NY Civ

New York trial courts: two questions:

NY Supreme court (trial court) only state trial court with general original jurisdiction

NYSC, exclusive original jurisdiction ovr:

NYSC: concurrent jurisdiction over almost everything else; can transfer cases over which it has concurrent jurisdiction to or from the supreme court

NYSC CANNOT hear claims against the state or exclusive federal matters

Appellate Division of the Supreme Court= appeals.

County courts: limited jurisdiction; includes:

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

NYC civil courts have original jurisdiction over:

appeals from NYC Civil Courts go to Appellate Term

Family court has original jurisdiction over:

appeals from the Family Court go to the Appellate Division

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

Appeals from court of claims go to the Appellate Division for the Department in which the claim arose.

NY Court of Appeals= highest court of the state; state wide jurisdiction in civil matters

NY Court of Appeals: review confine to matters of law not matters of fact

Appellate Terms of Supreme Court appeals from NYC Civil Court; exists only in first and second judicial departments

Second department appeals from district court, city court, or justice court

Subject Matter Jurisdiction: objection to a court's SMJ can be heard at any time, even on appeal.

SMJ can never be waived by the parties

general jurisdiction of state supreme court flows from State Constitution and cannot be restricted by the legislature

removal= from one state court to another:

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

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

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

waiver of the right to jury trial is inoperative after removal

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

removal to a lower court: initial waiver of a jury trial is inoperative after removal

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

removal from county court to SC when the county judge is incapable of acting

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

general personal jurisdiction= court can entertain any action against that person

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

personal jurisdiction due process=

general personal jurisdiction IF:

domicile=

general personal jurisdiction: physical presence=

general personal jurisdiction: physical presence: cannot fraudulently entice someone to NY to serve them

general personal jurisdiction: physical presence: cannot serve a witness or party present in NY solely to attend a legal proceeding

general personal jurisdiction: physical presence: cannot serve someone on a Sunday

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"

unauthorized foreign corp: Not "doing business"=

unauthorized foreign corp: "doing business" activities=

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

specific personal jurisdiction if one of the following:

may waive out of specific personal jurisdiction; must object in an answer or motion to dismiss

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:

NY may exercise jurisdiction over the estate of someone over whom NY would have had jurisdiction

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

"transacting business" via long arm statute requires much less activity than "doing business" for general jurisdiciton

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.

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:

long arm: real property= causes of action arising from the ownership, use, or possession of real property in NY

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

long arm: tort outside of NY that causes injury in NY= injury in NY + one of the following:

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

agency: no long arm jurisdiction if agent rejects fiduciary shield or if action brought by agent to gain jurisdiction over her principal

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

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:

SOL (see Skadden notes)

SOL: measured from the time of accrual to the day the action is interposed

SOL: commencement of action: in most courts, action commenced by filing (at such time, action is considered interposed)

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

defenses and counterclaims are interposed when a pleading containing the defense or counterclaim is served

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

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

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

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

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.

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.

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

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

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

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.

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

If a potential D dies, limitations period is tolled for 18 moths

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

generally, filing a motion to add a D to a pending action tolls the SOL until the court rules on the motion

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

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

borrowing statute: P must satisfy the shorter of the two limitations periods.

borrowing statute discourages Ps from forum shopping

SOL: court stays: tolled while stay is in effect

SOL: demand for arbitration: tolled until there is adetermination that you don't have to arbitrate

SOL: discovery: action may be brought within the longer of two years after the accrual or the period otherwise provided

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.

statute of repose: a statute may dictate that the action must be brought w/in a specific time period

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

laches: based on prejudice, not a specific time period, and is an equitable defense

commencement of an action: generally, when a complaint is filed and the D is served

in some courts, action commenced by service

if commenced by filing, the filing date is the date on which the SOL is measured

commencement in Supreme Court and County Court= filing the summons and a complaint with the clerk. If an ejection action, file a petition.

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.

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

commencement in district courts, city courts, and NYC civil courts: action commenced by filing complaint and summons with the court clerk and paying fee

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

service: Due process requires that the D be given notice and an opportunity to be heard

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

who can serve and when?

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

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

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

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

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.

nail and mail has same mailing requirements as leave and mail service

nail and mail due diligence: a single visit is not sufficient; but is a question of fact for the court

service on corporations: if personal service, personally deliver summons to an officer, director, or agent.

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

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

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

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

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

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

LLC service: if impracticable, may seek court ordered service. May also effect service by delivery to the NY SoS

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.

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.

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

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

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

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

proof: depends on who effected service:
if sheriff: certificate
another person: affidavit
mail: signed acknowledgment

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.

venue- loation of the court in which the action is brought

if real estate, venue is proper in the county where the real property is located

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

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

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

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

venue cannot be changed absent a motion; the court cannot do it on its own

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

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.

discretionary changes of venue motions may be made on two grounds:

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

forum no conveniens: court may require the party making the motion to agree to any terms that are just.

NY domicile or residence of any party does not preclude the court from staying or dismissing the action

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

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

actions against a foreign corporation by NY corporations or individuals are permitted

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

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

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.

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]

motion to dismiss: 














A
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.