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Flashcards in NY Practice Deck (162):
1

Answer

Defendant's pleading. Includes denials, defenses, and counterclaims.

2

Arbitration

Agreement to submit controversy to extrajudicial resolution

3

Bill of particulars

Litigation paper in which plaintiff, upon demand, is required to amplify the allegations of the complaint

4

Certiorari

Special proceeding (article 78) to obtain judicial review of quasi-judicial administrative action after a trial-type hearing and determination made by an agency

5

Collateral Estoppel

Doctrine of issue preclusion. Applies when a litigant attempts to retry an issue that has been determined against her on the merits

6

Complaint

Plaintiff's pleading. Gives defendant material facts and transactions that are subject to the COA

7

Contribution

Right of joint tortfeasor who has been liable and paid in full to seek the amount that exceeds his equitable share

8

Counterclaim

Claim of defendant against a plaintiff. may be asserted in an answer

9

Cross-claim

Claim by one defendant against another defendant

10

Ex Parte motion

Motion made without notice to the other party

11

Forum Non Conviens

Power of court, upon motion, to dismiss an action where the court finds that the convenience of witnesses and interests of justice require that the action be heard in a court of a different state

12

Impleader

Procedure where defendant joins another party to the lawsuit on the ground that the other party may be liable to the defendant in whole or in part (indemnification or contribution)

13

Indemnity

right of vicariously liable defendant to bring a third party action against the person whose misconduct he is answerable for and seek 100% reimbursement

14

Interlocutory papers

Litigation papers served after plaintiff's summons and complaint or summons with notice

15

Long Arm Jurisdiction

Allows jurisdiction over a nondomiciliary defendant where COA arises from a NY activity

16

Mandamus to compel

Special proceeding (article 78) seeking judicial direction that an agency perform an act required by law

17

Mandamus to Review

A special proceeding (article 78) seeking judicial review of agency determinations made when no hearing was required to be held

18

Motion for summary judgement

Pretrial motion that can be made by any party asking the court for judgement as a matter of law. Required the court to find no genuine issue of fact

19

Motion on notice

Motion that requires notice be given to adversary

20

Notice of petition

Part of initiatory process in special proceeding

21

Order to show cause

accelerated motion on notice. Often contains a provision staying all further proceedings until the determination is made. Can also be used to initiate a special proceeding

22

Personal jurisdiction

Power of the court to adjudicate claims against particular parties

23

Petition

Pleading of complaining party in special proceeding

24

Pleading

Formal written statement of parties claims or defenses

25

Process

Initiatory papers that are filed and then served on a defendant to invoke the court's jurisdiction.

26

Prohibition

Special proceeding (article 78) to obtain judicial review of judicial action that grossly exceeds an officer's jurisdiction

27

Provisional remedies

Remedies that operate while the action is pending to prevent ineffectual judgments

28

Reply

Plaintiff's pleading in response to counterclaim

29

Res Judicata

Claim preclusion. Once claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories

30

Special proceeding

Procedure for speedy resolution of certain disputes. must be authorized by statute

31

Statute of limiations

Fixed period of time within which a lawsuit must be commenced

32

Subject matter jurisdiction

the power of a court to adjudicate particular types of claims

33

Summons

Initiatory paper that notifies defendant that an action has been instituted against him and that he is required to answer at the place and time named

34

Survival claim

Cause of action that survives the death of plaintiff. Applies to all types of actions except divorce

35

Toll

Extends the applicable period of time within which a cause of action may be brought

36

Venue

County in which an action is brought

37

Wrongful death

Claim that allows recovery for economic losses by spouse and next of kin of a decedent whose death was cause by defendant

38

SOL: Action on judgement

20 Years

39

SOL: Action to recover realty; action by crime victim against convicted defendant for a serious crime

10 years; same period as adverse possession; crime runs from date of conviction, may also sue for damages for up to 3 years from discovery of defendant's receipt of money or property from any source

40

Action by crime victim against convicted defendant for any crime

7 years; runs from date of crime

41

SOL: Contracts (other than UCC)

6 years; accrual on date of breach regardless of plaintiff's knowledge

42

SOL: Indemnity and contribution

6 years; Accrual on date of payment for which indemnity or contribution is sought

43

Sol: Fraud

6 years; commission of fraud or 2 years after discovery (actual or imputed) whichever is longer

44

SOL: Equity actions (rescission, reformation, accounting)

6 years

45

SOL: Actions by victim of rape related felony

5 years; Runs from date of crime; if perpetrator is prosecuted, victim gets an extra five years from termination of the criminal proceeding (regardless of trial outcome.

46

SOL: UCC Article 2

4 years; breach of warranty claim accrues upon tender of delivery

47

SOL: Personal injury based on negligence and SL

3 years; accrues on date original injury occurs; no discovery rule applies except in cases of toxic substances

48

SOL: Property damage, including conversion and replevin

3 years

49

SOL: Professional malpractice, other than medical malpractice

3 years

50

SOL: Medical, dental, and podiatric malpractice

2 1/2 years; COA accrues on date of malpractice; exceptions for continuous treatment (period runs from end of treatment) and "foreign objects" (one year from discovery if insufficient time under regular rules)

51

SOL: Wrongful death

2 years; runs from date of death; except, must also be shown that SOL on decedent's underlying personal injury claim had not expired on date of death.

If criminal proceeding is brought against defendant, executor gets optional and independent one-year period from termination of criminal proceedings (regardless of outcome)

52

SOL: Personal injury claims and property damage claims against municipal defendants

1 year 90 days; plaintiff must show that she served a notice of claim on the municipal defendant within 90 days of the accident. Court has discretion to allow a late service of notice of claim, but in no even longer than SOL plus any tolling provisions

53

SOL: Intentional torts to the person

1 year

54

SOL: Article 78 proceedings

4 months

55

Attachment: when available

P must be seeking money damages and one of two grounds must exist: 1) D is an unlicensed foreign corporation or nondomicilliary who resides outside of NY; 2) D is about to conceal or remove assets from NY with intent to defraud creditors; 3) brought to enforce a judgment or decree entitled to full faith and credit; 4) action by felony victim to recover from convicted defendant who earned profits from crime

56

Attachment: may it be obtained ex parte?

Yes, but P must make motion on notice to confirm within 10 days after levy on D's property if ground 1 (foreign corp) or 5 days if ground 2 (intent to conceal or remove assets)

57

Attachment: May order be obtained before process is served?

Yes, provided summons is served within 60 days after order is granted

58

Attachment: what papers are required for order?

Affidavit showing grounds for attachment and probability of success on the merits in the underlying cause of action

59

Attachment: is an undertaking required?

Yes; amount is fixed by court to indemnify D for costs, expenses, and reasonable attorney's fees if: 1) D wins case on merits; 2) attachment was invalid. P's liability is not limited to amount of bond

60

Preliminary injunction: when available?

1) for permanent injunction; 2) where D is about to do an act rendering equity judgement ineffectual

61

Preliminary Injunction: may it be obtained ex parte?

No; However, motion may be made by order to show cause, and TRO can be included in order to show cause, thereby restraining D until hearing on motion for preliminary injunction. TRO may be granted ex parte upon showing that notice to the opponent would cause significant prejudice to moving party

62

Preliminary Injunction: may the order be obtained before process is served?

No for preliminary; yes for TRO (motion to show cause for preliminary injunction may be served with summons and complain)

63

Preliminary injunction: what papers are required?

Affidavit showing ground for preliminary injunctive relief and probability of success on the merits of COA. TRO requires additional showing of threat of immediate injury.

64

Preliminary injunction: is undertaking required?

Yes; for TRO in the court's discretion. Amount is fixed by court to indemnify D for costs, expenses, and attorneys' fees if it is determined that P is not entitled to permanent injunctive relief

65

Temporary Receivership: When available

Property which is subject of equity action is in danger of destruction, diminution in value, loss, or removal from state

66

Temporary receivership: may it be obtained ex parte?

No, unless parties agree in contract to ex parte appointment

67

Temporary receivership: may it be obtained before process is served?

Yes

68

Temporary receivership: what papers are required?

Affidavit showing grounds for appointment of receiver

69

Temporary receivership: is undertaking required?

Yes, by receiver that he or she will faithfully discharge duties

70

Seizure of chattel (replevin): When available?

Action to recover possession of chattel

71

Seizure of chattel (replevin): may order be obtained ex parte

Yes, but P must make a motion on notice to confirm the ex party order within 5 days after sheriff seizes chattel

72

Seizure of chattel (replevin): what papers are required?

Affidavit showing probability of success on the merits of cause of action. If moving ex parte, must show threat of immediate loss of chattel

73

Seizure of chattel (replevin): is undertaking required?

Yes, in amount that is at least twice the value of the chattel

74

Notice of pendancy: when available

Action in which judgment will directly affect title, use, or possession of real property

75

Notice of pendancy: May it be obtained ex parte?

No order required. Filing with county clerk is ex parte

76

Notice of pendancy: may order be obtained before process is served?

Yes, provided summons is served within 30 days after filing of notice of pendency

77

Notice of pendency: what papers are required?

File notice of pendency and copy of complaint with country clerk where realty is located. no affidavits required

78

Notice of pendency: Is an undertaking required?

No

79

When can a motion to dismiss for lack of SMJ be made?

Any time. May not be waived

80

What are NY court's of limited jurisdiction?

Civil court of the city of NY ($25,000 limit); County court ($25,000 limit); district courts ($15,000 limit); city courts; small claims court ($5,000); justice court ($3000 limit); family court; surrogate's court; court of claims

81

Transfer and removal situations

(1) cases in which the original court lacked SMJ from the inception of the suit

(2) Cases in which the original court had SMJ, but where events occurring after suit was brought require transfer to a court of wider jurisdiction to obtain complete relief

(3) Cases in which the original court had SMJ, but where a court of lesser jurisdiction has ample authority to dispose of the matter (consent by party adversely affected is required, but can also be done to alleviate calendar congestion without consent because recovery can exceed lower court's jurisdictional limits)

82

Limitations on supreme court SMJ

(1) Forum non conveniens: Upon motion of party, interests of substantial justice require an action to be heard in the court of some other state, may stay or dismiss action in whole or in part. Must look to convenience of court and parties

(2) Foreign corporation suing or being sued in NY: Foreign corporation doing business in NY may commence an action, but must pay all fees, taxes, and penalties. Resident may sue foreign corporation. Nonresident or foreign corporation may not sue foreign corporation unless underlying action has a meaningful tie to the state

(3) Contractual choice of NY law: Enforceable if transaction involves at least one million and the contract contains an agreement by the nonresident or foreign corporation to submit to NY jurisdiction

83

SOL: Accrual

SOL starts to run at the time the COA accrues

84

SOL: interposition of claim

Date of filing process, except justice courts where date of service

85

SOL: commencement against party united in interest

If original summons omitted a party who is then added after expiration of SOL, timely commencement tolls SOL against added party if (i) both claims arise from same conduct; (ii) parties share liability jointly or vicariously; and (iii) new party knew or should have known that but for the plaintiff's mistake the action would have been brought against him

86

SOL: Counterclaims

If would have been timely as of date of plaintiff's commencement then counterclaim is timely

87

SOL: Amended pleadings

Timeliness as of date of service of amended pleading, but can relate back if original pleading gives notice of the events on which the newly added COA is based

88

SOL: when to raise as defense

Preanswer motion to dismiss or affirmative defense in the answer itself

89

SOL: Tolling

(1) Defendant's absence from NY: If defendant can be validly served process outside of NY, tolling does not apply

(2) Disability or death of party: tolled until disability is removed; once statue begins to run, action must be filed within three years if the applicable period is three years or more, if less than three years than that period. 10 year maximum if (i) claim by infant for medical malpractice; (ii) claimant is insane at time of accrual.

(3) Effect of dismissal: 6 months after termination of timely action. Does not apply to (i) judgment of dismissal on the merits; (ii) voluntary discontinuance; (iii) dismissal for neglect to prosecute

90

SOL: Borrowing statue

(1) Claim accruing out of state in favor of a non-NY resident is measured by both foreign and local SOL and must be timely under both

(2) A claim accruing out of state in favor of a NY resident is measured only by NY SOL

91

Who may serve litigation papers?

Person over 18, not a party to the action

92

When can you serve papers?

Any day but Sunday (even legal holiday's are cool)

93

Methods of service of process

(1) Personal delivery

(2) Leave and mail: Delivery to one of suitable age at actual place of business, dwelling place, or usual place of abode and first class mail of copy to D's last known residence or actual place of business

(3) Service upon a designated agent

(4) Nail and mail: cannot be used if can be accomplished with due diligence by physical delivery or leave and mail

(5) Expedient service: can only occur with court permission after an ex parte application is made

94

Service on infants

Personally serve within the state a parent or guardian or person having legal custody (or spouse if infant is married). If none of the above is within the state, service is made on any person with whom the infant resides or employer. 14 or older must also personally serve infant.

95

Service on persons declared incapacitated

Personally serve within state the incompetent and his committee

96

Service outside state

Domiciled in NY or subject to jurisdiction may be served outside state in same manner as service is made within state.

97

Service on corporations

(1) Domestic corporation and authorized foreign corporations: always amenable to in personam jurisdiction in NY as to any and all lawsuits, whether related or unrelated to NY activities. Service accomplished by delivering summons to officer, director, managing or general agent, cashier, assistant cashier, or agent authorized by appointment or law to receive service.

(2) unauthorized foreign corporation: service is accomplished by serving secretary of state and mailing a copy to an officer of the unauthorized corporation

(3) Partnerships: PJ by service to any partner or an agent authorized to receive service, delivery and mailing to a managing or other agent, affixing and mailing, some other expedient method if court order. Judgement may be executed against property of partnership or any partner

(4) Unincorporated association: cannot be sued in association name, must be president or treasurer jurisdiction obtained by service thereof

98

Service of process by first class mail

May be served on any defendant (other than infant or incapacitated) must contain acknowledgement-of-receipt form, which defendant may sign and return within 30 days. If defendant does not, the plaintiff must then serve process pursuant to a traditional method

99

Bases of in personam jurisdiction

(1) Physical presence of defendant within the state at time of service

(2) Doing business within the state

(3) Domicile of defendant in the forum

(4) Single act or long arm

(5) Express consent by contract or by designating an in-state agent

(6) Use of NY courts

(7) Implied consent (motorist statutes which imply designation of secretary of state for service of process for lawsuit arising out of a vehicular accident within the forum state

(8) Appearance

100

Restrictions to physical presence jurisdiction

(1) fraudulent inducement into the state

(2) physical presence to which immunity attaches

101

Doing business

Whether in-state activity is sufficiently substantial to make an unauthorized foreign corporation amenable to any and all suits commenced against it in NY courts

Permanent and continuity of corporate activity within state are required, but activity need not be substantial in volume

Subsidiary or affiliate can count where there is complete identity of stock ownership or interlocking corporate structure

Activities of independent contractors may count if go beyond mere solicitation and include authority to make contracts for the out-of-state corporation

102

Long arm statute bases of jurisdiction

Limited to commission of certain acts by nondomiciliaries within state.

(1) Transaction of business within NY. Includes isolated act, must look to whether cause of action arises from acts done in NY. Must be present for transaction (can include phone and letters if COA is connected to the calls or letters)

(2) Defamation related actions: Exercise of PJ to fullest extent of US constitution in declaring foreign judgement unenforceable in NY

(3) Tortious act in NY (manifestation of injury in NY is insufficient)

(4) Tortious act outside of NY: (i) regularly does or solicits business in NY; (ii) reasonably foresees the NY consequences of tort and derives substantial revenues from interstate or international commerce

(5) Ownership or possession of NY realty: Subject to in personam jurisdiction as to any lawsuits arising out of such ownership or possession

(6) Matrimonial actions or Family court: (i) NY was matrimonial domicile of the parties before they separated; (ii) claim for support arises out of agreement made in NY; (iii) defendant abandoned plaintiff in NY; (iv) claim for support arose under NY law

103

Service in Long arm cases

May be served out of state in the same manner that would be proper in state

104

Service of nonresident motorists

Subject to jurisdiction for action arising out of action. Notice served to secretary of state and defendant in person or by mail

105

Consent to personal jurisdiction

(1) Voluntary appearance after suit has begun

(2) by contract or appointing an agent to receive service prior to suit

106

How do you raise jurisdictional objection

(1) preanswer motion to dismiss based on such objection

(2) answer containing affirmative defense

107

Waiver of PJ objection

If moved to dismiss on grounds other than lack of PJ and fails to join PJ objection. Pleading related counterclaim is not a waiver, but unrelated counter claim is a waiver

Timely amendment can save objection

108

Venue for tied to real estate

Must be filed in county where some part of realty is located

109

Venue for transitory actions

Where any one of the parties resides. Resident of more than one county is a resident of each county. If neither party is a resident then any county is proper.

110

Change of venue as of right

Motion by defendant with or prior to answer. If P does not consent within 5 days, defendant must so move within 15 of notice of demand. Must file motion in original county

111

Change of venue in discretion of court

Sought at any time in original county. Based on impartial jury, convenience of parties, serves ends of justice

112

Mandatory joinder

Dismissal results when party is either required by substantive law or due process

Classes of necessary parties: (i) joint obligers; (ii) joint obligees; (iii) a corporation in a derivative stockholders' suit; (iv) an absent party claiming ownership of property sought to be recovered by plaintiff; (v) a member of a joint venture not joined in a suit by another joint venturer against a third joint venturer to impress a trust on assets allegedly belonging to the venture; (vi) beneficiaries of a trust in an action by other beneficiaries against the trustee seeking an accounting

113

Permissive joineder

May be joined if common question of law or fact arising out of same transaction or series of transactions

114

Class actions

10 factors:
(i) Number in class
(ii) common questions of law and fact
(iii) fair and adequate representation of class members
(iv) typicality
(v) superiority
(vi) individual members' interest in individual control of separate actions
(vii) impracticality or inefficiency of separate actions
(viii) nature and extent of other relevant pending litigation
(ix) desirability of concentrating the litigation in one court
(x) manageability of the class action

115

Third party action claims

(1) Contractual indemnity
(2) implied indemnity
(3) Contribution

116

Contribution

Any tortfeasor found liable to the plaintiff can be required to pay the judgment in full, regardless of that particular tortfeasor's percentage of total fault

117

Third party action claims

(1) Contractual indemnity
(2) implied indemnity
(3) Contribution

118

Contribution

Any tortfeasor found liable to the plaintiff can be required to pay the judgment in full, regardless of that particular tortfeasor's percentage of total fault

119

Effect of release on action with multiple tortfeasors

Settling tortfeasor may not seek or be subject to a claim for contribution. Judgment against non-settling tortfeasor is reduced by greater of amount paid for release, amount stipulated in release or settling tortfeasor's equitable share of the fault. If multiple release reduce based on aggregate basis

120

Limitation on liability of joint and several tortfeasors for noneconomic loss

If defendant is found 50% or less of total liability, that liability for non economic loss cannot exceed relative culpability

121

Interpleader

When a stakeholder under a conceded obligation to pay certain money but has been confronted with conflicting claims to performance. Stakeholder may join conflicting claimants in an action to determine who is liable. Alternatively if either claimant sues the stakeholder, he may file an interpleader summons and serve other claimant

122

Intervention

A person not joined wishes to become a party

(1) As of right: limited to situations in which the intervenor may be bound by judgment and his interests are inadequately represented by existing parties; or, may be adversely affected by the disposition of property subject to the court's control

(2) Permissive: Court's discretion if a statute grants such a conditional right or claim or defense containing a common question of law or fact

123

Actions requiring specificity in pleadings

Defamation (particular words of alleged libel or slander); Divorce or separation (details of misconduct); action based on foreign law (substance of law; itemized account); no fault (statement that plaintiff has suffered severe injury or economic loss greater than basic economic loss; medical malpractice (certificate of merit)

124

What may an answer contain?

General denials; affirmative defenses; counterclaims

125

When is verification required?

When complaint must be verified: actions against co-obliger; actions for goods sold or services rendered; article 78 proceedings; actions in which the substantive statutes otherwise require verification

126

Service of interlocutory papers

personal delivery; ordinary mail; fax; overnight delivery

Every paper served on any party must be served on every other party

127

Procedure for motions on notice

Contents: place, date, time and papers on which motion is based, relief demanded, grounds. Party sets return date

Setting time for hearing: must be served at least 8 days before return date (unless earlier date fixed by an order to show cause)

Responding to motion on notice: if minimum notice is given, answering papers are to be served two days before hearing; if papers are served 16 days before return date, answering papers must be served 7 days before hearing date and reply papers must be served one day before hearing; cross-motions must be served at least 3 days before hearing date, but if motion was served at least 16 days before, may demand at least 7 days.

128

Appealability of motions on notice

Generally appealable as of right to appellate division.

Order made in article 78 proceedings or for a more definite statement in a pleading or to strike scandalous or prejudicial matters are appealable only by permission

129

Appealability of ex parte motion

not appealable. Must move to vacate on notice and then appeal from the resulting order on that motion

130

Appealability of motion for renewal

Appealable

131

Appealability of motion for reargument

not appealable, order made after reargument is appealable

132

Specific motions: addressed to face of pleading

Motion for more definite statement; motion to strike unnecessary, scandalous, or prejudicial matter; motion that pleading allegations be separately stated and number

133

Specific motions: regulatory motions

Venue; consolidate or sever actions; separate trials

134

Specific motions: Motions to amend pleadings

May be served without leave of court if served: (i) twenty days after service of original pleading; (ii) before the time to reply to the original pleading has expired; (iii) within 20 days after service of the pleading responding to original pleading

Only one such amendment is allowed

Other amendments must be made by motion or stipulation (leave to amend should be freely granted)

135

Bases for pre-answer motions to dismiss

(i) Documentary evidence defenses
(ii) Lack of SMJ
(iii) Want of capacity to sue
(iv) Another action pending between the same parties on the same claim in another state or federal court
(v) Affirmative defenses (arbitration and award; collateral estoppel or res judicata; discharge in bankruptcy; infancy or disability of moving party; payment; release; SOL; SOF
(vi) Counterclaim not properly interposed
(vii) Failure to state a cause of action
(viii) lack of in personam, in rem, or quasi in rem jurisdiction
(ix) Absence of one who out to be a party

Failure to assert i, iii, iv, v, or vi by motion or responsive pleading waives the grounds

136

Disposition

If an issue of fact arises, the court may order that the issue be tried immediately

137

Motion for summary judgement

No genuine issue of material fact requiring trial and a party is entitled to judgement as a matter of law

Moving papers: affidavit on personal knowledge and must state facts with particularity

Standards: No genuine issue for trial

May treat motion to dismiss or that a defense has no merit as a motion for summary judgment

138

Defaults by defendant

Failure to appear, to plea, or proceed to trial when action is reached and called for trial

139

Default by plaintiff

(1) Unreasonably neglects to proceed generally or otherwise delays prosecution of his claim

(2) unreasonably fails to serve and file a notice of issue

140

What to show if you want relief from default?

(1) reasonable excuse for delay (attributable to newly discovered evidence of fraud or misrepresentation of an adverse party; lack of jurisdiction to render judgement; reversal, modification, or vacatur of a prior judgment or order upon which the challenged order is based; or law office failure)
(2) meritorious claim or defense as established by affidavit

141

Relief from default for defendant not served by personal delivery

(i) less than one year has elapsed since time of knowledge of judgement; (ii) less than 5 years since time judgement was entered; (iii) defendant did not have personal notice of the action in time to defendant; (iv) meritorious defense to action

142

What must be disclosed: statutory (CPLR)

All matter material and necessary in the prosecution or defense of an action regardless of the burden of proof.

(i) evidence in chief; (ii) facts leading to discovery of admissible evidence; (iii) facts, documents, or other physical exhibits useful on proper cross-examination

143

Absolute privileges

(1) Against self-incrimination; (2) attorney work product (prepared in connection with pending litigation or in anticipation thereof; (3) attorney-client privilege

144

Qualified privileges (stuff that pretty much gets in but may be protected in limited situations)

(1) Litigative materials by nonattorneys; (2) Witness's statements (a party has absolute right to discovery of his own statements); (3) insurance coverage; (4) Accident reports; (5) accident reports; (6) Experts; (7) Films, photographs, videotapes, and audiotapes

145

Continuing duty of disclosure

Must promptly amend or supplement the response to discovery request if the party learns that the response was inaccurate or incomplete when made and the failure to amend would be materially misleading

146

Where can deposition be taken

Where deponent resides, has regular place of business, or where action is pending

147

Right to jury trial

Seeking judgment for money damages only. Also: ejectment; dower; waste; nuisance; and replevin actions; and to determine claims to realty; divorce (adultery) actions; annulments; partition actions; incompetency

148

How do you waive right to jury trial?

Contract; failure to demand; joinder of legal and equitable relief in same transaction; oral waiver in court; failure to appear for trial after making jury demand

149

Res Judicata

Applies where there has been a final judgment on the merits by a court of competent jurisdiction between the same parties to the present action on the same COA

150

Collateral estoppel

Applies when litigant attempts to retry an issue which has been finally determined on the merits

Applies when (i) issue is identical to issue decided in prior proceeding; (ii) issue was necessarily decided in prior proceeding; (iii) litigant had full and fair opportunity to litigate the issue in the prior proceeding

151

Uses of collateral estoppel

(i) affirmative use against a losing party in the first proceeding to establish liability to a party in the second; (ii) defensive use against a losing party in the first proceeding to defeat his claim against a party in the second

152

How long to make an appeal

30 days after appellant is served with a copy of the judgment or order and written notice of the entry of the order or judgment

153

When can time to appeal be extended?

Where (i) alternative method of appeal is available after an initial appeal is dismissed or a motion to appeal is denied; (ii) the attorney for the aggrieved party becomes disabled; or (iii) the potential appellant dies or there is a transfer of his interest before the 30-day period has run

154

Arbitration agreement

Must be in writing, but need not be signed by either party

155

Grounds for challenging arbitration award

(i) corruption, fraud, misconduct in procuring the award; (ii) partiality of an arbitrator chosen to be neutral; (iii) arbitrator has exceed the powers granted to him or has failed to make a definitive award within the scope of the controversy submitted to him; and (iv) failure to follow procedural rules

156

What makes a proceeding not arbitratable?

(i) matter at issue is not embraced by arbitration agreement; (ii) arbitration agreement was induced by fraud; (iii) arbitration agreement is subject to a condition precedent not yet fulfilled; (iv) the performance of the underlying contract is prohibited by statute; or (v) the underlying claim is barred by the SOL or res judicata

157

Article 78 certiorari

Obtain judicial review of quasi judicial administrative action after a hearing and determination is made by an agency

158

Article 78 prohibition

Obtain judicial restraint of actual or threatened administrative action in excess of the lawful powers of the administrative agency

Requirements: (i) clear legal right; (ii) court acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized power; (iii) when direct to an inferior judicial tribunal

159

Article 78 Mandamus

Judicial discretion that an agency perform an act or seeks review of agency determinations made when no hearing was required to be held

160

When is article 78 not available

When available appeal, right to seek release, determination made in a civil or criminal matter

161

Article 78 pleadings

Must first serve notice or order to show cause with verified petition and any affidavits in support of the petition. Respondent must serve verified answer

162

Article 78 timing

unless shorter time period is provided by order to show cause, initial pleadings must be served at least 20 days before hearing date. Answering papers must be served at least 5 days before hearing. Reply 1 day