NYP 4

Card Set Information

Author:
paul
ID:
23352
Filename:
NYP 4
Updated:
2010-06-26 11:40:10
Tags:
Jurisdiction Over Case
Folders:

Description:
NYP 4 - Jurisdiction Over the Case
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user paul on FreezingBlue Flashcards. What would you like to do?


  1. What is needed for a NY court o render a valid (enforceable) judgment? (3 things)
    • Proper commencement of the action
    • Proper service of process on ∆
    • Proper basis of jurisdiction over the person or property involved in the action
  2. How is an action commenced?
    • Filing process with clerk of the court
    • Serving process on ∆ within 120 days of the filing
  3. What does process consist of?
    • Summons and complaint, or
    • Summons and notice (brief statement of nature of action, relief sought, among of damages)
  4. Who can serve process?
    Any non-party who is at least 18 years old
  5. When may process be served?
    • Any day of the week, except—
    • Sunday, or
    • Saturday, IF π knows that ∆ is a Saturday-Sabbath observer (no defect for innocent mistake)
  6. When is Personal Delivery "complete"?
    Date that process is served directly upon ∆ (or date of ∆'s refusal, if ∆ is available but refuses to be served)
  7. What is service by Leave-and-Mail?
    • 1: Personal delivery upon person of suitable age and discretion at ∆'s actual dwelling/place business, AND
    • 2: Follow-up mailing to ∆'s actual place of business or last-known resident, AND
    • 3: Filing of proof of service
  8. What is necessary for service by AFFIX-AND-MAIL?
    • AFFIXING process to door of ∆'s actual dwelling/POB, AND
    • MAILING a copy of process (by regular mail) to ∆'s actual POB or last-known address
    • filing PROOF OF SERVICE

    ***In order to use affix-and-mail, must show that personal delivery and leave-and-mail were attempted with due diligence
  9. EXPEDIENT ("COURT INVENTED") SERVICE

    1) What is it?
    2) What is requried?
    1) SIGNED ORDER from a court allowing an alternative method of service

    2) REQUIREMENTS

    • IMPRACTICALITY of other methods of service (personal delivery, leave-and-mail, affix-and-mail)
    • EX PARTE motion with court allowing the invented method of service
  10. SERVICE ON INFANT
    When ∆ is an infant, process must be served (using any authorized method) on one of the following adults

    • 1) parent
    • 2) guardian
    • 3) any person having legal custody of ∆
    • 4) adult spouse to whom ∆ infant is married and with whom ∆ infant lives

    ***if ∆ infant is ≥ 14 years old, an additional copy of process must be served on the infant—i.e., must serve on both the ∆ infant AND one of the adults mentioned above
  11. SERVICE ON MENTALLY INCOMPETENT PERSON
    • Serve 1 copy (using any authorized method) on mentally incompetent person, AND
    • 1 additional copy on court-appointed guardian IF one has been appointed
  12. SERVICE OUTSIDE NEW YORK

    1) What methods may be used to serve process outside NY?
    2) Who may serve process outside NY?
    1) ANY METHOD USED IN NY may be used to serve process outside NY

    2) PERSONS AUTHORIZED TO SERVE PROCESS OUTSIDE NY

    • NY RESIDENT if authorized under NY law (i.e., non-party at least 18 y/o)
    • Anyone authorized to serve process by the laws of the jurisdiction where service is made
    • Any attorney licensed in the jurisdiction where service is made
  13. SERVICE ON CORPORATIONS

    How may process be served on a corporation?
    • Personal Delivery
    • Service to NY Secretary of State (NYSS)
    • First-Class Mail PLUS Acknowledgment
  14. SERVICE ON CORPORATIONS

    On whom may PERSONAL DELIVERY be made?
    • Officer
    • Director
    • Designated agent
    • Managing agent (person with general supervisory authority)
    • Cashier or cashier's assistant
  15. SERVICE ON CORPORATIONS

    How is service made on the NYSS made when ∆ is a

    1) Domestic corporation, or licensed to do business in NY (DBNY)?
    2) Unlicensed foreign corporation?
    1) PERSONALLY DELIVER 2 copies of process to NYSS (NYSS will forward 2nd copy to corporation for you)

    2) UNLICENSED FOREIGN CORPORATION

    • Personally deliver 1 copy of process to NYSS
    • Certified mail with return receipt 1 copy to ∆ corporation
  16. FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT

    1) How is service made?
    2) On whom may it be made?
    1) SERVICE MADE in the following manner

    • First-class mail process to ∆
    • Include 2 copies of statutory acknowledgement form
    • Include pre-addressed stamped envelope for return

    Service is effective ONLY IF ∆ signs and returns one of the acknowledgement forms within 30 DAYS of receiving the mailed process

    2) MAY BE USED TO SERVE PROCESS ON

    • Corporations (whether domestic or foreign)
    • Natural persons (except infants and mentally incompetent persons)
  17. PERSONAL JURISDICTION

    1) What is GENERAL JURISDICTION?
    2) How is it obtained?
    1) PJ OVER ANY CLAIM regardless of where the claim arose or the claim's connection to NY

    • 2) OBTAINED WHEN
    • ∆ PERSONALLY SERVED while in NY
    • ∆ is DOING BUSINESS IN NY (DBNY)
    • ∆ is DOMICILED in NY (at time action is commenced)
  18. PERSONAL JURISDICTION

    1) What is SPECIFIC JURISDICTION?
    2) How is it obtained?
    1) PJ ONLY OVER CLAIMS ARISING OUT OF

    • ∆'s NY ACTIVITIES, OR
    • TERMS of contract

    2) OBTAINED THROUGH

    • Long-Arm jurisdiction
    • Non-Resident Motorist statute
    • Consent
  19. GENERAL JURISDICTION

    When are the following corporations treated as DBNY?

    1) Domestic or foreign licensed corporations?
    2) Unlicensed foreign corporations?
    1) ALWAYS treated as DBNY

    2) Unlicensed foreign corporation DBNY when

    • AGENT'S OR EMPLOYEES in NY
    • engage in COMMERCIAL ACTIVITY for the ∆ corporation on a
    • REGULAR, SYSTEMATIC, AND ONGOING basis
  20. SPECIFIC JURISDICTION

    What are the 5 categories of LONG-ARM jurisdiction?
    1) TRANSACTION OF BUSINESS BY ∆ IN NY (includes substantial communications with NY)

    2) CONTRACT to PROVIDE GOODS OR SERVICES IN NY

    3) ∆'s OWNERSHIP, USE, OR POSSESSION OF REAL PROPERTY IN NY

    4) ∆'s COMMISSION of a TORTIOUS ACT in NY

    5) INJURY IN NY, caused by ∆'s tortious act outside NY AND ∆ has additional ties to NY—

    • solicitation of business in NY
    • persistent course of conduct in NY
    • substantial revenue from goods used or consumed in NY
    • substantial revenue from services rendered in NY
    • reasonable expectation of NY consequences AND substantial revenue from interstate/international commerce
  21. SPECIFIC JURISDICTION

    When PJ over the ∆ is based on LONG-ARM jurisdiction, DUE PROCESS must be satisfied. What does this require?
    Due process is satisfied if π's claim arises out of conduct of ∆ that is

    • PURPOSEFULLY DIRECTED to NY, such that ∆ should
    • REASONABLY ANTICIPATE being sued in a NY court
  22. NON-RESIDENT MOTORIST STATUTE

    1) When does it apply?
    2) How is process served?
    1) APPLIES WHERE π's claim arises out a NON-DOMICILIARY MOTORIST'S

    • OWNERSHIP or USE of an automobile on a NY roadway
    • PERMISSION to USE automobile on a NY roadway

    2) π SERVES PROCESS on non-resident ∆ by

    • PERSONALLY SERVING 1 copy of process on NYSS, PLUS
    • MAILING 2nd copy of process (by certified mail) to ∆'s out-of-state residence
  23. MATRIMONIAL JURISDICTION

    1) Which NY court has jurisdiction?
    2) What kind of jurisdiction does the NY court have?
    1) Supreme Court has jurisdiction

    2) Court has IN REM jurisdiction over the marriage—i.e., PJ IS NOT NECESSARY
  24. MATRIMONIAL JURISDICTION

    What is required of a π-spouse in order to get a DIVORCE, SEPARATION, OR ANNULMENT in NY?
    • π-spouse must be DOMICILED in NY, and
    • comply with DURATIONAL RESIDENCY requirements
  25. MATRIMONIAL JURISDICTION

    How must process be served on the ∆-spouse?
    PERSONAL DELIVERY
  26. MATRIMONIAL JURISDICTION

    How are DURATIONAL RESIDENCY requirements satisfied? (hint: 3 possibilities)
    1) BOTH spouses NY residents

    2) EITHER spouse is NY resident for ONE continuous year

    3) EITHER spouse is NY resident for TWO continuous years
  27. MATRIMONIAL JURISDICTION > DURATIONAL RESIDENCY

    BOTH spouses are NY residents
    Both spouses must be NY residents, and grounds for action arose in NY
  28. MATRIMONIAL JURISDICTION > DURATIONAL RESIDENCY

    1-Year residency requirement
    Either spouse a NY resident ≥ 1 continuous year, and additional NY ties—

    • NY marriage,
    • NY was matrimonial domicile at some point
    • Grounds for action arose in NY
  29. MATRIMONIAL JURISDICTION > DURATIONAL RESIDENCY

    2-year residency requirement
    Either spouse a NY resident ≥ 2 continuous years
  30. MATRIMONIAL JURISDICTION

    To obtain MONETARY SUPPORT from a ∆-spouse, what basis of jurisdiction is required?
    Court must have PERSONAL JURISDICTION over ∆-spouse (not just in rem, like for status of marriage cases)
  31. MATRIMONIAL JURISDICTION

    If ∆-spouse is outside of NY, can π-spouse acquire LONG-ARM jurisdiction?
    YES, if π-spouse is a NY RESIDENT, AND any one of the following

    • 1) NY was the matrimonial domicile of both π and ∆ prior to separation, OR
    • 2) ∆ abandoned π in NY, OR
    • 3) ∆'s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement) OR
    • 4) ∆'s monetary obligation accrued under the laws of NY

What would you like to do?

Home > Flashcards > Print Preview