NY Practice Flashcards
In NY, is an intentional tortfeasor entitled to seek contribution?
Yes
On MBE, is an intentional tortfeasor entitled to contribution?
No
relationship between settlement and contribution
A party who settles cannot sue or be sued for contribution.
relationship between settlement and indemnity
A party who settles can sue, and be sued, for indemnity
purpose of motion for summary judgment
to enable a party to show, before trial, that even though the pleadings may be sufficient on their face, there is no genuine issue of material fact requiring a trial.
Moving party is contending that reasonable persons cannot differ, and that she is therefor entitled to judgment as a matter of law
How does the opponent defeat a motion for summary judgment?
by producing contrary evidence showing that a triable issue of fact does exist.
That means opponent also has to submit affidavits from people who have actual knowledge of the facts. Opponent cannot simply rely on pleadings themselves b/c pleadings are not evidence; they’re just paper allegations.
purpose of attachment
security for enforcement of money judgment where D is a security risk:
- unlicensed foreign corporation or non-domiciliary residing outside NY or
- is about to conceal or remove assets from NY with intent to defraud creditors or frustrate enforcement of judgment
purpose of preliminary injunction
to maintain the status quo while an equity action is pending
3-Part showing for collateral estoppel
- identical issue in former/current proceeding
- issue actually litigated and decided formerly
- party against whom issue preclusion is asserted had prior full fair opportunity to litigate
PJ over D - general jurisdiction
- presence in NY
- domicile in NY
- corporate D at home in NY
basis for specific (personal) jurisdiction
long arm or non resident motorist
long arm jurisdiction
“minimum contacts” standard- arises from D’s acts in NY, allowing for out of state service conferring personal jurisdiction
5 categories of NY related activity to trigger long arm jurisdiction
- transaction of business by D in NY (substantial electronic communications could work)
- K transacted anywhere by which D agreed to supply goods or services in NY (does not include payment of a debt, or paying $)
- D’s tortious act in NY
- P’s claim arises from D’s tortious act outside NY that causes injury in NY AND D regularly does business in NY, solicits business in NY or engages in other persistent course of conduct in NY OR D derives substantial revenue from goods used or consumed, or services rendered in NY OR D expects or should reasonably expect the tortious act to have consequences in NY and D derives substantial revenue from interstate or international commerce that purposely includes NY
- D’s ownership, use, or possession of real property in NY
due process for long arm jurisdiction
Due process will be satisfied if P’s claim arises out of conduct of D that is so purposefully directed toward NY that D should reasonably anticipate being sued on that claim in a NY court.
Non-Resident Motorist Statute
confers PJ over an accident claim arising from a nondomiciliary motorist’s ownership or use of an auto on a NY roadway (often overlaps with long-arm category of tortious act in NY)
for owner: agency or business relationship btwn owner and driver not required
matrimonial long-arm jurisdiction
when P-spouse is a resident of NY, long-arm jurisdiction can be acquired over D-spouse for monetary support if
- NY was the matrimonial domicile of P and D shortly prior to their separation OR
- D abandoned P in NY OR
- D’s monetary obligation accrued under an agreement executed in NY (e.g. separation agmt) OR
- D’s monetary obligation accrued “under the laws of NY”
durational residency requirement for matrimonial action
- If both parties are NY residents and grounds for action arose in NY, then no period of prior residency required
- If either party has been a NY resident for a continuous period of at least one year then one of these also req’d: marriage took place in NY, NY was the matrimonial domicile at some point, or grounds for divorce action arose in NY
- If either party has been a NY resident for a continuous period of at least 2 years, no need to show any other connection to NY
Defenses that are never waived, even if not included in answer
- non-joinder of necessary party
- failure to state a cause of action
- lack of subject matter jurisdiction
court’s standards in deciding motion to dismiss for failure to state a cause of action
- P entitled to every favorable inference that can be drawn from the allegations of the complaint
- motion denied if there is any basis for relief under the substantive law
S/L for breach of warranty under products liability
governed by UCC: 4 yr S/L running from the date a particular defendant made its delivery of the product (look at each D separately)
S/L for wrongful death cause of action
2 years from date of death, but it must also be shown that decedent possessed a timely cause of action at the time of death (P’s underlying personal injury claim must still be timely on date of death)
S/L for survival cause of action
If P dies before the S/L expires, he estate rep gets whichever is longer:
the time remaining on the applicable S/L running from the usual date of accrual, or
1 year from P’s death
If potential D dies at any time before S/L expires
18 months are always added to the relevant limitations period (regardless of whether P needs extra time)
