NY Practice Flashcards

Question

Statute of Limitations Special Procedure required in PI claims against “professionals.”

Answer 1

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.

Answer 2

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.

Answer 3

Lawyers Accountants Architects Engineers NOT: insurance brokers securities analysts plumbers

Answer 4

Doctors Dentists Podiatrists Nurses Hospitals

Answer 5

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) ```

Answer 6

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

Answer 7

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.

Answer 8

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)

Answer 9

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.

Answer 10

Power of the court to adjudicate particular types of claims.

Answer 11

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.

Answer 12

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

Answer 13

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

Answer 14

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.” .

Answer 15

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

Answer 16

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.

Answer 17

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? éNY PUBLIC POLICY FAVORS ABRITRATION

Answer 18

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 Prohibition Certiorari Mandamus to Review

Answer 19

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

Answer 20

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

Answer 21

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

Answer 22

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

Answer 23

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

Answer 24

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

Answer 25

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

Answer 26

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

Answer 27

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.

Answer 28

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

Answer 29

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.

Answer 30

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.

Answer 31

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.

Answer 32

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

Answer 33

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.

Answer 34

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)

Answer 35

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.

Answer 36

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.

Answer 37

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 $$

Answer 38

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

Answer 39

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

Answer 40

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)

Answer 41

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

Answer 42

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

Answer 43

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.”

Answer 44

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

Answer 45

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.

Answer 46

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).

Answer 47

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.

Answer 48

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

Answer 49

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

Answer 50

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

Answer 51

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.

Answer 52

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

Answer 53

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: Death 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

Answer 54

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.

Answer 55

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.

Answer 56

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.

Answer 57

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.

Answer 58

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.

Answer 59

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

Answer 60

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”

Answer 61

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

Answer 62

Contribution: the sharing or apportionment of loss among multiple tortfeasors (who are actually part of the tort or aggravated the damages). Exceptions: CPLR Article 16 MBE – not available when liability is based on an intentional tort Purpose – mitigate the harshness of joint & several liability

Answer 63

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

Answer 64

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

Answer 65

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).

Answer 66

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.

Answer 67

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.

Answer 68

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)

Answer 69

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.

Answer 70

Defenses that can be raised at any time: Non-joinder of a necessary party Failure to state a COA Lack of Subject Matter Jurisdiction

Answer 71

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.

Answer 72

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)

Answer 73

Denials of allegations (failure to deny is an admission) Affirmative defenses (failure to raise is a waiver) Can also include counterclaims or cross claims.

Answer 74

SPARE RIBS 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

Answer 75

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.

Answer 76

DOWNFALL 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

Answer 77

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).

Answer 78

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

Answer 79

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.

Answer 80

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

Answer 81

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.

Answer 82

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”

Answer 83

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

Answer 84

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.

Answer 85

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

Answer 86

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.

Answer 87

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

Answer 88

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

Answer 89

? 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

Answer 90

?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)

Answer 91

? 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

Answer 92

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