NYP ALL.txt

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NYP ALL.txt
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Twiggy924 NY Practice ALL
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NY Practice ALL
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  1. SoL: Actions to recover principal or interest on certain bonds
    20 years
  2. SoL: Enforcement of judgments
    20 years
  3. SoL: Actions by the STATE or its GRANTEE to recover REAL PROPERTY
    20 years
  4. SoL: Actions by private persons to recover REAL PROPERTY
    10 years
  5. SoL: REDEEM a mortgage
    10 years
  6. SoL: Action by CRIME VICTIM against a convicted J for a SERIOUS crime
    20 years from date of conviction

  7. SoL: Action by CRIME VICTIM against a CONVICTED ∆ for any crime
    7 years from date of crime.
  8. SoL: Equity actions—e.g., rescission, reformation, accounting)
    6 years
  9. SoL: Fraud
    • π may sue within the LONGER of–
    • (a) 6 years of commission of fraud or
    • (b) 2 years of discovery (actual or imputed)
  10. SoL: Indemnity and Contribution
    6 years from date of payment for which indemnity or contribution is sought.
  11. SoL: Contracts, express or implied (other than UCC Article 2 Sales of Goods)
    • 6 years. Accrues on date of breach regardless of π's lack of knowledge.
  12. SoL: Action by victim of rape-related felony
    • 5 years from DATE OF CRIME.
    • BUT if perpetrator is prosecuted, π gets an EXTRA 5 YEARS from termination of the criminal proceeding.
  13. SoL: Products Liability–Breach of Warranty
    4 years from tender of delivery
  14. SoL: Contracts governed by UCC Article 2 Sales of Goods
    • 4 years.
    • Breach of Warranty claim accrues upon tender of delivery
  15. SoL: PROPERTY DAMAGE, including conversion and replevin
    3 years
  16. SoL: PROFESSIONAL MALPRACTICE, other than medical malpractice
    3 years

    • Special procedure for personal injury actions against architects and engineers if >10 years after building was completed:
    • (a) π must serve notice of claim on the architect or engineer at least 90 days before suit;
    • (b) π may obtain pre-action discovery from the potential ∆ during the 90-day waiting period;
    • (c) After suit is commenced, if ∆ moves for summary judgment, burden on π to make an immediate evidentiary showing that there is a substantial basis to believe that ∆'s negligence was the proximate cause of the injuries.

  17. SoL: PERSONAL INJURY based on negligence and strict liability
    3 years—accrual on date of INJURY (except for toxic torts—3 years from DISCOVERY)
  18. SoL: MEDICAL, DENTAL, AND PODIATRIC MALPRACTICE
    • 2.5 years
    • Generally accrues on DATE OF MALPRACTICE, except for–

    • Continuous treatment for the same condition that gave rise to the malpractice. (SoL runs from end of treatment)
    • Foreign objects (2.5 years from date of operation, or 1 year from date object was discovered or should have been discovered))
  19. SoL: Wrongful Death
    2 years

    S/L runs from date of death, but must ALSO be shown that S/L on underlying personal injury claim was still open at date of death
  20. SoL: MUNICIPAL ∆s for PERSONAL INJURY AND PROPERTY DAMAGE
    1 YEAR and 90 DAYS

    • Must present notice of claim to ∆ municipality within 90 DAYS of accident.
    • Court has discretion to allow late service of notice, but may not extend beyond S/L
  21. SoL: Intentional Torts to the Person
    1 year
  22. SoL: ARTICLE 78 PROCEEDINGS (J/R of certain administrative actions)
    4 Months
  23. When does the S/L begin to run?
    When the claim accrues: Generally, the claim accrues when the π's INJURY occurs
  24. SoL for Toxic Substances
    3 years S/L begins to run on the earlier of—

    • date of actual discovery of injury, or
    • date injury should have been discovered with reasonable diligence
  25. Toll for ∆'s absence from NY state?
    • 1) Absent when COA accrues: S/L does not begin running until ∆ returns to NY, OR
    • 2) Continuously absent for ≥ 4 months: S/L tolled for entire period of absence

    EXCEPTION to both A & B above: No tolling if π has a basis for PJ over absent ∆ such that ∆ could be served with process outside NY (e.g., long-arm statute)
  26. Toll for π's infancy or insanity (legal disability)
    • Rule: S/L is tolled until legal disability clears (e.g., turns 18 or is no longer insane)
    • Original S/L ≥ 3 years: S/L expires on the later of (i) 3 years from end of disability, or (ii) statutory period measured from accrual
    • Original S/L < 3 years: Original S/L starts running from the end of legal disability
  27. Outside limit of 10 years in what 2 situations?
    • Suit for medical malpractice tolled for infancy must be commenced within 10 years from date of accrual
    • Suits tolled for insanity must be commenced within 10 years from accrual, regardless of COA (whether for medical malpractice or otherwise)
  28. TOLLS FOR DEATH OF POTENTIAL π's

    When must an action be commenced for
    1) Wrongful death claim?
    2) Survival claim?
    1) TWO-YEARS from date of death. Must be shown that S/L on underlying claim (e.g., 3 years for negligence) is still open.

    • 2) LONGER OF
    • time remaining on S/L for underlying claim, OR
    • 1 YEAR from date of π's death
  29. EXTENSION OF TIME FOR DEATH OF POTENTIAL ∆s

    By how long is the S/L extended?
    18 MONTHS are always added to relevant limitations period where potential ∆ dies AT ANY TIME before the S/L expires
  30. 6-MONTH GRACE PERIOD

    1) What is it?
    2) When is it available?
    3) When is it NOT available?
    1) PLAINTIFF GETS 6 MONTHS from date of dismissal to re-file same action and serve process on same ∆

    2) AVAILABLE WHEN

    • Case is timely commenced, but
    • Dismissed before trial, and
    • S/L has expired or has less than 6 months remaining at time of dismissal

    3) NOT AVAILABLE WHEN

    • Dismissal was on merits (claim preclusion)
    • Case voluntarily discontinued by π
    • Dismissed for neglect to prosecute (note: court must make finding on record of pattern of neglect and delay)
    • Lack of personal jurisdiction***

    ***dismissal for lack of subject matter jurisdiction is entitled to the 6-month extension
  31. BORROWING STATUTE
    If a COA arises outside of NY, which state's S/L will a New York court apply? (hint: different treatment for π's that are non-residents)

    1) π was NON-RESIDENT of NY when out-of-state claim arose—use the shorter S/L

    2) π was NY RESIDENT when out-of-state claim arose—apply NY S/L

    ***borrowing statute based on residency, not domicile
  32. SUPREME COURT OF NY

    1) General scope of SMJ?
    2) Authority to grant money damages?
    3) Authority to grant equitable relief?
    1) SC of NY has supreme SUBJECT MATTER JURISDICTION over all types of controversies, regardless of

    • Residency of litigants
    • Where claim arose

    2) SC of NY has authority to grant money damages—its power is "supreme"

    3) SC of NY has authority to grant equitable relief—its power is "supreme"
  33. SUPREME COURT OF NY

    Exceptions to supreme jurisdiction?
    • (1) Federal court has EXCLUSIVE jurisdiction (e.g., bankruptcy, patents, copyrights)
    • (2) Claims for money damages in tort or contract against the STATE OF NY (does not include local govts or individual officers)—Court of Claims has jurisdiction
  34. Cases that SUPREME COURT OF NY has EXCLUSIVE SMJ over
    • Matrimonial actions
    • CPLR Article 78 proceedings (J/R of administrative actions, see NYP 13)
    • Declaratory actions
  35. 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)
  36. 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
  37. 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

    • (1) AGENT'S OR EMPLOYEES in NY
    • (2) Engage in COMMERCIAL ACTIVITY for the ∆ corporation on a
    • (3) REGULAR, SYSTEMATIC, AND ONGOING basis
  38. 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 an additional tie 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
  39. 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

    • (1) PURPOSEFULLY DIRECTED to NY, such that ∆ should
    • (2) REASONABLY ANTICIPATE being sued in a NY court
  40. 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–

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

    1) Which NY court has jurisdiction?
    2) What kind of jurisdiction does the NY court have?
    1) NY Supreme Court has exclusive jurisdiction to grant divorce, separation or annulment.

    2) If π-spouse is NY domiciliary, court has IN REM jurisdiction over the marriage—i.e., PJ IS NOT NECESSARY–to obtain an adjudication on marital status.
  42. MATRIMONIAL JURISDICTION

    What is required of a π-spouse in order to get a DIVORCE, SEPARATION, OR ANNULMENT in NY?
    • (1) π-spouse must be DOMICILED in NY, and
    • (2) π's complaint must allege compliance with DURATIONAL RESIDENCY requirements
  43. MATRIMONIAL JURISDICTION

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

    How are DURATIONAL RESIDENCY requirements satisfied?
    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
  45. MATRIMONIAL JURISDICTION: DURATIONAL RESIDENCY

    BOTH spouses are NY residents
    Both spouses must be NY residents, and grounds for action arose in NY
  46. 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
  47. MATRIMONIAL JURISDICTION: DURATIONAL RESIDENCY

    2-year residency requirement
    Either spouse a NY resident ≥ 2 continuous years
  48. Consequence of Failing to Allege Compliance with Durational Residency Requirement
    ∆ may assert a defense of failure to state a cause of action. Defect is on the merits, not jurisdiction.
  49. 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)
  50. MATRIMONIAL JURISDICTION

    If ∆-spouse is outside of NY, how may π-spouse acquire LONG-ARM jurisdiction?
    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

    NOTE: Must have personal service, unless court orders otherwise.
  51. 3 things needed for a NY court to render a valid (enforceable) judgment?
    • Proper commencement of the action
    • Proper service of process on ∆
    • Proper basis of jurisdiction over the person or property involved in the action
  52. How is an action commenced?
    • Filing process with clerk of the court
    • Serving process on ∆ within 120 days of the filing
  53. What does process consist of?
    • Summons and complaint, or
    • Summons and notice (brief statement of nature of action, relief sought, among of damages)
  54. Who can serve process?
    Any non-party who is at least 18 years old
  55. On what days of the week 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)
  56. 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)
  57. What is "suitable age and discretion?"
    ≥ 15 years old
  58. 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 residence, AND
    • 3: Filing of proof of service
  59. What is necessary for service by AFFIX-AND-MAIL?
    • ***In order to use affix-and-mail, must show that personal delivery and leave-and-mail were attempted with due diligence.
    • (1) AFFIXING process to door of ∆'s actual dwelling/POB, AND
    • (2) MAILING a copy of process (by regular mail) to ∆'s actual POB or last-known address
    • (3) Filing PROOF OF SERVICE
  60. 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

    • (1) IMPRACTICALITY of other methods of service (personal delivery, leave-and-mail, affix-and-mail)
    • (2) EX PARTE motion with court allowing the invented method of service
  61. 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
  62. SERVICE ON MENTALLY INCOMPETENT PERSON
    • (1) Serve 1 copy (using any authorized method) on mentally incompetent person, AND
    • (2) Serve 1 additional copy on court-appointed guardian IF one has been appointed

    **If no court-appointed guardian, then ∆ is served in the same manner as any other ∆.
  63. 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
  64. Service of Process on Unlicensed Foreign Corporation
    • Two methods:
    • (1) Personal Delivery to an officer, director, designated agent, managing agent or cashier.
    • (2) Personal delivery of ONE copy to NY Secretary of State PLUS, one copy to corporation by certified mail, return receipt requested.
  65. How may process be served on a domestic or licensed foreign corporation?
    • Two methods:
    • (1) Personal Delivery to an officer, director, designated agent, managing agent or cashier.
    • (2) Personal delivery of TWO copies to NY Secretary of State (NYSS will forward 2nd copy to corporation for you).
  66. 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
  67. FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT

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

    • (1) First-class mail process to ∆
    • (2) Include 2 copies of statutory acknowledgement form
    • (3) 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. Return of acknowledgment form is not consent to PJ.

    2) MAY BE USED TO SERVE PROCESS ON

    • Corporations (whether domestic or foreign)
    • Natural persons (except infants and mentally incompetent persons with court-appointed guardian)
  68. PROPER VENUE

    1) Cases involving real estate?
    2) All other cases?
    • REAL ESTATE: Venue is proper in county in which real property is located
    • ALL OTHER CASES: County were one of the parties resides at time action is commenced***

    ***If neither party is a NY resident when the action commences, venue is proper in any county
  69. What if π chooses an IMPROPER VENUE?
    • (1) ∆ can demand change of venue
    • (2) ∆ must serve demand for venue change BEFORE or WITH the Answer
    • (3) if π objects, ∆ must move court for change (motion will be granted if π chose an improper venue AND ∆ chose a proper venue)
  70. Discretionary Grunds for Change of Venue
    Either party may make a motion to change venue on the following grounds:

    • a) convenience of material witnesses
    • b) reason to believe that an impartial trial cannot be held in the county were the action is commenced
  71. How can ∆ respond to π's Summons and COMPLAINT?
    • Serve an ANSWER, or
    • Pre-answer MOTION to DISMISS
  72. What may ∆'s ANSWER contain?
    • DENIALS (failure to deny any allegation is an implied admission)
    • AFFIRMATIVE DEFENSES (affirmative defenses not raised in Answer are waived)
    • REPLY (π's pleading in response to a counterclaim, consisting of denials and affirmative defenses)
    • COUNTER CLAIMS against π
    • CROSS-CLAIMS against other ∆s

    ***Parties must serve copies of their pleadings on ALL other parties who have appeared in the action
  73. INTERLOCUTORY PAPERS

    1) What are they?
    2) How are they served?
    INTERLOCUTORY PAPERS are all litigation papers other than π's initial service of process

    • Papers must be served on ALL parties in the action.
    • SERVICE may occur by–

    • a) regular mail***
    • b) personal delivery
    • c) facsimile
    • d) overnight courier

    ****Service is complete when MAILED (not on receipt) provided that mailing occurs through a post office or depository under the exclusive care and custody of the USPS within New York State
  74. TIME LIMIT FOR SERVING ANSWER for service other than personal delivery within NY or First class mail with acknowledgement
    30 days after service is complete.
  75. TIME LIMIT FOR SERVING ANSWER if service made by First class mail with acknowledgement
    20 days after sending back acknowledgment
  76. TIME LIMIT FOR SERVING ANSWER if service made by Personal delivery within NY?
    20 days from date of service
  77. DEFINITION: Failure to State a Cause of Action
    Even if all allegations are deemed true, the substantive law does not recognize a cause of action.

    • Standards:
    • (1) π is entitled to every favorable inference that can be drawn from complaint
    • allegations;
    • (2) The motion should be denied if there is any basis for relief under substantive law.
  78. MOTION TO DISMISS

    What are grounds for dismissal?
    [DOWNFALL]

    • D: Documentary evidence
    • O: Other action or pleading
    • W: Want of capacity of the π (e.g., π is infant suing w/o proper representative)
    • N: Non-joinder of necessary party
    • F: Failure to state cause of action (NB, state elements of underlying claim)
    • A: Affirmative defenses
    • L: Lack of basis of jurisdiction (personal, in rem, quasi in rem)
    • L: Lack of subject matter jurisdiction (can be raised anytime)
  79. List the AFFIRMATIVE DEFENSES
    [SPARE RIBS]

    • S: Statute of limitations
    • P: Payment
    • A: Arbitration and award
    • R: Res judicata (claim preclusion)
    • E: Estoppel (collateral estoppel—i.e., issue preclusion)
    • R: Release
    • I: Infancy of ∆
    • B: Bankruptcy discharge
    • S: Statute of frauds
  80. PROCEDURAL ASPECTS OF PRE-ANSWER MOTION TO DISMISS (PAMTD)

    1) When made?
    2) Time for filing answer?
    3) Waiver of defenses, if not included?
    • 1) Made BEFORE service of the answer
    • 2) Must file Answer within 10 DAYS if motion is denied
    • 3) EXCEPT for Lack of Personal Jurisdiction (LOPJ), failure to waive an affirmative defense in PAMTD does not bar ∆ from raising it in the Answer
  81. If ∆ pleads IMPROPER SERVICE as a defense in his Answer, what else must happen?
    Must make a follow-up motion for SUMMARY JUDGMENT on improper service grounds within 60 DAYS of serving the Answer.
  82. ∆'s RESPONSE TO SUMMONS WITH NOTICE
    • ∆ can (1) avoid default; and (2) force π to serve the complaint by serving–
    • 1) Notice of APPEARANCE, and
    • 2) DEMAND for complaint

    ***No waiver of jurisdictional objections occurs by service of a demand for the complaint or a notice of appearance
  83. RESPONSE TO SUMMONS WITH NOTICE

    After being served with π's summons and notice, how long does ∆ have to respond?
    ∆ must serve demand or notice of appearance within

    • 1) 20 DAYS of personally served in NY
    • 2) 20 DAYS if served by First Class Mail with Acknowledgement
    • 3) 30 DAYS in all other cases
  84. RESPONSE TO SUMMONS AND NOTICE

    If ∆ timely serves demand for the complaint and/or notice of appearance:

    1) How long does π have to serve complaint?
    2) If π serves complaint, what must ∆ do next?
    3) If π doesn't serve complaint, what can ∆ do?
    • 1) 20 DAYS from ∆'s service
    • 2) ∆ has 20 DAYS to (i) serve an Answer, or (ii) make a PAMTD
    • 3) ∆ can move to dismiss based on π's noncompliance (though π can defend by showing BOTH (i) reasonable excuse for delay, and (ii) affidavit of merit of π's claim)
  85. AMENDMENTS OF PLEADINGS

    When may π amend the pleadings?
    • AS OF RIGHT: ONCE within 20 DAYS of when ∆ serves Answer
    • ON MOTION: if opponent (i.e., ∆) has suffered NO incurable prejudice (e.g., loss of evidence, death of witnesses, running of S/L)
  86. Third-Party Practice (TPP) (Impleader) : What is it?
    Procedural device used by ∆ to join another party alleged to be liable in whole or in part to ∆ for damages that ∆ may have to pay π.
  87. How does ∆ implead a third party?
    • 1) File: Summons & TP complaint with the county clerk (and pay fee for index number)
    • 2) Serve: Summons & TP complaint and all prior pleadings on the TP∆ within 120 days of the Filing.
  88. How long does TP∆ have to respond after being served?
    TP∆'s time limit for ANSWERING is the same that would apply to an ordinary. Thus—

    • 20 Days: If TP∆ was served personally, he would have 20 days to serve his answer.
    • 30 Days: If TP∆ was served with any other means, he would have 30 days to serve his answer.
  89. On whom must the TP∆ serve his Answer?
    TP∆ must serve his Answer on ∆, π, and all other parties who have appeared in the action (e.g., other TP∆s, if any)
  90. Statute of Limitations Considerations for TP∆
    For SoL purposes, π's added claim against the TP∆ is treated as interposed on the date the TP∆ was impleaded. (i.e., when ∆ Filed the impleader papers with the county clerk) provided thatπ's claim against TP∆ is based on the same transaction or occurrence as ∆'s impleader claim.
  91. Can π assert a claim directly against a TP∆?
    • YES: Once the TP∆ is joined, π may amend her complaint to assert a claim directly against the TP∆
    • As of right: π may amend as of right if she does so within 20 days after π was served with the TP Answer.
    • Court's discretion: After 20 days, π may amend her complaint to assert a claim directly against the TP∆, but to do so she must make a motion with the court, which motion must be granted.
  92. Indemnity: What is it, and when is it available?
    • Indemnity allows one party to shift 100% of its liability to another party. It is available in the following situations—
    • By contract: Such as were a subcontractor agrees to indemnify its general contractor against any losses
    • Products liability: Such as when a retailer held liable for sale of defective product can seek indemnity from manufacturer
    • Vicarious liability: E.g., owner of a car against the negligently driving owner
  93. CONTRIBUTION

    1) What is it?
    2) When does a right of contribution exist?
    • 1) Sharing of loss among multiple tortfeasors who were all actual participants to a tort
    • 2) Whenever a TP∆ breached a duty in tort which contributed to or aggravated the damages for which ∆ may be held liable to π
  94. CONTRIBUTION

    Is contribution allowed for intentional torts?
    • MS RULE: Contribution is not available where nature of conduct is intentional wrongdoing
    • NY RULE: Contribution allowed in all tort cases—including intentional torts
  95. CONTRIBUTION

    How can ∆ assert claim for Contribution (or indemnity)?
    • CROSS-CLAIMS, if π joined all tortfeasors
    • IMPLEAD TP∆s if π omitted a tortfeasor
    • SEPARATELY sue***

    ***Separate suit is the LEAST DESIRABLE, because findings of fact and apportionment of fault are NOT BINDING in separate suit
  96. CONTRIBUTION. Comparative Degrees of Fault

    1) Can ∆ require joint tortfeasors to contribute more than their share of the judgment?
    2) Can π require a tortfeasor to pay an amount in excess of his share of the judgment?
    • 1) NO: the party from whom contribution is sought can't be required BY ∆ to pay more than his/her share of fault
    • 2) YES: under joint and several liability, the π can make ANY liable ∆ pay the full amount of the judgment
  97. WORKERS' COMPENSATION CASES

    Can a TP seek contribution or indemnity from a π's employer?
    • MS: TP NEVER has a right to contribution or indemnity against π's employer
    • NY: ONLY IF π sustained a GRAVE INJURY
  98. WORKERS' COMPENSATION CASES

    What qualifies as a "Grave" injury?
    • Death
    • Total loss of an arm, leg, hand, foot, nose, ear or index finger (but NOT a thumb)
    • Total loss of multiple fingers or toes
    • Total deafness or blindness
    • Paraplegia or quadriplegia
    • Severe facial disfigurement
    • Brain damage causing total disability
  99. SETTLEMENT OF CASES INVOLVING MULTIPLE TORTFEASORS

    1) What is the reduction formula?
    2) What is the impact on ∆'s right to contribution?
    3) What is the impact on ∆'s right to indemnity?
    (1) REDUCTION FORMULA—any judgment for π against a non-settling tortfeasor must be reduced by the LARGER of

    • a) amount of the settlement, OR
    • b) the SETTLING tortfeasor's share of fault

    (2) CONTRIBUTION claims cannot asserted by or against a settling tortfeasor

    (3) INDEMNITY claims MAY be asserted by or against a settling tortfeasor
  100. Joint and Several Liability in Personal Injury Claims Under CPLR ARTICLE 16
    (1) RULE: In a personal injury case, a joint tortfeasor can be required to pay only his share of NON-ECONOMIC damages if his percentage of fault is ≤ 50 %

    (2) EXCEPTIONS:
    tortfeasors will be jointly and severally responsible for ALL damages (including non-economic) EVEN IF their share of fault is ≤ 50% if they–

    • a) acted with intent or reckless disregard OR
    • b) released a hazardous substance into the environment OR
    • c) were the driver or owner of a motor vehicle (other than police and fire-fighter vehicles)
  101. MOTIONS ON NOTICE

    1) What are they?

    2) What must be included?
    1 APPLICATION FOR AN ORDER of the court. A motion on NOTICE gives the adversary an OPPORTUNITY TO BE HEARD

    • 2 MUST INCLUDE the following papers–
    • (i) notice of motion
    • (ii) affidavits to support necessary factual allegations
    • (iii) memorandum of law in support of the motion (i.e., the legal argument)
  102. MOTIONS ON NOTICE

    1) When is the motion "made"

    2) When is the motion heard in court?

    3) How much advanced notice must the movant provide?
    1 MOTION MADE when the required papers (notice, affidavits, motion) are SERVED on the nonmoving parties

    2 MOTION HEARD in court on the "RETURN DATE"

    3 ADVANCE NOTICE must be given to all parties at least 8 DAYS in advance of the return date
  103. Deciding Order

    1) What happens after the motion is decided?

    2) How does the losing party appeal?
    • (1) AFTER MOTION DECIDED, prevailing party must serve on the losing party
    • signed order, AND
    • notice of entry of order

    (2) TO APPEAL the decision, a party must FILE and SERVE a NOTICE OF APPEAL within 30 DAYS from service of the signed order
  104. ORDER TO SHOW CAUSE

    1) What is it?
    2) When might it be used?
    3) How is one made?
    (1) ALTERNATIVE to a motion on notice—It is an order, signed ex parte by the judge, directing the adversary to "show cause" on a specified date why a motion should not be granted.

    (2) USED to accelerate the "return date," grant an immediate stay or TRO, or comply with statute

    (3) MADE in the following manner

    • Movant drafts order and submits it ex parte to judge
    • Includes supporting affidavits and underling motion
    • Judge sets return date and method of service on adversary (usually personal delivery)
    • Judge signs order
    • Order and underlying motion papers served on opponent
    • Opponent opposes on "return date"
  105. EX PARTE MOTIONS

    1) What are they?

    2) When may they be used?

    3) What relief is there for a party aggrieved by an ex parte order?
    (1) MOTION WITH NO ADVANCED NOTICE to the adversary

    (2) STATUTORY AUTHORIZATION is required in order to use it

    (3) AGGRIEVED PARTY must (1) make a motion to vacate the order, and if unsuccessful (2) appeal the denial of the motion to vacate
  106. MOTION FOR SUMMARY JUDGMENT

    1) When is the motion appropriate?

    2) When can the motion be made?

    3) When must the motion be made?
    1 APPROPRIATE when there is no genuine issue of material fact requiring a trial

    2 MAY BE MADE after ∆ serves his Answer

    3 MUST BE MADE within 120 DAYS from filing of the Note of Issue, which puts the case on the court's calendar. (may be able to make motion outside of deadline for "good cause")
  107. MOTION FOR SUMMARY JUDGMENT

    If the court concludes that the nonmovant, rather than the movant, is entitled to SJ on an issue presented, may the court grant SJ to the nonmovant?
    YES

    This is known as SEARCHING THE RECORD. In a summary judgment motion, a court reviews all of the evidence in the record, regardless of which side submitted it, and can deny the motion OR enter judgment for the nonmoving party if all the evidence in the record supports it.
  108. MOTION FOR SUMMARY JUDGMENT

    If the only remaining issue of fact concerns damages, can a court grant partial summary judgment?
    YES

    A court can grant partial summary judgment on the issue of a party's liability, and order immediate trial on the issue of damages.
  109. MOTION FOR SUMMARY JUDGMENT

    Is a motion for summary judgment ever allowed prior to service of the answer?
    YES—in the following two cases

    1) CONVERSION OF A MOTION TO DISMISS

    • Court can cover motion to dismiss into motion for SJ
    • Allows decision to be based on evidence (merits), rather than the sufficiency of the claim
    • Parties must have submitted factual affidavits in connection with the motion
    • Court must give advanced notice of conversion to allow them to oppose

    2) IN LIEU OF COMPLAINT—in two types of actions, the PLAINTIFF may move for SJ at the same time she serves process

    • Action based on instrument for payment of money only
    • Action on an out-of-state judgment (full-faith-and-credit)

    π must provide 20 days advanced notice of motion if served by personal delivery in NY (30 days for all other forms of service)
  110. What are the 5 provisional remedies?
    • Attachment
    • Preliminary injunction
    • Temporary receivership
    • Order to seize chattel in an action to recover the chattel
    • Notice of pendency
  111. ATTACHMENT

    1) What is it?
    2) What can be attached?
    1) ORDER from a court that authorizes a NY Sheriff to impose a lien on ∆'s property in NY. This gives π a security interest in property that is superior to that of any subsequent lien-holder

    2) ANY PROPERTY IN NY, whether real or personal, can be attached
  112. ATTACHMENT

    1) How is real property attached?
    2) Personal property?
    1) Sheriff files an ORDER OF ATTACHMENT with the clerk of the county where the real property is located

    2) ACTUAL seizure, or constructive seizure (delivery of order of attachment to person who holds ∆'s property interest)
  113. ATTACHMENT

    In what ACTIONS may attachment be used?
    Actions for MONEY damages where

    • ∆ is an unlicensed foreign corporation, OR
    • ∆ is a non-domiciliary residing outside NY, OR
    • ∆ is about to conceal or remove assets from NY with intent to defraud creditors, or frustrate enforcement of justice
  114. What is the procedure for seeking an order for attachment?
    1) π MOVES for an order of attachment

    • 2) MOTION MUST INCLUDE:
    • (i) affidavits showing money damages, identity of ∆, or ∆'s intent to conceal or remove assets from NY
    • (ii) probability of success on merits of action
    • (iii) undertaking by π (i.e., π must post bond to indemnify ∆ from damages)

    3) FOLLOW-UP MOTION TO CONFIRM—within 10 days of levy (for unlicensed corporations or non-domiciliary) or 5 days of levy (for fraudulent movement or concealment of assets)
  115. PRELIMINARY INJUNCTION (PL)

    1) What is it?
    2) What types of actions may it be used?
    1) MAINTAIN STATUS QUO in an

    • 2) EQUITY action where the π's complaint seeks–
    • (i) a permanent injunction, OR
    • (ii) ∆ threatens harm to π's interest in the subject matter of the action
  116. Requirements to Obtain a PRELIMINARY INJUNCTION
    • (1) MOTION on notice served with or after the summons
    • (2) GROUNDS for equitable relief (including irreparable injury)
    • (3) LIKELIHOOD OF SUCCESS on the merits
    • (4) UNDERTAKING to indemnify ∆ for damages if it is later determined that P/L should not have been granted
  117. Procedure to Obtain a TEMPORARY RESTRAINING ORDER
    • In a case where there is a threat of immediate, irreparable harm, π may request a TRO ex parte.
    • Procedure:
    • (1) π commences action for equitable relief
    • (2) Move for PL in through an Order to Show Cause (OTSC)
    • (3) In the OTSC, request TRO to obtain immediate injunctive relief.

    OTSC must contain an affidavit that there will be significant prejudice to the party seeking TRO if notice is provided to the adversary.
  118. TEMPORARY RECEIVERSHIP

    1) What is it?
    2) In what actions is it available?
    1) A PERSON appointed by the court to manage ∆'s property pending the outcome of an EQUITY ACTION, in which the property is the subject of the action

    • 2) AVAILABLE IN AN ACTION WHERE–
    • (i) π asserts an equity claim in which specific property is the subject matter of the action, AND
    • (iii) Danger that ∆ will injure or destroy the value of the property while the action is pending
  119. TEMPORARY RECEIVERSHIP

    How can one be obtained?
    • Motion on notice
    • Grounds for equitable relief (property is subject of equity action, irreparable harm to property)
    • Likelihood of success on merits of claim
    • Undertaking to indemnify ∆
  120. SEIZURE OF CHATTEL

    1) Can seek in what type of action?
    2) How do you obtain an order for seizure of chattel?
    1) ACTION FOR REPLEVIN

    • 2) PROCEDURE FOR OBTAINING–
    • Motion on notice (or ex parte)
    • Likelihood of success on merits
    • Undertaking to indemnify ∆
  121. SEIZURE OF CHATTEL

    If the motion is made ex parte, what must π do?
    • (1) Show threat of immediate loss of chattel
    • (2) Make follow-up motion in ORDER TO SHOW CAUSE to confirm seizure within 5 DAYS of impoundment (to satisfy due process)
  122. In what type(s) of cases is NOTICE OF PENDENCY available?
    EQUITY ACTIONS in which the judgment will have a DIRECT EFFECT on title, possession, or use of real property
  123. NOTICE OF PENDENCY
    RECORD NOTICE to potential buyers or mortgagees that any interest in the property may be subordinate to that of π
  124. What happens when 3-year Period expires for a Notice of Pendency?
    π can move for a 3-year extension PRIOR to expiration of the original 3-year period.

    • If original 3-year period expires:
    • (1) The notice of pendency becomes void and has no further effect; AND
    • (2) π cannot obtain another notice of pendency on the same property for the same cause of action.

    EXCEPTION: In a mortgage foreclosure action, the court may grant a motion for a new notice of pendency even though the original notice expired without renewal.
  125. Duration of Notice of Pendency
    THREE YEARS after filing.
  126. NOTICE OF PENDENCY

    How is one obtained?
    π files notice of pendency with county clerk where real property is located

    • No court order required
    • No undertaking (i.e., posting of bond) is required
  127. 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)
  128. 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.
  129. 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)
  130. 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)
  131. 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)
  132. 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
  133. SPECIAL PROCEEDINGS

    1) What are they?
    2) When are they available?
    1) STREAMLINED TRIAL (similar to motion practice) designed to facilitate the process of obtaining a final judgment

    2) STATUTORY AUTHORITY is required to use a special proceeding to decide a dispute
  134. SPECIAL PROCEEDINGS

    How is one commenced?
    • PETITION filed with the court (no summons needed, but payment is needed)
    • SERVICE of petition and notice of petition on RESPONDENT by usual methods of service WITHIN 15 DAYS of S/L for special proceedings
    • RETURN DATE for court hearing can be NO SOONER than 8 DAYS from completed service on respondent.***
    • ALL pleadings and affidavits are SUBMITTED to the court on the return date for decision by the court.

    *** EXCEPTION: 20 days for Art. 78 proceeding (or use OTSC).
  135. ARBITRATION

    1) Must an arbitrator follow the substantive law or the rules of evidence?
    2) What is the scope of judicial review?
    (1) NEED NOT FOLLOW the substantive law or rules of evidence. They do justice as they see fit.

    (2) JUDICIAL REVIEW IS NARROW—limited to deciding whether arbitration can be avoided or must be compelled, and whether an award can be vacated on grounds of corruption, fraud, misconduct, significant bias, or abuse of power.
  136. 5 Threshold Issues to Court Must Decide Re: Whether Arbitration Should Proceed
    • Is there an AGREEMENT to arbitrate? Must be in writing, but need not be signed.
    • Is dispute within SCOPE of the arbitration clause?
    • Is the arbitration clause VALID? (presumption of validity, except where fraud, duress, or coercion can be proved)
    • Is there an Express CONDITIONS PRECEDENT and has it been satisfied?
    • STATUTE OF LIMITATIONS?
  137. ARBITRATION

    1) How do you compel arbitration?
    2) How you yo avoid it where you're served a "notice of intention to arbitrate"?
    1) MOTION for stay of action and to compel arbitration

    2) COMMENCE SPECIAL PROCEEDING for a stay of arbitration (raise the 5 defenses) within 20 DAYS from receipt of notice of intention to arbitrate
  138. ARBITRATION

    What are the ONLY circumstances where a court VACATE an arbitration award?
    • Corruption, fraud, or misconduct during arbitration proceeding
    • Significant partiality or bias of arbitrator
    • Arbitrator exceeded scope of power (usually a losing argument, because they may do justice as they see fit)
  139. FORMS OF ADR BESIDES ARBITRATION
    1) MEDIATION—neutral, non-binding, facilitate settlement, separate talks, then combined talks. Non-binding.

    2) NEUTRAL EVALUATION—neutral expert in subject matter receives condensed presentation of issues, and predicts how a court would decide. Non-binding.

    3) SUMMARY JURY TRIAL—condensed version of a real trial, involving a real judge and jury. Typically limited to one day. Parties agree in advance whether result is binding.
  140. ARTICLE 78 PROCEEDINGS

    What are they?
    Special proceeding for judicial review of an action (or inaction) by GOVERNMENT or quasi-government officers or bodies of any kind
  141. ARTICLE 78 PROCEEDINGS: Right to Relief
    • Petitioner's right to relief requires that case would be subject to review under one of the 4 common law "prerogative writs"–
    • 1) MANDAMUS TO COMPEL performance of an act required by law (i.e., an act where no discretion is involved)

    • 2) PROHIBITION to stop a judicial officer from a GROSS EXCESS of power
    • Examples of gross excess include granting a request for a double-jeopardy proceedings, or compelling depositions of witnesses neither party wishes to depose.
    • Where there is no gross excess of power, proper remedy is for an appeal of the decision

    3) CERTIORARI that challenges the results of a "trial-type" hearing conducted by an administrative agency. SoR: Substantial evidence in the record.

    4) MANDAMUS TO REVIEW any type of administrative action not covered by 1-3
  142. ARTICLE 78 PROCEEDINGS

    1) In what court may an Article 78 proceeding be brought?
    2) When must papers (petition, notice of petition) be served?
    3) What type of relief may be sought?
    1) NY SUPREME COURT

    2) 20 DAYS before the return date for court hearing

    3) DECLARATORY or INJUNCTIVE relief
  143. SoL: ARTICLE 78 PROCEEDINGS
    Four months running from petitioner's receipt of action challenged.
  144. ARTICLE 78 PROCEEDINGS

    What are they?
    Special proceeding for judicial review of an action (or inaction) by GOVERNMENT or quasi-government officers or bodies of any kind
  145. ARTICLE 78 PROCEEDINGS

    Petitioner's right to relief requires that case would be subject to review under one of the 4 common law "prerogative writs." What are the 4 writs?
    1) MANDAMUS TO COMPEL performance of an act required by law (i.e., an act where no discretion is involved)

    2) PROHIBITION to stop a judicial officer from a GROSS EXCESS of power

    • Examples of gross excess include granting a request for a double-jeopardy proceedings, or compelling depositions of witnesses neither party wishes to depose.
    • Where there is no gross excess of power, proper remedy is for an appeal of the decision

    3) CERTIORARI that challenges the results of a "trial-type" hearing conducted by an administrative agency

    4) MANDAMUS TO REVIEW any type of administrative action not covered by 1-3
  146. ARTICLE 78 PROCEEDINGS

    1) In what court may an Article 78 proceeding be brought?
    2) When must papers (petition, notice of petition) be served?
    3) What type of relief may be sought?
    1) SUPREME COURT

    2) 20 DAYS before the return date for court hearing

    3) DECLARATORY or INJUNCTIVE relief

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