Trial Procedures & Res Judicata

Question 1

NOTE: Any time after joinder of issue, or at least 45 days after service of a summons has been completed irrespective of joinder of issue, any party may place a case upon the calendar by filing NOTE OF ISSUE. BUT Rarely filed this early b/c it almost always has to be filed w/ certificate of readiness, and you usually wont be ready that early.

Answer 1

NOI- puts the case on calendar; contains the basic data a/b the case and whether a preference is claimed; must be served on other parties

Question 2

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

Answer 2

If party filed the NOI he should state he wants a jury in the NOI.

If the NOI does not ask for a jury, and the other party wants one, then that party must serve a demand for jury w/in 15 days after being served w/ NOI.

Question 3

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

Answer 3

1- action seeking solely money damages
2- action for replevin
3- action for annulment of a marriage
4- divorce action (either party can demand a jury on the sole issue of the ground for the divorce)
5- claim to real property

Question 4

How big is a civil jury & what vote is needed?

Answer 4

6 person jury

5/6 is enough for a verdict

Question 5

Res Judicata (claim preclusion) in NY

Answer 5

• NY uses the transactional approach
• when a claim against a particular D has been brought to a final judgment on the merits, all other claims by the P against that D are barred if they arise under the same T/O as Ps original claim (even if different causes of action)

EXCEPTION- policy exception to transactional approach on matrimonial disputes based on abuse

Question 6

Burden is on party trying to assert issue preclusion to show:

Answer 6

• prior judicial/arbitral/administrative decision
• on the MERITS
• identity of ISSUES
• issue was ACTUALLY LITIGATED in the former proceeding
• party AGAINST WHOM issue preclusion is asserted had a full and fair opportunity to litigate that issue in the former proceeding (whether taken or not).