NY PRACTICE

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lawsetonhall
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NY PRACTICE
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2010-07-01 15:56:34
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NY PRACTICE
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  1. STATUTE OF LIMITATIONS (GENERALLY)
    • 1) Affirmative Defense based on passage of time
    • 2) Begins to run at accrual - when injury occurs, generally not when injury is discovered
    • 3) Commencement - No later than S/L period. Commenced by filing process of (a) summons and complaint, or (b) summons and notice
    • 4) Start counting day after date of injuryIf S/L expires on sat/sun/holiday, due next business day.
  2. S/L: C.O.A. ON CONTRACTS OTHER THAN U.C.C., ARTICLE II
    • 1) 6 years
    • 2) Accrual on date of breach
    • 3) Knowledge irrelevant.
  3. S/L: ACTION BY CRIME VICTIM AGAINST CONVICTED D FOR SERIOUS CRIME
    • 1) 10 years
    • 2) Runs from date of conviction
    • 3) Victim may also sue for damages for up to 3 years from discovery of D's receipt of money or property from any source
  4. S/L: ACTION TO RECOVER REALTY
    10 years
  5. S/L: ACTION ON JUDGMENT
    20 Years
  6. S/L: ARTICLE 78 PROCEEDINGS
    4 Months
  7. S/L: INTENTIONAL TORTS TO THE PERSON
    1 Year
  8. S/L: WRONGFUL DEATH
    • 1) 2 Years
    • 2) Runs from death
    • 3) MUST also show S/L on D's underlying claim had not expired on date of death
    • 4) If criminal proceeding is brought against D, P gets optional and independent 1 year from criminal proceedings regardless of the outcome of those proceedings
  9. S/L PROPERTY DAMAGE (INCLUDING REPLEVIN AND CONVERSION)
    3 years
  10. S/L: PERSONAL INJURY ON NEGLIGENCE OR STRICT LIABILITY THEORY
    • 1) 3 years
    • 2) Accrual from date of injury
  11. S/L: CONTRACTS UNDER U.C.C., ARTICLE II
    • 1) 4 Years
    • NOTE - Breach of warranty accrues upon tender of delivery
  12. S/L: ACTION BY VICTIM OF RAPE-RELATED FELONY
    • 1) 5 years
    • 2) Runs from date of crime
    • 3) If convicted, victim gets another 5 years from conviction
  13. S/L: EQUITY ACTIONS
    6 Years
  14. S/L: FRAUD
    • 1) 6 Years
    • 1) 6 years from commission of fraud or 2 years from discovery of fraud, whichever is longer.
  15. S/L INDEMNITY AND CONTRIBUTION
    • 1) 6 Years
    • 2) Accrual from date of payment that is sought
  16. S/L: PRODUCTS LIABILITY
    • 1) 3 C.O.A. w/different S/L periods
    • a) negligence - 3 years from date of injury
    • b) strict liability - 3 years from date of injury
    • c) breach of warranty - 4 years from when particular D made sale of product
    • 2) Indemnity/Contribution - 6 yrs from date of payment
    • 3) Exposure to toxins: If P is exposed to harmful toxins with latent or slow developing effects, S/L runs from shorter of (a) date of injury discovered, and (b) date it should have been discovered w/reasonable diligence.
  17. MEDICAL MALPRACTICE
    • 1) S/L is 2 1/2 years from injury, NOT discovery
    • 2) 2 exceptions
    • a) Continuous treatment: S/L runs from date of last treatment for same condition
    • b) Foreign Object: S/L runs from the longer of (a) 2 1/2 yrs from date of operation, or (2) 1 year from actual discovery or would have discovered with reasonable diligence. (NOTE: does not apply to chemicals/prosthetics/failure to detect).
  18. OTHER PROFESSIONAL MALPRACTICE
    • 1) S/L - 3 yrs from termination of particular services for which injury occurred
    • 2) 3 exceptions
    • a) continuous representation
    • b) personal injury - S/L runs 3 yrs after injury, not completion of services
    • c) architects/engineers - If personal injury occurs 10 yrs after completion, then (i) P must serve notice 90 days before suit, (ii) P may obtain discovery during 90 day period, and (iii) burden on P to show substantial basis that D's negligence was proximate cause of injuries.
  19. PERSONAL JURISDICTION
    • 1) Proper commencement of the action
    • 2) Proper service of process
    • 3) Proper basis for jurisdiction over person/property involved in action
  20. P.J.: COMMENCEMENT OF ACTION
    • 1) Action commenced by
    • a) filing process with county clerk
    • b) purchase of an index #, and
    • c) must be complete 120 from filing
    • 2) Extension if...P shows good cause, OR it is in the interest of justice
    • 3) Forms of process
    • a) Summons and complaint (elements of C.O.A.)
    • b) Summons and notice (nature of action, relief sought, damages sought)
    • 4) Naked summons is PJ defect. D can make motion for dismissal
  21. P.J.: SERVICE OF PROCESS
    • 1) Marks time when D's answer time begins to run
    • 2) Basics
    • a) Serve on anyone 18+
    • b) Serve Mon-Sat
    • c) Actual notice is irrelevant
    • 3) 5 traditional methods
    • a) personal delivery
    • b) leave and mail
    • c) nail and mail
    • d) expedient service
    • e) agent specifically designated by D to receive process.
  22. P.J.: 3 BASES FOR SPECIFIC (LIMITED) JURISDICTION
    • 1) Bases for conferring PJ over D's person relating to a specific claim
    • a) Long-Arm Statute: Allows out of state service to confer PJ on basis of acts by D that have sufficient connection (min contacts) w/NY provided P's claim arises from those certain acts
    • b) Non-resident motorist statute: Ownership (permissions irrelevant) or use of car on NY roadway confers PJ over D for limited purpose of accident in NY. P must personally serve NYSS and serve D via cert. mail at his residence.
    • c) Consent: via contract unless fraud/unreasonableness/overreaching.
  23. P.J.: BASIS OF JURISDICTION OVER D'S PERSON
    • 1) 3 bases of jurisdiction for PJ over D for any type of claim
    • a) Personal Delivery while present in NY - no matter what, physical presence in NY at time of service = general PJ on any claim
    • b) Doing business in NY. If domestic/foreign licensed corp., always doing business in NY. If unlicensed, foreign corp, at time action is commenced, corp's employees/agents must be engaging in regular, continuous, systematic commercial business (i.e. office in NY).
    • c) Domiciliary of NY at time action is commenced - D can be served anywhere, no matter where claim arose.
  24. P.J.: SERVICE BY MAIL AND ACKNOWLEDGMENT
    • 1) May be served on any D except infants/mentally incapacitated
    • 2) Elements
    • a) Mail to D 1st class mail with 2 copies of acknowledgment form and a return envelope with postage prepaid, and
    • b) Acknowledgment - D must sign w/in 30 days of receipt.Complete upon D's mailing of signed acknowledgment.
    • 3) If acknowledgment not returned, P must serve traditionally.
    • 4) If D received but chose not to acknowledge, he must reimburse.
  25. P.J.: SERVICE ON CORPORATIONS
    • 1) Personal Delivery to eligible representative
    • a) Officer, Director, Cashier, Designated Agent, or Managing
    • b) Complete upon delivery to representative
    • 2) Service on Secretary of State (NYSS)
    • a) Domestic/Foreign Licensed Corp - (i) Personal delivery to NYSS (2 copies) and (ii) NYSS will mail to D. Complete when delivered to NYSS.
    • b) Foreign, Unlicensed - (i) Personal delivery to NYSS (1 copy), and (ii) P must mail to D, cert. mail, return receipt.
  26. P.J.: SERVICE ON NATURAL PERSONS OUTSIDE OF NY
    • 1) Same methods as used for in state service
    • 2) Persons eligible to serve in other jurisdictions are...
    • a) Any NY resident authorized under law
    • b) Anyone authorized in foreign jurisdiction where service is made (even if NY requirements are not met)
    • c) Any atty licensed in jurisdiction where service is made
  27. P.J.: SERVICE ON INFANTS AND MENTALLY INCAPACITATED
    • 1) Infant: Put infants name on summons and process is served to one of the following: (1) parent, (2) guardian, (3) person having legal custody, (4) if married, adult spouse.
    • a) Note: If 14+, P serves eligible adult and child by any method
    • 2) Incompetent is served to appointed guardian and him, or just him if no guardian.
  28. GENERAL PERSONAL JURISDICTION
    • 1) A D is amenable to any suit in NY if...
    • a) D is physically present in NY at time of service
    • b) D corporation is does business in NY
    • c) D is domiciled in NY at time of service
  29. TOLL FOR D'S ABSENCE
    • 1) If D not in NY when action accrues, S/L runs when D comes to NY
    • 2) If D is in NY when action accrues but leaves and is continuously absent for 4+ months, tolls applies to period of absence
    • 3) EXCEPTION - Above N/A if P has basis for PJ to serve D outside of NY (i.e. Long-Arm Statute)
  30. TOLL FOR P'S INFANCY OF INSANITY
    • 1) If P is under 18 or has inability to function in society, S/L tolled until legal disability ends (toll is personal and does not apply to parents
    • 2) Once disability ends, (1) if original S/L > 3 yrs, P gets 3 yrs from end of disability. (2) If original S/L < 3 yrs, P gets length of original S/L
    • 3) 10 yr limit
    • a) Infancy + med mal - limit 10 yrs from accrual of claim.
    • b) Insanity + any claim - limit 10 yrs from accrual of claim.
  31. TOLL FOR 6 MONTH GRACE PERIOD
    • 1) If NY action timely commenced but dismissed before trial, and at time of trial S/L expired or within 6 months of expiration, P gets 6 months from date of dismissal to refile same action against same D
    • 2) EXCEPTION - No grace period for dismissal...
    • a) On the merits
    • b) Voluntary discontinuance by P
    • c) P neglects to prosecute
    • d) Lack of PJ
  32. TOLL FOR DEATH
    • 1) Decedent as potential P
    • a) Survival Claim: Any COA that decedent could have brought while alive. S/L - If, at death, underlying claim would be timely, executor gets longer of (i) time remaining on original S/L or (ii) 1 yr from death
    • b) Wrongful Death: Tort claim for pecuniary damages of decedent's statutory distributees. S/L - 2 yrs from date of death
    • 2) Decedents as potential D: If on date of P's death, action would be timely, add 18 months to original S/L period.
  33. BORROWING STATUTE
    • 1) Prevents non-resident from forum shopping for longer S/L in NY
    • a) non resident - If P is non-resident of NY when out of state claim arose, NY applies shorter of (i) NY S/L and (ii) foreign S/L
    • b) resident - NY S/L applies
  34. PROVISIONAL REMEDY: ATTACHMENT
    • 1) P must be seeking money and one of the following must exist: (1) D is an unlicensed, foreign corporation or a non-domiciliary residing outside NY, or (2) D is about to conceal or remove assets from NY with intent to defraud creditors.
    • 2) Ex Parte motion OK (OTSC) w/in 10 after levy on D's property if relying on ground (1), or w/in 5 days if relying on ground (2)
    • 3) Summons served 60 days after order granted (order obtained b4 process served).
    • 4) Need affadavits showing grounds and probable success on the merits
    • 5) undertaking is required
    • 6) P always has burden of proof on issue of validity of order.
  35. PROVISIONAL REMEDY: PRELIMINARY INJUNCTION
    • 1) Available in permanent injunction action or where D is about to do an act rendering equity and judgment ineffectual
    • 2) Ex Parte not OK except TRO granted upon showing notice to opponent would cause significant prejudice to moving party
    • 3) Cannot be obtained before process is served (exception - TRO)
    • 4) Affadvavit showing grounds and reasonable probability of success on merits. TRO needs to show immediate threat of injury
    • 5) Undertaking required
    • 6) NOTE - not available if ONLY seeking money damages
  36. PROVISIONAL REMEDY: TEMPORARY RECEIVERSHIP
    • 1) Available when property that is subject to equity action is in danger of destruction/loss of value/removal from NY
    • 2) Ex parte motion not OK unless contract says otherwise
    • 3) Order can be obtained before service of process
    • 4) Affidavits showing grounds
    • 5) Undertaking required by receiver
    • 6) NOTE - NOT COMMON. Not available in action ONLY for money damages
  37. PROVISIONAL REMEDY: NOTICE OF PENDENCY
    • 1) Available in action in which judgment will directly affect title, use or possession of real property
    • 2) No order required. Filing with clerk is ex parte
    • 3) Order can be obtained before process is served
    • 4) File notice of pendency and complaint with clerk where realty is located. No affidavits necessary
    • 5) No undertaking
    • 6) Duration of valid notice = 3 years from date of filing
  38. PROVISIONAL REMEDY: SEIZURE OF CHATTEL (REPLEVIN)
    • 1) Available in action to recover possession of chattel
    • 2) Ex parte OK but P must make motion on notice (OTSC) to confirm order w/in 5 days after seizure
    • 3) Order can be obtained before process is served
    • 4) Affidavit showing probable success on merits. If ex parte, must show threat of immediate loss of chattel
    • 5) Undertaking is required (twice value of chattel)
    • 6) D can counter with motion to impound chattel.
  39. RELATED ACTIVITY UNDER LONG-ARM STATUTE: TRANSACTION OF BUSINESS IN NY
    If P's claim arises from the making of a single isolated business transaction (i.e. in-state visit by D or his agent) during which purposeful business activity (i.e. substantial negotiations) takes place, the transaction confers PJ over D's person for the limited purpose of D's claim arising out of that transaction
  40. RELATED ACTIVITY UNDER LONG-ARM STATUTE: OUT OF STATE CONTRACT TO SUPPLY GOODS/SERVICES IN NY
    If P's claim arises from an economically significant out-of-state contract (i.e. ship sizeable amt of goods, perform play) to supply goods/services in NY, then the contract confers PJ over D's person for the limited claim arising out of the contract

    NOTE - contract to pay money doesn't count

    NOTE - one-time order via phone/fax/e-mail from out of state buyer not economically significant.
  41. RELATED ACTIVITY UNDER LONG-ARM STATUTE: TORTIOUS ACT IN NY
    If P's claim arises from D's commission of a tortious act in NY, it confers PJ over D for the limited purpose of P's specific tort claim.

    NOTE - Defamation is excluded but can be brought under "doing business" or "transaction of business in NY"

    NOTE - Family members are not liable for each other under vicarious liability
  42. RELATED ACTIVITY UNDER LONG-ARM STATUTE: TOTRIOUS ACT OUTSIDE NY CAUSING INJURY IN NY + ADDITIONAL LINK
    • 1) If P's claim arises from a tortious act outside of NY causing injury in NY, then there must be some additional link in NY to confer PJ over D for the limited purpose of P's specific tort claim
    • 2) Additional links include
    • a) D solicits business in NY: must occur regularly
    • b) D's substantial revenue from NY, or
    • c) D's substantial revenue from interstate purposefully including NY: D must reasonable expect consequences in NY and derive substantial revenue from interstate/international commerce which purposefully includes NY
  43. RELATED ACTIVITY UNDER LONG-ARM STATUTE: REAL PROPERTY IN NY
    If P's claim arises from D's ownership, use or possession of real property in NY, then it confers PJ over D for the limited purpose of P's claim with substantial nexus to that real property in NY
  44. MATRIMONIAL LONG-ARM STATUTE
    • 1) If P spouse is a resident of NY, then long-arm PJ jurisdiction can be acquired over non-resident D spouse for limited purpose of claim for money support if: (1) NY was matrimonial domicile, (2) D abandoned P in NY, or (3) D's monetary obligation accrued under an agreement executed in NY or by laws of NY.
    • 2) Personal delivery of service required for all matrimonial actions
    • 3) Durational Residency requirements
    • a) 2 NY residents (at time COA commenced) + grounds arising in NY
    • b) 1 NY resident for 1 yr (continuously immed. b4 action) + Prior link (married in NY, NY was matrimonial domicile at some pt, grounds for action arose in NY)
    • c) 1 NY resident for 2 yrs (continuously, immed. prior to action.
  45. MATRIMONIAL JURISDICTION
    • 1) Valid basis for PJ not required for jurisdiction for action relating to status of marriage (i.e. divorce).
    • 2) S. Ct. only ct. with SMJ (not family ct!)
    • 3) If P is domiciliary, S.Ct. has in rem jurisdiction over marriage
  46. VENUE
    • 1) Determining Proper Venue: For real property, proper venue is county where property is located, in all other actions, it is country where any party resides. If no party resides in NY, then any county will do.
    • 2) Improper Venue: Not a jurisdictional defect. Not basis for dismissal. (3 steps)
    • a) Demand - D serves demand on P for change with or before service of answer
    • b) If P concedes to change, venue is automatically changed
    • c) If P objects/doesn't respond, D must make motion for change and it will be granted if D establishes improper venue and designates proper venue
  47. DEFENDANT'S RESPONSE TO SUMMONS AND COMPLAINT
    • 1) Answer complaint (answer, counterclaim, reply/P's answer to counterclaim, cross-claim)
    • 2) Time limit for serving answer ("20/10") - D must serve answer w/in 20 days of (1) personal deliver w/in NY or (2) mail + acknowledgement (complete upon mailing of acknowledgment).
    • 3) Motion to Dismiss - DOWNFALL (Documentary evidence, Other action pending between same parties, Want of capacity, Non-joinder of necessary party, Failure to state COA, Additional affirmative defenses, Lack of PJ, Lack of SMJ
  48. PROCEDURAL ASPECTS OF MOTION TO DISMISS
    • 1) Must be before answer served - on/before last day of time to serve answer ("20/30")
    • 2) Denial of motion extends time to answer 10 days
    • 3) DOWNFALL defenses may be made in motion to dismiss
    • 4) D can only make one motion to dismiss
    • 5) Motion to dismiss on any DOWNFALL ground does not preclude raising any other DOWNFALL ground in answer, except objection to PJ, which must be raised in motion to dismiss or it is waived. NOTE - If D does not make motion to dismiss and forgets to raise objection to PJ in answer, D is permitted to amend answer if done w.in 20 days of service of answer
  49. DEFENDANT'S RESPONSES TO SUMMONS WITH NOTICE
    • 1) 2 responses - (1) Serve a demand for complaint, or (2) serve a notice for appearance ("20/30")
    • 2) Notice of Appearance Time limit - D must serve answer w/in 20 days of (1) personal delivery w/in NY, or (2) mail + acknowledgment. Serve w/in 30 days from time service is complete under any other circumstances
    • 3) Service of complaint time limit - 20 days after receipt of demand/notice of appearance to serve D w/complaint.
    • 4) D's answer/motion to dismiss time limit is 20 days from service of complaint.
    • 5) If P fails to serve complaint w/in 20 days of D's demand/notice of appearance, then D can move to dismiss based on neglect to prosecute.
  50. IMPLEADER
    • Permits D to join another party alleged to be liable in whole or in part to P for damages that D may have to pay P. Typical claim is for indemnity or contribution. Impleader permits D to join other party as 3rd party D.
    • 1) Step 1 - Third party P files summons and 3rd party complaint
    • 2) Step 2 - 3rd party P serves 3rd party D w summons and complaint w/in 120 days of filing
    • 3) Step 3 - 3rd party D serves answer to everyone w/in "20-30 rule"
    • 4) Step 4 - P may amend complaint to assert complaint directly against 3rd party D w/o judicial permission if w/in 20 days of 3rd party D's service of answer on P
  51. MOTION PROCEDURE: MOTION ON NOTICE
    • 1) Papers served - (1) notice of motion, (2) supporting affidavits
    • 2) Time ("Made") - When served on opposing party. If mailed, when mailed.
    • 3) Return Date "Hearing Date" - When motion papers are presented (i.e. argued) to court. Moving party must serve opponent at least 8 days before return date.
    • 4) Filing: All motion papers must be filed w/ct before return date
    • 5) Deciding Order: After return date of motion on notice, decision must be embodied in written order signed by the ct. Prevailing party must serve copy on losing party. The effect of this service is, the order takes effect and starts 30 day time limit for interlocutory appeal (right to appeal to App, Div w/in 30 days)

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