NY Civ

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NY Civ
2015-01-27 16:50:14
NY Civ
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NY Civ
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  1. New York trial courts: two questions:
    • 1. what is the subject matter jurisdiction of each court?
    • 2. where do appeals from that court go?
    •  [FCCSS: appellate division; leftovers: appellate terms]
  2. NY Supreme court (trial court) only state trial court with general original jurisdiction
  3. NYSC, exclusive original jurisdiction ovr:
    • matrimonial actions (e.g. divorce, separation, annulment)
    • Article 78 (actions to challenge the action/inaction of gov't officials and agencies)
    • declaratory judgments
  4. NYSC: concurrent jurisdiction over almost everything else; can transfer cases over which it has concurrent jurisdiction to or from the supreme court
  5. NYSC CANNOT hear claims against the state or exclusive federal matters
  6. Appellate Division of the Supreme Court= appeals.
  7. County courts: limited jurisdiction; includes:
    • most civil action for money damages provided that judgment demanded is $25,000 or less AND
    • at the commencement of the action, each D:
    • -resides in the county, or
    • -has a business office in the county and the claims arose in the county
    • real property actions that involve land located within the county (regardless of amount in controversy)
    • incompetency proceedings involving a county resident
    • enforcement of a judgment obtained in another country

    appeals from decisions by a district court, city court, or justice court in the 3rd and 4th judicial departments
  8. appeals located w/in the Second Department of the Supreme Court go to the Appellate Term of the Supreme Court; other County Court decisions go to the Appellate Divisio
  9. NYC civil courts have original jurisdiction over:
    • -cases in which amount in controversy or value of property at issue is $25,000 or less
    • - actions to acquire money
    • - replevin actions
    • -declaratory judgment actions
    • -rescission and reformation of contract
    • -judgments for rent (Regardless of amount of rent due)
    • - summary eviction proceedings
  10. appeals from NYC Civil Courts go to Appellate Term
  11. Family court has original jurisdiction over:
    • - child and spousal support
    • - child custody and visitation
    • - child neglect and abuse
    • - paternity
    • - termination of parental rights
    • - guardianship over minors
    • - juvenile delinquency
    • - persons in need of supervision
    • - protection orders
    • - adoption (Shares with surrogates court)
  12. appeals from the Family Court go to the Appellate Division
  13. Court of Claims has exclusive original jurisdiction over K and tort against State of New York; NO jurisdiction over other gov't entities such as city, town, and county
  14. Appeals from court of claims go to the Appellate Division for the Department in which the claim arose.
  15. NY Court of Appeals= highest court of the state; state wide jurisdiction in civil matters
  16. NY Court of Appeals: review confine to matters of law not matters of fact
  17. Appellate Terms of Supreme Court appeals from NYC Civil Court; exists only in first and second judicial departments
  18. Second department appeals from district court, city court, or justice court
  19. Subject Matter Jurisdiction: objection to a court's SMJ can be heard at any time, even on appeal.
  20. SMJ can never be waived by the parties
  21. general jurisdiction of state supreme court flows from State Constitution and cannot be restricted by the legislature
  22. removal= from one state court to another:
  23. removal: mistake: party may file a motion to Supreme Court to remove the action to the proper court. SC may remove action and can subject removal to such terms that are fair
  24. removal: to a higher court for greater relief if:
    -originally brought in court with proper jurisdiction
    -after case initiatied court lacks jurisdiction to grant the relief to which parties are entitled
  25. removal to higher court for greater relief:  process: removal motion filed in a court with adequate jurisdiction and court may then remove action to itself
  26. waiver of the right to jury trial is inoperative after removal
  27. removal to a lower court: if amount of damages sustained are less than demanded, and the lower court would have had jurisdiction but for the amount originally demanded, the lower court can remove with the consent of all parties OR pursuant to a rule of the applicable appellate dvision
  28. removal to a lower court: initial waiver of a jury trial is inoperative after removal
  29. removal from SC to surrogate's court if action affects a decedent's estate that is w/in the jurisdiction of the surrogate's court
  30. removal from county court to SC when the county judge is incapable of acting
  31. removal: only among local courts (i.e. district, justice, city): may be removed to same or adjoining county if the action is unlikely to be disposed of within a reasonable time
  32. general personal jurisdiction= court can entertain any action against that person
  33. specific personal jurisdiction= court can entertain an action only when there is a sufficient connection b/w New York and the person with regard to the action= jurisdiction arises out of the connectoin
  34. personal jurisdiction due process=
    • notice
    • opportunity to be heard AND
    • if D a non-domiciliary, a connection b/w the state, non-domiciliary, and the case
  35. general personal jurisdiction IF:
    • domiciled
    • physically present
    • statutory consent OR
    • doing business in NY
  36. domicile=
    physical presence AND intent to make NY home home indefinitely
  37. general personal jurisdiction: physical presence=
    • served process w/in NY
    • if Pship, presence of a partner in NY can establish jurisdiction for a suit against the Pship if partners served with process in NY
  38. general personal jurisdiction: physical presence: cannot fraudulently entice someone to NY to serve them
  39. general personal jurisdiction: physical presence: cannot serve a witness or party present in NY solely to attend a legal proceeding
  40. general personal jurisdiction: physical presence: cannot serve someone on a Sunday
  41. general personal jurisdiction: statutory consent= incorporated in NY
    authorized to do business in NY, including authorized foreign corps
    unathorized foreign corp if dealings in state are systematic and continuous with a "fair measure of permanence and continuity"
  42. unauthorized foreign corp: Not "doing business"=
    • mere solicitation of business
    • substantial sales and manufacturing in the state
  43. unauthorized foreign corp: "doing business" activities=
    • employing a sales representative w/in the state
    • maintaining an office
    • ownership of property
  44. specific personal jurisdiction: long arm= court can exercise jurisdiction over a non-domiciliary for a cause of action that arises out of any of the following acts within NY
    • transaction of any biz in NY
    • entry into a K to supply goods or services in NY
    • ownership, use, or possession of any real property
    • commission of a tortious act
  45. specific personal jurisdiction if one of the following:
    • - express consent: e.g. through forum selection)
    • - statutory consent: filing suit in NY; non resident drivers or owner of a vehicle
    • - long arm jurisdction
  46. may waive out of specific personal jurisdiction; must object in an answer or motion to dismiss
  47. specific personal jurisdiction long arm: court has SPJ if commission of a tortious act outside of NY causes injury in NY if  D does one of the following:
    • - regularly does or solicits biz in NY
    • - engages in any persistent court of conduct in NY
    • -derives substantial revenue from NY
    • - expects or should expect the action would have consequences in NY and derives substantial revenue from NY or interstate or int' commerce
  48. NY may exercise jurisdiction over the estate of someone over whom NY would have had jurisdiction
  49. long arm statute: transacting business: look at the quality and quantity of the acts; can be a single act; D need not be physically present
  50. "transacting business" via long arm statute requires much less activity than "doing business" for general jurisdiciton
  51. long arm: K to supply goods and services= D purposefully seeks to benefit from the NY commercial market by agreeing to ship goods or perform services and can reasonably expect to be sued in NY on causes of action arising from the K.
  52. K to supply goods/services: a claim for personal injuries sustained by a P who uses goods in NY but is not in privity with the D may still sue in NY if the D:
    • - could have foreseen that the injury would occur in NY and
    • - derived substantial revenue from interstate commerce
  53. long arm: real property= causes of action arising from the ownership, use, or possession of real property in NY
  54. long arm: tort in NY: conduct, not the consequences, must occur within NYS AND D must be physically present in NY when act is performed. BUT injury need not occur in NYS
  55. long arm: tort outside of NY that causes injury in NY= injury in NY + one of the following:
    • regularly "doing business" in NY
    • regularly solicit
    • persistent contacts
    • significant revenue
  56. tort: defamation exception: jurisdiction may not be based on commission of a tortious act whether committed inside or outside of NY, but may be other prongs of long arm
  57. agency: no long arm jurisdiction if agent rejects fiduciary shield or if action brought by agent to gain jurisdiction over her principal
  58. long arm: matrimony and fam law: divorce: NY court can grant divorce w/out having jurisdiction over a non-domiciliary party; marital statues is a res over which the court can exercise in rem jurisdiction
  59. long arm: matrimony and fam law: non-divorce actions: no automatic jurisdiction over a non-domicilary D. NEED sufficient contacts b/w d and NY OR:
    • - party seeking support is a resident or domicilary of NY a the time demand is made and NY was the matrimonial domicile of parties before separation; or
    • - D abandoned P in NY or
    • - clam accrued under NY law or under an agreement executed in NY
  60. SOL (see Skadden notes)
  61. SOL: measured from the time of accrual to the day the action is interposed
  62. SOL: commencement of action: in most courts, action commenced by filing (at such time, action is considered interposed)
  63. SOL: commencement of action: in justice courts (i.e. town, village), action commenced by service of process. In these case, the action is interposed when summons is served upon D, first publication of summons is made pursuant to order, OR summons is delivered to the sheriff of a county outside NYC or is filed with  the county clerk in NYC
  64. defenses and counterclaims are interposed when a pleading containing the defense or counterclaim is served
  65. interposition (serving, in this case) of a defense or counterclaim deemed timely if it would have been timely the day the P commenced the action
  66. defenses/counterclaims: even if counterclaim is untimely, may be used as a set-off against the P's claim if it arises out of the events giving rise to the P's claim
  67. amended pleadings must be timely at the time of filing of the amended pleading, unless the original pleading gave notice to the opponent of the events upon which the new claim is based. In that case, the time of the filing relates back to the filing of the original complaint
  68. plaintiff under a disability at the time an action accrues (i.e. under the age of 18 at the time an action accrues or insane): limitation period less than three years: when disability is removed, person has the full limitations period from that point in which to bring an action
  69. plaintiff under a disability at the time an action accrues (i.e. under the age of 18 at the time an action accrues or insane): limitation period 3 years or more and less than 3 years to run, extended for 3 years after disability removed.
  70. plaintiff under a disability at the time an action accrues: if limitation period 3 years or more and more than 3 years to run when disability removed, limitations period is unaffected, extended for 3 years after disability removed.
  71. For a person under disability b/c of insanity, the limitation period will not be extended more than 10 years after the cuase of action accrues.
    If infant, only a medical malpractice actions is capped at 10 years
  72. If D is outside NY when claim accrues, SOL generally does not being to run until the person returns to NY. If person leaves NY for a continuous period of four months or more, period is tolled during the person's absence from NY
  73. If D residing in NY under a false name, SOL tolled during the time the D resides in NY under a false name unknown to the person entitled to bring hte action
  74. NY may exercise jurisdiction over an absent D by service upon a designated agent within the state, service upon an officer of a corporation within the state; or service outside the state.
  75. If a P dies before expiration of a limitations period, representative may file an action within one year or within the otherwise applicable period, whichever is longer
  76. If a potential D dies, limitations period is tolled for 18 moths
  77. if a cause of action to recover property after death, the limitations period begins to run at the time the personal representative is appointed or three years after the decedent's death, whichever comes first
  78. generally, filing a motion to add a D to a pending action tolls the SOL until the court rules on the motion
  79. if a D is added to a lawsuit after the SOL has run as to that D, the filing of the amended complaint relates back to the filing of the original complaint if claims against both ds arouse out of the sam conduct, occurrence or transaction; the original and added Ds are united in interst; and the added D knew or should have known that the action would have been brought against him but for the p's mistake
  80. borrowing statute: when claims that accrued out of state are brought by an out of state resident, the claim is governed by both the NY SOL and the SOL of the place where the cause of action accrued
  81. borrowing statute: P must satisfy the shorter of the two limitations periods.
  82. borrowing statute discourages Ps from forum shopping
  83. SOL: court stays: tolled while stay is in effect
  84. SOL: demand for arbitration: tolled until there is adetermination that you don't have to arbitrate
  85. SOL: discovery: action may be brought within the longer of two years after the accrual or the period otherwise provided
  86. SOL: D must assert a defense by way of an affirmative defense or by a motion to dismiss in the answer. Failure to do so waives the SOL defense. Court cannot raise on its own.
  87. statute of repose: a statute may dictate that the action must be brought w/in a specific time period
  88. statute of repose fixes the time period as a condition precedent to maintaining an action, rather than barring the P from asserting a remedy. The time limit cannot be waived by a party's failure to assert it as a defense
  89. laches: based on prejudice, not a specific time period, and is an equitable defense
  90. commencement of an action: generally, when a complaint is filed and the D is served
  91. in some courts, action commenced by service
  92. if commenced by filing, the filing date is the date on which the SOL is measured
  93. commencement in Supreme Court and County Court= filing the summons and a complaint with the clerk. If an ejection action, file a petition.
  94. commencement in SC and County Court: if the court finds immediate filing is not an option, it can order subsequent filing by a specific time and date, not to exceed 5 days thereafter.
  95. commencement in SC and County Court: if a mistake in filing, courts may permit them to be corrected on such terms that are just or disregard mistakes and defects if no substantial right is affected
  96. commencement in district courts, city courts, and NYC civil courts: action commenced by filing complaint and summons with the court clerk and paying fee
  97. commencement by service in town and village justice courts; no filing requirement or fee payment. Must usually serve summons, but sometimes also notice of petition
  98. service: Due process requires that the D be given notice and an opportunity to be heard
  99. service: when theD is a non-domiciliary, service of process is insufficient to fulfill the requirements of due process unless the P can establish minimum contacts by the D with NY
  100. who can serve and when?
    • anyone over 18
    • persone serving cannot be party to the action
    • no service on Sundays, event out of state service
    • if the action brought in a court where commencement is by filing, service must be made wihitn 120 days after commencement
    • for a proceeding with a SOL of four months or less (i.e. Article 78 proceedings) service must be made within 15 days of expiration of statute
    • extensions may be granted upon a showing of good cause or in the interests o justice.
  101. when P fails to make a timely service, D may motion the court to dismis the action as to that D. Dismissal is w/out prejudice, so may re-serve at another time
  102. types of service: personal delivery= delivery directly on an individual within NY. If D resists, server can leave docs in D's presence. Leave at the the door that the D has answered, announcing that process is being served
  103. types of service: leave and mail: leaving a copy with someone of suitable age and discretion at the actual place of D's business or dwelling, or usual place of abode within NY AND by mailing a copy of the process to the last known residence.
    - delivery and mailing must occur within 120 days of one another 
    - MUST SAY "personal and confidential" on the envelope and may not indicate that the document is from an attorney or concerns an action
  104. types of service: service on a designated agent: must be in writing; effective for 3 years; with court order may be used for matrimonial actions
  105. types of service: nail and mail: if personal delivery or leave and mail cannot be accomplished, a copy can be nailed to the door of the D's actual place of business or dwelling or usual place of abode in New York. A copy must then be mailed to the D's last known residence or actual place of business.
  106. nail and mail has same mailing requirements as leave and mail service
  107. nail and mail due diligence: a single visit is not sufficient; but is a question of fact for the court
  108. service on corporations: if personal service, personally deliver summons to an officer, director, or agent.
  109. service on corporations: for domestic corporations and authorized foreign corporations, service is on secretary of state. 2 copies must be delivered. Unauthorized corporation may be served by service on SoS AND mailing a copy to the corporation OR personal service on an officer, director, or agent
  110. service on corporations: court ordered service: if service w/in the 120 days is shown to be impracticable, P may seek an order by the court permitting service by another method
  111. service on partnerships: may
    -personally serve any partner
    -deliver to an agent or the person in charge of the Pship and mail to a partner's last known address or the business address of the Pship OR
    -if personal delivery or leave and mail not possible after due diligence, leave a copy of the summons at he P'shps's place of business and mail in the same manner as leave and mail.
    - serve on an emplyee or authorized agent OR any person authorized in writing and filed OR 
    - if all above fail, court may order another method of service after an ex parte hearing
  112. service on any domestic or foreign limited partnership can be achieved by:
    -personal delivery to a managing agent or partner, or 
    -any other authorized agent or employee, or 
    - any other agent designated by the partnership
  113. if unincorporated association: service must be made on the treasurer or president of the association
    cannot be sued in the association's name; sue the president or treasure
  114. if LLC: service is made by delivery of process personally to any member or manager of the LLc in NY vested with managmeent duties or 
    anyo the rperson or agent designated or appointed to receive process
  115. LLC service: if impracticable, may seek court ordered service. May also effect service by delivery to the NY SoS
  116. service on MOST D's may be effected by first class mail. Mailing must include an acknowledgement receipt form. D or his attorney must complete and return within 30 days.
  117. first class mail: service is complete on the day the acknowledgment is mailed or delivered back to the sender. D must answer within 20 days of mailing the receipt. By doing so, D has NOT waived the right to contest the lack of personal jurisdiction.
  118. A D who is a domiciliary of NY or is subject to the long arm statute or a D's executor administrator may be served outside the state in the same manner as in-instate by any person who would be authorized to make service within NY; any person authorized to make service where service is made; or any attorney, barrister, or equivalent in a foreign jurisdiction
  119. in rem & quasi in rem: if court has in-rem or quasi in rem jurisdiction, process may be served outside of NY by using NY's statutory methods of service. May also serve by publication
  120. serve by publication: in addition to notice, a brief statement of the action and of the relief sought must be published. Except in a medical malpractice case, the sum of moeny to be taken in case of a default must also be publshed
    - if affecting real property, the notice must describe the proeprty
    - publication must be made in 2 newspapers
    - must be for a specified amount of time: at least once in each of 4 successive weeks
  121. proving service of process: when service is complete, generally no proof required except when :
    - leave and mail or nail and mail on an individual pship 20 days
    - service of an unauthorized corporation 30 days
    - non-resident driver or owner 30 days
  122. proof: depends on who effected service:
    if sheriff: certificate
    another person: affidavit
    mail: signed acknowledgment
  123. above forms are prima facie evidence of proof of service. If D chooses to object or challenge, burden on P to establish by a preponderance of the evidence that service was made.
  124. venue- loation of the court in which the action is brought
  125. if real estate, venue is proper in the county where the real property is located
  126. for everything else, venue is proper in the county in which one of the parties resides. If neither party is a resident of the state, any county in NY is a proper venue. A party who is a resident of more than one county is deemed to be a resident of every county
  127. venue:
    corporation= principal place of business as listed on its certificate of incorporation
    partnership= princiapl offices and the counties of the individual owners of the biz
    governmental entities: if county, county; if city, town, village, school district, or district corporation, where D is located; NYC= county where cause of action arose or New York county if outside the cit
  128. an agreement to venue made in writing before the action is commenced is generally enforceable. BUT a court may, upon motion, change the place of trial if there is a reason to believe that a fair trial cannot be had in that venue
  129. if there is a conflict as to the proper venue due to the joinder of parties or claims, the court may, on a motion, order the place of trial to be a county where venue is proper as to at least on party or one claim
  130. venue cannot be changed absent a motion; the court cannot do it on its own
  131. change of venue as of right: when the P files an action in an improper county, th eD must serve a demand for change of venue on the P with or prior to hte answer
  132. change of venue as of right: If P does not consent to the change within 5 days, D may file a motion w/in 15 days. The court must grant the motion of the P commenced the action in an improper venue.
  133. discretionary changes of venue motions may be made on two grounds:
    • a fair trial cannot be obtained in the present venue or the nature of the case may create prejudice against a party in the present venue OR
    • the convenience of material witnesses and the ends of justice will be promoted by the change
  134. forum non conveniens= forum is proper but incovenient. Proper remedy is dismissal of the action. On the motion of any party, a court may stay or dismiss an action if the court finds that, in the interest of substantial justice, the action should be heard in a different forum
  135. forum no conveniens: court may require the party making the motion to agree to any terms that are just.
  136. NY domicile or residence of any party does not preclude the court from staying or dismissing the action
  137. forum non conveniens factors:
    -burden on the court- reluctant to hear caess involving foreign parties or the application of foreign law
    - burden on D
    - location of witnessess and relevant evidence
    - availability of adequate alternative forum
    - improper motive
    - P's choice of forum: In NY, there is a strong presumption in favor of P's choice. D must present compelling evidence to disturb P's choice
  138. A foreign corporation doing business in NY without authority may not initiate suit in NY courts unless it has paid all applicable fees, penalties, and taxes
  139. actions against a foreign corporation by NY corporations or individuals are permitted
  140. If a non-resident or foreign corporation is suing a foreign corporation in a NY court, must meet one of the following requirements:
    - the action is for breach of K made or to be performed in NY, or that relates to property that was in NY when the K was made
    - the subject matter of the case is in NY
    - the claims is in NY
    - D would be subject to long arm jurisd
    - D is doing business or is authorized to do biz in NY
  141. If parties to a K valued at $1 mil or more expressly agree that NY will be the forum for any dispute and that NY law will apply, an action in NY Against a foreign D can be maintained despite these rules
  142. Provisional remedies: prelim injunction: proper in 1) equitable actions in which the ultimate relief sought is a permanent injuction and                 2) other actions in which the D threates to harm P’s interst in a specific subject matter of the action.
  143. motions: motion to dismiss: Under the CPLR, a motion to dismiss is a request that the court dismiss the case because of settlement, volutnary withdrawal, or a procedural defect [see table]
  144. motion to dismiss: 

    party may move for judgment dismissing one or more causes of action asserted
    against him on a number of grounds including: (1) documentary evidence; (2)
    other action; (3) want of capacity; (4) non-joinder of a necessary party; (5)
    failure to state a cause of action; or (6) an affirmative defense.