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When discovery is completed and the case is ready for trial, how is the matter placed on the trial court's CALENDAR?
NOTE OF ISSUE
—Either party may file a
note of issue
with the country clerk; this places the trial on the court's calendar.
***Cross-reference: Once the note of issue has been filed, the parties have 120 DAYS to file a motion for summary judgment. (See NYP 9)
How does a party who is entitled to a JURY obtain it?
PARTY WHO FILES NOTE OF ISSUE
makes a demand for jury
in the note of issue
(if not, that party's right to jury is waived)
who want a jury trial may serve and file demand for jury within
of service of the original NOTE OF ISSUE.
When does a party in a civil action have the right to a TRIAL BY JURY?
Actions seeking SOLELY money damages
Claim to real property
Annulment of marriage
Divorce action (on the issue of
for divorce but NOT monetary support or child custody)
TRIAL BY JURY
1) How large is a civil jury?
2) Must the verdict be unanimous?
(1) 6 Jurors
(2) Need not be unanimous (5 out of 6 is enough for a verdict)
RES JUDICATA (
When does it apply?
by a π against a ∆ in a
are BARRED if they arise from
1) the SAME TRANSACTION tried in a prior case
2) there was a FINAL JUDGMENT in the prior case
3) based on the MERITS of that case
***Exception. In a matrimonial dispute, claims in a second trial for PERSONAL INJURY are not barred by claim preclusion (res judicata)
COLLATERAL ESTOPPEL (
When does it apply?
Issue preclusion prevents the re-litigation of specific FACTUAL ISSUES that were DECIDED IN A PRIOR PROCEEDING where (all three needed)
1) the factual issue in the 1st and current proceeding is IDENTICAL
2) the factual issue was LITIGATED and DECIDED in the former proceeding
3) party AGAINST whom preclusion is being asserted had a FULL AND FAIR OPPORTUNITY to litigate the issue in the prior proceeding
***Cannot use issue preclusion offensively against someone who was not a party to the prior action
Trial Procedures Estoppel