NY Practice

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dekocards
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92942
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NY Practice
Updated:
2011-07-11 20:37:03
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Civil Procedure New York Bar Exam
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Review of the New York Practice Rules for the Bar Exam
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  1. In what areas do NY supreme courts not have general jurisdiction?
    1) Cases with exclusive federal jurisidction (bankruptcy, copyright, patent);

    2) Claims for money damages in tort or contract against the State of NY (They go to NY Court of Claims)

    NOTE: Employees of the state must be sued in NY Supreme Court.
  2. In what areas does NY Supreme Court have exclusive jurisdiction?
    • 1) Matrimonial actoins (adjudicating the marital status);
    • 2) CPLR Article 78 proceedings (review of administrative action);
    • 3)Declaratory judgment action (judicial declaration of the rights and obligations of the parties to an actual controversey before one of them engages in conduct that could cause liability)
  3. What must a plaintiff do to satisfy the Statute of Limits (SOL)?
    The action must be commence no later than the lastt day prescribed by the SOL.

    An action is commenced when filed process with the clerk of the court.
  4. What is the statute of limitations for a medical malpractice case?
    THe period is 2.5 years from the date of accrual which is the date of the malpractice.

    • Discovery of malpractice is irrelevant UNLESS:
    • Foriegn object -- then you get 1 year from date of discovery or date when should have discovered.

    Continuous treatment for the same exact condition tolls date.
  5. What is the SOL for non-medical professional malpractice?
    For learned professions (lawyers, engineers, accountants, architechs NOT insurance brokers, securities analysts, plumbers) 3 years from the termination of the particular services in which the malpractice occurred.

    Continuous representation tolls the SOL.

    BUT look for personal injury in architect cases, still 3 years from the date of the injury.
  6. How are architects implicated by SOL, specially?
    • If a suit is commenced against an architect more than 10 years after the building was completed, P must:
    • 1) Serve notice of the claim against the architect at least 90 days before suit;
    • 2) P may obtain pre-action discovery from the potential defendant during the 90 day waiting period;
    • 3) After suit commences, D may move for summary judgment, the burden will be on plaintiff to make and immediate evidentiary showing that there is a "substantial basis" to believe that D's negligence caused the injury.
  7. What is the statute of limitations for a tort against person or property committed by a municipality?
    SOL is 1 year and 90 days from date of accident.

    Must serve a seperate notice of claim no later than 90 days after the accident.
  8. What is the SOL in a products liability case for:

    Negligence?
    Strict Liability?
    Breach of Warranty?
    Negligence - 3 years from date of injury against all defendant's in chain of distribution.

    Strict Products Liablity - 3 years from date of injury against all defendants.

    Breach of Warranty - Under UCC, 4 years from the date particular defendant made delivery of the product.
  9. SOL for indemnity and contribution claims?
    6 years from date of payment of the judgment.
  10. What is the SOL for discovery of a toxic substance?
    • Three years from the ealier date of:
    • 1) Discovery of injury,
    • 2) Date injury should have been discovered with reasonable care.
  11. What Tolls or Extensions exist for SOL as a result of Defendant's absence?
    Absence: Defendant not in NY when cause of action accrues, SOL doesn't begin until Defendant enters NY. If Defendant leaves NY for at least 4 months, Toll applies for entire absence. BUT not available if Plaintiff has a basis for PJ over defendant, such that process could be validly served.
  12. What Tolls or extensions exist as a result of plaintiff's legal disability?
    1) Infants under 18 - when they turn 18 they have either 3 years, or the remaining period on the SOL. If SOL less than 3 years, they get 1 year from turning 18. BUT in no event can a malpractice claim last for more than 10 years.

    2) Insane - Get longer of 3 years or SOL from time disability ends, or for SOL's less than 3 years, they get one year after disability. No cause of action can be brought 10 years after accrual.
  13. What tolls or extensions are available for plaintiffs deaths?
    1) Wrongful death actions have a 2 year SOL from date of death (BUT must show that decedant had a valid cause of action at time of death)

    2) Survival claims get a one year extension from plaintiff's death if they SOL had not expired at time of death (or the remaining original SOL time if longer)
  14. What tolls or extensions are available fro a defendant's death?
    If a potential defendant dies before the SOL expires, there is always 18 months added to the relevant SOL.
  15. How long does a plaintiff have to refile a case that was duly commenced but dismissed with 6 months or less remaining on the SOL?
    • Plaintiff has 6 months, UNLESS:
    • 1) Dismissal on merits;
    • 2) Voluntary discontinuance by plaintiff;
    • 3) Dismissal based on plaintiff's neglect to prosecute in a general pattern of delay;
    • 4) Dismissal for lack of personal jurisdiction. (Lack of SMJ gets extension).
  16. What is the "Borrowing Statute"?

    Hint: deals with statutes of limitations
    If a cause of action arises outside of NY, and a non-NY Resident is plaintiff, court will apply the shorter statute of limitation.

    NY Residents always apply NY SOL.
  17. When must process be served on a defendant?
    120 days from the filing with the county clerk.

    BUT either good cause or the interests of justice can warrant an extension.

    NOTE: Defendant must preserve the defense and make a motion on it.
  18. What forms of process are there in NY?
    Summons and complaint

    • Summons with Notice
    • Includes:
    • 1) a brief statment of the nature of hte action;
    • 2) type of relief sought, e.g. injunction declaratory judgement, damages;
    • 3) Amount of damages (but never in personal injury or wrongful death cases).
  19. How can process be served?
    • The Server
    • 1) May be served by any person who is at least 18 years old, provided they are not party to the action;
    • 2) Process may be served on any day of the week except Sunday (or saturday if Plaintiff knows that Saturday Sabbath observer).

    • Natural Persons
    • 1) Personal delivery on D (complete upon delivery)
    • 2) Leave and Mail -- leave with person of suitable age and discretion at actual dwelling place or actual place of business and mail to actual place of business or last known residence.
    • 3) Affixing and mailing -- after due diligence of the above attemps, may tape to door of actual dwelling or business place, and maile ot actual business place and last known residence.
    • 4) Expedient Service -- (Court Invented Service) -- may use any other reasonable alternative appropriate in the circumstances.
    • 5) Agent Specifically Designated by Defendant to Recieve Process -- e.g. a commercial contract party expressly specifies agent.
    • 6) Service on infants and mentally incapacitated -- may serve on
    • a) a parent;
    • b) a guardian;
    • c) any person having legal custody;
    • d)any person married to the adult spoud w/ whom infant resides.
    • NOTE: If infant over 14, must serve on them.
  20. How must service be made outside NY State?
    Any NY resident who is over 18 may serve, or anyone authorized to serve process by the laws of the other jurisdiction, or a lawyer licensed in other jurisdiction.

    The method of service is the same as that allowed in NY.
  21. How may service be made on a corporation?
    a) personal delivery to corporate rep: 1) officer, 2) director, 3) designated agent, 4) managing agent; (If basis for jurisdiction over corp, service may be made anywhere in US);

    b) 1) Service on the Secretary of State: for a domestic corporation or fieght corporation authorized to do business in NY (Licensed corporation) give two copies to secretary of state; 2) for a unlicensed forieng corporation: one copy to Sec. State plus plaintiff mails copy to corp by certified mail return receipt requested.
  22. What are the Bases of jurisdiction over a plaintiff's person?

    Both general and specific?
    • General Jurisdiction:
    • a) Pesence in NY
    • b) doing business in NY
    • c) domicile in NY
    • Specific jurisdiction:
    • d) Long-arm jurisdiction
    • e) Non-resident motorist stutute
    • f) consent
  23. Personal Delivery while Plaintiff is Present in NY?
    SC has held that "gotcha" jurisdiction is sufficient to render a general basis of jurisdiction.
  24. What is "doing business" in NY that leads to GENERAL jurisdiction?
    1) A domestic corproation is subject to personal jurisdiction in NY, no matter where the claim arrose.

    2) A foriegn corporation that has become authroized to do business in NY i.e. is licensed in NY.

    3) Unlicensed foreign corporation is "doing business" in NY if: at the time the action is commenced, the corproation's employees or agenst are in New York engaging in commercial activity in NY on a regular or systematic and ongoing basis.

    Most significant factor is an office or other facility in NY with employees coming and going on a regular systematic and ongoing basis.

    NOTE: mere sales of corp's products or advertising in NY does not constitute doing bysiness in NY.
  25. Who is domiciled in NY such that NY Courts have general jurisdiction over them.?
    Domicile is the one residence at which a person intends to remain indefinitely and is treated by her as the principle home (person only has one domicile).
  26. What is the "Long Arm" Power?
    NY CPLR 302 grants NY to exercise jurisdiction over certain people with "minimum contacts" with the state of NY such that jurisdiction would be reasonably anticipated by the defendant.

    • 5 Categories of Long- Arm Power:
    • 1) P's claim arises from a transaction of Business by Defendant in NY.
    • 2) P's claim arises from a contract transacted anywhere by which defendant agreed to provide goods or services in NY.
    • 3) P's claim arised form a tortious act in NY.
    • 4) P's claim arised from D's tortious act outside NY which causes injury in NY, PLUS a) D regularly solicits business or engages in any other persistent course of conduct in NY or b) D derives substantial revewue from goods used or consumed, or services rendered in NY; or c) D expects (or should reasonably expect) the act to have consequences in NY AND derives substantial revenue from interstate or international commerce.
    • 5) P's claim arises from D's ownership use or possession of Real property in NY.
  27. What is the non-resident motorist statute?
    Overlaps with the CPLR 302 "tortious act in ny" prong. A non-domicilliary motorists ownership or use of a vehicle that is in NY and commits a tortious act in NY can be hailed into court.

    Service by process by serving Sec. State personally and mailing certified to D's out of state residence.
  28. When do NY Courts have marital jurisdiction?

    For monetary support?
    • 1) NY Supreme Court has sole marital jurisdiction.
    • 2) To obtain divorce, seperation, annultment Plaintiff must only be domicilliary of NY.
    • 3) Marital Long-Arm Statute (for monetary support), where:
    • a) NY was the matrimonial domicile of D and P prior to their separation;
    • b) D abandoned P in NY;
    • c) D's monetary obligation accrued under and agreement executed in NY;
    • d) D's monetary obligation accrued "under the laws of NY."

    BUT service must be personal or with judicial permission.

    AND durational requirements for merits of a NY divorce.
  29. What are the NY durational residencty requirements for a Divorce in NY?
    • Plaintiff's Divorce Complaint must alleged ONE:
    • a) Both parties are NY residents at the time the action is commences AND the grounds for action arose in NY (NO PERIOD REQUIRED)

    b) One Year Residency: if either party has been a NY resident for a continious period of 1 year immediately prior to the action AND NY has any of the prior links to the marriage: 1) Marriage took place in NY, 2) NY was the matrimonial domicile of the spouses at some point; or 3) Grounds for divorce action arose in NY.

    c) Two Year Residency: if either party has been a NY resident for a continous period of at least 2 years prior to the action taken.
  30. Where is venue proper in NY?
    1) In an action involving claim of title or possession for real property, proper venue is in the county in NY in which real property is lovated.

    2) All other actions, venue is any county in NY in which one fo the parties resides at the time the action is commenced, if NONE, any county.

    If D thinks venue imroper, serve demand for change of venue to a propert county designated by defendant.
  31. What are discretionary grounds for change of venue?
    1) The convenience of a material witness: eitehr party may move to request change to a country that would be most convenient for witness (often where cause of action arose).

    2) If there is a reason to believe that an impartial trial cannot be had in teh country where the action is commenced, either party may make a motion to change venue.
  32. How can a defendant respond to a summons and complaint?
    1) Serve an answer

    2) Pre-answer motion to dismiss
  33. What does a defendant's answer consist of?
    • 1) Denials of the allegations D wishes to contest (failure to deny any allegation is an implied admission); AND
    • 2) any affirmative defenses (affirmative defenses not raised in the answer are waived);
    • 3) Counterclaims D wishes to assert;
  34. How are interlocutory papers served?
    First class mail, but may be served by personal delivery. ONly serve attorneys.

    Must use a post office depository under exclusive control of USPS and in NYS.
  35. What are the time limits for serving an answer in NY?
    If D was personally served in NY: 20 days.

    If D was served with proess by first clais mail plus acknoledgement: 20 days after D mails acknoledgment form.

    Anything else: 30 days.
  36. What due process must be satisfied for a state to exercise long arm jurisdiction?
    Claim must arise out of conduct of the Defendant that is so purposfully directed toward State that the defendant should reasonably anticipate being sued on that claim in the State.
  37. What are the grounds for a CPLR 3211 Motion to Dismiss?
    • 1) Documentary Evidence (basis for a defense, e.g. mortgage, deed, or contract);
    • 2) Other ACtion Pending b/w parties reL same cause of action;
    • 3) Want of Capacity (plaintiff is an infant suing without proper representative);
    • 4) Non-joinder of a necessary party (e.g. comakers of a promissory note, joint property owners);
    • 5) Failure to state a cause of action:
    • a) In responding to the motion, P is entiteled to every favorable inference that can be drawn from the allegations of the complaint,
    • b) The motion should be denied if there is any basis for relief under the substantive law.
    • 6) Additional affirmative defenses;
    • 7) Lack of personal jurisdiction:
    • a) imrpoper commencement procedure,
    • b) improper service of process,
    • c) lack of basis for P. jurisdiction;
    • 8) Lack of SMJ.
  38. What additional arrifmative defenses are there that may be basis for a CPLR 3211 Motion to Dismiss?
    • SPARERIBS
    • 1) Statute of Limitations,
    • 2) Payment,
    • 3) Arbitration award,
    • 4) Release,
    • 5) Estoppel (collateral estoppel),
    • 6) Res Judicata,
    • 7) infancy of Defendant,
    • 8) Bankruptcy discharge,
    • 9) Statute of frauds.
  39. How do you make a CPLR 3211 Motion to Dismiss?
    1) File before the service of the answer (on or before the last day allowed);

    2) Must serve answer w/in 10 days of a denial of a CPLR 3211 MTD;

    3) May only file one CPLR 3211 MTD, but may raise multiple grounds in the motion.
  40. What defenses may be waived where not included in a CPLR 3211 Motion to Dismiss?
    Will only waive a defense based on lack of Personal jurisdiction.

    Does not waive any other affirmative defense.

    NOTE: Must also make a followup motion for summary judgment on the improper service of process to assser the jurisdictional defect.
  41. What defenses are never wiaved if not included in an answer?
    1) Nonjoinder of a necessary party;

    2) Failure to state a cause of action;

    3) Lack of subject matter jurisdiction.
  42. How may a defendant respond to a summons on notice?

    i.e. a summons without complaint
    1) Serve a demand for complaint;

    2) Serve a notice of appearance;

    Note: response time is same for time to answer.
  43. IF plaintiff fails to serve an answer withint 20 days of a demand for complaint?
    D may move to dismiss:

    • P must:
    • 1) Show a reasonable excuse for delay; AND
    • 2) Make an evidenctiary showing tha thtere is merit to the cause of action (acffidavit of merit).
  44. When may a party amend a pleading?
    1) Each party may amend the pleading as a matter of right up to 20 days after Defendant serves the answer.

    • Defendant may add a waived personal jurisdiction defense provided:
    • 1)Def. made no pre-answer CLPR 3211 MTD, AND
    • 2) Def. adds jurisdictional amendment to the answer w/in 20 day sof serving the original answer.
  45. May the court allow an additional amended answer or complaint?
    Yes: if the opponent will suffer no incurable prejudice (presumption is in favor of amendments).

    In oppossition: must show a detrimental change of possition as a result of the delay.
  46. What are the steps for impleading a third-party defendant?
    • 1) File: summons and third-party complaint;
    • 2) serve: w/in 120 days of filing a copy of a summons and third-party complaint on Third-Party Defendant.

    note: D must also serve Plaintif and all other parties who have appeared in the action.
  47. What is the Relation-Back Doctrine Governing SOL for Claims Added by Amendment of Complaint?
    For SOL purposes, P's added claim againt a third-party defendant will be deemed interposed on the date Third-party was impleaded by the Defendant.
  48. What is "Indemnity?"
    THis allows one party to shift 100% of the responsibility to another party:

    1) By Contract;

    2) Implied-in Law:

    a) Products liability: a retailer held liable for selling defective product is entiteld to indemnity from manufacturer.

    b) Vicarious liability situations: e.g. Vehicle owner liability.
  49. What is "Contribution?"
    Contribution involves sharing of the loss--apportionment--among multiple tortfeasors.

    Substantive law rule: right to contribution whenever TPD breached a duty in tort which contributed to or aggravated teh damages for which Def. may be held liable to Plaintiff.

    MS Rule: Contribution is not allowed in intentional wrongdoing liability.

    NY Rule: Controbution is allowed for all tort liability.
  50. What is equal shares contribution?
    ONLY MBE: Jurisdiction may require that each tortfeasor pay percentage based soley on a division by number of tortfeasors. Thus: three tortfeasors = 33.33% liability.
  51. How much can can you seek from a party in contribution?
    A party may not be required to pay more than their equitable share of the damages.
  52. What limitations exist for employer contribution where employee is injured?
    • Third-party is barred from seeking contribution or indemnity from Plaintiff's employer unless:
    • plaintiff suffered grave injury
    • i.e. death; total loss of an arm, leg, hand, foot, nose, ear or index finger. Total loss of multiple fingers or toes; paraplegia or quadriplegia, sever facial disfigurement, total deafness or blindness, or brain damage.
  53. What is the reduction function for a settlement where multiple tortfeasers are held jointly and severally liable?
    • Any judgment for Plaintiff against a non-settling tortfeasor must be reduced by either:
    • 1) the amount of the settlment, or
    • 2) the settling tortfeasor's equitable share of the fault (whichever is larger).
  54. May a settled party be sued for contribution?
    No: policy encourages settlment.
  55. May a party who settles sue or be sued for indemnity?
    Always.
  56. How does CPLR Article 16 Modify Joint and Several LIability?
    • When a joint tortfeasor is:
    • 1) 50% or less at fault, AND
    • 2) P has sustained non-economic losses

    Join tortfeasor may be required to pay only her own share of the Plaintiff's non-economic losses (Pain and suffering and loss of consortium).

    Note: does not apply to wrongful death claims.
  57. Who is excluded from Article 16 Protections?
    Bad Guy Exclusions:

    1) Intent or reckless disregard for safety of others.

    2) Tortfeasors who released hazardous substance.

    3) Drivers and owners of motor vehicles other than police and fire vehicles.
  58. How do you file a motion on notice?
    • 1) Serve the papers:
    • a) A notice of motion (w/ return date);
    • b) Affidavits showing why it should be granted;
    • c) Memoradum of law;
    • 2) Motion is made upon mailing;
    • 3) must give at least 8 days before hearing date;
    • 4) Motion papers must be filed with court no later than return date;
  59. What is an Order to Show Cause?
    An alternative to a motion on notice:

    Can accelerate return date by making a motion for Order to Show cause which a judge signs EX PARTE.

    Judge may also enter a temporary restaraining order pursuant to a motion for order to show cause.
  60. What is the period in which an interlocutory appeal to an order must be made?
    Appellant has 30 days from entry by the clerk of the court.

    If you miss the appeal window, you must wait for a final judgment to appeal.
  61. When may a parte file an ex parte motion?
    Only with expess statutory authorization.
  62. How do you appeal an ex parte order?
    YOU DON'T! File a motion on notice to vacate the ex parte order. Then appeal the denial of the motion.
  63. What is a motion for summary judgment?
    A party moves if it can show that there is "no genuine issue of material fact requiring a trial, and they are entitled to summary judgment as a matter of law." Must show using affidavits, relevant documents, and discovery materials (interrogatories);

    Must move for summary judgment no later than 120 days from the filing of the note of issue (document asking for a trial);
  64. If a movant on a motion for summary judgment meets burden, how can opponent defeat the motion?
    Must demonstrate contrary evidence that a tryable issue does exist using affidavits, documents, or discovery materials. Cannot rest on the pleadings.
  65. What does it mean when a court, "Searches the record," during deliberations on a motion for summarry judgment.
    The court reviews all documents in the record regardless of which side submits it.

    Boomerang Affect: The court may grant summary judgment to the opponent even if the opponent did not make a cross-motion for such relief.
  66. When may a party make a pre-answer motion for summary judgment?
    • 1) Conversion of a motion to dismiss for failur eto state a cause of action if:
    • a) At least one party submitteed evidence, AND
    • b) Court gives parties notice and opportunity to sumbit evidence.

    • 2) Motion for Summary judgment in lieu of a compllaint, where:
    • a) action on instrument for payment of money only;
    • b) action on an out-of-state judgment.

    Procedure: Party must file process, notice of motion for summary judgment and supporting documentation/affidavits.
  67. What are the five provisional remedies available in New York?
    • 1) Attachment;
    • 2) Preliminary Injunction;
    • 3) Temporary recievership;
    • 4) Order to seize chattel in an action to recover chattel (replevin);
    • 5) Notice of Pendency (lis pendens).
  68. How to obtain attachment of defendant's property?

    When is Defendant entitled to damages from attachment?
    • 1) Affidavits demonstrating defendant is a presumptive security risk:
    • a) Unlicensed foreign corporation or a non-domicilliary residing outside of NY; OR
    • b) Def. is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment.

    2) A probabiliyt of success on the merits of the P's underlying claim;

    3) P must take an undertaking (bond) to inemnify Def. from damages of the attachment.

    • Def. is entitled to damages:
    • 1) Attachment made by improper procedure;
    • 2) Def. wins case on merits.
  69. When must a plaintiff who has attached by ex parte motion serve a motion on notice to confirm the order?
    If unliscensed foreign corp. or a non-domiciliary residing outside of NY: must be served no later than 10 days after levy.

    If defendant is fraudulently moving assets: No later than 5 days after levy.
  70. How must a Plaintiff obtain an preliminary injunction?
    • May obtain in a situation where eitehr:
    • 1) Perminent injunction sought; or
    • 2) Def. threatens to harm P's interest in the subject matter of the action.

    • Procedure: Must be a motion on notice
    • 1) Pl's affidavits show grounds for relief including threat of irreparable injury;
    • 2) Probablity of success;
    • 3) P must provide an undertaking to indemnify Def. for damages.
  71. How can a plaintiff obtain a Temporary Restraining Order (TRO)?
    While making a motion for preliminary injunction, move for Preliminary injunction by order to show cause, scheduling an early return date for the motion with a TRO. The TRO must be accompanied by an affidavit demonstrating significant prejudice to the moving party if notice is given before TRO.
  72. How may a plaintiff recieve an order for Temporary Recievorship?
    A temporary recievor is a person appointed by the court to manage property in Def.'s possession.

    P must be asserting an equity claim with the specific property as teh subject matter of the action, AND there is a danger that D will unjure or destroy the value of the property while teh action is pending. Requires a Motion on Notice.
  73. How does a Plaintiff get an order for seizure of chattel?
    Action must be for Replevin only.

    • Procedure:
    • 1) P's affidavits must probable success;
    • 2) P must provide an undertaking;
    • If ex parte:
    • 1) Threat of immediate loss of chattel;
    • 2) P must make a motoin on notice within 5 days of the ex parte order.
  74. How does plaintiff recieve a Notice of Pendency?
    In an equity action for real property.

    In a mortgage forclosure case, notice of pendency is statutorily required.

    • Procedure:
    • 1) P files a notice of pendency with teh county clerk of the county in NY which the real property is located; and
    • 2) No court order required.

    Duration: a notice is effective for three years after filing. P can move for a three year extension but must make motion for extension prior to expiration of first 3 years.

    Once expires it is void and cannot obtain a new one for the same cause of action.
  75. When does a party in a civil action have a right to a jury trial?
    • 1) Solely money damages;
    • 2) Replevin;
    • 3) Claim to real property;
    • 4) annulment of marriage;
    • 5) Divorce action, other than no fault (no jury for money or children only fault);

    AND only 5/6 required for civil verdict.
  76. What is res judicata (issue preclusion)?
    NY uses the transactional approach: when a claim against a particular defendant has been brought to a final judgment on the merits, all other claims by the plaintiff against that defendant are barred if: The other claims arise out of the same transaction or occurance, even if claims based on other theories or seek other remedies.

    EXCEPT: Matrimonial disputes based on domestic abuse.
  77. Collateral Estoppel (issue preclusion)?
    • Issue preclusion events teh need for re-litigation of specific fact issues that were decided in a prior proceeding if:
    • 1) the issue in former and current proceedings is the same;
    • 2) the issue was litigated and decided in the proceedings;
    • 3) party against whom issue preclussion is decided had a full and fair opportunity to litigate the issue.

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