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Flashcards in NY Practice Deck (116):

Commencement Procedures

Serving process outside NY.

Same methods as used in New York.


Who can serve?

any NY resident who is authorized under NY law (e.g. NY Process Server, 18+ yr. old)
anyone authorized to serve process by the law of the jurisdiction where service is made
any attorney who is licensed in the jurisdiction where services is made



Commencement Procedures

Service on Infants

Must serve on adult:

any person having legal custody of infant
if infant is married, then on an adult w/ whom she resides


Infant over 14 yrs. old à process must be served on the eligible adult and the infant



Commencement Procedures

Service on Mentally Incapacitated

Mentally incapacitated person with court-appointed guardian – must serve person and guardian


Mentally incapacitated person without court-appointed guardian – serve person & then court will appoint a guardian ad litem




Commencement Procedures

Expedient Service

If all 3 other methods of delivery on persons are not practicable, P may make an ex parte motion to the court for an order allowing an improvised expedient method.


Reasonable alternative:

D’s liability insurer
family member
business associate



Commencement Procedures

Basic requirements of serving process.

Process Server must be 18 or older
Process server cannot be a party to the action
Process may be served on any day except Sunday and if D is a Saturday Sabbath observer, and D knows it
Each D gets his own set of process



Commencement Procedures

Personal Delivery.

If D refuses, leave process in his vicinity.


Service is complete upon delivery.



Commencement Procedures

Nail & Mail

Server may AFFIX process to the door of D’s actual dwelling place or actual place of business, and within 20 days,
MAIL a copy by regular mail to D at D’s actual place of business or last known residence, and
Must have exercised Due Diligence by making attempts to serve D directly or by delivery, and
File proof of service.



Commencement Procedures

Service by 1st Class Mail PLUS Acknowledgement


Mail process to D by 1st class mail, enclosing:

2 copies of statutory acknowledgement form and
a return envelope, postage prepaid, addressed to sender


Service is effective only if D signs 1 form & returns it to P w/in 30 days. (complete upon sending signed form)


If D does not return it, P must serve process some other way & D must pay for it.



CANNOT be used on infants or insane.
D’s return of form is NOT a concession that court has jurisdiction.



Commencement Procedures

Leave & Mail

Server may DELIVER process to person of suitable age & discretion (does not mean 18 nec.) at D’s actual dwelling place or actual place of business, and within 20 days,
MAIL a copy by regular mail to D at D’s actual place of business or at his last known residence, and
File proof of service.


Service is complete 10 days after proof of service filed (i.e. when D’s response time begins to run)
If P fails to file proof of service, it is not a jurisdictional defect, just postpones D’s response time.
Also, proof of service does not have to be w/in 120 days from date of filing process.



Commencement Procedures

What are the forms of process?


Summons & Complaint, or

Summons = notifies D that he is being sued in a particular court

Summons & Notice

Notice must state:

brief stmt of nature of action
nature of relief sought
amount of damages UNLESS personal injury or wrongful death – then CANNOT state

Naked Summons: if no complaint or notice attached, then defect in PJ & action can be dismissed


Commencement Procedures

Methods of serving process on corporations.

(1) Personal delivery to:

officer of the corporation
director of the corporation
designated agent
managing agent (employee who has supervisory power)

***Can be served anywhere if there is a basis of personal jurisdiction.

(2) Service on NY Sec. of State

Domestic corp. & foreign corp. authorized to do business in NY = personally deliver 2 copies on Sec.
Unlicensed foreign corp. = 1 copy to Sec. & 1 by mail to corp. by certified mail, return receipt request



Commencement Procedures

How can an action be validly commenced?


To be valid:

file process w/ the County Clerk
pay a fee for the purchase of an index number
serve process on the D w/in 120 days after filing w/ the county clerk


Note: Court has discretion to extend 120 days if P makes an ex parte motion & makes a showing of good cause or interest of justice.

If D wants to challenge timeliness, must make a Motion to Dismiss for untimely service but court can still grant P an extension & apply it retroactively.




Commencement Procedures

Methods of serving process on persons.

Personal delivery to D in New York
Leave & Mail
Nail & Mail
Expedient Service
Agent Designated by D to receive service
Service by 1st Class Mail PLUS acknowledgment


     Statute of Limitations

Grace Period.

If a New York action is timely commenced but dismissed before trial & at the time of dismissal SOL has either expired or has less than 6 months remaining à P gets 6 months from the date of dismissal to re-file the same action & serve process on D.


4 Exceptions:

dismissal on the merits
voluntary discontinuance by the P (dropped the suit)
P neglects to prosecute
dismissal for lack of personal jurisdiction




Subject Matter Jurisdiction

Over what does the Supreme Court have exclusive SMJ?


Matrimonial actions where ct. is asked to adjudicate marital status (e.g. divorce, separation, annulment, validity of marriage)


CPLR Article 78 Proceedings


Declaratory judgment action – judicial declaration about smtg which could cause liability before it does


Statute of Limitations

Toll for potential Defendant’s death.

If potential defendant dies AT ANY TIME before the SOL expires, 18 months are always added to the relevant limitations period.


Ex: Car crash on June 1, 2005, in which D’s negligence caused person’s death.  Wrongful death SOL = 2 yrs. + 18 months so P’s executor has until December 1, 2008.


     Subject Matter Jurisdiction

Where must the State of NY be sued?


Claims for money damages in tort or contract against the State of New York must be brought in NY Court of Claims.


Exception: govt. subdivisions (counties, cities, school districts) must be sued in SC


Note: If there is a non-state co-D, they have to be sued in separate courts.


Statute of Limitations

Toll for Defendant’s absence.



D not in NY when COA accrues à SOL does not begin to run until he returns to NY
D in NY when COA accrues but thereafter leaves NY & is continuously absent for at least 4 months à SOL tolls during time absent

Exception: no tolling if P has a basis of personal jurisdiction over absent D that would allow process to be validly served

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.


    Statute of Limitations

Toll for potential Plaintiff’s death.

Survival Claim: any COA P could have brought

Damages = any incurred by P prior to death
SOL = if claim still timely on date of death, executor gets time remaining or 1 yr. from date of death


Wrongful Death Claim: tort claim for economic damages of decedent’s statutory distributes

Damages = punitive but not emotional suffering of distributees or P’s p&s.
SOL – 2 yrs. from date of death AS LONG AS personal injury claim would have been timely



Statute of Limitations

What is the toxic substances exception to products liability?


Toxic substance = any inherently harmful toxin that has latent or slow-developing effects

e.g. DES, asbestos, insecticides, HIV-virus, leaking petroleum

Exposure = any sort of assimilation into one’s body or property


SOL = date of discovery or when w/ reasonable diligence should have discovered


éCaveat: does not apply to medical malpractice b/c exclusively governed by med mal rules


Statute of Limitations

Toll for Plaintiff’s infancy or mental disorder.

Infants (under 18) & insane à may sue w/in regular SOL w/ competent adult rep. but they get a toll until the disability ends.


Once the disability ends:

SOL for COA was 3+ yrs. à P gets 3 yrs.
SOL for COA less than 3 yrs. à P gets whatever period specified


Exception – 10 yr. limit:

Claims of insane Ps barred after 10 yrs.
Med mal – barred after 10 yrs
Caveat: continuous treatment toll separate so if applicable then run separately to see what’s best


     Statute of Limitations

 What is the SOL for personal injury against a “professional”?

Building collapses, causing personal injuries.


SOL runs from 3 yrs. from the date of injury, regardless of date of completion of the building.




        Statute of Limitations

Products Liability

3 Possible COA:

Negligence – 3 yrs. from injury as against “all D’s in the chain of distribution”
Strict Products Liability – same as neg.
Breach of Warranty – 4yrs. date of delivery of product (governs UCC Article 2 sales)


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


Statute of Limitations

      Professional Malpractice


Malpractice has an exclusive SOL of 3 years, whether the claim is based in tort or K (which would normally have 6 years).


Doctrine of Continuous Representation Applies


Caveat: personal injury different





Statute of Limitations

Special Procedure required in PI claims against “professionals.”

Special Procedure required if claim brought more than 10 yrs. after building completed:


P must serve notice of claim on architect/engineer 90 days before suit.


P may obtain pre-action discovery from the potential D during the 90 day wait period; and


if D moves for SJ, burden on P to make evidentiary showing that has “substantial basis” to believe D’s negligence was the proximate cause of the injuries.



      Statute of Limitations

     What is the continuous treatment rule?

Continuous Treatment exception:


If doctor continues to treat patient for the exact same medical condition that gave rise to the malpractice à SOL runs from termination of the treatment.



      Statute of Limitations

 Who can be liable for  

  professional malpractice?




insurance brokers
securities analysts



Statute of Limitations

Who can be liable for medical malpractice?





       Statute of Limitations

    What is the foreign   object doctrine?

If doctor was responsible for introducing a foreign object into patient’s body and leaving it behind, P gets option of:

2.5 yrs. from date of operation, or
1 yr. from date of discovery (implied or actual)


NOT Foreign Objects (so no benefit of rule):

chemical substance (medicine)
prosthetic device (plastic hip)
fixation device (internal sutures, pacemaker)



Statute of Limitations

What actions have a SOL of 3-6 years?



3 yrs

Personal injury based on negligence & strict PL
Property damages
Professional malpractice
Accrues à date of injury (unless toxic substance = discovery), date of delivery of work


4 yrs

Ks governed by UCC Article 2 – sales
Accrues à tender of delivery


6 yrs

Ks express or implied - date of breach regardless of knowledge of breach
Indemnity or contribution – date of payment
Fraud – w/in 6 yrs. of commission or 2 years of discovery, whichever is longer




Statute of Limitations

When must an action be commenced to meet the SOL deadline?


Commencement of the action (i.e. filing process) must be made w/ the County Clerk on or before the last day of the SOL.


Clock starts ticking the day after the injury.

Ex:  Car accident on June 1, 2006.  Last day for timely commencement for PI and/or property damages = June 1, 2009.



Statute of Limitations

What actions have a SOL of 0-2.5 years?


4 months

Article 78 proceedings

1 yr.

Intentional torts to the person

2 yrs

Wrongful death – date of death AS LONG AS can also be shown that decedent’s personal injury claim had not expired on date of death
If criminal proceeding – executor gets optional & independent 1 yr. from termination of criminal proceeding (TOTALLY INDEPENDENT FROM OTHER RUNNING OF SOL)

2.5 yrs.

Medical, dental & podiatric Malpractice – 2 yrs. from date of malpractice UNLESS continuous treatment (end of treatment) or foreign objects (1 yr. from discovery)



Statute of Limitations

What is the “Borrowing Statute”?



P was a non-resident when out-of-state claim arose à if SOL in state where COA arose is shorter, NY will apply it; otherwise NY SOL applies.


P was resident when out-of-state claim arose – will always apply NY SOL.



Subject Matter Jurisdiction

Power of the court to adjudicate particular types of claims.


Article 78 Proceedings

What is the procedure for an Article 78 Proceeding?



Only the Supreme Court can hear Article 78 Proceeding.
Even the State can be sued here.
SOL = 4 months
May only seek declaratory or injunctive relief

Injunction e.g. – reinstatement of employment
Declaratory e.g. - annulment of agencies determination

Damages are only recoverable if they are incidental to the main relief being sought.


Personal Jurisdiction

Power of the court to adjudicate claims for damages or injunctive relief against particular parties



Article 78 Proceedings


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 D’s motion to dismiss for clear violation of double jeopardy





Article 78 Proceedings

      Mandamus to Review

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)

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
Ct. must uphold determination UNLESS it was “arbitrary & capricious.”



Article 78 Proceedings

Mandamus to Compel


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


Corporations = quasi-govt. body b/c gets right to exist from the state

e.g. refusal to convene annual meeting of shareholders




Article 78 Proceedings


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 rt. of cross-examination

Persons w/ a vested property or quasi-property right are entitled to trial-type hearing prior to divestiture


Ct. must uphold determination if it was supported by substantial evidence.



5 Threshold Issues that can be presented to the court to avoid Arbitration.



Agmt to arbitrate? – must be in writing, clear, explicit & unequivocal
Particular dispute w/in scope of clause?
Clause valid? – i.e. not induced by fraud, duress or coercion

Doctrine of severability – will examine clause separately from K b/c that would look at merits of entire K

Express condition precedent to arbitration has been complied w/?
SOL issue?



Article 78 Proceedings

What are the 4 grounds for an Article 78 Proceeding?

Article 78 authorizes a special proceeding for judicial review of (in)action by govt. or quasi-govt. officers (i.e. administrative agency review).


4 Grounds:


Mandamus to compel
Mandamus to Review





How does a party bring threshold issue to the court?



Already pending action – D should make motion to stay the action & compel arbitration


Notice of Intention to Arbitrate – opponent who wants to avoid arbitration must commence a special proceeding for stay of arbitration

must be w/in 20 days of receipt of Notice of Intention or waives any of the threshold objections




What are the 3 grounds of judicial review of arbitration awards?


Only 3 grounds:


Corruption, fraud, misconduct in the arbitration proceeding.
bias of an arbitrator who was chosen to be neutral
arbitrator exceeded his powers (almost always loses b/c arbitrators usually have unlimited power unless the parties agree otherwise)


éNY – arbitrator cannot award punitive damages in localized dispute




Trial Procedures

When does a party in a civil action have a right to jury trial?

Action seeking solely money damages.
Replevin (action to recover chattel).
Claim to real property.
Annulment of a marriage.
Divorce action on issue of grounds.


é Civil jury = 6 jurors, need at least 5 votes



Collateral Estoppel

General Rule.

Collateral Estoppel: avoids & prevents relitigation of specific fact issues that were decided in a prior proceeding upon 3-part showing:


identical issue
issue was actually litigated & decided
party against whom issue preclusion is asserted had a full & fair opportunity to litigate the issue in the former proceeding


Trial Procedures

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


Party who files notice of motion – makes a demand for a jury trial in Note of Issue or else waives it


Other parties – assuming no jury demand made in the Note of Issue, other party must file his own separate demand for a jury



Res Judicata

Transactional Approach.

RJ (or Claim Preclusion): to avoid & to prevent relitigation of the same claim


Transactional Approach – when claim against the D gets final judgment on the merits, all other claims by the P against the same D are barred if they arise out of the same transaction
True even if other claims based on different theory or seek a different remedy

Exception: matrimonial action based on domestic abuse


Provisional Remedies

Notice of Pendency

(lis pendens).

EQUITY action in which the judgment will have direct effect on possession, use or title of REAL PROPERTY
Filing of notice of pendency gives record notice to potential buyers that any interest they acquire will be subordinate to P.
Mortgage foreclosure – lis pendens is statutorily required
Does NOT need a court order
D’s only remedy – motion to cancel lis pendens




Trial Procedure

How is a matter put on a court’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





Provisional Remedies

What are the add’l requirements for ex parte motion for Seizure of Chattel?


P must show a threat of immediate loss of the chattel, and


Due process must be satisfied:

If motion granted, P must make a follow-up motion on notice w/in 5 days of the seizure to confirm the ex parte order & that’s how D gets a prompt hearing to say his part.




     Provisional Remedies

Time Constraints of Notice of Pendency


Effective for 3 years from date of filing


If action goes beyond 3 years then P would have to make a motion for a 3-year extension

MUST make the motion PRIOR to the expiration à if after:

lis pendens becomes void, and
P cannot obtain another one on the same property for the same COA


Mortgage foreclosure – even if miss deadline, ct. will renew b/c statutorily required



Provisional Remedies

Overview of Preliminary Injunction & TRO



P commences action seeking equitable relief.


P makes a motion (by order to show cause) for a preliminary injunction to maintain status quo until overall action is resolved.


In the order to show cause, P requests TRO to obtain immediate injunctive relief pending the outcome of the preliminary injunction motion.



Provisional Remedies

Seizure of a Chattel

Types of actions: only available in an action that seeks to recover possession of a chattel (replevin)
Order to Seize Chattel – to insure enforcement of a judgment awarding the chattel

Sheriff seizes chattel & impounds it until judgment b/c if it was lost/destroyed recovery is limited to monetary value of chattel

Affidavits must show P will probably succeed on merits of underlying COA.
P must provide indemnity.
Can be made on notice or ex parte.



Provisional Remedies

How does one obtain a TRO?


Make the order for preliminary injunction by order to show cause scheduling a quick return date for the motion for preliminary injunction.


Judge can include TRO in Order.


Order is then served on the D along w/ the motion papers for the preliminary injunction.


Upon service, D is immediately restrained by the TRO, pending the resolution of the preliminary injunction motion.



Provisional Remedies

Temporary Receivership

Temporary receiver – person appointed by the court to manage property in the D’s possession


Types of actions: must be in EQUITY claim in which specific property is the subject matter of the action, AND

there is danger that D will injure or destroy the value of the property while the action is pending.


Requires a motion on notice.


é very rare b/c so drastic



Provisional Remedies

Preliminarty Injunction.


Purpose: to maintain the status quo while action is pending


Types of actions: must be an EQUITY action where P’s complaint seeks either:
permanent injunction, or
if D threatens to harm the P’s interest in the subject matter of the action


éCannot be only for $$ - e.g. P sues D for $70k debt owed.  Cannot get injunction to stop D from spending money.



    Provisional Remedies

What is a Temporary Restraining Order (TRO)?

When a motion for preliminary injunction is not possible b/c action is not yet commenced and/or would take too long b/c 8 day notice requirement then to get IMMEDIATE INJUNCTIVE RELIEF:


If there is a threat of immediate injury court may grant a TRO
function is to maintain the status quo until the motion for preliminary injunction is decided
can be granted ex parte if the P shows that giving prior notice of it to D would result in significant prejudice (e.g. he would run off or give the stock away)



Provisional Remedies

Additional requirements for ex parte motion for Attachment.


To satisfy due process:


Must be a hearing promptly after the levy on D’s property to give the D opportunity to protest the attachment.
Caveat: After the sheriff levies on the property, the P 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. 

D unlicensed foreign corp. or non-domiciliary of NY – no later than 10 days after levy
D fraudulently moving assets – no later than 5 days after levy

If follow-up not w/in proper # of days then void.




Provisional Remedies

Preliminary Injunction Procedure.


Motion must be made ON NOTICE.


Can be served w/ or after the summons and any time up to final judgment.



Affidavits must show:

grounds for equitable relief, including a threat of irreparable injury
a probability of success on the merits of underlying COA


Must provide indemnity.



Provisional Remedies




Provides security for the enforcement of a money judgment.


Types of actions: P must be seeking money damages AND:

D is an unlicensed foreign corp. or a non-domiciliary of NY; or
D is about to conceal or remove assets from NY w/ the intent to defraud creditors or frustrate the enforcement of a judgment


éokay to seek equity damages too, just must have $$


Provisional Remedies

        Attachment Procedure

P makes a motion for an order of attachment (can be on notice or ex parte).


Affidavits in support must show one of the grounds for attachment (i.e. type of action) AND probability of success on the merits of the P’s underlying COA


P must provide an undertaking (i.e. a bond) to indemnify the D for any damages or expenses caused by the attachment

D would be entitled to damages if attachment improperly obtained or the D wins the case on the merits & the bond is there to pay damages



Provisional Remedies

What are the 5 provisional remedies?

Provisional Remedies


Preliminary Injunction
Temporary Receivership
Order to Seize to Chattel in an action to recover the chattel (replevin)
Notice of Pendency (lis pendens)



Provisional Remedies

 Attachment Levies

P gives order of attachment to sheriff who imposes lien, which stays until end of case.


Levy on Real Property – sheriff files order of attachment w/. the county clerk in county where RP located


Levy on personal property – sheriff delivers order of attachment to the person in NY who holds D’s personal property interest (D himself or garnishee)

Garnishee – 3rd person who owes a debt to the D or has possession of the D’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.
Personal property qualifying – tangible (car, boat) or intangible (e.g. debt owed to D – i.e. bank acct)




Motion for Summary Judgment

Evidence used to decide Motion for SJ.

Moving party must submit evidence in the form of affidavits, relevant docs or discovery materials.  Must come from party himself or W – personal knowledge.


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.  Court can grant a continuance (adjournment).


Court “searches the record” (i.e. looks at all the evidence in the record).

“Boomerang Effect” – court can grant opposing party SJ even w/o a cross-claim





Provisional Remedies



Provide P a measure of security pending the outcome of the case so that ultimately the judgment may be enforced.


TIP – type of action & grounds for using remedy tested


TIP – court order required so motion procedure pervades this area



Motion for Summary Judgment



Rule: 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”

If motion is denied it means that triable issue of material fact exists EXCEPT if the only issue is as to damages, ct. can grant SJ on liability & then order an immediate trial on the issue of damages.


after Answer served, EITHER party can move for SJ w/ respect to any claim or defense asserted in the pleadings


Time limit: 120 days from the notice of issue (i.e. cases is marked on trial calendar) unless moving party shows “good cause.”



Motion for Summary Judgment

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



Court converts Motion to Dismiss for failure to state a COA into Motion for SJ (this allows fro decision on basis of evidence instead of just on pleadings)

2 Reqs – at least 1 party submitted factual affidavits & ct. gives notice to parties so they can submit add’l evidence


Motion for SJ in Lieu of Complaint

Action on an instrument for the payment of money only – 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 judgment



*Motion Procedure

     Deciding Order

Winning party serves a copy of the order on the losing party.


Service gives effect to the order.


Service starts the running of a 30-day time limit to appeal from the order.



*Motion Procedure

Ex parte.

Moving party goes straight to court & requests an order granting the relief sought.
Need specific statutory authorization.

e.g. order for expedient service of process, P seeks extension of time to serve process

No 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).


*Motion Procedure

Order to Show Cause


Moving party drafts order to show cause & submits it directly to the judge along w/ affidavits for the underlying motion.


Judge sets the return date in the order & specify the method of service on the adversary (usually personal delivery).


éEx: Proposed order to show cause is signed by the judge on May 1, 2008, and it states, “Let D 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.


     *Motion Procedure

NY Rule on Appeals of Orders

NY allows an immediate appeal of an order from the Supreme Court to the Appellate Division as a matter of right w/in 30 days of service of any order determining a motion on notice.

e.g. order denying change of venue or change of jurisdiction

MBE – CANNOT appeal immediate orders until final judgment entered


é NY bar loves this


NY CPLR Article 16

What are the exclusions from Article 16?

Exceptions from Article 16 (i.e. tortfeasors always liable for J&S liability):


Intentional tortfeasors or those who act w/ reckless disregard.

If multiple tortfeasors - only intentional ones are J&S liable.


Tortfeasors who release hazardous substance into the environment.


Drivers & owners of cars except police or fire cars.

Note: police officer driving vehicle also gets benefit of Article 16



    *Motion Procedure

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.


accelerates the return date (used in exigent circumstances)


judge can grant an immediate stay of the proceedings or a temporary restraining order


statute which governs the particular motion may require it


é  can also be used in a special proceeding





NY CPLR Article 16


Rule: in a personal injury claim a joint tortfeasor whose fault is found to be 50% or less cannot be required to pay the P more than his equitable share of the P’s noneconomic damages.


Noneconomic damages – paint & suffering, mental anguish, loss of consortium, loss of companionship (but NOT wrongful death)


Economic damages – all tortfeasors are J&S liable for full judgment

e.g. medical expenses, lost income


Ex: P sues A & B. A = 60% liable & B = 40% liable.  A is J&S liable for all of the damages but B is only liable up to $40k.




*Motion Procedure

Notice of Motion generally.

Moving party serves Notice of Motion & supporting affidavits on other party

tells opponent nature of motion & specifies return date/hearing date, which is day motion is presented to court


Opponent must get motion papers at least 8 days prior to the return date
Both sides file papers w/ court by return date
Court then makes a decision & issues an order





What is an exception to contribution?

Workers Compensation à may not sue employer if you are injured on the job.

Injured P may sue other 3rd party tortfeasor, such as manufacturer of machine used, etc.
D may not implead the employer for contribution UNLESS it was a grave injury.
Grave injury:

Total loss of arm, leg. hand, foot, ear, nose, index finger
Total loss of multiple fingers or toes
Paraplegia, quadraplegia
Total blindness or deafness
Sever facial disfigurement
Brain damage causing total disability




Settlement with one Tortfeasor.

Rule: P’s pretrial settlement w/ 1 tortfeasor in partial satisfaction of the claim does not discharge P’s claim against other tortfeasors.


Law prohibits excessive recovery so P can only collect up to total amount of damages.

Any damages awarded must be reduced by the LARGER of:

the amount of settlement, or
the settling tortfeasor’s equitable share of fault

E.g. P settles w/ A for $30k.  P wins $100k in trial.  Ct. says A 10% liable & B 90%.  B only owes $70k.  If A 40% liable, P could only collect $60k from B.


é Pre-trial settlement extinguishes claims by & against settling party.




What is the liability of TPD who has no direct liability to Plaintiff?


TPD who is not directly liable to P may still be liable to D.


Example: Manufacturer of smoke alarm, fire protection service.  Fire protection service not liable to P b/c of clause in K but manufacturer-D can still implead him for aggravating the damages.

éSo contribution can be broader than liability.



Successive Tortfeasors.

Rule: tortfeasor is liable to P for all injuries that proximately flow from the accident but he may claim contribution from a successive tortfeasor.


E.g. subsequent malpractice by a doctor who negligently treats P.



Contribution & Indemnity

How can D assert a claim of contribution or indemnity?


Tortfeasors already co-Ds à Crossclaim


Tortfeasors not part of suit à implead or sue in a separate action


é If D sues outside tortfeasors in a separate action, the findings of liability in the 1st action are not binding on 2nd action.  Collateral estoppel & res judicata cannot be used against tortfeasors who were not joined as D’s in 1st action.



Comparative Degrees of Fault formula.

Comparative Degrees of Fault:


Each tortfeasor is liable for his actual fault.
Each D cannot be compelled to pay more than his own equitable share by another tortfeasor.
P can force one tortfeasor to pay the entire amount of damages if the others are insolvent.




What is joint & several liability?



Each tortfeasor is liable to P for the whole amount of damages regardless of the individual tortfeasor’s percentage of fault.





Equal Shares Formula.

Equal Shares Formula (MINORITY VIEW):


All liable tortfeasors pay an equal share of the damages.


éTIP: only on MBE – will say “in an equal share jurisdiction”



What happens after a TPD is impleaded?

TPD must serve an Answer on D, P & all other parties.


After TPD joined, P can amend her complaint to assert complaints directly against TPD.

w/in 20 days – w/o judicial permission
after 20 days – needs permission


éNew claims by P “relate back” to date D filed impleader papers as long as based on same transaction or occurrence as D’s impleader claim




What is contribution & what is its purpose?

Contribution: the sharing or apportionment of loss among multiple tortfeasors (who are actually part of the tort or aggravated the damages).



CPLR Article 16
MBE – not available when liability is based on an intentional tort


Purpose – mitigate the harshness of joint & several liability




How does D implead a 3rd party?

D files Summons & 3rd Party Complaint.


w/in120 days of filing, serves a copy on D and P


TPD must serve an answer on D, P & all other parties


émake sure there is basis for jurisdiction & proper service for 3rd parties



What is indemnity & how can it be asserted?

Indemnity:  Allows D to shift 100% of the responsibility or damages to another party.


Can be accomplished:

By K (e.g. sub-contractor)
Implied in Law

Products Liability – manufacturer must indemnify retailer
Vicarious liability – driver indemnifies owner of car


Settlement does NOT extinguish claims for indemnity by or against a settling tortfeasor


Amendments to Pleadings



Each party can amend 1 time, as a matter of right.
Time limit – w/in 20 days of service of Answer.
Can put anything that could have been put in the original.

This means D can assert lack of personal jurisdiction in the Amended Complaint (as long as he did not make a Motion to Dismiss before).





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


D may implead 3rd party any time AFTER D serves the Answer.


       Summons with Notice

How does D respond to summons w/ notice?

D’s goals are to avoid default & force P to serve the complaint so...


Serve a demand for the Complaint, or
Serve a notice of appearance

Same time constraints as serving Answer

P must then serve the complaint w/in 20 days
D then must serve the Answer or MTD w/in 20 days (can still object to PJ)
If P does not serve the Complaint w/in the 20 days, D can move for dismissal on the basis of noncompliance (i.e. failure to prosecute the claim)

To avoid dismissal, P would have to show there was reasonable excuse for the delay and make an evidentiary showing that there is merit to his claim in Affidavit of Merit.


      Amendments to Pleadings

What is a Motion for Leave to Amend?

Either party can request the right to amend if:


As a matter of right amendment has passed, or
The party has already used his right to amend once
Standard: 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 P has suffered a detrimental change in position (e.g. key W died, key docs destroyed)


Motion to Dismiss

Timing & Procedural Aspects.

May only make 1 pre-Answer MTD.
Must make before service of Answer.
W/in same time constraints governing  Answer.
Motion denied à must serve Answer w/in 10 days.

MTD on any grounds does not preclude raising other 3211 grounds in Answer EXCEPT lack of personal jurisdiction.


é Must always raise lack of personal jurisdiction in the first reply or it is waived.


Personal Jurisdiction

What are 3 defenses that are never waived?

Defenses that can be raised at any time:


Non-joinder of a necessary party


Failure to state a COA


Lack of Subject Matter Jurisdiction




Motion to Dismiss

What is the standard used for failure to state a cause of action?

Standard for Failure to State a Cause of Action:


“The P is entitled to every favorable inference that can be drawn from the allegations of the complaint and therefore this motion must be denied if there is any basis for relief under the substantive law.”


é TIP – when discussing whether a Motion to Dismiss should be granted for this reason, make sure to talk about the substantive law too.



Personal Jurisdiction

How can the D preserve the defense of lack of personal jurisdiction?

2 Ways:


affirmative defense in Motion to Dismiss


do not make a Motion to Dismiss on any ground and raise it as affirmative defense in the Answer

AND, if the lack of PJ defense is based on improper service of process, make a follow-up motion for summary judgment on that ground w/in 60 days after serving the answer (or it is waived)



What should be in the answer?

Denials of allegations (failure to deny is an admission)


Affirmative defenses (failure to raise is a waiver)


Can also include counterclaims or cross claims.



Motion to Dismiss

What are additional affirmative defenses that may be included?



Statute of Limitations
Payment (debt has been paid)
Arbitration award
Res judicata
Estoppel (collateral)
Release (D signed one before)
Infancy of D (K defense)
Bankruptcy discharge
Statute of Frauds




How long does D have to serve the Answer?

Depends on service of process.


Personally served in NY à 20 days
Served by mail & acknowledge à 20 days of mailing acknowledgement

Any other method à 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.


Motion to Dismiss

What are affirmative defenses that may be included?



Documentary evidence (e.g. mortgage, deed of trust)
Other pending action (same parties, same COA)
Want of capacity
Non-joinder of nec. party (joint owners)
Failure to state a COA (substantive)
Add’l Affirmative Defenses
Lack of Subject Matter Jurisdiction
Lack of Personal Jurisdiction

commencement defects
improper service
lack of basic jurisdiction




Matrimonial “Jurisdiction”:

Durational Residency Requirements Generally.


Part of the substance of a matrimonial action – NOT an element of the court’s jurisdiction.
Purpose – ensure NY has sufficient interest to adjudicate the marital status of the spouses.


Must allege & prove in complaint.


If P fails to allege & prove in complaint, the proper defense is failure to state a cause of action (not lack of jurisdiction b/c this is substantive).




What is proper venue?

Action affecting title/possession to real property – county where RP located


Any other action – county of residency of one of the parties at time action is commenced


If neither party resides in NY – any county


Matrimonial “Jurisdiction”

What are the Durational Residency Requirements.

P’s complaint must allege satisfaction of:

BOTH parties are NY RESIDENTS at the time the action is commenced, AND the GROUNDS for the action arose in NY.


EITHER party is a resident of NY for 1 year or more immediately prior to the action AND NY has a PRIOR LINK to the marriage. (e.g. married in NY, NY was matrimonial domicile, 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.



How is venue determined?


P chooses venue & specifies it in summons.


If venue is improper, D must serve a demand w/ or before the answer on P.

P concedes: automatic change
P objects or fails to respond: D must move for Change of Venue – must be granted as a matter of rt. if P chose improper venue & D chose proper venue.


EITHER party, by motion, may request change of venue to a county most convenient for Ws


Personal Jurisdiction:

What is consent?

Voluntarily appearing in court, or
When parties to a contract consent in advance (usually in  “forum selection clause”) to personally jurisdiction in NY.


Enforceable unless fraud, overreaching or unreasonableness.





Matrimonial Jurisdiction:

How can a resident P gain personal jurisdiction over D in a matrimonial action?

When P-spouse is a resident of NY, long-arm jurisdiction can be acquired over D-spouse for monetary support if:


D is served in NY
D is NY domiciliary (served anywhere)
was their matrimonial domicile before separation
D abandoned P in NY
D owed P money under an agmt executed in NY (e.g. separation agmt)
D owed P money “under the laws of NY”




Personal Jurisdiction:

What is the non-resident motorist statute?


personal jurisdiction over nondomiciliary motorist’s ownership or use of a car on a NY roadway


Service of process – personally serve 1 copy on NY Sec. of State PLUS mail 2nd copy by certified mail to D


é must have permission from owner




Matrimonial Long-Arm:

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

Must be in Supreme Court


P must be a domiciliary (means marital status is located in NY & gives court in rem jurisdiction)


Do not need personal jurisdiction unless P is seeking monetary support.


Compliance w/ Durational Residency Requirements


Serve process personally; all other methods require ct. order.





Personal Jurisdiction:

General points about the long-arm statute.

covers all types of Ds


vicarious liability applies (i.e. agents & employer can be liable)


if D dies, decedent’s estate rep can be served outside NY


serving process - same method in and out of NY


Personal Jurisdiction:

When is due process satisfied?

For long arm jurisdiction due process is satisfied if:


the P’s claim arises out of conduct by D that is so purposefully directed toward NY that the D should reasonably anticipate being sued in NY.


Personal Jurisdiction:

What are the 5 long-arm categories?

5 Long-Arm Categories:


? business transaction in NY

? contracts to supply goods or services in NY

must be economically significant

? tortious act in NY

? tortious act outside NY, causing injury inside NY, if D has add’l ties w/ NY:

regularly solicits business;
substantial revenue from goods or services used or consumed; or
D expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or int’l commerce (must purposefully include NY)

                    ? D’s ownership, use or possession of real property 

                         in NY


Personal Jurisdiction:

Approach to an essay question.

PJ Essay Question Approach:


1st – discuss if P can est. general personal jurisdiction
2nd – discuss where facts of P’s case fall w/in 1 or more of the long-arm categories.
3rd – briefly discuss whether assertion of jurisdiction would satisfy due process


Personal Jurisdiction:

What can be the basis of general personal jurisdiction?

? D is individual physically present in NY when served w/ process


? D is  “doing business” in NY (served anywhere)


? D is NY domiciliary (served anywhere)


é does not matter where claim arose





What is the difference between domicile & residence?

?Domicile: intends to remain indefinitely & treated as principal home (only 1)


? Residence: place person lives for fair amount of time w/ some degree of permanency (multiple possible)


Personal Jurisdiction:

What can be the basis for specific personal jurisdiction?

? D is nondomiciliary subject to long arm statute (served anywhere) and jurisdiction would not offend Due Process


? D is a nondomiciliary driver or car owner (served via NY Sec. of State & certified mail)


? D consents






     “Doing Business”:

What qualifies as “doing business” in NY?


Domestic corp. or foreign corp. licensed in state – any claim whatsoever can be brought in NY


Unlicensed foreign corp. – at the time action commenced corp.’s employees or agents are in NY engaged in business activity for the corp. on a continuous, regular & systematic basis (must maintain an office/other facility continuously staffed by 1+ employees)


é form of presence so claim need not arise from NY business