NYP 9.txt

Card Set Information

Author:
twiggy924
ID:
26561
Filename:
NYP 9.txt
Updated:
2010-07-13 00:45:40
Tags:
Trial Procedures Estoppel
Folders:

Description:
Trial Procedures Estoppel
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user twiggy924 on FreezingBlue Flashcards. What would you like to do?


  1. 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)
  2. 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)
    • OTHER PARTIES who want a jury trial may serve and file demand for jury within 15 DAYS of service of the original NOTE OF ISSUE.
  3. When does a party in a civil action have the right to a TRIAL BY JURY?
    • Actions seeking SOLELY money damages
    • Replevin
    • Claim to real property
    • Annulment of marriage
    • Divorce action (on the issue of grounds for divorce but NOT monetary support or child custody)
  4. 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)
  5. RES JUDICATA (CLAIM PRECLUSION)

    When does it apply?
    All CLAIMS by a π against a ∆ in a later proceeding 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)
  6. COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

    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

What would you like to do?

Home > Flashcards > Print Preview