damages for personal injury or property damage, other than for wrongful death
CPLR
82
two years limitation period
wrongful death actions , since decedent's date of death
GENERAL MUNICIPAL LAW
83
90 days limitation period
claims ag municipalities / fire district, school district, recover damages alledged to have been sustained by reason of negligence or wrongful act of def unless notice of claim served according to law below.
from date claim arises.
from date of apptmt of rep for decedent estate.
notice of claim in writing, sworn to by or behalf of claimant
GENERAL MUNICIPAL LAW
84
notice of claim ag municipality shall set forth what?
name and address of claimant and atty if any.
nature of claim.
time, place, manner in which claim arose.
AND
items of damage or injuries claimed to have been sustained.
85
in municipality case - ct in its discretion may extend time to serve notice of claim but it shall NOT exceed what?
statute of limitations for commencing action ag municipality or other public corp. - one year and 90 days after happening of event or in wrongful death case, within 2 years of decedent's death
GENERAL MUNICIPAL LAW
86
in municipality case - whether to extend time to serve notice of claim, ct MUST consider whether?
municipality or its insurance carrier had actual knowledge of facts constituting claim within 90 days of event and all other relevant factors, including whether claimant was an infant or incapacitated, whether claimant justifiably relied upon settlement representations of rep of municipality AND whether delay in serving notice of claim substly prejudiced municipality in maintaining its defense on the merits
87
cause of action accrues ag a def and def is absent from state, limitations period is what?
tolled until his return
88
if def leaves state after cause of action accrues and remains there continuously for 4 months and more, period of absence is what?
NOT part of limitations period
89
absence of def will NOT suspend running of statute of limitations if what?
there is statutory authority for obtaining jurisd over def by manner other than by personal delivery of process within state, where resident agent may be served OR if jurisd over person of def can be effected out of state pursuant to LONG ARM jurisdi.
CPLR
90
infancy and insanity
disabilities which MAY toll applicable statute of liimitations
91
if SOL is less than 3 years, it does NOT run during entire period of what?
disability
92
if SOL is 3 years or longer?
pl will have at least 3 years to sue from time disability ceases
93
disability
applies only when pl is under the disability at time cause of actions accrues
94
toll of ten years
max toll permitted in case of insanity
95
toll of ten years
infant's cause of action for medical / dental / podiatric malpractice
96
NO ten year maximum limit
any other cases involving infant
97
greater of that limitation period or one year from death
pl dies before expiration of limitations period, his executor or administrator has in order to sue
98
18 months tacked onto limitations period that's remaining
def dies before suit
99
if action timely commenced and terminated in manner other than final judgm on merits, voluntary discontinuance, neglect to prosecute, lack of personal jurisd, and statute of limitations has or is about to expire,
pl MAY commence NEW action upon same trans or occurrence within 6 months after termination, provided service upon def is effected within such 6 month period.
application of the 6 month period is NOT needed if statute of limitations hasnt run when new action is commenced.
100
def appears in an action how?
by serving an answer.
making a motion which has effect of extending time to answer.
serving notice of appearance.
101
if def served by personal delivery within NYS, time to appear is NO later than
20 days from delivery
102
in most other cases including service outside state and service under CPLR 308, time to appear is NOT later than
30 days after service is complete
103
appearance by def confers jurisd over def's person unless
objection to jurisdi is raised in motion or answer according to CPLR 3211 or def makes limited appearance in actions based on quasi in rem or in rem jurisdi
104
who may appear in an action through an atty?
any party
105
once party appears in action through an atty, atty or record may be changed how?
by filing consent to change attys signed by retiring atty and signed and anknowledged by party
106
notice of change of atty MUST be given to attys for whom
all parties
107
atty of record MAY withdraw or be changed by court order upon what?
motion on notice to client , to attys of record, for all other parties to action and to any unrepresented parties
108
pleadings that are permitted in an action are :
complaint.
answer.
which may include a counterclaim and crossclaim, reply to counterclaim labeled as such.
third party complaint.
answer to interpleader complaint or third party complaint.
answer to crossclaim that contains a demand for an answer.
109
if no answer is demanded, cross claim is deemed ?
denied
110
no other pleadings are permitted without what?
court order
111
party in its answer MUST what?
deny sttmts known or believed to be untrue and or specify sttmts of which he lacks knowledge or info sufficient to form a belief.
112
allegation NOT addressed by either kind of denial is deemed what?
admitted
113
party MUST specifically raise as an affirmative defense any matter which, if not pleaded would be likely to what?
take adverse party by surprise or would raise fact issues not appearingon face of prior pleading
114
statute contains list of traditional affirmative defenses, such as?
```
collateral estoppel.
release.
res judicata.
statute of frauds.
statute of limitations.
```
115
the affirmative defenses, among others, are waived if NOT what?
raised in answer or pre answer motion to dismiss
116
culpable conduct claimed in diminution of damages is likewise what?
an affirmative def to be pleaded and proven by party asserting the defense
117
counterclaim
cause of action asserted by def ag pl.
need not arise out of trans or occurrence out of which pl's claim arises, nor otherwise be related to pl's claim.
can be ANY cause of action def has ag pl, legal or equitable
118
every counterclaim in NY is what?
PERMISSIVE, even if subject matter relates to pl's claim
119
crossclaim
cause of action by 1 def ag another.
| MAY be asserted bw def's for any cause of action at all, whether or NOT related to pl's claim.
120
verification of pleadings
sttmt by party under oath that pleading is true to knowledge of deponent
121
pleadings need NOT be what?
verified
122
if a pleading is verified , each subsequent pleading MUST be what?
verified, unless matter to be verified is privileged
123
if a counterclaim or crossclaim in an answer is separately verified, it is given the same effect as if it were what?
separate pleading
124
verification of complaint in matrimonial action is what?
mandatory
MATRIMONIAL AND FAMILY LAW
125
verification of petition in ART 78 proceeding is what?
mandatory
CIVIL PRACTICE AND PROCEDURE LAW
126
amendments to pleadings MAY be made once how and when?
without leave of court within 20 days after its service or any time before time to respond expires or within 20 days after service of pleading responding to it.
thereafter, party MAY amend pleading of may supplement it by setting forth addtl or subsequent transactions or occurrences only by LEAVE OF CT or STIPULATION OF PARTIES
127
answer or reply to amended or supplemental pleading MUST be served when?
within 20 days after service of pleading to which it responds
128
bill of particulars
amplifies pleadings. NOT obtain evidence.
| is available bw parties to an action;.
129
how to secure bill of particulars?
serve written demand on party from whom particulars are sought
130
party on whom demand is made MUST serve what?
timely response, and if any particulars are objectionable, include in response a sttmt of objections for particulars NOT being responded to with reasonable particularity
131
assertion of objection to 1 or more items in demand shall NOT relieve whom?
party on whom demand is made, from obligation to respond in full within 30 days of service of demand to items of demand to which no objection has been made
132
party may amend bill of particulars how?
once without leave of court before note of issue is filed
133
if party fails to timely respond or fails to comply fully w a demand, party seeking bill of particulars MAY move to what?
compel compliance or if failure is willful, seek penalties
134
if ct determines that a demand for particulars or any part thereof is improper or unduly burdensome, may what?
vacate or modify demand, or make such order as is just
135
in personal injury aciton, items that may be demanded have been what?
codified
136
in personal injury action, party may serve a _____ bill w respect to claims of continuing special damages with or without leave of court up to 30 days prior to trial ?
suppplemental bill.
| without leave of court.
137
no new cause of action may be alleged or new injury claimed, and the other party MAY seek what?
discovery regarding such continuing special damages and disabilities
138
if pleading is verified, any bill of particulars in respect of it MUST also be what?
verified
139
in negl case, bill of particulars MUST be verified whether or not what?
pleading is verified.
CPLR
140
necessary party
person who ought to be a party if complete relief is to be accorded bw parties to action or who might be inequitably affected by judgment in action
141
necessary parties MUST be joined in action if they are what?
subject to jurisd of ct
142
if they are not subject to and do not consent to jurisd of ct, when justice requires - the ct MAY allow what?
action to proceed without them
143
permissive joinder of claims by multiple pl's as well as joinder of multiple def's by a pl is permitted if claims:
arise out of same transaction / occurrence / series of transactions / occurrences AND have in common any question of law or fact
144
nonjoinder of necessary party MAY be ground for what?
dismissal
145
misjoinder of party is NOT grounds for what?
dismissal
146
parties may be added when?
| IMPORTANT!!!
at ANY stage in action by leave of court or stipulation of all parties who have appeared or 1 time without leave of ct within 20 days after service of summons or within time period for responding to summons, or within 20 days after service of pleading responding to it.
147
impleader synonym
third party practice
148
what is impleader?
procedure whereby a def is permitted to proceed ag a person not a party, who is or may be liable to def for all or part of pl's claim ag def, by bringing that person into lawsuit so original claim and related claim ag added person MAY be decided in a single suit
149
original party def is called what
third party pl
150
impleaded party is called what
third party def
151
party MAY commence third party action when?
service of his answer
152
third party summons and complaint MUST be filed with whom?
clerk of ct and served, together w all prior pleadings, ion pl and third party def within 120 days of such filing
153
third party def MUST serve answer upon third party pl that MAY contain what?
any defenses he has ag pl's claims or third party's claims
154
third party def's answer may also assert what?
any counter claims or cross claims the third party def has ag any party to the action
155
within 20 days after service of answer to third party complaint, pl MAY amend his complaint how?
wihtout leave of court to assert ag third party def any claim pl has ag such party
156
attachment
seizure of def's property by sheriff, who holds prop for potential satisfaction of judgment in pl's favor, helping secure enforcement of money judgment.
its available only in action for money judgment and only upon motion demonstrating grounds
157
grounds for attachment:
```
def is nondomicialry residing without the state, / is a foreign corp not qualified to do busienss in state.
def rsides / domicield in state and CANNOT be personally served despite diligent efforts to do so /
def with intent to defraud his creditor or frustrate enforcement of judgment that might be rendered in pl's favor, assigned disposed of encumbered or secreted property or removed it from state or is about to do any of these acts.
```
158
pl making motion for order of attachment MUST show
through affidavits and other evidence a probability of success on the merits. pl MUST provide undertaking in amt set by the court. pl MUST file order of attachment and papers upon which it was based, including summons and complaint, within 10 days of granting the order
159
in event order of attachment is granted before service is made, summons and complaint MUST be served within
60 days, subject to extension upon application to ct upon good cause shown
160
preliminary injunction is
ct order seeking to safeguard rights asserted by pl in pending action or special proceeding to preserve status quo until case can be fully adjudicated on merits
161
preliminary injunction MAY be granted on grounds:
```
def threatens to harm pl's rights in subject of action and such harm could render judgment ineffectual.
pl seeks judgment restraining def from injurious conduct that would also injure pl if committed during course of action.
```
162
preliminary injunction is NOT available in action seeking solely what?
money damages
163
procedure for getting preliminary injunction is
motion in pending action, which MUST be made on notice to def.
notice of motion MAY be served with or after summons or at any time before final judgment
164
supporting affidavits and other evidence MUST show that underlying action falls within one of grounds for preliminary injunctiion. in addition to specified statutory requirements, cts also require showing:
likelihood of success on merits of action.
threat of irreparable injury.
balance of equities in pl's favor.
165
before getting preliminary injunction, pl will have to submit what?
undertaking in amount set by ct so that if it is finally determined that pl was NOT entitled to such relief, he will pay def all damages and costs which were sustained by reason of injunction
166
temporary restraining order provides what?
immediate injunctive relief while ct determines motion for preliminary injunction
167
obtain temporary restraining
MAY be granted without notice.
pl MUST demonstrate immediate and irreparable injury, loss or damages will result UNLESS def is restrained before a hearing on motion for preliminary injunction can be held. undertaking at discretion of ct
168
notice of pendency may be filed
in action in which judgment demanded would affect title to or possession , use or enjoymnet of REAL PROPERTY.
prevents potential transferee or mortgagee of property from acquiring status of innoent purchaser for value while action is pending by placing a cloud on marketability of def's title for duration of lawsuit
169
on or after commencement of action, notice of pendency is filed where?
office of county clerk where property is located, without notice to def , without undertaking, and before or after service of process
170
once notice of pendency filed, summons MUST be served when?
on def within 30 days
171
party may move for judgm dismissing 1 or more causes of action asserted ag
party
172
party may move for judgment dismissing defense on ground that
defense is NOT stated or has NO merit
173
motion to dismiss may be treated by ct after adequate notice to parties as one for what?
summary judgment
174
motion to dismiss cause of action
to be made before service of responsive pleading is required.
175
if def has 20 days to answer complaint and wishes to make pre answer motion to dismiss complaint , MUST make motion when?
within that time
176
only 1 pre answer motion to dismiss
may be made !!
177
if def makes a pre answer motion to dismiss, def may raise any
grounds to dismiss available to def
178
if def makes pre answer motion and FAILS to include a defense upon lack of personal jurisdi or lack of jurisd where service was made, defense are ?
WAIVED
179
defense based upon enumerated grounds is waived if not raised by what
pre answer motion or as a defense in the answer
180
ground include
```
documentary evidence.
lack of legal capacity to sue.
another action pending.
collateral estoppel.
release.
res judicata.
statute of limitations.
statute of frauds.
```
181
objection based upon lack of subj matter jurisdic, failure to state cause of action, failure to join necessary party, MAY be raised when?
ANY TIME by motion or in subsequent pleading. may be raised even if pre answer motion was served and def was not included and even if answer was served without raising def.
182
objection that initial pleading was not properly served is waived if
having raised such objection in responsive pleading, objecting party doesn't move for judgm on such ground within 60 days after serving pleading
183
service of notice of motion to dismiss cause of action before responsive pelading is due does what?
extends time to serve a responsive pleading until 10 days after service of notice of entry of order determining such motion
184
on motion to dismiss, ct affords pleading
a liberal construction. accepts all facts as alleged in pleading to be true. accords pl benefit of every possible favorable inference, determines only whether facts as alleged fit within any cognizable legal theory.
185
party may move for summary judgent when
in any action
186
earlies time for making motion for summary judg is
joinder of issue - service of def's answer
187
latest time for making motion for summary judg is
120 days following filing of note of issue
188
ct may set earler date but not
earlier than 30 days after filing of note of issue
189
ct can set aside time restriction and allow late summary judgment motion if
good cause is shown
190
good cause requires showing
good cause of delay in making the motion
191
NOT GOOD CAUSE that will permit late filed motion to be heard
the delay is non prejudicial .
| motion is meritorious.
192
party seeking summary judgment MUST make prima facie showing of
entitlement to judgment as a matter of law
193
it is required that moving party attach
complete set of pleadings and submit affidavits made by one w knowledge of facts and all other available evidentiary prroof in admissible form showing there is NO defense to caues of action or that cause of action or defense has no merit
194
conclusory assertions or assertiions and allegations based solely upon info and belief are
insufficient to obtain summary judgment
195
attys affidavit a to facts is
insufficient, if not based on personal knowledge
196
to defeat motion for summary judgment, opposing party MSUT show
facts sufficient to require trial of any issue of fact
197
ct may search record and if appears that any party other than moving party is entitled to summary judgment, court may grant
such judgment without necessity of cross motion
198
summary judgment is granted if upon all papers and proof submitted judgment is warranted for
one side or other as a MATTER OF LAW
199
any party may move to vacate what
judgment or der upon grounds, which are excusable default.
newly discovered evidence.
fraud.
misrepresentation.
other misconduct of adverse party.
lack of juridiction to render judgement or order.
reversal.
modification or vacatur of prior judgment or order upon which current jdugment or order is based
200
if ground is party's excusable default,
1 year time limitation for making motion
201
motions to vacate on other grounds MUST be made within
reasonable time
202
ct may vacate judgment or order upon such terms as may be
just .
| empowering ct to impose conditions when vacates judgment or order
203
application to vacate a default judgment requires
excuse for default and affidavit of merits , demonstrating meritorious defense
204
motion practice
motion papers.
reques for judicial intervention.
affirmation of good faith.
205
motion requires
notice of motion specifying time, place of motion, papers on which based, relief sought, groundupon which movant believes itself entitled to relief
206
time and place of hearing of motion can be set ONLY after what
movant filed request for judicial intervention RJI and judge has been assigned to action
207
if motion pertains to disclosure or bill of particulars, MUST contain affirmation that prior to making motion, counsel conferred w opposing party's counsel in good faith effort to
resolve issues raised by motion
208
general scope of rt to disclosure extends to
all matters material and necessary in prosecution or defnese of action regardless of burden of proof
209
such disclosure is obtainable from any party, including
officer, director , member, agent, employee of party
210
disclosure from nonparty is obtainable if person is
about to depart from state or is outsdie staet, residing more than 100 miles from place of trial, too sick, or infirm to attend trial or is treating doctor or trial expert of party demanding disclosure.
211
disclosure from nonparty MUST be upon
notice stating circumstances or reasons such disclosure is sought or required
212
immune from disclosure
privileged matter.
absolute immunity.
work product of atty. absolute immunity. material prepared for litigation.
conditional immunity.
only upon showing that party seeking discovery has subsl. need of materials in prep of case and is unable without undue hardship to obtain substl equivalent by other means.
213
upon request , each party MUST
identify each person whom party expects to call as expert witenss at trial and disclose in reasonable detail the subject matter on which each expert is expected to testify, substance of facts and opinions on which each expert is expected to testify, qualifications of each expert witness, and summary of grounds for each experts opinion
214
expert report need NOT be disclosed nor may a deposition of expert be taken in absence of
court order issued upon showing of special circumstances and subject to such retstrictions and provisions aas court deems appropriate
215
party without court order may depose person authorized to practice
medicine
dentistry
podiatry
. who is the party's treating or retained expert.
in which case other party is entitled to full disclosure regarding that expert
216
special rules apply to experts in
medical , dental, podiatric malpractice actions
217
any party may obtain copy of what
his own sttmt
218
party may obtain discovery of existence and contents of any insurance agrement under whicvh person carrying on an insurance business may be liable to satisfy part or all of
judgment which may be entered int the action or to indemnify or reimburse for payments made to satsify judgment
219
info concerning insurance agreement is NOT by reason of disclosure
admissible in evidence at trial
220
written accident reports in regular cours of business operations or practices of any person, firm, corp, association, other public or private entity MUST be
disclosed.
unless prepared by police or peace officer for criminal investigation or prosecution and disclosure would interfere with criminal investig or prosecution
221
party MUST amend or supplement response previously given to a request for disclosure promptly upon
party's thereafter obtaining info thaat response was incorrect or incomplete when made or that the response though correct and complete when made, no longer is correct and complete and circumstance are such that a failure to amend or supplement the response would be materially misleading
222
party may obtain full disclosure of
```
films.
photographs.
video tapes.
audio tapes.
transcipts.
memoranda.
involving other party.
```
223
disclosure under this section covers all portions of
such material including out takes rather than only those portions a party intends to use
224
ediscovery
generally permissible
225
material and necessary requirement
applies to ediscovery
226
factors in determining method and scope of electronic discovery
identify potential types of ESI and relevant time frame.
manner in which it is maintained and whether it is reasonably accessible.
implementing preservation plan for relevant ESI.
scope and form of production.
identification of privileged or confidential ESI.
anticipated cost and burden of data recovery and proposed allocation of such cost..
227
scope of ediscovery may include
info from social media websites, facebook.
228
party may NOT prevent disclosure of social media data by employing
privacy settings or curating materials on public portion of account
229
discovery of social media data that is designated as private is
permitted.
so long as request for such discovery is reasonably calculated to lead to evidence that is material and necessary to litigation
230
requests for social media data should be
tailored to nature of controversy at issue and limited in time, as appropriate to specific circumstances of case
231
any party or non party from whom discovery is sought is permitted to
move for a protective order denying, limiting, conditioning, regulating, use of any disclosure device to prevent UNREASONABLE annoyance, expense, harassment, disadvantage, other prejudice
232
any party in action may serve upon any other party written
interrogatories, - cannot be used if bill of particulars is demanded of same party and in action seeking damages for personal injury, property damage or wrongful death predicated solely on Cause of action for negligence, interrogatories CANNOT be used without leave of court if deposition is conducted of same party
233
special rules apply in ___ actions
matrimonial
234
special proceeding
used to establish right or enforce obligation in civil matter in expedited fashion
235
statutory autorization MUST exist for use of
special proceeidng
236
most common special proceeding
ag body or officer
237
first application arising out of
arbitrarable controversy
238
party initiating special proceeding is called
petitioner
239
adversary in special proceeding is
respondent
240
leave of court is required to
join any other parties in special proceeding
241
pleadings in sp proce are
petition.
answer.
reply.
additional pleadings require leave of court
242
commencement of special proceeding requires
petition and notice of petition or order to show cause
243
notice of petition serves to
notify respondent of time and place of return date on petition
244
in addition to specifying return date,notice of petition MUST idnetify
affidavits that are being submitted in support of petition.
245
alternative tonotice of petition
allowed - use of order to show cause
246
order to show cause is a
judicial order obtained ex parte that specifies date and place of hearing
247
respondent MAY raise objection in point of law
defense that can produce summary dismissal of proceeding in answer or in motion to dismiss made within time allowed for answer
248
pretrial disclosure is generally NOT available without
leave of court, except for notice to admit
249
ART 78 of CPR governs procedure for judicial review of matters recognized at common law under
prerogative writs of certiorari, mandamus, prohibition
250
art 78 is vehicle for jud review of
most admin action in NY
251
determination sought to be reviewed MUST be
final, and petitioner MUST exhaust his admin remedies before seeking jud relief
252
issues that MAY be raised in ART 78 proceeding
whether body or officer failed to perform duty enjoined by law.
whether body or officer proceeded is proceeding or about to proceed without or in excess of jurisd.
whether detrmination wa made in violation of lawful procedure ,was affected by error of law or was arbitrary and capricious or abuse or discretion.
whether determination made as result of hearing held and at which evidence was taken, pursuant to direction by law is on entire record, supported by substl evide.
253
art 78 proceeding is a special proceeding andis governed by
procedures of CPLR art 4 UNLESS inconsistnet provisions are found in art 78
254
ART 78 PROCEEDING must be commenced in
sup ct.
255
ART 78 PROCEEDING must be commenced how
by filing petition w clerk of ct of county in which proceeding is commenced
256
stateute of limiations for art 78 proceeding is
4 motnhs after determination to review becomes final and binding upon petitinoer unless shorter time is provided in law authorizeing proceedding
257
petition and anser in art 78 MUST be
verified
258
petition MAY be accompanied by
affidavits or other written proof
259
answer MUST state
facts showing grounds for respondent's action of which petitioner complains
260
certified transcrip of record of proceedings being challenged by petitioner MUST be
filed w answer
261
affidavits or other written proof may be submitted as
evidentiary support for respondent's position
262
reply MUST be served in response to
any new matter raised in answer
263
objections in point of law may raised either in
answer or in motion to dismiss made within time allotted for answer
264
on return date of petition in art 78 proceeding, ct is to
dispose of case as it would a motion for summary judgment
265
if pleadings, affidavits and other written proof submitted by parties raise NO triable issue of fact, ct should
decide case on papers and grant judgment as matter of law for prevailing party
266
if triable issue of fact is raised, ct shall
try it
267
art 78 proceeding commenced in sup ct that challenge whether agency's determination made as result of hearing held at which evidence was taken was supported by substl evidence are transferred to
appellate divis for resolution
268
alternative dispute resolution / arbitration
procedure for resolving dispute by referring dispute to impartial arbitrator or panel of arbitrators chosen by parties to hear evidence and arguments from each side and then decide the outcome
269
arbitration is less
formal than trial and may either be binding or nonbinding
270
written agreement to submit controversy to arbitration are enforceable and will be enforced by
courts without regard to merits of underlying claim
271
party seeking to resist arbitration may do so only upon grounds of
whether valid agreement to arbitrate was made.
whether conditions precedent in agreement have been complied with.
whether claim is barred by statute of limitations.
272
in absence of enumerated defenses to arbitration, ct shall direct parties to
arbitrate
273
cts are expressly prohibited from determining whether claim sought to be arbitrated is
tenable, or otherwise passing upon merits of dispute
274
special proceeding is used to bring before the court the first application arising out of
arbitrarable controversy
275
party initiates arbitration by
serving upon other party demand for arbitration or notice of intention to arbitrate or by applying to ct for order compelling arbitration
276
party wishing to resist arbitration may apply to stay the arbitration upon 3 enumerated def's and if party has been served w demand to arbitrate or notice of intent to arbitrate, opposing party MUST timely
move for a stay raising said grounds or they are waived .
| except that limitations defense may still be asserted before arbitrator, who has discretion whether or not to apply bar
277
if limitations def is decided by arbitrator it cannot be later
asserted as a basis to vacate of modify an award
278
if demand for arbitration fails to comply with formalities, and aggrieved party did not participate in arbitration, said defenses are NOT
waived and can still be raised in motion to vacate an award
279
provisional remedies of attachment and preliminary injunction are available in connection w pending arbitration ONLY upon ground that
award to which applicant may be entitled may be rendered ineffectual without such provisional relief
280
arbitrator MUST be sworn before hearing dispute and parties are afforded right to
be heard , present evidence and cross examine witness
281
arbitrators are NOT bound by rules of evide that apply in
judic proceedings
282
each party has a non waivable right to be represented by
counsel throughout arbitra proceed
283
application to confirm award if desired MUST be made within
1 year after delivery of award to moving party
284
application to vacate or modify award MUST be made within
90 days after delivery to moving party
285
jud rev of arbitration award is
extremely limited and an award will NOT be vacated for arbitrator's errors of law and fact
286
where aggrieved party participated in arbitration or was served with notice of intention to arbitrate and was prejudiced by particular impropriety , grounds for vacating arbitration award are
misconduct.
bias.
excess of power.
procedural defect.
287
if aggrieved party did NOT participate in arbitration wasn't served with notice of intention to arbitrate, or notice did not comply with rules, grounds for vacatur include
all of those mentioned above and added defenses of nonarbitrarability, noncompliance w arbitration agreement and statute of limitations
288
upon vacating an award, ct may order a
rehearing
289
alternative dispute resolution / mediation
used to resolve dispute bw 2 or more parties
290
mediation
3rd party neutral mediator does NOT decide the case but assists parties to reach mutually acceptable agreement
291
mediation may be inappropriate if
1 party is unwilling to compromise or has significant advantage in power or control over other party, as if parties have history of abuse
292
mediation process is private and confidential; it is less formal than a trial, allows parties to
communicate freely and participate fully in process and is less expensive than litigation
293
mediation may be court ordered is come cases and in some
courts
294
other ADR'S
neutral evaluation.
collaborative law.
summary jury trial.
295
neutral evaluation
parties present case to evaluator, expert in subject matter in dispute
296
evaluator
gives opinion of strengths and weaknesses of each party's evidence and arguments and offers opinion of likely outcome in court
297
collaborative law
legal process enabling married couples who have decided to divorce a way to do so in cost efficient manner without going to court, while retaining professional guidance of their own atty. couples bind themselves to process and disqualify respective lawyers in event either party decides to go to ct
298
summary jury trials
permit adversaries to present case in abbreviated form to mock jury which reaches verdict that is advisory only, unless parties agree to make it binding. it gives litigants a preview of potential verdict should case go to trial
299
in order to proceed to trial in civil action or inquest in special proceeding party MUST file
note of issue and certificate of readiness w clerk of court.
pay fee.
serve docs on all parties.
300
by filing note of issue party is representing to ct that
discovery is complete and case is ready for trial
301
issues of fact on causes of action for money ONLY are triable by
jury. unless jury trial is waived.
302
any party may demand trial by jury by serving
upon all parties and filing note of issue containing demand for trial by jury.
303
any party served w note of issue not containing such demand may demand trial by jury by serving upon each party
a demand for trial by jury and filing such demand in office where note of issue was filed within 15 days after service of note of issue
304
if no party demands trial by jury, right to trial by jury is deemed
waived by all parties
305
jury in civil case MUST consist of
6
306
verdict MUST be rendered by NOT less than
5/6 of jurors constituting jury
307
each party has rt to interpose
peremptory challenges and challenges for cause
308
peremptory challenges are limited in number and cannot be used to
exclude a juror for discriminatory reasons
309
challenge for cause, which may be made as often as necessary is
objection that prospective juror is unable to be impartial for particular reason
310
lawyers may stipulate to excuse a juror challenged for cause or challenge is decided by
court
311
enumerated grounds for challenge, not exhaustive - jury
juror is in employ of a party to the action .
if party to action is corp, that juror is shareholder or stockholder therein.
in action for damages to person or property that juror is shareholder , shareholder, director, officer, or employee, or in any manner interested in any insurance co issuing policies for protection ag liability for damages for injury to persons or property
312
enumerated grounds for challenge, not exhaustive - jury
juror is in employ of a party to the action .
if party to action is corp, that juror is shareholder or stockholder therein.
in action for damages to person or property that juror is shareholder , shareholder, director, officer, or employee, or in any manner interested in any insurance co issuing policies for protection ag liability for damages for injury to persons or property
313
at time of jury selection 1 or more alternate jurors are chosen to
participate in trial to same extent as regular juror and serves until submission of case to jury
314
when case is submitted ct may retain alternate jurors to ensure
availability if regular juror becomes unable to perform duties of juror or may dismiss alternate jurors
315
appeal from final judgment brings up for review any non final judgment or order which necessarily affects
final judgment/
| incidental orders that don't have impact on final judgment are excluded
316
appeal brings up for review all incidental rulings made at trial including
evidentiary rulings, provided appellant objected or there was no opportunity to object.
317
scope of power of ft of appeals on appeal is limited to
review of questions of law .
| intermediate appellate cts on appeal review questions of law and fact.
318
time within which to take an appeal is
mandatory and strictly enforced
319
appeal as of rt MUST be taken within
30 days after service by party upon appellant of a copy of judgment or order appealed from and written on notice of its entry
320
motion for permission to appeal MUST ALSO BE MADE WITHIN
30 DAYS from date of service by party upon person seeking leave to appeal of a copy of judgment or order to be appealed from and written notice of entry
321
how is an appeal taken
by serving on adverse party notice of appeal and filing it in office where judgment or order of ct of original instance is entered
322
where order grants permission to take appeal, appeal is
taken when such order is entered
323
notice of appeal MUST contain
name of party taking appeal, judgement or order appealed from and ct to which appeal is taken
324
appeal may be taken to ct of appeals as of
right from any order of appellate division that finally determines an action originating in sup ct , county ct, surrogates ct, family ct , ct of claims, or admin agency, where there is dissent by at least 2 justices on question of law
325
appeal as of rt to court of appeals is also available from appellate division order that finally determines
action where there is directly involved construction of NY or federal CONSTITUTION or that finally determines an action where the only question involved on appeal is constitutional validity of NY or federal statute
326
appeal MAY be taken to ct of appeals by permission of
appellate division or by permission of ct of appeals upon refusal by appellate division or upon direct application to ct of appeals, from any order of appellate division that finally determines action originating in sup ct, county ct, surrogate's ct, family ct, ct of claims, admin agency
327
almost all final and non final judgments and intermediate orders are
appeallable as of right to appellate division if non final order results from motion made on notice
