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Flashcards in NY Practice Deck (110)
1

How can ∆ respond to a summons and complaint?  

1) Serve and Answer Answer = ∆'s pleading in which she admits/denies π's allegations and sets forth relevant affirmative defenses 2) Pre-answer Motion to Dismiss

2

What could be in the ∆'s answer?  

1) DENIALS of the allegations ∆ wishes to contest  Failure to deny an allegation is an implied admission and it becomes a FACT 2) Any AFFIRMATIVE DEFENSES (AD) Failure to raise an AD is a WAIVER of that AD (subject only to ∆'s possible amendment of the pleadings) Certain ADs are NEVER WAIVED (can be raised at any pt in the litigation) nonjoinder of a necessary party failure to state a c/a lack of smjx 3) Any COUNTERCLAIMS against π  π would then serve a reply, which consists of denials and ADs  4) In a multi-∆ case, ∆ may assert CROSS-CLAIMS against any other ∆ Can be based on ANY type of claim that ∆ has against the other ∆s (does't have to be related to π's original complaint)  

3

How are the ∆'s answer and other interlocutory papers served?  

Interlocutory papers (inc. the answer) must be served on ALL OTHER parties to the action by regular mail OR by personal delivery Interlocutory papers = all other litigations papers after initial service of process (e.g., answer, pleadings, motions, discovery notices, etc) Service of interlocutory papers are deemed served upon MAILING not RECEIPT (mailbox rule) AND misy be made thru post office WITHIN NY    

4

When does the ∆'s answer need to be served?  

Time ltds for serving the ANSWER depends on π's service of process If ∆ was personally served in NY → ∆ must serve answer within 20 DAYS If ∆ was served by mail (1st class) & acknowledgment → ∆ must serve answer within 20 DAYS of mailing acknowledgement (NOTE: ∆'s return of acknowledgment is just notice of receipt of process; it IS NOT a pleading/answer) If ∆ was served by ANY other method → ∆ must serve answer within 30 DAYS after service is complete (E.g., D personally served in OH on 3/1/08.  Service is “complete” upon delivery so answer is timely if he puts it in the mail by 3/31/08) NOTE: if the due date is a saturday/sunday/public holiday, ∆ gets until next business day    

5

What are specific ADs that may be included in a pre-answer motion to dismiss (MTD)?

"D O W N F A L L" / "S P A R E R I B S" 1) Documentary evidence as basis for defense (e.g. mortgage, deed of trust) 2) Other pending action (b/t same parties on same c/a)   3) Want of capacity of π (e.g. π is an infant suing w/o a proper rep)   4) Non-joinder of nec. party (e.g. joint property owners)   5) Failure to state a c/a (even if allegations are all true, the substantive law does not recognize as a c/a) Std = π is entitled to "every favorable inference" that can be drawn from the allegations MTD should be denied if there is ANY basis for relief under the substative law TIP – when discussing whether a MTD should be granted for, make sure to talk about the substantive law too 6) Add’l Affirmative Defenses = "SPARERIBS" SOL Payment (for a debt being owed) Arbitration award Release (from liability) Estoppel (collateral) Res judicata Infancy of the ∆ (DEFENDANT) Bankruptcy discharge Statute of frauds   7) Lack of Smjx   8) Lack of Pjx...come in 3 flavors commencement defects improper service of process lack of basis jx

6

What is the procedure to filing a pre-answer MTD?

1) The motion is made BEFORE service of the answer (on OR before the last day of the prescribed deadline for service of the answer...REVIEW: what are the deadlines?!?) 2) Making the motion AUTOMATICALLY extends the ∆'s time to answer >> IF motion is DENIED, ∆ must then serve the answer w/in 10 DAYS 3) ∆ has the option to bring up AD in EITHER pre-answer MTD OR the answer  

7

What are the AD waiver rules?

1) Filing ADs in pre-answer MTD DOES NOT preclude bringing up ADs on different grounds in SUBSEQUENT answer (e.g., if ∆ makes pre-answer MTD on ground of release, and motion is denied....when ∆ serves the answer, he could properly assert statute of frauds as an AD) EXCEPTION: IF ∆ files pre-answer MTD and DOES NOT bring up pjx defect, ∆ CANNOT LATER assert pjx defect in the answer as it is WAIVED 2) NOT bringing ADs in EITHER pre-answer MTD OR the answer, generally WAIVES the AD from being asserted later in litigation EXCEPTION: Certain ADs are NEVER WAIVED (can be raised at any pt in the litigation) nonjoinder of a NECESSARY party failure to STATE A C/A lack of SMJX  

8

How can the ∆ preserve pjx defense (avoid waiver)?

2 Ways... 1) affirmative defense (lack of pjx) in pre-answer MTD; OR 2) DO NOT make a pre-answer MTD on ANY ground and raise it as affirmative defense in the Answer... AND, if the lack of pjx defense is based on improper service of process (ONLY), make a follow-up motion for summary judgment on that ground w/in 60 DAYS after serving the answer (or it is waived)

9

With summons with notice, how can a ∆ force π to serve the complaint (without defaulting)?  

1) Serve on π...EITHER: Demand for the Complaint; OR Notice of Appearance   2) Time ltds for service of demand for the complaint OR notice of appearance = same as w/ answer 20 DAYS, if ∆ was served summons by personal delivery 20 DAYS from acknowledgment, if ∆ was served summons by mail & acknowledgment 30 DAYS after service is complete, if ∆ was served summons by ANY OTHER METHOD 3) After ∆'s service of demand for the complaint and/or a notice of appearance, π is REQUIRED to serve the complaint witin 20 DAYS of ∆'s service If π does not serve the Complaint w/in the 20 DAYS, ∆ can move for dismissal on the basis of noncompliance (i.e. failure to prosecute the claim) To avoid dismissal, π would have to (i) show there was reasonable excuse for the delay; AND (ii) make an evidentiary showing that there is merit to his c/a in Affidavit of Merit. 4) ∆ then must serve the Answer OR pre-answer MTD w/in 20 DAYS (can still object to pjx in EITHER of these filings)  

10

How can EITHER party amend their pleading for the FIRST time?  

1) Each party can amend 1 TIME, as a matter of right 2) Time limit to amend = w/in 20 DAYS of service of answer 3) Either party can put ANYTHING that could have been put in the original pleading NOTE: this means ∆ can assert lack of pjx in the Amended Complaint (as long as he DID NOT make a pre-answer Motion to Dismiss before, which would waive pjx defense)

11

How can EITHER party amend their pleading AFTER the amendment as a matter of right has passed or been used?  

Either party can request (at ct's discretion) the right to amend if the amendment as a matter of right has passed OR been used once Standard for ct: amendment allowed as long as no incurable prejudice to opponent To est. prejudice, opponent has burden of showing that b/c of the delay in amending, the requesting party has suffered a detrimental change in position (e.g. key witness died, key docs destroyed)

12

How can ∆ assert a claim of contribution OR indemnity?

1) If tortfeasors already co-∆s → they can assert CROSSCLAIMS against ea other 2) If some tortfeasors are NOT part of suit → the ∆ can (i) IMPLEAD the 3P∆; OR (ii) sue in a separate action NOTE: Impleader is better. If ∆ sues outside tortfeasors in a separate action, the findings of liability (i.e. % of fault) in the 1st action are not binding on 2d action (problematic) b/c you CANNOT assert collateral estoppel ("issue preclusion") against a party who has not had her day in ct; THUS, you'd have to re-prove all the fact finding 3) ∆ must meet SOL: contribution AND indemnity has a 6-yr SOL that runs from the date of pmt of the judgment for which contribution/indemnity is sought

13

What is indemnity AND how can it be asserted?

Indemnity: Allows ∆ to shift 100% of the responsibility or damages to another party Can be accomplished... by K (e.g. sub-contractor) if implied-in-law Products Liability – mnfr must indemnify retailer for selling defective product Vicarious liability – e.g., driver indemnifies owner of car NOTE: Settlement does NOT extinguish claims for indemnity BY or AGAINST a settling tortfeasor  

14

What is contribution AND its purpose?

Contribution = the sharing of loss (apportionment) among multiple tortfeasors (who are ACTUALLY part of the tort OR aggravated the damages); allowed in ALL tort cases in NY (contrast MBE) EXCEPTIONS: CPLR Article 16 ON MBE – NOT AVAILABLE when liability is based on an intentional tort Purpose = mitigate the harshness of joint & several liability (i.e. EA. tortfeasor is liable to π for FULL amt of π's damages nws ind. tortfeasor's % fault) NOTE: ∆ may seek contribution from TP∆ EVEN IF the injured π has NO RIGHT of recover against TP∆  Ex: Mnfr of smoke alarm, fire protection service.  Fire protection service not liable to π b/c of clause in K but mnfr-∆ can STILL implead him for aggravating the damages ➩ So contribution can be broader than liability

15

After a 3P∆ is impleaded, how can π join 3P∆ in action (i.e. make it a ∆)?

After TP∆ is joined, π can amend her complaint to assert complaints directly against TP∆... w/in 20 DAYS w/o judicial permission after 20 DAYS w/ judicial permission NOTE: π's claim against 3P∆ generally MUST occur w/in SOL EXCEPTION: New claims by π “relate back” to date ∆ filed impleader papers AS LONG AS (i) based on same TRXN or OCCURANCE as ∆’s impleader claim; AND (ii) the π's claim against the 3P∆ WOULD HAVE BEEN TIMELY on the date of impleader  

16

How does a ∆ implead a 3d party?

1) ∆ files Summons & 3d Party Complaint 2) w/in 120 DAYS of filing, ∆ (3Pπ) serves a copy of summons & 3d party complaint on 3P∆ AND P make SURE there is basis for pjx & proper service for 3rd parties 3) TP∆ must serve an 3d party answer on ∆ (3Pπ), π & all other parties TP∆'s time ltd for answering is the SAME that would apply to an ordinary ∆ (REVIEW!); either 20 or 30 days DEPENDING on where/how the 3P∆ was served w/ process  

17

What is impleader?

Procedural device used by ∆ to join ANOTHER party alleged to be liable in whole or in part to ∆ for damages that ∆ may have to pay π Two general forms: (i) indemnity; OR (ii) contribution If ∆ joins a 3d party ∆, then ∆ BECOMES 3d party π NOTE: ∆ may implead 3d party any time AFTER ∆ serves the Answer  

18

What is joint and several liablity?

Each tortfeasor is liable to π for the WHOLE AMT of damages regardless of the individual tortfeasor’s percentage of fault NOTE: This is the default rule in NY (except CPLR Art. 16 matters)

19

What is Comparative Degrees of Fault contribution?

MAJORITY APPROACH (MBE) and ONLY RULE IN NY 1) Each tortfeasor is ULTIMATELY liable for his actual fault (any excess paid is the amt of contribution) 2) Each ∆ CANNOT be compelled to pay more than his own equitable share to another tortfeasor NOTE: π can force any ONE tortfeasor to pay the ENTIRE amt of damages if the others are insolvent

20

What is the Equal Shares Formula of Contribution?

Equal Shares Formula (MINORITY VIEW) = All liable tortfeasors pay an equal share of the damages NOTE: this is ONLY on MBE – will say “in an equal share jurisdiction” (otherwise assume comparative degree)

21

How does workers' compensation ltd contribution and indemnity?

With Workers' Compensation → π may not sue employer if you are injured on the job Injured π MAY (nevertheless) sue other 3d party tortfeasor (such as manufacturer of machine used, etc.) for ANY injury On MBE: 3P∆ may NEVER implead emloyer for contribution/indemnity In NY: 3P∆ may not implead the employer for contribution/indemnity UNLESS it was a "grave injury" (strictly construed), which is... Death Total loss of arm, leg, hand, foot, ear, nose, OR index finger (NOT a thumb) Total loss of multiple fingers OR toes (NOT loss of finger tips) Paraplegia, quadraplegia Total blindness or deafness (NOT blindness in one eye) Severe facial disfigurement Brain damage causing total disability

22

What is the rule for contribution in cases involving sucessive tortfeasors?

Rule: tortfeasor is liable to π for all injuries that proximately flow from the accident BUT he may claim contribution from a successive tortfeasor who aggrevates the injury E.g. subsequent malpractice by a doctor who negligently treats π can be sued by accident-causing ∆ REMEMBER: assuming a doctor was impleaded w/in 2.5 yr SOL, the relevant SOL for contribution is 6 YRS FROM PMT  

23

What is the rule re: π settlement with ONE tortfeasor and contribution?

1) Rule: π’s pretrial settlement w/ 1 tortfeasor in partial satisfaction of the claim does NOT discharge π’s claim against other tortfeasors 2) Law prohibits excessive recovery so π can only collect up to total amount of damages THE REDUCTION FORMULA: Any judgment for π against a non-settling tortfeasor MUST be reduced by the LARGER of: the amount of settlement; OR the settling tortfeasor’s equitable share of fault E.g.: π settles w/ A for $30k. π wins $100k in trial.  Ct. says A 10% liable & B 90%.  B only owes $70k. 3) A party who settles CANNOT sue or BE sued for contribution (this is NOT the case w/ indemnity) Policy: encouraging settlement b/c the settling party is assured that he cannot thereafter be sued for contribution; BUT the settling party ALSO forfeits his own contribution rights

24

How does CPLR Art. 16 modify joint and several liability in NY?

1) Rule: in a personal injury claim a joint tortfeasor whose fault is found to be 50% or less CANNOT be required to pay the π more than his equitable share of the π’s noneconomic damages Noneconomic damages = paint & suffering, mental anguish, loss of consortium, loss of companionship (but NOT wrongful death or property damage) 2) BUT for economic damages, ALL tortfeasors are J&S liable for full judgment e.g. medical expenses, lost income Ex: π sues A & B for pain and suffering. A = 60% liable & B = 40% liable. $100k award. A is J&S liable for ALL of the damages but B is only liable up to $40k  

25

What are the exclusions from CPLR Art. 16?

Exceptions from Art. 16 (i.e. these tortfeasors ALWAYS liable for J&S liability): 1) Tortfeasors who acted w/ intentional tortfeasors or w/ reckless disregard If multiple tortfeasors - only intentional ones are J&S liable (i.e. the merely negl. tortfeasors ARE eligible for Art. 16) 2) Tortfeasors who release hazardous substance into the environment. 3) Drivers & owners of CARS EXCEPT police or fire cars NOTE: police officers/firemen, passangers and auto mnfrs ALL get benefit of Art. 16

26

What is arbitration?

Arbitration = a private procedure, based on K, for the BINDING resolution of disputes Two parties may agree to submit any existing or future dispute to arbitration (as a cl in a commercial K) Two major characteristics: (i) arbitrators are NOT bound by the substantive law OR the rules of evidence (i.e. they do justice as they see fit); AND (ii) the scope of judicial review is EXTREMELY narrow Ct serves a "gatekeeping" function, deciding certain "threshold issues", as to whether the arbitration should PROCEED (if ct decides in favor of arbitration, it retreats from scene) NOTE: public policy of NY FAVORS arbitration (and the cts are guided by this principle when deciding whether a particular case should be arbitrated)

27

What are the 5 threshold issues that can be presented to the ct to AVOID arbitration?

1) Did the parties agree to arbitrate? – (i) must be in writing; (ii) agmt must be "clear, explicit & unequivocal"; AND (iii) the right to arbitration NEED NOT be mutual (i.e. only one party has right to invoke) 2) Is the dispute within the scope of the arbitration cl? – arbitrator can decide almost anything, so it depends on the scope of the cl as written 3) Is the arbitration cl valid? – cl is PRESUMPTIVELY valid UNLESS induced by fraud, duress or coercion Doctrine of severability – cts will examine validity of arb clause separately from validity of K AS A WHOLE 4) Is there an express condition precedent to arbitration, AND has been complied w/? 5) Is there a SOL issue?  

28

How does a party bring a "threshold issue" to the ct?

1) If already pending action >> proponent should make motion to stay the action & compel arbitration 2) If NO pending action >> proponent served opponent w/ Notice of Intention to Arbitrate  Opponent who wants to avoid arbitration must commence a special proceeding for stay of arbitration Special proceeding MUST be w/in 20 DAYS of receipt of Notice of Intention or waives any of the threshold objections  

29

What are the 3 gounds of judical review of arbitration awards?

3 grounds for VACATING an arbitration award... 1) "Corruption, fraud, misconduct" in the arbitration proceeding; 2) Bias of an arbitrator who was chosen to be neutral; OR   3) Arbitrator exceeded his powers (almost always loses b/c arbitrators usually have unlimited power unless the parties agree otherwise) NOTE: In NY, an arbitrator CANNOT award punitive damages 

30

What are the 3 other types of alternative dispute resolution (ADR)?

1) Mediation: A NON-BINDING process in which a neutral mediator attempts to facilitate a settlement by speaking confidentially to ea. party and then jointly with both parties present If there is an agmt, the parties can include a prvn for confidentiality (or they can waive confidentiality) 2) Neutral Evaluation: A NON-BINDING process in which a neutral expert in a subject matter at issue received a condensed ppt abt the merits of each side, evaluates the ppts and PREDICTS ow a ct would decide the dispute 3) Summary Jury Trial (SJT): a CONDENSED version of a real trial in which a REAL JUDGE presides and a REAL JURY is empanneled to hear the case and RENDER a verdict Rules of evidence are relaxed After trial, parties may question the jury abt their thought processes Jury verdict can be binding or non-binding   NOTE: ADR is a creature of K and is ENFORCED in accordance w/ the agmt NY public policy FAVORS ADR The ct can recommend, but generally can't REQUIRE parties submit to ADR No specific statutory rules governing ADR (where there ARE such rules w/ arbitration; "judical gatekeeping")  

31

How is an action validly commenced?

For a valid action, π must... 1) "file process" w/ the County Clerk (if filing action for Sup. Ct.) w/in the relevant SOL window Process = summons and notice OR summons and complaint 2) pay a fee for the purchase of an index number   3) serve process on the ∆ w/in 120 days after filing w/ the county clerk   NOTE: Ct. has discretion to... extend beyond 120 days if π makes an ex parte motion & makes a showing of good cause OR interest of justice (flexible) If ∆ wants to challenge timeliness, must raise untimely service in a Motion to Dismiss, but court can still grant π an extension & apply it retroactively (NOTE: if ∆ fails to raise the defense of untimely service, it is waived) permit the correction of a mistake in the filing procedure, PROVIDED (i) the ∆ suffers no prejudice; (ii) the filing occurs w/in SOL; AND (iii) the filing fee is paid    

32

What are the two forms of process?

1) Summons & Complaint Summons = notifies ∆ that he is being sued in a particular court Complaint = π's pleading, which spells out elements of c/a 2) Summons & Notice Notice must state... brief stmt of nature of action; nature of relief sought (damages, equitable remedy); AND if damages are sought, the amount of damages (UNLESS personal injury OR wrongful death – then CANNOT state) NOTE: if no complaint or notice attached (a "naked summons"), then defect in pjx & action can be dismissed (PROVIDED the ∆ files a timely jx objection)  

33

What are the basic requirements serving process?

1) Process server must be 18 or older   2) Process server cannot be a party to the action (∆)   3) Process may be served on any day EXCEPT Sunday, and Saturday (provided ∆ is a Saturday Sabbath observer and ∆ knows it) Process can be served on a holiday (provided it doesn't fall on a Sunday) 4) Process must be served on EACH ∆ in the action   NOTE: actual notice is IRRLEVANT to a determination of whether π has complied with the formalities for proper service of process (i.e. cts strictly enforce these procedures)

34

What is the "leave and mail" method of serving process?

W/in in 120 days from filing process, π must... 1) DELIVER process (via process server) to person of suitable age & discretion (NOTE: does not mean 18 neccesarily) at ∆’s actual dwelling place OR actual place of business; AND 2) MAIL a copy by regular mail to ∆ at ∆’s actual place of business OR at his last known residence w/in 20 days; AND 3) File proof of service  It's an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence) If π fails to file proof of service, it's NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆'s to respond The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be) NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery) Service is COMPLETE (which starts clock on ∆'s response time) 10 days after proof of service is filed NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process  

35

What is the "affix and mail" method of serving process?   NOTE: This is also known as "nail and mail"

W/in in 120 days from filing process, π must... 1) AFFIX (e.g. via taping) process (via process server) to the door of ∆’s actual dwelling place OR actual place of business;   2) MAIL a copy by regular mail to ∆ at ∆’s actual place of business OR last known residence w/in 20 days;   3) Must have exercised DUE DILIGENCE (by making attempts to serve ∆ directly OR by delivery to person of suitible age/discretion); AND Sufficient due diligence is a fact-specific inquiry, BUT look for several attempts to deliver on different days of the week and at different times of the day   4) File proof of service  It's an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence) If π fails to file proof of service, it's NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆'s to respond The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be) NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery) Service is COMPLETE (which starts clock on ∆'s response time) 10 days after proof of service is filed NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process  

36

When is service "complete" with the personal delivery method of serving process?  

Service by personal delivery is COMPLETE upon server's tender of summons directly to ∆ If ∆ refuses to accept the delivery of process, server can leave process w/in ∆'s immediate vicinity  NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process

37

What should π do if a traditional method of serving process is not available?  

Expedient Service: if the traditional methods (i.e. personal delivery; leave and mail; or nail and mail) are not practicable, π can make ex parte MOTION to the ct for an ORDER allowing an improvised, expedient method  An order is NECESSARY  if π wants to use an improvised servise of process Reasonable alternatives e.gs: service on ∆'s liability insurer, a family member or business associate, or service by email NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process

38

What is the process for serving process on an infant?  

1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc) of serving process 2) The infant ∆'s name goes on the summons, BUT process must be served on any of these adults: a parent of the infant ∆ a guardian of the infant ∆ any person having legal custody of the infant ∆ if the infant is married, upon an adult spouse with whom the infant lives NOTE: if the infant ∆ is ≥ 14 yrs old, process must be served on an eligible adult AND the infant NOTE: if the action has more than one ∆, EACH ∆ (or adult rep) must be served with his own set of process

39

What is the process for serving process on mentally incapacitated person?  

1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc) of serving process 2) Depends on whether there is an appointed guardian... If mentally incapacitated ∆ HAS a court-appointed guardian, must serve incapacitated ∆ AND the guardian (two sets of process necessary!) If the mentally incapacitated person DOES NOT HAVE a court-appointed guardian, must serve incapacitated ∆ & then court will later appoint a guardian ad litem  

40

What is the process for serving process a ∆ who's OUTSIDE NY?  

1) Same methods as used w/in NY (assuming that there is a pjx basis for out-of-state service); rules in jx where process is served are IRRELEVANT 2) Who can serve? any NY resident who is ≥ 18 yrs old anyone authorized to serve process by the law of the jx where service is made any attorney who is licensed in the jx where services is made  

41

What are the TWO methods for serving process on corporate ∆s?  

1) Personal delivery to: officer of the corporation director of the corporation designated agent managing agent (employee who has supervisory power) NOTE: Can be served to any of these corporate representatives ANYWHERE IN THE U.S., if there is a basis of pjx over the corporation 2) Service on NY Sec. of State (designated agent)...  if ∆ is a (i) domestic corp. (incorp'd in NY); OR (ii) a foreign corp. authorized to do business in NY (i.e. licensed), π must personally deliver 2 copies to NY Sec. of State if ∆ is an unlicensed foreign corp., π must personally deliver 1 copy to Sec. AND mail 1 to corp. ∆ by CERTIFIED mail (return receipt requested) NOTE: STILL need a valid basis of pjx to serve corporate ∆

42

What are is the method to service process by 1st class mail plus acknowledgment?   

1) Mail process to ∆ by 1st class mail, enclosing: 2 copies of statutory acknowledgement form; AND a return envelope, postage prepaid, addressed to sender (π) 2) Service is effective ONLY IF ∆ signs 1 form & returns it to π w/in 30 days (complete upon sending signed form) If ∆ DOES NOT return it, service is not effective and π MUST serve process some other way BUT ∆ must pay for expenses NOTE: this method can be used REGARDLESS of whether ∆ is within or outside NY this method CANNOT be used on infants OR insane (i.e. MUST use traditional method) ∆’s return of form is NOT a concession that court has pjx (∆ can still raise jx issues in the answer)  

43

What are the traditional AND non-traditional methods of serving process on a person ∆?  

1) Traditional... personal delivery to ∆ leave and mail "nail and mail" (affixing and mailing) expedient service (court improvised) service on ∆'s designated agent  2) Non-traditional... 1st class mail PLUS acknowledgment

44

What is a motion?

Motion = an application for an ORDER of the ct (a request for some type of preliminary or incidental relief in a pending action) Ex: motion to dismiss; change of venue; amend pleadings; etc

45

What is a motion on notice & the mechanics of making it?

Motion on notice = gives the adversary an opportunity to be heard in opposition 1) Papers to be served: A NOTICE of motion (moving party specifies the RETURN DATE [aka hearing date]) AFFIDAVITS of facts (stmts made under oath setting forth facts) Optional: MEMORANDUM of law (setting ofr the legal arguments) 2) Opposing parties must get motion papers at least 8 DAYS prior to the return date Motion is considered "made" when served on other side (i.e. when the motion papers are mailed; mailbox rule) 3)  Both sides file motion and opposing papers w/ court by return date 4) Ct then makes a decision & issues an ORDER either granting or denying motion

46

Why is an Order to Show Cause used instead of a Notice of Motion?

An Order to Show Cause is an accelerated Motion on Notice signed ex parte by judge, directing other side to "show cause" by a ct-chosen date why the motion should NOT be granted; judge specifies method of service (often personal delivery) Benefits: 1) accelerates the return date (used in exigent circumstances) 2) judge can grant an immediate stay of the proceedings OR a temporary restraining order 3) the statute which governs the particular motion may REQUIRE it   Ex: Proposed order to show cause is signed by the judge on May 1, 2008, and it states, “Let ∆ show cause on May 5, 2008 why an order should not be granted requiring D to produce docs x, y, & z.”  After the order is signed, the order & the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.  

47

What is the procedure behind the deciding order?

Ct's decision re: a motion on notice is embodied in a written ORDER (signed by the ct and entered w/ the clerk)  1) The winning party serves a copy of the order on the losing party 2) Effect of serving copies... Gives effect to the order Starts the running of a 30-DAY time limit to appeal from the order 3) Appealing an order NY allows (although a moving party can wait) an immediate appeal of an order from the Supreme Court to the Appellate Division as a matter of right, IF appeal is filed/served w/in 30 DAYS of service of any order determining a motion on notice NOTE: On MBE, CANNOT appeal immediate orders until final judgment entered

48

What is an ex parte motion and its mechanics?

1) Where moving party goes straight to court & requests an order granting the relief sought (i.e., no advance notice is given to adversary) 2) Ex parte motions are ONLY allowed if expressly authorized by specific statutory authorization (so ASSUME a motion must be made on notice, unless a statute provides otherwise) e.gs: order for expedient service of process; π seeks extension of time to serve process 3) No (direct) appeal may be taken from an ex parte order (but CAN make a motion on notice to vacate the ex parte order & if this is denied the aggrieved party can appeal from the denial; this is done to "develop a record")

49

What are the mechanics of a motion for TRADITIONAL summary judgment (MSJ)?

1) Rule: moving party may show, before trial that even thought the pleadings are sufficient on their face “there is no genuine issue of material fact requiring trial” Granting MSJ means that the matter can be decided as a matter of LAW NOTE: if discussing MSJ (in an essay), ALWAYS discuss the underlying c/a! 2) Timing: MSJ MUST be made AFTER answer is served; EITHER party can move for SJ w/ respect to any claim or defense asserted in the pleadings Time limit: moving party has 120 DAYS from the notice of issue (i.e. cases is marked on trial calendar) UNLESS moving party shows “good cause” (NOTE: strength of motion on the merits does NOT qualify as good cause) 3) Evidence used in MSJ: Moving party must submit evidence in the form of affidavits, relevant docs or discovery materials Affidavits must come from party w/ personal knowledge of the facts Opponent can defeat motion using same type of evidence to show material issue of triable fact EXISTS Opponent can also submit affidavit est. that he is not yet able (through no fault of his own) to produce opposing evidence >> Ct can grant a continuance (adjournment) Ct THEN “searches the record” (i.e. looks at all the evidence in the record) Ct's search can lead to "Boomerang Effect” – ct can grant OPPOSING party SJ even w/o a cross-claim 4) Effect of denial: If motion is denied it means that a triable issue of material fact exists  Granting of PARTIAL SJ: if the ONLY issue is as to damages, ct. can grant MSJ on liability & then order an immediate trial on the issue of damages  

50

What are the EXCEPTIONS to serving the Motion for SJ after the Answer?

MSJ is permitted BEFORE answer when... 1) Ct (sua sponte) converts MTD for Failure to State a C/A into MSJ (this allows\decision on basis of evidence instead of just on pleadings) 2 reqs: (i) at LEAST 1 party submitted factual affidavits; AND (ii) the ct. gives notice to parties so they can submit add’l evidence 2) MSJ in Lieu of Complaint: π may (at her option) move for SJ at the same time as she serves process in TWO situations: Action on an instrument for the payment of money (instrument must contain uncond’l promise to pay $$) very few docs count – e.g. promissory note CANNOT use this for ordinary breach of K Action on an out-of-state jdmt (i.e. suing to enforce an out-of-state jdmt) PROCEDURE: In the motion, a RETURN DATE must be specified The minimum advance notice (i.e. service is complete) to ∆ is... AT LEAST 20 DAYS before return date, if ∆ was served by PERSONAL DELIVERY AT LEAST 30 DAYS before return date, if ∆ was served by ANY OTHER METHOD RATIONALE: both of these actions are based on docs that are PRIMA FACIE valid when supported by an affidavit of noncompliance

51

What can be a basis of general pjx?  

General pjx = ct can hear ANY claim REGARDLESS of where the c/a originated 3 ways to get general pjx over ∆... ∆ has physical presence in NY when served with process ∆ is "doing business" in NY (can be served anywhere) ∆ is a NY domiciliary; NOT just a resident (can be served anywhere)

52

What can be a basis of specific pjx?  

Specific pjx = claim must be SPECIFIC to ∆'s NY activity OR within terms of K 3 ways to get general pjx over ∆... ∆ is nondomiciliary subject to long arm statute (served anywhere) AND jx would not offend Due Process ∆ is a nondomiciliary driver or car owner and is subject to nonresident motorist statute (served via NY Sec. of State & certified mail) ∆ consents

53

What is the NY domicile std (sufficient to establish general pjx)?  

A ∆ who is a NY domicile at time the action is commenced can be served w/ process ANYWHERE in the U.S. for ANY c/a Domicile: intends to remain indefinitely & treated as principal home (i.e. only 1 domicile) Residence: place person lives for fair amount of time w/ some degree of permanency (i.e. multiple possible residences)  

54

What is the "doing business in NY" std (sufficient to extend general pjx)?  

ANY claim whatsoever can be brought in NY REGARDLESS of origin...  1) if domestic corp. OR foreign corp. licensed in state 2) if unlicensed foreign corp "doing business" in NY "Doing business" test = at the time action commenced, the (i) corp.’s employees/agents are in NY; AND (ii) it's engaged in business activity for the corp. on a "regular, systematic & ongoing basis" (Litmus: must maintain an office/other facility continuously staffed by 1+ employees) NOTE: "doing business" is NOT: (i) mere sales of a corp's products in NY; (ii) mere advertising by a corp in NY; OR (iii) mere transient presence of a corp's officer in NY at time of service on him/her If corp is "doing business" service of process is by personal delivery to a proper corporate rep ANYWHERE in the US; OR by service on the NY Sec of State NOTE: satisfaction of "doing business" std is only necessary if c/a arose OUTSIDE NY; if c/a stems from INSIDE NY, then long-arm jx will prob be available

55

What is the standard for long-arm jurisdiction (specific pjx)?  

Long-arm jx follows the "minimum contact" std, which allows for out-of-state service confering pjx on the basis of (i) certain acts by ∆ that have sufficient connection w/ NY; AND (ii) π's claim "arising from those acts" L-A jx covers ALL types of ∆s (individuals, corps, partnerships, etc) the acts giving rise to jx can be performed by ∆ OR an agent  if ∆ dies, his estate can be served 5 categories sufficient to confer specfic pjx on long-arm basis... 1) π's claim arises from a "transaction of business" of ∆ in NY = single commercial event OR "active negotiation" in NY that MUST give rise to the c/a sued upon (i.e. it's NOT continuous enought to confer "doing business" general pjx) ∆'s phone, electronic and mail transmissions from out of state relating to perfomance of a significant K can = "transaction of business," IF substantial enough (NEVER pjx for isolated incidence) 2) π's claim arises from a K to supply SIGNIFICANT ($$) goods OR services in NY NOTE: a promise to pay a debt is NOT "goods or services" 3) π's claim arises from ∆'s TORTIOUS ACT in NY NOTE: Demafation claims are EXCLUDED as a "tortious act" To constitute "injury in NY" the injury must ORIGINATE in NY 4) π's claim/injury arises from ∆'s tortious act OUTSIDE NY PLUS there exists an additional link b/t ∆ and NY "Additional link"  = ∆ regularly solicts business or engages in any other persistent course of conduct in NY; OR ∆ dervies substantial revenue from goods used or consumed, or services rendered, in NY; OR ∆ expects or should reasonably expect the act to have consequences in NY AND ∆ derives subtl revenue from interstate/international commerce that purpo\sefully includes NY (NOTE: physician's medical services are ALWAYS inherently local in nature) NOTE: Demafation claims are EXCLUDED as a "tortious act" 5) π's claim arises from ownership, use or posession of REAL PROPERTY in NY

56

How should you approach a pjx essay question?  

1st – discuss if π can est. general pjx   2nd – discuss where facts of π’s case fall w/in 1 or more of the long-arm categories (specific pjx) 3rd – briefly discuss whether assertion of jx would satisfy due process Satisfied if: the π’s claim arises out of conduct by ∆ "that is so purposefully directed toward NY" that the ∆ should "reasonably anticipate being sued in NY"  

57

What is the std to establish pjx with a Non-Resident Motorist Staute?  

Confers pjx over an accident claim arising from a nondomiciliary motorist's ownership OR use of an auto on NY roadways. Overlap w/ Long-arm category of "tortious act", but has two UNIQUE features: 1) Service of process: π MUST personally serve 1 copy on NY Sec. of State PLUS mail 2nd copy by CERTIFIED mail to ∆ 2) Applies to nondomiciliary owners who gave PERMISSION to drive in NY Agency/busniess relationship is NOT necessary

58

When is a forum selection cl. (consenting to jx) NOT enforceable?  

A forum selection cl is NOT enforceable if it were: (i) fraudulant; (ii) overreaching; OR (iii) unreasonable

59

What is necessary for a valid basis of jx in a matrimonial action?

1) Must be in NY Supreme Court 2) π must be a domiciliary of NY (means marital status is located in NY & gives court in rem jx) 3) Serve process personally; all other methods require ct. order ...IF the c/a is SOLELY for MONETARY SUPPORT... 4) π would need pjx over ∆, which is accomplished through a matrimonial long-arm statute... When π-spouse is a resident of NY, long-arm jx can be acquired over ∆-spouse IF: NY was the matrimonial domicile of π and ∆ PRIOR to their seperation; OR ∆ abandoned π in NY, OR ∆'s monetary obligation accrued under an agmt executed in NY (separation agmt); OR ∆'s money obligation accrued "under the laws of NY" (a catch-all; never been litigated) ...IF the c/a is ONLY to affect the matrial status (divorce, etc)... 4) Do not need pjx for case involving matrimonial status 5) Compliance w/ Durational Residency Requirements  NOTE: If π is not compliant with this req, the case is subject to dismissal ON THE MERITS (i.e. will be dismissed as a "failure to state a c/a") π's complaint must allege satisfation of 1 of the following 3 options... (i) BOTH parties are NY RESIDENTS at the time the action is commenced; AND (ii) the GROUNDS for the action arose in NY; OR (i) EITHER party is a resident of NY for 1 year or more immediately prior to the action; AND (ii) NY has a PRIOR LINK to the marriage (i.e. married in NY, NY was matrimonial domicile at any pt, grounds for action arose in NY) EITHER party has been a NY resident for a continuous period of at least 2 years immediately prior to action  

60

What is pjx AND smjx?  

Pjx = pwr of the court to adjudicate claims for damages or injunctive relief against particular parties   Smjx = pwr of the ct to hear a particular KIND of matter; goes to competency              

61

What is the procedure behind attachment?

1) π makes a motion for an order of attachment (can be motion on notice or ex parte) REVIEW: what are the additional requirements if motion is made ex parte?? 2) Affidavits in support must show one of the grounds for attachment (i.e. real property or personal property) AND "probability of success" on the merits of the π’s underlying c/a 3) π must provide an undertaking (i.e. a bond) to indemnify the ∆ for any damages or expenses caused by the attachment ∆ would be entitled to damages if attachment improperly obtained OR the ∆ wins the case on the merits & the bond is there to pay damages 4) Order of attachment is given to a NY sheriff who imposes "levy" (i.e. a lien by π that's superior to any subsequent lienholder) on the property pendng the outcome of the action; levying method depends on property type... Real Property: sheriff files order of attachment w/ the county clerk in county where RP located Personal property: sheriff delivers order of attachment to the person in NY who holds ∆’s personal property interest (∆ himself or garnishee) Personal property qualifying >> tangible (car, boat) or intangible (e.g. debt owed to ∆) Garnishee = 3d person who owes a debt to the ∆ or has possession of the ∆’s tangible personal property (e.g. bank) Delivery automatically imposes lien on personal property & serves as an injunction against transfer of the property for the duration of the action

62

What is attachment?

Purpose = to provide security for the enforcement of a money jdgmt Types of actions where attachment can be used... π must be seeking money damages (OK to join other claims seeking equitible relief); AND ∆ is an unlicensed foreign corp OR a non-domicilary residing outside of NY; OR ∆ is about to conceal OR remove assets from NY w/ the intent to defraud creditors or frustrate the enforcement of the jdgmt

63

What are the additional requirements for an ex parte motion for attachment?

To satisfy due process: 1) Must be a hearing promptly after the levy on ∆’s property to give the ∆ opportunity to protest the attachment; AND   2) After the sheriff levies on the property, the π must make a follow-up motion on notice to confirm the ex parte order (It is on that motion that there will be a prompt hearing) NOTE: If follow-up motion is not w/in proper # of days then VOID ∆ unlicensed foreign corp. or non-domiciliary of NY >> motion must be served on ∆ NO LATER than 10 DAYS after levy ∆ fraudulently moving assets >> motion must be served on ∆ NO LATER than 5 DAYS after levy  

64

What is a preliminary injunction?

Purpose: to maintain the status quo while an equity action is pending Types of actions in which a preliminary injunction may be used...  Must be an EQUITY action where π’s complaint seeks EITHER: permanent injunction, OR if ∆ threatens to harm the π’s interest in the subject matter of the action NOTE: cannot be ONLY for $ damages (e.g. π sues ∆ for $70k debt owed; cannot get injunction to stop ∆ from spending money); if ONLY for $$, proper remedy is ATTACHMENT

65

What are the 5 provisional remedies?

1) Attachment 2) Preliminary injunction 3) Temporary receivership 4) Order to Seize Chattel/Replevin 5) Notice of Pendency/Lis Pendens   NOTE: if π shows grounds for MORE than 1 provisional remedy, the ct has DISCRETION TO REQ π to elect b/t those remedies to which she would otherwise be entitled

66

What are the purpose of provisional remedies?

Provide π a measure of security pending the outcome of the case so that ultimately the judgment may be enforced.   NOTE: ct order required for all provisional remedies EXCEPT notice of pendency (so motion procedure pervades this area)   NOTE: ea. provisional remedy can ONLY be used in certain types of actions (which the exam places emphasisi on)

67

What is the proper procedure for a preliminary injunction?

1) Motion for preliminary injunction must be made ON NOTICE Can be served w/ OR after the summons and any time up to final judgment 2) The π's affidavits must show: grounds for equitable relief, including a threat of irreparable injury a probability of success on the merits of underlying c/a 3) Must provide undertaking (indemnity) for ∆'s damages (if later later determined that PI shouldn't have been granted)

68

What is a temporary restraining order (TRO)?

IF there is a threat of immediate injury court may grant a TRO b/c obtaining a prelim injunction may NOT be possible (b/c action is not yet commenced AND/OR would take too long b/c 8 DAY advance notice requirement) Function is to maintain the status quo until the motion for preliminary injunction is decided Can be granted ex parte if the π shows that giving prior notice of it to ∆ would result in significant prejudice (e.g. he would run off or give the stock away)  

69

How does a party obtain a temporary restraining order (TRO)?

Make the motion for preliminary injunction by order to show cause, scheduling a quick return date for the motion for preliminary injunction In the order to show cause, the judge can include TRO Order is then served on the ∆ along w/ the motion papers for the preliminary injunction Upon service, ∆ is IMMEDIATELY restrained by the TRO, pending the resolution of the preliminary injunction motion NOTE: any ex parte application for a TRO must contain an affidavit demonstrating that there will be "SIGNIFICANT PREJUDICE" to the party seeking the TRO if notice is provided to the adversary  

70

What is temporary receivership & the necessary procedure?

Temporary receiver = person appointed by the ct to manage property in the ∆’s possession (i.e. takes over the mgmt of ∆'s property) Types of actions for which temporary receivership is available... π must be asserting an EQUITY claim in which specific property is the subject matter of the action; AND there is danger that ∆ will injure or destroy the value of the property while the action is pending NOTE: if the action seeks ONLY $ damages, temporary receivership is NOT available Procedure... Appt of a temporary reciever requires the making of a motion on notice...NO ex parte motions allowed  

71

What is seizure of chattel (replevin) & the necessary procedure?

Action ("order of seizure") made by ct to ensure enforcement of a jdmt awarding posession of the chattel to π. The sheriff, who seizes the chatte, will retain custody of the chattel ("impoundment") Type of action in which available: only available in an action that seeks to recover possession of a chattel (tangible personal property) Procedure: In order to make a motion for an order of seizure... π's affidavits must show π will probably succeed on merits of underlying c/a π must provide an undertaking (indemnity to ∆ in case of damages of wrongful seizure) NOTE: the motion can be made on notice OR ex parte  ADDITIONAL (due process) reqs if motion is made EX PARTE π must show a threat of IMMEDIATE loss of a chattel; AND if ex parte order is granted, π must make a FOLLOW-UP motion on notice to CONFIRM the ex parte order NO LONGER THAN 5 days after sheriff seizes chattel (this is where ∆ get's a prompt hearing to protest action)

72

What is a notice of pendency (lis pendens) & the necessary procedure?

In an EQUITY action effecting possession, use or title of REAL PROPERTY (e.g. specific performance, ejection, etc), filing of notice of pendency gives record notice to potential buyers or mortgagees that any interest they acquire will be subordinate to π For mortgage foreclosure, lis pendens is statutorily required Procedure: π files notice of pendency with the Cty Clerk of the cty in NY where real property is located   This is the ONLY provisional remedy that does NOT need a ct order π is NOT required to file an undertaking (i.e. file a bond to indemnify ∆) ∆’s only remedy = motion to cancel notice of pendency Duration: Effective for 3 YEARS from date of filing If action goes beyond 3 years then π would have to make a motion for a 3-year extension; MUST make the motion PRIOR to the expiration → if after: lis pendens becomes VOID; AND π cannot obtain another one on the same property for the same c/a EXCEPTION: in mortgage foreclosures, the ct may grant a motion for a new notice of pendency EVEN THOUGH the original notice expired w/o renewal (b/c notice of pendency in mtg situations is MANDATORY)

73

Over what matters does the Supreme Court have EXCLUSIVE smjx?

1) Matrimonial actions where ct is asked to adjudicate marital status (e.g. divorce, separation, annulment, validity of marriage) Family ct does NOT have jx to grant this relief 2) CPLR Article 78 Proceedings: judicial review of NY state/local gov't administrative actions  REMEMBER: claims against NYS for money damages in tort and K go to NY Ct. of Claims 3) Declaratory judgment action: judicial declaration about smtg which could cause liability before a party does it  

74

Where must the State of NY be sued?

Claims for money damages in tort OR K against the State of New York must be brought in NY Ct of Claims NYS is the ONLY ∆ that can be sued in the NY Ct. of Claims >> gov't subdivisions (counties, cities, school districts) AND employees of the state must be sued in NY Sup Ct. If there is a non-state co-∆, they have to be sued in SEPARATE cts (no joint actions)

75

Since a ct. must have smjx to hear a case, what is the ONLY trial ct in NY that has general smjx?   What are the jx exceptions?

The NY Sup. Ct has general smjx REGARDLESS of:  the monetary amt of π's claim  the type of equity relief (i.e. injunction, specific performance, etc) the residency of the parties (i.e. has jx over non-NY residents assuming valid PJx) the place where the c/a arose (i.e. if the injury and c/a happened in another state) EXCEPTIONS (where NY Sup Ct DOESN'T have SMJx): cases where federal law confers EXCLUSIVE jx on federal cts (e.g. bankruptcy, patents, copyright, etc) claims for money damages in tort OR k against the State of NY

76

What is the hierarchy of the NY state court system?

Ct of Appeals (HIGHEST)   Appellate Division (INTERMEDIATE)   Supreme Ct (TRIAL)

77

What is the SOL for indemnity and contribution?

SOL = 6yrs running from the date of actual pmt of judgment for which indemnity or contribution is sought  

78

When does the SOL begin to run?  

When the c/a "accrues" (i.e. when the injury first occurs) SOL is NOT measured from the date that the π DISCOVERS the injury (i.e. it runs even if the π is unaware of the injury)  

79

What actions have a SOL of 3 - 6 yrs?

1) 3 yrs Personal injury based on negligence & strict PL: accrual from date of injury UNLESS toxic substance, then it's from date of discovery Property damages (including conversion & replevin) Non-medical professional malpractice (e.g. legal malpractice!) 2) 4 yrs Ks governed by UCC Article 2 (Sales): accrual from tender of delivery (e.g. breach of warranty claim) 3) 5 yrs Action by victim of rape-related felony: accrural from date of crime (NOTE: if perp is prosecuted, victim gets EXTRA 5 yrs from termination of criminal proceedings nws outcome of trial) 4) 6 yrs K breaches (express or implied; NOT UCC Art. 2): accrual from date of breach regardless of knowledge of breach Indemnity or contribution: accural from date of payment for which indemnity/contribution is sought Fraud: π may sue w/in 6 yrs. of commission OR 2 years of discovery, whichever is longer Equity actions (recission, reformation, accounting)

80

What actions have a SOL of 7 - 20 yrs?

1) 7 yrs Action by crime victim against convicted ∆ for ANY crime: accrual from date of crime 2) 10 yrs Action to recover realty: same pd as adverse posession Action by crime victim against convicted ∆ for a SERIOUS crime: accural from date of conviction (NOTE: victim may also sue for damages for up to 3 yrs from discover of ∆'s receipt of money/property from any source) 3) 20 yrs Action on judgment

81

What are the tolling rules if a potential ∆ dies?

If potential ∆ dies AT ANY TIME before the SOL expires, 18 months (1.5 yrs) are always added to the relevant SOL pd (regardless of whether π needs the extra time)

82

How can a π get a 6 month grace pd for SOL purposes?

If an action is timely commenced BUT dismissed before trial & at the time of dismissal SOL has EITHER expired OR has less than 6 months remaining → π gets 6 months from the date of dismissal to re-file the same action & serve process on ∆ 4 EXCEPTIONS where grace pd is NOT applicable... dismissal on the merits voluntary discontinuance by the π (dropped the suit) π neglects to prosecute (if it consisted of a general pattern of delay; BUT NOT merely one act) dismissal for lack of pjx (NOTE: if dismissed for lack of smjx, then π IS entitled to 6 mo grace pd to refile)

83

What is the SOL for personal injury or property damage against a gov't subdivision of the state (county, city, town, school district, or municipal hospital)?

The SOL is 1 yr, 90 days from the date of the accident Notice of claim requirement: necessary to commence action against municipality (otherwise the action will be dismissed as "failure to state c/a"): π must serve a notice of claim on the potential municipal ∆ w/in 90 days from the date of the accident (NOTE: service of the notice is NOT a commencement of the action) After service of notice, the π must wait 30 days and THEN commence the action against the municipality The complaint must plead compliance with the notice of claim requirement

84

How is the SOL measured in a toxic tort case?

SOL = 3yrs against the mnfr, distributor or supplier of the toxic substance running from the date of discovery OR should have discovered (w/ reasonable diligence) the injury "Toxic substance exposure" = any inherently harmful toxin that has latent or slow-developing effects (e.g. asbestos, leaking petroleum, etc) assimilated into π's person or property NOTE: the toxic tort discovery rule does NOT apply to claims of medical malpractice (toxic tort cases are against the mnfr/distributor of the toxic substance)

85

How do you compute the SOL pd?

To compute SOL (and ANY OTHER TIME PD IN CPLR), exclude the day upon which the triggering even occurs AND begin counting the next day Practically: SOL end dates always fall on "anniversary date" of the injury in question (e.g. if injury happens on June 1, 2012 with a 1 yr SOL, the last day for timely commencement = June 1, 2013) NOTE: if the LAST DAY of the SOL pd falls on a (i) Saturday; (ii) Sunday; or (iii) public holiday, then π gets until end of the next business day to commence action  

86

What is the SOL for medical malpractice (doctors, dentists, podiatrists, nurses and hospitals)?

General rule: the SOL pd. is 2.5 yrs, accruing from date of injury  The date of π's discovery of the malpratice is IRRELEVANT NOTE: if π is suing hospital for vicarous liability (respondeat superior), the SOL is 2.5 yrs, BUT if π is suing hospital for negl. hiring, then the SOL is 3 yrs (personal injury damages) EXCEPTIONS: Continuous Treatment Rule: after malpractice, if a physician continues to treat the patient after an operation FOR THE EXACT SAME CONDITION, then SOL is 2.5 yrs, accruing from the end of treament  Foreign Object Rule: if the physician was responsible for introducing a foreign object into patient's body (and leaves it behind), π gets SOL of (i) 2.5 yrs from date of operation; OR (ii) 1 yr from the date of discovery (or should have discovered), WHICHEVER IS LONGER Foreign object = something the doctor didnt intend to leave behind (e.g. surgical clamps, scalpels, etc) Foreign object ≠ (i) chemical substance (medicine); (ii) prosthetic device (plastic hip joint); (iii) fixation device (pacemaker, internal sutures, etc) >> SOL is thus 2.5 yrs from malpractice (not discovery)

87

What is the "borrowing statute"?

When the c/a arises outside of NY a choice of law problem occurs if SOL of the other state is different from NY The "borrowing statute" is desiged to prevent forum shopping by non-resident πs seeking a longer SOL in NY Rules: 1) If π was a non-resident when out-of-state claim arose → if SOL in state where COA arose is shorter, NY will apply it; otherwise NY SOL applies (which would be shorter) 2) If π was resident when out-of-state claim arose → will always apply NY SOL (regardless of whether the other state's SOL is shorter/longer)  

88

What are the tolling rules for infants or the insane?

Infants (i.e. under 18) OR insane πs MAY sue w/in regular SOL (w/ competent adult rep.) BUT they could get a toll until the disability ends (i.e. infant reaching 18 or insantiy clears up) Once the disability ends... If SOL for c/a was 3+ yrs.: π gets the LONGER of (i) the usual SOL pd running from usual date of accrual; OR (ii) 3 yrs from date of disability ending If SOL for c/a was < 3 yrs: π gets specified statutory pd measured from the date of disability ending NOTE: there is a 10yr ABSOLUTE ltd on SOL from original accrual Claims of insane πs barred after 10 yrs.  Claims for med malpractice barred after 10 yrs (for infants and insane πs) ALSO NOTE: for med malpractice, continuous treatment toll and legal disability toll are separate so if applicable then run separately to see what’s best

89

How does a π satisfy the SOL requirement?

To satisfy the SOL, the c/a must be "commenced" no later than the last day of the prescribed pd of limitations Commencement consists of "filing process" (process = summons and complaint OR summons with notice), which must be filed with the COUNTY clerk (the clerk for the ct)

90

What are the tolling rules for absent ∆s?

1) If ∆ not in NY when COA accrues: SOL does not begin to run (i.e. it's tolled) until he returns to NY   2) If ∆ in NY when COA accrues BUT thereafter leaves NY AND is continuously absent for at least 4 months: SOL tolls during time absent EXCEPTION: no tolling if π has a basis of pjx over absent ∆ that would allow process to be validly served (NOTE: this is often the case, so usually absence tolling isn't available) E.g.: Texan comes to NY, punches someone & goes back to Texas. No tolling b/c long arm available b/c tortious act in NY (π has pjx).

91

What is the SOL for products liability claims?

Depends on the tort theory... 1) Negligence: 3 yrs. running from date from injury as against “all D’s in the chain of distribution” 2) Strict Products Liability: same as neg. (3 yrs) 3) Breach of Warranty (UCC Art. 2 sales): 4 yrs. from date of delivery of product as against whom the warranty claim is asserted   Ex: Manufacturer sold scooter to wholesaler in 2003; wholesaler sold it to retailer in 2004; retailer sold it to consumer in 2005; consumer suffered PI in 2008 b/c of defect. Neg. & SPL against all D’s: 2011 Warranty: Man. = 2007, Whole = 2008, Retail = 2009  

92

What actions have a SOL of 0 - 2.5 yrs?

1) 4 months CPLR Article 78 proceedings (judicial review of NY state/local gov't administrative action) 2) 1 yr Intentional torts to the person (e.g. assualt, battery, false imprisonment) 3) 1 yr, 90 days Personal injury/property damage claims against municipal ∆s NOTE: only runs provided there is notice to muni ∆ w/in 90 days of accident 3) 2 yrs Wrongful death: runs from date of death AS LONG AS can also be shown that decedent’s personal injury claim had not expired on date of death NOTE: If criminal proceeding is brought against ∆, executor gets optional & independent 1 yr. from termination of criminal proceeding (TOTALLY INDEPENDENT FROM OTHER RUNNING OF SOL) 4) 2.5 yrs Medical, dental & podiatric malpractice: from date of malpractice injury UNLESS continuous treatment (end of treatment) OR foreign objects (1 yr. from discovery)

93

What is the SOL for non-medical malpractice (architects, engineers, accountants, attys)?

1) if client has financial loss: there is an EXCLUSIVE (supercedes all other relevant SOL) 3 yr SOL, which applies REGARDLESS of whether the claims are based on tort or breach of K The SOL begins to run when the services are completed, REGARDLESS of the π's lack of awareness of malpractice For architect or engineer, the 3 yr pd begins to run from the completion of building For accountant or atty, the 3 yr pd begins to run from the delivery of work product to client 2) If client has bodily injury: there is a 3 yr SOL running from the date of the bodily injury REGARDLESS of the date of completion of the work NOTE: there is a special procedure for architects/engineers for c/as brought more than 10 yrs after the building was completed: π must serve a notice of claim on the architect or engineer at least 90 days before suit; π may obtain pre-action discovery from the potential ∆ during the 90-day waiting pd; AND After suit is commenced, if ∆ moves for summary jdgmt, the burden will be on π to make an immediate evidentiary showing that there is a "substantial basis" to believe that ∆'s negl. was the proximate cause of π's injuries (i.e. there were no intervening causes like faulty maintanence) NOTE: this SOL applies to all members of a "learned profession" "Learned" ≠ insurance brokers; securities analysts; plumbers, etc.  

94

What are the tolling rules for dead πs?

Depends on whether it's a wrongful death or survival claim... 1) Survival Claim = any c/a π could have brought if still alive  Damages = any incurred by π prior to death (including pain and suffering); not ltd to tort damages SOL = if claim still timely on date of death, executor gets time remaining running from date of accrual OR 1 yr. from date of death (whichever is LONGER) 2) Wrongful Death Claim = tort claim for economic (pecuniary) damages of decedent’s statutory distributees (e.g. surviving spouse, etc) Damages = economic + punitive BUT NOT emotional suffering of distributees or π’s p&s. SOL = if claim still timely on date of death, 2 yrs from date of death  NOTE: wrongful death actions and survival claims are often asserted in ONE action, but you have to apply different SOL rules  

95

How is a matter placed on a ct's calendar?

When discovery is completed & case is ready for trial: EITHER party may file a Note of Issue Filing party has to serve copies on opposing parties

96

How does a party who is entitled to a jury obtain it?

1) Party who files notice of issue can make a demand for a jury trial NOTE: If jury trial is not demanded in notice of issue, then it iS WAIVED by moving party (but not binding on other parties) 2) Other parties >> assuming no jury demand made in the Note of Issue, other party must file his own separate demand for a jury (IF NOT demanded, jury is waived as to other parties as well)  

97

When does a party in a CIVIL ACTION have a RIGHT to a jury trial?

1) Action seeking SOLELY money damages 2) A replevin action (i.e.  action to recover chattel)   3) Claim to real property   4) Annulment of a marriage   5)  Divorce action ON THE ISSUE of grounds for the divorce (but NO jury wrt alimony or child custody)   Jury composition Civil jury = 6 jurors, need at least 5 votes (i.e. don't need unanimous verdict)  

98

What is res judicata?

Purpose of res judicata (or claim preclusion) is to avoid & to prevent relitigation of the same claim NY uses "transactional approach": when claim against the ∆ gets final judgment on the merits, all other claims by the π against the same ∆ are barred if they arise out of the same TRANSACTION True EVEN IF other claims based on different theory or seek a different remedy (POLICY) EXCEPTION: matrimonial action based on domestic abuse (e.g. first a divorce is granted by the ct, THEN π spouse can still bring assault charges even tho comes from same marriage (trxn))  

99

What is collateral estoppel?

The purpose of collateral estoppel (issue preclusion) is to avoid & prevent relitigation of specific fact issues that were decided in a prior proceeding Issue is PRECLUDED (entitled to SJ) if 3-part showing met... IDENTICAL issue b/t current and prior proceeding issue was ACTUALLY litigated & decided in the former proceeding party against whom issue preclusion is asserted had a FULL & FAIR OPPORTUNITY to litigate the issue in the former proceeding (NOTE: be careful and watch the parties to see if there was a F&F opportunity to litigate the issue)  

100

What is a special proceeding?

Special proceeding = a SPEEDY, STREAMLINED procedure (akin to motion practice) meant to obtain judgement as a FINAL resolution of a dispute E.g. probate of a will; election disputes; summary proceeding by a landlord for a eviction; dissolution of a corporation; habeas corpus; enforcement of an arbitration agmt; CPLR Art. 78 proceeding A special proceeding MUST have specific statutory authorization NOTE: If a MISTAKE is made in form of proceeding, ct has authority to CONVERT a SP into an action (and vice versa)  

101

What is the procedure necessary for a special proceeding?

1) "Commencement of a special proceeding" = the PETITIONER (the party w/ the grievance) files a PETITION (~complaint) 2) PETITION and NOTICE OF PETITION must be served on the RESPONDENT (the person from whom relief is sought) by using the same methods to serve process as in an action (REVIEW!); need jx over respondent 3) Notice of peitition advises the respondent to SERVE AN ANSWER and to appear on the specified RETURN DATE for the hearing NOTE: The return date in a SP can be NO SOONER than 8 DAYS from the service of process  EXCEPTION: Art. 78 Proceeding, where return date can be no sooner than 20 DAYS from service of process If petitioner needs an accelerated return date, he must initiate the special proceeding by ORDER TO SHOW CAUSE 4) AFFIDAVITS in support of/in opposition to the petition are submitted to ct on the return date for a decn Dispute is decided in the same manner as SUMMARY JUDGMENT

102

What are the 4 grounds for an Art. 78 Proceeding?

Art. 78 authorizes a special proceeding for judicial review of (in)action by govt. or quasi-govt. officers or bodies of any kind (i.e. administrative agency review). 4 grounds to provide right to relief: 1) Mandamus to compel   2) Prohibition   3) Certiorari   4) Mandamus to Review

103

What is the Mandamus to Compel under Art. 78?

Mandamus to Compel – to compel performance of act required by law e.g. election official refuses to issue absentee ballot; city clerk refuses to issue marriage license NOTE: corporations qualify as quasi-govt. body (b/c gets right to exist from the state) e.g. refusal to convene annual meeting of shareholders--subject to Art. 78 proceeding

104

What is Prohibition under Art. 78?

Prohibition = proceeding to stop a judicial officer from exercising power that exceeds his lawful jurisdiction ONLY for "gross excess" of jurisdiction E.g. judge denies ∆’s motion to dismiss for clear violation of double jeopardy

105

What is Certiorari under Art. 78?

Certiorari = proceeding to challenge the results of a “trial-type” hearing conducted by an administrative agency "Trial-type" hearing = testimony taken under oath w/ a right of cross-examination Persons w/ a vested property or quasi-property right are ENTITLED to trial-type hearing prior to divestiture (due process) Std = Ct. must uphold determination if it was supported by substantial evidence  

106

What is Mandamus to Review under Art. 78?

Mandamus to Review = proceeding to review ANY type of administrative action not covered by other 3 (usually used to challenge agency determination w/o trial-type hearing; i.e. informal rule making) E.g. zoning permit denied, gun permit renewal denied Agencies may determine such matters w/o trial-type hearing b/c no vested rts. are at stake Std = Ct. must uphold determination UNLESS it was “arbitrary & capricious”

107

What is the procedure for an Art. 78 Proceeding?

ONLY the Supreme Court can hear Art. 78 Proceeding Even the State can be sued here (if for damages from K breach or tort >> jx is in the Ct. of Claims) SOL = 4 months running from the date the agency action is final and binding The papers in an Art. 78 porceeding MUST be served 20 DAYS before the return date Types of relief that may be sought... 1) May only seek declaratory or injunctive relief Injunction (e.g. reinstatement of employment) Declaratory (e.g. annulment of agencies determination) 2) Damages are ONLY recoverable IF they are incidental to the main relief being sought (i.e. injunctive or declaratory relief)

108

What is proper venue?  

π chooses venue & specifies it in summons according to these rules... 1) If it's an action affecting title/possession to real property, proper venue = county where real property located 2) If it's any other action, proper venue = county of residency of one of the parties at time action is commenced 3) If neither party resides in NY, proper venue = any county NOTE: The loction of the c/a is generally IRRELEVANT to determine proper venue          

109

What is the effect of improper venue?  

π's choice of an improper venue is NOT jx defect (i.e. it's NOT a basis for dismissal) ∆'s remedy = ∆ designates a property cty after serving a demand for change of venue on π (served w/ or before the answer) If π concedes to demand >> automatic change If π objects or fails to respond >> ∆ must MOTION for Change of Venue, which will be granted as a matter of right if π's venue choice was improper and ∆'s is proper  

110

What are the discretionary grounds for changing venue?  

1) Convenience of a material witness: either party (via MOTION) may request a change in venue from ct to a cty that would be most convenient for the witness (often where the c/a arose) 2) Bias in cty: either party (via MOTION) may request venue change if there is reason to believe that an impartial trial cannot be had in the particular cty