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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)
- 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.
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 grounds 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 (CLAIM PRECLUSION)
When does it apply?
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)
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
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