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leo j
Year : 2002
School : St. John's University School of Law
Book : Alexander
Professor : Alexander
Subject : New York Practice
Url : http://www.sjulaw.com/outlines/
 
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New York Practice

New York Practice

Professor Alexander

I. Subject Matter Jurisdiction: The courts power to hear a particular type of case

*lack of subject matter jurisdiction is fatal to a case, the objection can be raised at any time, it is not subject to waiver

*the power of the court to hear a case is derived from the state constitution, Article VI, the parties cannot change the courts power by agreement

A. Supreme Court

*NYS Constitution Article 6 7: The supreme court shall have general jurisdiction in law and equity

*supreme courts can hear every case at trial level, doesn't matter where the parties are from or where the cause of action arose

*7 (a) granted the supreme court general jurisdiction over all cases where it existed before, this was at the time the state courts were created so it meant those causes of action that existed in the English common law

*7 (b) granted the supreme court general jurisdiction over all new classes of actions as they are created, this was passed in 1962 and has been interpreted to mean any new action created since the creation of the courts

*Limitations on supreme court jurisdiction

*if Congress or the Constitution gives federal court exclusive jurisdiction. For example, disputes between states, copyrights and patents

*if a person is suing NY state in tort or contract, supreme court has no jurisdiction, NY has waived its sovereign immunity only if the case is brought in the court of claims

* Supreme Court Appellate Term: permitted by state constitution, created to ease the burden on the appellate division. These courts can hear appeals from city courts, district courts, county court, NYC civil court. Only the 1st and 2nd dep't have established these.

* CPLR 325:

* the supreme court may remove that action to the proper court if it is brought in the wrong court by mistake

* if an action is brought in a court of limited jurisdiction in the wrong court a court having jurisdiction may remove the action to itself by motion

* where a lower court would have jurisdiction because the amount of damages demanded was excessive, the court where it is pending can remove it upon reduction of the damages demanded upon consent of all parties

* where a lower court would have jurisdiction because the amount of damages demanded seems excessive, the court can remove it to a lower court without consent, but the damages limits of the court where the action was originally commenced

B. Other Civil Courts: limited jurisdiction, usually based on monetary limits, the monetary limits do not apply to counter claims. Each of the lower courts has

its own procedure act, CPLR fills in any gaps

1. County Court: monetary maximum of $25,000 + residency requirement, the defendant must reside in the county

*The residency requirement is actually an aspect of personal jurisdiction, it is waivable

*residency requirement applies only to monetary actions, (not equity?)

2. New York City Civil Court: monetary maximum of $25,000

3. City Court: monetary maximum of $15,000

4. District Court of Nassau/Suffolk: monetary maximum of $15,000

5. Justice Court: monetary maximum of $3,000, this limit does apply to counter claims

6. Small Claims: part of the city, NYC Civil, district, and justice courts, monetary maximum of $3,000

7. Family Court: domestic matters except matrimonial

8. Surrogates Court: decedents, estates, adoptions

9. Court of Claims: money damages for tort or contract claims against the state of NY—exclusive jurisdiction

*state officers will be sued in court of claims only when the state is the real party in interest

*arise from actions in the official capacity

*involves rights asserted against the state solely

*state may counter claim

*any other action brought, including any additional parties, must be brought elsewhere

II. Personal Jurisdiction: The power of the court over the person/property

A. Natural Persons

*CPLR 301 carries forward all common law bases of jurisdiction

*presence: served while in NY

*consent: forum selection clause, appoint an agent for service in NY. Choice of law clause alone is not enough.

*domicile: a domiciliary is subject to general jurisdiction of NY, can be served anywhere. To be a domiciliary you must have a physical residence and an intention to make NY your permanent home for the foreseeable future

* CPLR 1501: where named defendants have a joint obligation, contract or liability and not all of them are served, the plaintiff may proceed against those who were served and judgment may be taken against all defendants (but only as against joint property of the defendants not served)

* CPLR 1502: a subsequent action may be brought against a co-obligor not served in the first action to levy a judgment against their personal property

* CPLR 5201 (b): a money judgment entered upon a joint liability of two or more persons may be enforced against individual property of those persons summoned and joint property of such persons with any other persons against whom the judgment is entered

* CPLR 313: if court has jurisdiction over you because of domicile, consent, or long arm, you can be served outside of the state by any method that could have been made within the state

B. Business Entities

1. Partnerships CPLR 1025

*service on a partner present in New York creates jurisdiction over the partnership as well as over the partner served

*on the summons/complaint name the partnership in its own name

2. Unincorporated Association CPLR 1025

*sue the president and/or treasurer on behalf of the association

*service on the president or treasurer in New York creates jurisdiction over the association

3. Corporation: the corporation is an entity itself, jurisdiction is based on same grounds as over a natural person

*CPLR 301 carries forward all common law bases of jurisdiction

*consent: creates general basis of jurisdiction. Corporations are required to consent to jurisdiction of NY and designate secretary of state as agent for service when they are formed if they are a domestic corporation and when they are authorized to do business in NY if they are a foreign corporation

*presence: a corporation is present when they are “doing business” in NY

*a corporation is present when it is here, not occasionally or casually, but with a fair measure of permanence and continuity. Systematic and regular activity is required

*an office continuously staffed by employees is enough, even if it is a limited purpose office

*periodic visits by employees to the state is not enough

*service on an officer in NY is not enough

*an office is not necessarily required, this is fact based. Solicitation + other contact will suffice.

*Presence through a related corporation

*If A is a parent or subsidiary of B (common ownership) and B exercises massive control over A than B will be deemed to be present in NY if A is located in NY.

*to determine massive control, weigh these factors

* financial dependency of subsidiary

* parent control over control of the subsidiary

* failure to observe corporate formalities

* degree of control over marketing/policies

* If there is an agency relationship and A is the agent of B, B will be deemed to be doing business in NY if A is located in NY

* the sub must be a mere department of the parent

* if the company is in business for themselves, they are not an agent

*merely selling a manufacturers product, solicitation through advertising or otherwise is not enough

*Don't use the “doing business” analysis if the claim arises in NY, use long arm jurisdiction. Don't use it if it is a NY corp. or a foreign corp. registered to do business in NY, you have consent.

* If you have a basis of jurisdiction over a corp., you can serve process anywhere in the U.S.

C. Long Arm Jurisdiction

1. Constitutionality—International Shoe

*minimum contacts

*maintenance of the suit would not offend traditional notions of fair play and substantial justice

*defendant must purposefully avail himself of the benefits of the forum state

* putting products into the stream of commerce is not purposeful availment—Asahi—non-binding case

* the claim must arise out of that availment

* defendant should reasonably anticipate that his conduct could result in him being haled into court

2. New York Long Arm Statute—must operate within constitutional limits—CPLR 302

*If the claim arises from one of the following, NY courts will have specific jurisdiction over defendant or his executor/administrator upon death of defendant.

* transacts any business within the state or contracts anywhere to supply goods or services in the state, and the claim arises out of that transaction

* transacting business is a one-time thing, as contrasted against doing business

* if the transaction is done over the phone or through the mail, it is not clear if this will be a transaction of business in NY.

* there is no bright line test to determine whether a phone call will constitute doing business in NY, look to duration of the call, substance of the call (were there negotiations)

* shipping goods into the state alone is not enough to be transacting business

* there must be a substantial nexus between the activity and the cause of action

* the forseeability of goods ending up in NY does not mean that you supplied goods in the state, you must deliver them there

*commits a tortious act within the state, EXCEPT defamation

* in a products liability action the tortuous act occurred at the manufacture, not at the injury

*commits a tortious act without the state causing injury within the state, AND

*regularly does or solicits business, engaged in persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in the state, OR

* expects the act to have consequences in the state and derives substantial revenue from interstate commerce

* there must be a direct injury in NY, for example if your injury is loss of sales generally the injury is not in NY, but if the injury is loss of sales to NY customers it is

* a claim arising from defendants ownership, use, possession or real property located in NY

D. In Rem Jurisdiction—CPLR 314 (2)

* property, real or personal, in NY gives courts power over the property

* defendant may be served outside of NY

* plaintiff must have a preexisting claim/interest in the property, the subject of the action is the property itself

* in rem jurisdiction is limited to the property itself

E. Quasi In Rem Jurisdiction—CPLR 314 (3)

* plaintiff attaches property in NY as a basis for asserting a money claim up to the value of the attached property

* property is not the subject of the action, plaintiff has no preexisting interest in the property

* you must satisfy due process, the fortuitous presence of property in NY alone is not enough

F. Jurisdiction in a Matrimonial Action—divorce, annulment, separation, declaratory judgment on validity of marriage

*Supreme Court has exclusive subject matter jurisdiction over matrimonial actions

*Personal jurisdiction over a nonresident defendant is based on in rem jurisdiction (the interest in the marital status is the res), if the plaintiff is domiciled in NY, the court has in rem jurisdiction over the defendant

* the basis for jurisdiction ends with the death of either spouse

* Durational Residency Requirement—DRL 230

*applies to annulment, declare the nullity of a void marriage, divorce, separation. Does not apply to child support or maintenance.

* action will not be maintained unless

* parties were married in the state and either party has been a resident for one year

* parties have resided in the state while married and either party has been a resident for one year

* cause occurred in the state and either party has been a resident for one year

* cause occurred in the state and both parties are residents at the time of commencement

* either party has been a resident for two years

* residency requirement is not part of jurisdiction, it is an element of the cause of action, objection to failure is waived if defendant fails to raise it

* Child Support/Maintenance

* in rem jurisdiction is not enough because you are seeking money

* CPLR 302 (b) long arm jurisdiction for matrimonial action

*action for support, alimony, maintenance, distributive award, or special relief

* defendant must have been a resident of NY in the past

* plaintiff must be a resident or domiciliary of NY

*either

* this state was the marital domicile

* defendant abandoned plaintiff in this state

* the claim accrued under the laws of NY

* under NY law a spouse is chargeable with the support of spouse (accrues at marriage) and children (accrues when, conception/birth?)

* the claim accrued under an agreement executed in NY

* Custody Jurisdiction

* in the past it was in rem, went with the child

* Uniform Child Custody Jurisdiction Act—custody is no longer in rem. There must be significant connections between the child and the forum.

III. Forum Non Conveniens and other Limitations on Jurisdiction

* even if the court has jurisdiction, it may dismiss at its discretion to another forum, after balancing conveniences of court, parties, witnesses

* residence of atty is not a factor to be considered

* there is a presumption in favor of keeping the case in NY when the plaintiff is a NY residence, but it is not decisive

* advantages of NY law and courts is not a factor for keeping the case, that would be forum shopping

* the defendant must generally show that NY is an inconvenient forum and that there is another forum. In some special cases, the second part is not required.

*there is no time period for making the motion, but it is a discretionary motion and the longer you wait the less likely your success

*courts cannot do this sua sponte, a party must make a motion

*courts generally enforce forum selection clauses in contracts

*Gen'l Ob. Law 5-1402: an action may be maintained against a foreign corporation or a nonresident or another state if there has been a choice of NY law clause and it is for at least $1M

*CPLR 327 (b) any agreement made under GOL 5-1402 shall not be stayed or dismissed, the legislature has trumped forum non conveniens in this area

* NY BCL 1314—any action by a NY resident against a foreign corporation may be maintained, limited by GOL 5-1402. This is a subject matter jurisdictional requirement, not waivable

* NY BCL 1312—a foreign corporation doing business in NY without a license may not bring an action in NY unless they get a license and pay all fees and taxes plus penalties and interest. This is a standing requirement, can be waived

*page 166 n1

IV. Commencement of Action and Service of Process

*commencement of the action

* in the supreme court and county court, an action is commenced when the summons is filed with the clerk of the court

* in the lower civil courts, the action is commenced when service is performed

* CPLR 304: an action is commenced by filing process

* CPLR 306-a: to file an action you must purchase an index number

*Service of Process

* CPLR 306-b: plaintiff must serve defendant within 120 days of filing the action. Otherwise defendant may make a motion to dismiss, it will be without prejudice. The court may extend the time upon good cause shown or in the interest of justice.

*factors to consider in deciding whether to extend time period

* conduct of defendant

* diligence of plaintiff

* length of the delay

* location of defendant

* has the statute of limitations expired so that dismissal would bar plaintiff from starting over

* two forms of service of process

* summons and complaint

* summons with notice

* summons

* name of court plus county of venue

* basis of venue

* identify all parties

* identify paper

* index number from clerk when filed

* notify defendant of suit and time to respond

* notify defendant of result of non appearance

* summons with notice

* specify the nature of the action

* specify relief sought

* specify sum of damages sought, except in a medical malpractice action

* CPLR 305 (c): a summons may be amended at any time by court so long as no party will be unfairly prejudiced. It will depend on what type of defect you are correcting, if it is a jurisdictional defect you won't be allowed to amend, if it is a mere irregularity you can amend.

* failure to name the court is a jurisdictional defect

* failure to name county is probably a mere irregularity

* failure to include the nature of the action in a summons with notice is a jurisdictional defect, but not much detail is required

* an error in defendants name is curable by amendment so long as proper party was served and defendant was fairly appraised that the action was directed against her

* CPLR 1024: if plaintiff doesn't know defendants name, he may refer to him as John Doe, so long as

* plaintiff uses due diligence to learn defendants name

* plaintiff describes with detail the identity of the intended defendant

* process is served on the intended defendant

* CPLR 1003: to add parties after the action is commenced you must serve a supplemental summons with judicial permission. Judicial permission is not necessary within certain time periods

* Service

* any non party who is 18 or older can serve process

* most courts say that service by a party to the action is a jurisdictional defect

* service on Sunday is improper, or on a Saturday if you know the person is a Saturday Sabbath observer

* service on a person in the jurisdiction to testify in another action is not allowed

* Methods of Service

* When you file the action you must file proof of service: CPLR 306, it must specify papers served, date, time, place etc.

* CPLR 308 Personal Service Upon a Natural Person—different methods available, all are valid and you don't have to try one before the others, except that in matrimonial actions substituted service is only allowed with a court order

* deliver the summons within the state to the person to be served (personal delivery)

* personal delivery is complete when the server tenders the summons and it is clear what they are doing

* the defendant doesn't have to take the summons, if they resist, leave it in plain sight and tell them what you are doing

* trickery, deceit, fraud to facilitate is okay as long as you don't trick the person into the jurisdiction

* deliver the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served AND mailing the summons to the person to be served at last known address or actual place of business (deliver and mail)

* the defendant doesn't have to take the summons, if they resist, leave it in plain sight and tell them what you are doing

* if you mail to business, the envelope may not indicate that it is from an attorney or concerns an action against the person served, must bear the words “personal and confidential”, otherwise it is a jurisdictional defect

* the delivery and mail must be done within 20 days of each other, otherwise it is a jurisdictional defect

* dwelling place is where you are staying at the time of service, usual place of abode is a more permanent habitat

* CPLR 308 (6): the actual place of business includes any location that the defendant has held out as its place of business through solicitations or advertising

* receipt of the mailing is not required, putting the summons in the mail is sufficient

* if the server is barred from going up to the apartment, serving a doorman is delivery at the dwelling place or usual abode

* proof of service must be filed within 20 days of the second act, service is complete ten days after the filing. Delay is not a jurisdictional defect, but the filing measures defendants' time to respond

* deliver summons to an agent for service as established under CPLR 318 (service on agent)

* affix the summons to the door of the actual dwelling place, actual place of business or usual place of abode AND mail to last known residence or actual place of business (nail and mail)

* nail and mail is only allowed if personal delivery and deliver and mail are unable to be performed with due diligence

* the two acts must be performed within 20 days of each other

* proof of service must be filed within 20 days of second act

* when none of the other four methods are practicable, the court may provide for service in any manner (expedient service)

* you don't have to actually attempt the other methods, but you must prove that other methods are impracticable in order to get a court order, you must have the court order

* Non resident Motorist Statute—VTL 253

* permits jurisdiction over non resident who causes damage while driving in the state

* service performed by

* mailing a copy to the secretary of state,
Albany office, or personally delivering it at one of the offices maintained by the secretary throughout the state, AND

* mailing a copy of notice of the service and the summons by certified mail or registered mail with return receipt requested to the defendant or having it personally delivered to defendant

* Service by Publication—CPLR 315: cases under CPLR 314 (in rem and quasi in rem) service can be done by publication with a court order

* Service on Corporation

* CPLR 311 (a)(1): deliver summons to an officer, director, managing or general agent, cashier or assistant cashier, or to any other agent authorized by appointment or by law

* a cashier is the financial officer

* a managing agent is someone who exercises judgment, discretion, supervising function

* CPLR 311 (b): court order where service is impracticable

* BCL 304: secretary of state is an agent for service

* BCL 306: method of serving secretary of state, personally deliver a copy at the office of the department of state in Albany

* BCL 307: when you have long arm jurisdiction over a foreign corporation, you may serve the secretary of state

* Service on a Partnership

* CPLR 310: personal service (CPLR 308 methods) upon any partner

* Service on a Limited Partnership

* CPLR 310-a

* Service upon an LLC

* CPLR 311-a

* Service upon an Individual with a Disability

* CPLR 309 (a)—infants

* must serve an adult—parent, guardian, legal custody, adult spouse with whom infant resides—if none of these exist then any adult with whom the infant resides or his employer.

* if infant is 14 or older must serve an adult plus the infant

* serve by personal service (CPLR 308 methods)

* CPLR 309 (b)—adjudicated incompetent

* CPLR 309 (c)—a person for whom a conservator has been appointed (this is now replaced by a guardian for personal needs or property management under Mental Hygiene Law)

* serve by personal service (CPLR 308 methods) both the incompetent and the guardian

* with court order, service upon the incapacitated person can be dispensed with

* Service by Mail—CPLR 312-a

* you can personally serve natural persons, corporations, partnerships and government entities by mailing

* summons and complaint

* statement of service and acknowledgement of receipt (2 copies)

* return envelope

* service is complete when the defendant mails the signed acknowledgement within 30 days of receipt

* defendant must reply to the summons within 20 days of mailing the acknowledgement

* if defendant doesn't return the acknowledgment, they can be forced to pay for follow up service

* Hague Convention—service upon a defendant located in a foreign country

* to serve process on a defendant located in a treaty country, you must go to the central authority

* remember, if you can serve the foreigner in the U.S., the treaty doesn't apply

V. Appearance

* defendant must respond to service of process, the response represents defendants willingness to litigate, at least preliminary matters in NY, it has the effect of

* avoiding a default

* becoming entitled to receive copies of all papers in the action, even if they don't affect you

* require you to raise jurisdictional objections in NY

* Collateral Attack

* if you bring a NY default judgment to another state to be enforced, the defendant can attack the jurisdiction of the NY court in the other state. If defendant appears in the NY action, they can't later challenge jurisdiction in another forum

* Appearing after a summons and complaint

* serve an answer OR

* move to extend the time for an answer

* CPLR 3024: motion to correct pleadings

* CPLR 3211: motion to dismiss

* time to appear

* if defendant was served by mail (CPLR 312-a), must appear within 20 days of mailing acknowledgement

* if defendant is served by personal delivery within NY, must appear within 20 days

* in all other circumstances, must appear within 30 days of completion of service

* Service of an Answer

* if you assert an unrelated counterclaim in your answer, you waive the defense of lack of personal jurisdiction

* you can raise a counterclaim that is related and you would be precluded from raising later without waiving the jurisdictional defense

* you must make your objection for lack of personal jurisdiction in your first response

* Appearing after a summons with notice

* CPLR 320 (a): notice of appearance

* CPLR 3012 (b): defendant served with summons with notice may respond with a written demand for a complaint, this is not an appearance, but it does avoid a default

* after service of the demand, plaintiff has 20 days to serve a complaint, otherwise defendant is entitled to granting of a motion to dismiss unless plaintiff can show a reasonable excuse for the delay plus and affidavit of merit of the claim. Making the motion to dismiss is not an appearance.

* CPLR 320 (c) (1): an appearance in a case where jurisdiction is quasi in rem is a

limited appearance, it only confers jurisdiction over the property

* In a case where jurisdiction is in rem, the appearance is a general appearance, jurisdiction is conferred over the person and the property

* CPLR 302(c): when plaintiff bases jurisdiction on 302 (a) and appearance does not confer jurisdiction over causes of action not arising from an act enumerated in 302 which is later added by amendment, plaintiff can add causes of action only if they have an independent basis of jurisdiction

* Informal Appearance

* an informal appearance can not result in a default judgment, but can waive jurisdictional defense and forfeit collateral attack

* the CPLR specifies in some places things that will not constitute an appearance

* 3012 (b): demand for complaint, motion to dismiss upon failure to serve complaint

* 3215 (c): motion to dismiss abandoned claim

* Stipulation—when plaintiff stipulates to an extension of time for defendant to appear, defendant does not waive the right to raise jurisdictional defense later

VI. Venue

* When supreme court has jurisdiction, venue decides which of the 62 counties should hear the case

*CPLR 503—venue is based on residence

* county where one of the parties resides when it was commenced OR

* if no party resides in NY, any county that the plaintiff designates

* residence: living in a particular county for an extended period of time, a person can have many

* corporations—CPLR 503 (c): a resident of a county in which its principle office is located—the office designated in the certificate of incorporation or license to do business

* unlicensed foreign corporations are non residents

* residence is determined when the action is commenced

* CPLR 507: venue in an action where a judgment will affect title, possession, use or enjoyment of real property is proper in the county where the property is located

* CPLR 501: parties can contract to designate venue

* a defect in venue is not grounds for dismissal, there is no jurisdictional defect

* CPLR 509: venue is the choice of plaintiff, unless changed by order upon motion—court won't do it sua sponte

* CPLR 508: venue for an action to recover chattel may be in the county in which any part of the subject of the action is situated

* CPLR 510: motion for change of venue

* where plaintiff chose an improper venue

* CPLR 511

* defendant serves a demand with or before the answer for change of venue

* plaintiff may consent, otherwise defendant must make a motion no later than 15 days of service of demand

* defendant has presumptive right to the transfer although plaintiff may make a cross motion under 510 (2) or (3)

* where there is reason to believe that an impartial trial can not be had

* where convenience of material witnesses and the ends of justice will be promoted by the change

* you must accompany a 510 (3) motion with an affidavit of merits stating the identity of witnesses, what they will testify to, tend to prove, why the other county is more convenient

VII. Statute of Limitations

* policies behind statute of limitations

* repose

* allow potential defendants to go on without claims hanging over their heads

* witnesses will disappear or forget

* statute of limitations is a waivable affirmative defense

* considerations for statute of limitations problem

* what is the relevant time period

* when does it begin to run

* are there any tollings/extensions

* CPLR 203: the statute of limitations begins to run when the cause of action accrues

* CPLR 211-215: time periods

* 20 years on a judgment

* 10 years on adverse possession

* 6 years on contracts, except UCC, which is 4 years

* 3 years for property damage, personal injury

* 3 years for malpractice actions (non medical)

* 6 years for contribution/indemnity claim

* 6 years from time of a fraud or 2 years from discovery, whichever is longer

* contract claims accrue on the date of the breach, even if the plaintiff is unaware of it

* tort claims accrue at the moment of impact, even if your injury isn't discovered until later

* malpractice claims at the date of completion of the service despite plaintiff's lack of knowledge of the defect. It doesn't matter if you allege breach of contract, you don't get the benefit of the 6 year period. Remember a malpractice claim is between the client and professional, a claim by a third person is a negligence claim.

* contribution/indemnity claim accrues at the date of payment of the judgment

* CPLR 214-d: Architects/Engineers

*(1): if a claim for personal injury, property damage, wrongful death, or indemnification is brought against an architect or engineer more than 10 years after completion of their work,

* they must be served with written notice of the claim at least 90 days before the commencement of the action. It must identify the performance, conduct, omission complained of and include a request for damages

* plaintiff must file the demand and proof of service within 30 days of service

* plaintiff can serve using any appropriate method of service

*(4): plaintiff has the opportunity to demand discovery after the written notice

*(5): defendant may make a motion to dismiss or for summary judgment. Plaintiff must make a showing of proof.

* 3211 (h)

* 3212 (i)

* Products Liability Action

* strict products liability claims sound in tort, applicable rules apply (3 year statute of limitations, cause of action accrues upon impact)

* UCC 2-318: warranty claims—a sellers warranty, express or implied extends to any natural person reasonably expected to use, consume or be affected by the product. UCC claims have a 4 year statute of limitations and the cause of action accrues at the date of sale

* CPLR 214-c: Latent Injury form Exposure to Toxic Substance

* at common law the statute of limitations would begin to run from the date of last exposure to the toxin

* statute applies to

* direct or indirect exposure (absorption, contact, ingestion, inhalation, implantation, injection)

* injury caused by latent effects of exposure to any toxic substance

* any substance, natural or unnatural, including infected blood

* must be toxic, not cold air or chrome on a bumper

* statute does not apply to medical/dental malpractice actions

* statute of limitations will not begin to run until date of discovery or when it should have been reasonably discovered

* if the injury is discovered before the cause of the injury is ascertained, CPLR 214-c (4)

* if the cause is discovered within five years of the discovery of the injury, you have one year from the discovery of the cause to file an action

* if the cause is discovered more than five years from the discovery of the injury, the claim is time barred

* If the year takes you beyond the original statute of limitations, the plaintiff must allege and prove that the cause could not have been discovered prior to the expiration of the original statute of limitations

* Medical Malpractice

* 2 year and 6 month statute of limitations

* cause accrues at the act/omission or at the termination of continuous treatment

* foreign object rule

* 1 year statute of limitations

* cause accrues at date of discovery

* chemical compound, fixation device (a device intentionally left in the body to serve a continuing function), prosthetic device are not foreign objects

* nurses, technicians, etc. when they perform acts constituting treatment the medical malpractice statute of limitations applies. Remember you have negligent hiring/supervision claims with regular negligence statute of 3 years.

* continuous treatment doctrine

* policy: doctor is the best person to correct his error, encourage people to maintain the doctor/patient relationship long enough for that to happen

* patient must continue to see the same doctor for the same condition that gave rise to the medical malpractice

* routine checkups are not continuous treatment

* continuous failure to pursue a course of treatment does not trigger the doctrine

* Wrongful Death

* cause of action brought by statutory distributes, damages are pecuniary, whatever would have come to them had defendant not died

* statute of limitations is 2 years

* cause accrues at date of death

* if the survival action (that which the defendant could have brought himself) was time barred at time of death, the wrongful death action is time barred

* Estopple: estop the defendant from raising statute of limitations as a defense.

* Plaintiff must allege and prove intentional fraud. The defendant

must have intentionally misrepresented the situations.

* defendant lied and knew it

* plaintiff relied

* damages

* plaintiff exercised due diligence in discovering and instituting the action

* The statute of limitations will be tolled, the action may be brought within a reasonable time after discovery of the cause of action. The maximum time allowed is the length of the statute of limitations, but may be shorter.

* You also have a fraud action which has a statute of limitations of 6 years from the fraud or 2 years from discovery, whichever is longer CPLR 213 (8), 203 (g)

* Modifying the Statute of Limitations

* CPLR 201

* the court may not alter the applicable time limit

* the parties may shorten the applicable statute of limitations by contract, but still must have a reasonable period

* GOL 17-103

* parties may not extend the statute of limitations prior to the accrual of the actions

* after accrual, parties may extend the statute of limitations in a signed, written agreement. A new complete period begins to run from date of agreement, unless provided otherwise

* partial payment of a debt starts a new period from date of payment

* signing an acknowledgment of a debt starts a new period from date of signing

* Laches: equitable doctrine based on reasonableness test

*defendant can invoke laches to bar an equitable claim where no statute of limitations is provided and the CPLR 213 default of 6 years is being applied

* defendant must show

* unreasonable delay by plaintiff

* prejudice to defendant (detrimental change in position)

* Relation Back Doctrine

* plaintiff may amend the complaint to add a new claim, but the new claim must be timely at the date of amendment, unless the new claim will be deemed to have been interposed at the original pleading date if the original pleading gives notice of the transactions, occurrences to be proved in the new pleading. CPLR 203 (f)

* CPLR 203 (c): a claim is interposed against a defendant or a co-defendant related in interest when filed.

* must be a co-defendant, both must be named in original paper. The situation where only one defendant is named is not covered by the CPLR

* so that if both parties are named but only one is served in time, the plaintiff must institute a new action against the one improperly served and it will relate back to date of service of first defendant

* to be united in interest, your rights must stand and fall together, for example, joint debtors, beneficiaries under a will. Joint tortfeasors are not united in interest

* Failure to name a potential co-defendant, the claim will relate back to date of interposing the claim against co-defendant if

* both claims arose out of the same conduct

* the defendants are united in interest such that there is no prejudice to the new defendant

* failure to name defendant was due to mistake

* mistake does not have to be reasonable/excusable, but it must be a mistake, willful omission is not acceptable

* Tolling and Extensions

* CPLR 207: toll for absence

* if defendant is not within NY when the cause of action accrues, the statute is tolled until they come to NY

* if defendant is within NY when the cause of action accrues, and later leaves NY for at least 4 months, the statute is tolled during the absence

* if defendant is within NY when the cause of action accrues, but lives here under a false name, the statute is tolled

* EXCEPTION: if jurisdiction could have been obtained without personal delivery to the defendant within the state, the statute does not apply. Even if plaintiff tries other methods unsuccessfully, there is no tolling as long as the alternative method exists

* CPLR 205 (a): when an action is terminated involuntarily, but it is not res judicata, the statute is tolled for 6 months from termination

* the first action must have been timely

* the new action must be based on the same transaction

* process must be served within the 6 months

* EXCEPTIONS

* If first action was terminated by voluntary discontinuance

* If first action was terminated for neglect to prosecute

* If first action was terminated upon final judgment on merits

* If first action was terminated for failure to obtain personal jurisdiction

* CPLR 208: toll for legal disability

* defendant is under 18 at accrual of action OR

* defendant has a medical disability which prevents them from protecting their legal rights because of an overall inability to function is society at accrual of action or immediately thereafter

* Length of toll

* if statute of limitations is 3 years or more, plaintiff gets relative period from date of accrual or 3 years from end of disability, whichever is longer

* if statue of limitations is less than 3 years, plaintiff gets relative period from date of accrual or the regular period from the end of the disability, whichever is longer

* there is a cap of ten years. The statute will not be extended beyond ten years of accrual except that infants bringing anything other than a medical malpractice claim have no ten year cap

* CPLR 210: toll for death of a party

* (a): when plaintiff dies, there is one year from date of death to bring the claim or the regular period, whichever is longer. But, the claim must not have been time barred at date of death

* (b): when defendant dies, there is an 18 month toll following death. Plaintiff can go to surrogates court to request limited letters if there is undue delay

* CPLR 202: Borrowing Statute

* when a claim arises out of state, a non resident plaintiff is subject to the shorter statute of limitations and a resident plaintiff is subject to the NY statute of limitations

VIII. Conditions Precedent

* time periods which are statutory conditions precedent can not be tolled

* a time period provided with a statutory cause of action (didn't exist at common law) is a condition precedent

* a time period provided with a common law cause of action will be a condition precedent if the statutory intent was for it to be a strict time limit

* Warsaw convention 2 year time limit and time limit for action for annulment based on fraud are conditions precedent

* time limit for wrongful death is a statute of limitations, even though it is a statutory cause of action

* failure to comply with a statutory condition precedent is a failure to plead an element of the cause of action, the proper defense is failure to state a cause of action, not waived until the action is over

* plaintiff must plead satisfaction of a statutory condition precedent in the complaint

* plaintiff is not generally required to plead satisfaction of a contractual condition precedent

* Court of Claims Act 10: various timing provisions limiting your ability to sue the state of NY

* Gen. Municipal Law 50-e: notice of claim requirement with tort action against municipal corporation

* must file a notice of claim, serve defendant within 90 days of accrual of action

* after serving notice of claim, must wait at least 30 days before commencing the action

* even if you sue the county employee only and not the county, you still must serve the notice of claim because the employee would be allowed to sue the county for indemnification

* (5): application for leave to serve a late notice of claim within the statute of limitations

* granting leave is discretionary court will consider

* whether the municipality had actual knowledge

* whether the plaintiff was relying on settlement negotiations

* whether the plaintiff was an infant, under a disability

* whether the plaintiff accidentally served the wrong municipal defendant

IX. Joinder of Claims and Parties

* CPLR 601: Parties can join as many claims as they have against an adverse party

* CPLR 602: The court may order a joint trial where there are separate actions with a common question of fact or law, as separate actions, or may order consolidation of the two actions into one

* court will continue any potential prejudice, where there are significant individual issues to be considered probably won't join the claims

* CPLR 603: Severance/Separate Trials

*severance creates two separate actions, separate trials it remains one action and they are brought together for the ultimate resolution

* court will sever or order separate trials for convenience or to avoid prejudice

* CPLR 1002: Permissive Joinder of Parties

* common question of law or fact, AND

* claims arise out of same series of transactions or occurrences

* CPLR 1003: Nonjoinder and Misjoinder of Parties

* adding a defendant lacking common issue of law or fact is a misjoinder, it is not grounds for dismissal, defendant can be dropped by the court on motion or on its own initiative

* parties may add parties they failed to join

* within 20 days after service or before the period for response expires or within 20 days after service of a response, one amendment as of right

* amendment at any time by leave of the court or stipulation of all parties

* CPLR 1001: Necessary Joinder of Parties

* a party is necessary if

* complete relief is only available by joining the party OR

* the party would be inequitably affected by a judgment

* when a necessary party has not been made a party and is subject to the courts jurisdiction, the court shall order him summoned

* when a necessary party has not been made a party and he is not subject to the courts jurisdiction, there may be a dismissal or when justice requires the court may allow the case to proceed without him

* Examples of necessary parties are people with joint ownership interest and joint obligor/obligee under a contract, corporation in a shareholder derivative action, tenants and co-mortgagors in a foreclosure action

* Failure to join a necessary party can be raised at any point in the litigation, including on appeal

* CPLR 1006: Interpleader

* stakeholder may commence an action of interpleader against 2 or more claimants

* a defendant stakeholder may bring in a claimant by filing a summons and interpleader complaint

* a stakeholder is a person who may be exposed to multiple liabilities as the result of adverse claims. An example is an insurance carrier with two adverse claims to the proceeds

* claimants in multiple states, in personam jurisdiction is required for claims on a debt, 1006 (g) is not available

* CPLR 1012: Intervention

* intervention as of right where a person may be bound by the judgment and their interests are not adequately represented

* intervention as of right where a person may be affected adversely by the judgment and the action involves disposition, distribution, title, claim for damages to specific property. This is not a right to intervene every time someone who supports you is sued by a creditor

* Representation of an infant/incompetent

* CPLR 1201: a guardian of property, parent with legal custody, anyone else with legal custody, adult spouse residing with infant may appear to represent an infant/incompetent, UNLESS a guardian ad litem is appointed

* CPLR 1202: a court may appoint a guardian ad litem at any stage of a proceeding to represent an infant/incompetent

* CPLR 1203: no default judgment may be entered against an infant, incompetent, or against an adult incapable of adequately protecting his rights

* CPLR 1207-1208: judicial approval is required for an infant, incompetent, conservatee to settle a lawsuit as a plaintiff

X. Third-Party Practice

* common law doctrine of vouching in: the third party can not be forced into an action. They will be offered the opportunity to take over the case, but they can refuse to participate. If they don't participate, no direct judgment will be against him but the judgment will be res judicata as against him and liability will not be relitigated

* CPLR 1007: defendant may implede a person who is not a party and is or may be liable to defendant for all or part of plaintiff's claim

* once a defendant impledes someone for reimbursement, they can sue the person they have brought in for more than simple reimbursement

* CPLR 1010: the court shall dismiss a third party complaint or separate the trial when justice requires

* CPLR 1011: a plaintiff may use 1007 to implede someone when there is a counterclaim against them

* impleding is permissive, defendant does not waive the right to sue separately if they fail to implede

* Process for Impleder

* file summons and third party complaint

* serve the third party defendant within 120 days of filing of third party complaint

* serve the third party defendant with a copy of all previous pleadings in the action

* serve the plaintiff with a copy of the third party complaint

* this can only be done after the defendant has served an answer to plaintiffs complaint

* there is no outside time limit to begin this process, but a rule of reason applies, if you wait too long you will be subject to dismissal under 1010

* Once issue is joined, CPLR 1008

* third party defendant must serve an answer on defendant and a copy on plaintiff within 20 days if the third party complaint was served by personal delivery in NY or 30 days after service is complete under any other circumstance

* third party defendant has the right to serve a counterclaim against any other party in the action

* third party defendant may assert any defense which the original defendant has against plaintiff, even if the original defendant waived it

* CPLR 1009: within 20 days of service of third party defendant's answer on plaintiff, plaintiff may amend his complaint to assert a claim against third party defendant

* For statute of limitations purposes, plaintiff's claim against a third party defendant in an amended complaint relates back to the date of service of the third party complaint, where the amended complaint is based on the same transaction or occurrence as the third party complaint

XI. Contribution/Indemnification

* Indemnification—complete shifting, 100% of liability due to a third party

* by contract

* implied by law as a reason of social policy, vicarious liability

* Contribution—apportionment among multiple tortfeasors

* CPLR 1401: two or more persons subject to liability for the same action may claim contribution among them whether or not an action has been brought against them by plaintiff

* CPLR 1403: contribution by a separate action or by cross-claim, counterclaim, or third party claim

*CPLR 1402: amount of contribution you are entitled to is the excess paid over your equitable share to the injured party. But, no one is required to contribute an amount greater than their equitable share

* successive tortfeasors—the later tortfeasor can be sued for contribution after the first tortfeasor is held liable for all damages as the person who set the injury in action. The second tortfeasor wouldn't have a claim against the first because they are generally held liable for all damages

* Workers Compensation Law—an employee won't be able to sue an employer because of workers comp, but they can sue a third person who contributes to the harm and that party can sue the employer for contribution. The Workers Comp. Law limits the availability of contribution and indemnification in these situations, the employer won't be liable unless the third party proves employee suffered a grave injury. A grave injury is death, amputation or total loss of the use of a leg, arm, hand, foot, nose, ear, index finger, or multiple fingers and toes, total deafness or blindness, paralysis, brain damage causing total disability

* Settlements: GOL 15-108

* a tortfeasor who has obtained a release shall not be entitled to contribution and shall not be held accountable for contribution

* when one defendant is released, the plaintiffs recovery is reduced by the greater of

* The amount stipulated by release

* The amount of consideration paid

* The equitable share of the damages of the released defendant

* there is no waiver of indemnification

* statute does not apply to settlement made after judgment

* tortfeasors may agree among themselves that the statute won't cut off their contribution claims

*Article 16: Limited Liability of Persons Jointly Liable

* 1601: applies in personal injury cases, to non economic loss

* when tortfeasors are jointly liable, a tortfeasor whose liability is 50% or less is only liable for their equitable share of non economic loss

* any tortfeasor who is not a party is ignored if plaintiff shows that with due diligence he was unable to obtain jurisdiction

* 1602:: 12 exceptions when 1601 doesn't apply

* to any defendant held liable for his use, operation or ownership of a motor vehicle

* definition of motor vehicle excludes police and fire vehicles

* intentional tortfeasors

* tortfeasor who acted with gross negligence

* tortfeasor who pollutes

* 1603: a party asserting that the limitation on liability do not apply shall allege and prove by a preponderance of the evidence that on of the exceptions applies. The person asserting limited liability has the burden of proving its equitable share.,

XII. Pleadings

* purpose of pleadings

* narrow the issues for trial

* give notice to parties

* give notice to court

* serve as a permanent record for res judicata purposes

* dispose of cases early where there is no real issue of fact to be tried

* CPLR 3026: pleadings shall be liberally construed, defects will be ignored if a substantial right of a party is not prejudiced

* CPLR 3024 (a): if a pleading is so vague or ambiguous that a party can not reasonably be required to frame a response, he may move for a more definite statement

* a motion to dismiss for failure to state a cause of action may be granted if certain necessary things are not properly in the pleadings. Plaintiff can not summarily state a cause of action, they must cite the precise nature of the culpable conduct. Use the official forms.

* slander complaint must include an allegation of a publication and specifically what the words were

* when suing a municipality, a complaint must allege that a notice of claim was filed

* CPLR 3012-a: a medical malpractice complaint must be accompanied by a certificate of merit from an expert

* CPLR 3017: a complaint must include a demand for relief, except that a plaintiff shall not specify amount of damages demanded in medical malpractice action

* a court does have the power to grant appropriate relief, even if it wasn't demanded

* CPLR 4103: a plaintiff who demands equitable relief is entitled to the opportunity to demand a jury trial if it is later determined that they are entitled to relief on nonequitable grounds

* CPLR 3015-3016: particular matters that must be plead in the complaint

* compliance with conditions precedent

* particularity is required in libel, fraud cases

* we do not have compulsory joinder of issue, you don't have to plead all claims in the complaint, but beware of res judicata, once a claim is dismissed, all future claims arising out of the transaction or occurrence, regardless of theory of liability are barred.

* The Answer

* denials

if you don't deny, you admit, if you do deny, you “join issue”

* dki: don't have enough knowledge or information to form a belief

* denial upon information and belief

* denial on personal information

* general denial: an answer which denies every allegation in the complaint—disfavored

* defendant can be forced to redraft and pay costs

* Part 130 of Uniform Rules allows for sanctions for frivolous conduct

* CPLR 8303-a: allows for sanctions for bad faith, frivolous pleadings in a tort case

* affirmative defenses

* defendant has burden of proof: CPLR 3018 (b)

* lack of personal jurisdiction must be raised by defendant, but once raised burden of proof is on plaintiff

* any affirmative defense which take the party by surprise, apply to facts not on the face of the pleading must be raised or are waived

* may be relatively general, must meet particularity requirement of CPLR 3013

* when defendant raises an affirmative defense, plaintiff may not serve a reply—CPLR 3011

*CPLR 3018(a): when no other pleadings are permitted, the allegation is deemed denied and issue is joined

* cross claims and counter claims: CPLR 3019

* counter claims are permissive, may bring any cause of action in favor of a defendant against plaintiff or another person alleged to be liable

* although not compulsory, watch out for res judicata

* when defendant raises a counter claim, the plaintiff must serve a reply within 20 days

* cross claims are any cause of action in favor of a defendant against another defendant

* when a cross claim is in the answer, a copy must be served on the other defendant

* defendant can demand a reply to a cross claim, if one is not demanded, it is deemed denied

* Verification of Pleadings

* CPLR 3020: statement under oath that the pleading is true to the knowledge of the deponent

* generally, pleadings do not have to be verified, but if a party chooses to verify, all other pleadings in the action must be verified

* CPLR 3020 (d): verification is to be made by the party

* CPLR 3020 (d)(3): an attorney can verify it if his office is in a different county than the party

* CPLR 105 (u): a verified pleading can be used as an affidavit, but not if it is verified by an attorney based on information and belief

* Pleadings must be verified in a matrimonial action, landlord petition for eviction, article 78 proceeding

* a pleading in an article 78 proceeding that is not verified is treated as a nullity, provided notice is given with due diligence (within 24 hours) to the attorney of the adverse party, without notice, the defense is waived—CPLR 3022

* Part 130 of the Rules of the chief Administrative Judge of NY: all litigation papers must be signed by the attorney involved in the case, the signature constitutes a certification that the paper is not frivolous

* Amendment to Pleadings: CPLR 3025

* (a): amendment as of right once within 20 days of service or at any time before the period for responding expires or within 20 days after service of a pleading responding to it

* (b): motion for permission to amend, leave will be freely given as may be just

* leave will not be granted where there is a detrimental change in position due to the passage of time

* no court has allowed a 3025 (b) leave to amend to add a defense of lack of personal jurisdiction

* (c): pleadings can be amended before or after judgment to conform them to the evidence

* Bill of Particulars

* CPLR 3041: defendant may make a demand for a bill of particulars to amplify the pleadings

* can demand to know what plaintiff intends to prove

* can not demand evidence

* Plaintiff has 30 days to respond to a demand for a bill of particulars

* any party with the burden of proof may demand a bill of particulars

* CPLR 3043: in personal injury action particular things about the accident should be provided

CPLR 3042: Procedure for bill of particulars

* with or after service of the answer, serve a demand specifying those things you want particularized

* response due within 30 days, specifying any demands not complied with and why

* if demanding party is unsatisfied or the 30 days expires, a motion to compel compliance may be made and/or motion for the imposition of penalties when there is a willful failure to comply

* CPLR 3126: Penalties for refusal to comply with order to disclose

* issue can be deemed resolved to the contrary of your position

* preclude you form presenting evidence

* dismissal

* failure to serve a bill of particulars after demanded may result in any of the penalties under CPLR 3126 or something less. Normally a court will grant a conditional order of preclusion and monetary sanctions. Dismissal would be on the merits

* if the demand made is burdensome, improper, court may do whatever is just. For example they could strike the demand or modify it.

* if the response is inadequate, the party must provide a statement under oath that they currently lack knowledge sufficient to respond. When they gain subsequent knowledge they will be required to amend the bill of particulars

* CPLR 3042 (b): may amend bill of particulars once prior to the filing of a note of issue

* if the pleading was verified, the bill of particulars must be verified

XIII. Serving Interlocutory Papers

* interlocutory papers are all papers other than initiatory papers

* CPLR 2103 (b): papers are served upon the attorney by

* personal delivery

* by mail

* if you serve by mail, service is complete upon mailing, 5 days are added to response time

* by overnight courier

* by fax if he other party has consented and a confirmation copy is mailed

* providing a fax number in the address block of a litigation paper in that action is consent

XIV. Motion Practice: Article 22

* a motion is an application for an order, can be made ex parte or on notice

* an ex parte motion can be made only if there is explicit statutory authority

* the moving party generally picks the return date

* a judge is not assigned to a case until a request for judicial intervention is filed, do this before filing a motion

* CPLR 2217 (b): an ex parte motion must be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying any new facts

* when seeking an ex parte order, you draft the order and present it to the judge along with supporting papers, including affidavits and affirmation of attorney

* CPLR 2218: the court may order that an issue of fact raised on a motion shall be separately tried. If the issue is triable of right by jury, the court shall give the parties an opportunity to demand it, the right is waived if no demand is made

* CPLR 2212: in a supreme court action, a motion on notice is to be noticed to be heard in a county where the action is triable or in an adjoining county. An ex parte motion is to be made at a motion term or to a justice out of court in any county in the state

* CPLR 2214 (b):

* notice of the motion on notice and supporting affidavits must be served on defendant at least 8 days prior to return date. If served by mail, add five days and serve at least 13 days prior to return date. (2103 (b) governs service of interlocutory papers)

* defendant must serve an answering affidavit at least 2 days prior to return date and may include cross motions

* If you serve the notice and affidavits at least 12 days before return date then answering papers must be served at least 7 days before return date, and you are allowed to serve a reply at least 1 day before return day.

* motion on notice by order to show cause

* 2214 (d): motion made to judge, judge orders the other party to show cause why the order shouldn't be granted.

* for an order to show cause, judge picks the return date instead of moving party, they are not bound by the time limit rules so he can grant you quick relief

* Use this to bring an adverse party into court quickly for a decision on any motion that requires notice but you can't wait the 8 days.

* For some motions, you must make a motion for order to show cause to be heard. This is the case when the statute says “with such notice as court may direct”, an example is CPLR 5015, to have a motion for relief from a judgment or order heard you must make a motion for an order to show cause

* the order to show cause is granted ex parte

* the order to show cause gives notice to the other party of what will be required of them

* most motions are decided on submission, a party could request oral argument

* CPLR 2215: cross motion: respondent may seek independent relief on the same date

* relief need not be responsive to that demanded by the moving party

* serve the cross motion 3 days before return date, if serving cross motion by mail, add 5 days (case law from appellate division, strict reading of statute doesn't require the extra time)

* CPLR 2219

* on a usual motion, judge has 60 days to decide

* on a motion for provisional remedy, judge has 20 days to decide

* if no decision is made, a party may make an Article 78 proceeding to compel the judge to decide

* Deciding the motion is not legally operative until the judge signs the order

* a short form order is generally used

* if complicated, the judge will direct the attorney to either submit order or settle order

* submit order: the winning party is obligated to draft the order and file it

* settle order: requires input from the other side before the judge will sign it

* when a party is directed to submit or settle order, they must do so in 60 days, otherwise it will be considered abandonment of the motion absent a showing of good cause

* CPLR 2220

* an order shall be entered and filed in the office of the clerk

* a copy of the order with notice of entry must be served

* To appeal an order, you have 30 days (5 extra if mailed) from service

* Appellate Practice

* In NY, you can appeal from virtually any order, interlocutory appeal

* Almost all orders are appealable as a matter of right, an exception is an order for a more definite statement in a complaint

* CPLR 2221: motion to renew/reargue

* ask judge for permission to reargue when the judge has overlooked or misapprehended an issue of fact or law

* ask for leave to renew the motion when seeking a change in result based on facts not offered in the prior motion because the lawyer overlooked them despite due diligence or because there has been a change in the law which is capable of having retroactive effect

* an ex parte order cannot be appealed. You can make a motion on notice to vacate the order or to modify it, that motion can be appealed

* CPLR 5704 (a): in an emergency, you can make your motion to vacate or modify an ex parte order in the appellate court

XV. Provisional Remedies

* attachment: for quasi in rem jurisdiction or for security for a money judgment

* replevin: seizure of a chattel, while ownership is disputed

* temporary receivership: like a guardian of assets

* notice of pendancy: where seeking ownership of real property, puts others on notice

* Injunctions: Article 63

* CPLR 6301: preliminary injunctions

* where defendant is doing or about to do something which violates plaintiff's rights and would render the suit irrelevant

* a court will grant a preliminary injunction where,

* a substantial likelihood of success on merits is established

* irreparable injury if the relief is not granted is established

* equities are in the moving parties favor

* CPLR 6312 (b): moving party must put up a bond so that if it is ultimately determined that you weren't entitled to the relief, the other parties damages can be paid

* In a typical breach of contract case for money damages, preliminary injunction is not appropriate, you have no equitable interest in defendants property so you can't keep him from spending his money—This is a new case, Alexander says it will be on the bar

* CPLR 6311: Procedure for Preliminary Injunction

* only granted by motion on notice

* motion cannot be made prior to commencement of the action, service

* return date must be set at least 8 days after service

* to get an earlier return date, make a motion for an order to show cause

* CPLR 6313: if on motion, plaintiff can show that immediate relief is necessary, a temporary restraining order can be granted ex parte

* CPLR 6314: once a preliminary injunction is granted, the defendant may make a motion on notice to vacate or modify. Once a tro is granted, the defendant may get it vacated or modified by ex parte motion, this won't be effective until notice is served on plaintiff. The court may require the defendant to give an undertaking to pay plaintiff for damages caused by the preliminary injunction or tro being vacated or modified

* CPLR 6315: on motion by any party, damages incurred by reason of a preliminary injunction or tro shall be ascertained

* CPLR 304: an ex parte order can be granted, deeming an action to be commenced, where circumstances prevent immediate filing

* Judiciary Law 5: allows service on Sunday when seeking injunctive relief

XV. Motion to Dismiss: CPLR 3211

* this is a pre-answer motion to be made no later than the date that would be your last timely date to serve the answer

* when the motion is made there is an automatic extension of time to serve the answer, if the motion is denied the answer must be served within 10 days of service of notice of the order

* the motion should be accompanied by affidavits to establish the merits

* making a pre-answer motion on any 3211 grounds does not waive the right to raise any of the other grounds later, except the jurisdictional defenses in (8) & (9)

* Grounds for motion

*

* (b) motion to dismiss a defense can be made at any time, but if the defense if lack of personal jurisdiction you should respond quickly so that you can start over if necessary

* CPLR 3214 (b): when a motion to dismiss is made, there is an immediate stay on pre-trial discovery unless court orders discovery , except where the motion is made solely on the ground that process was not properly served

XVI. Summary Judgment: CPLR 3212

* summary judgment will be granted where there is no genuine issue of fact that requires a trial, a party will be entitled to judgment as a matter of law

* moving party must make a prima facie showing or else the motion fails

* burden shifts to party opposing to produce evidentiary proof that shows issues of fact for trial

* pleadings alone do not create issues of fact

* summary judgment is rarely granted in negligence actions, only if reasonable people could not differ on the decision

* as a general rule, you must give evidence that would be admissible if offered at trial

* CPLR 3212 (c): court can order an immediate trial of fact issues that come up when

* the only issue is the amount of damages

* the motion is based on any grounds listed in 3211

* when a motion for summary judgment is made, the court can search the record and grant the motion in favor of either party, with respect to any issue raised by parties. Court of Appeals can not do this, only supreme court or appellate division

* CPLR 3211 (c): court may convert a motion to dismiss to a motion for summary judgment if evidence is presented, often on a 3211 (a)(7)

* court must give notice to the parties of intent to make conversion

* once converted and notice is given, the plaintiff can no longer rely on the complaint, must bring evidence. In the absence of conversion, the case is decided solely on the basis of plaintiff's complaint

* the plaintiff can use affidavits to remedy defects in the complaint in the face of a 3211 (a) (7) motion

* affidavits are to be ignored for 3211 (a) (7) only, all other grounds use affidavits

* CPLR 3213: plaintiff may move for summary judgment at commencement of action where

* action is based upon an instrument for payment of money

* suit upon an out of state judgment

* CPLR 3213 return date set at 20 days if served by personal delivery in NY, or 30 days after completion of service

* instrument for payment of money only must be an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time

* if outside proof is necessary, it is not an instrument for payment of money only

* suing on a bill for delivery of goods or provision of services is not a 3213 action

* if the motion is denied, court can treat the motions as pleadings and allow the case to proceed. May order otherwise, most likely would if the motion was based on a suit on a judgment. If you lose on collateral attack, you must ask the court to treat the motion as a suit on the merits, submit a proposed complaint

XVII. Default Judgment: CPLR 3215

* who do you make the application to

* clerk of the court, where plaintiff is suing for a sum certain and application is made within 1 year of default

* court, in all other cases

* on a default judgment, the maximum damages awarded are those alleged

* if no motion is made within 1 year of the default, the action is deemed abandoned and will be dismissed unless plaintiff shows good cause

*paperwork

* proof of service

* proof by affidavit of facts constituting the claim

* proof by affidavit of facts constituting the default

* proof by affidavit of facts constituting the amount due

* 50 U.S.C. 520: soldier and sailor relief act—must submit an affidavit that defendant is not in military service

* if you had a verified complaint, that is sufficient affidavit for this purpose, but verification by an attorney on information and belief cannot be used

* In some cases, notice must be given before entering a default

* default based on non appearance of a contractual obligation against a natural person, plaintiff is required to serve an extra copy of summons at least 20 days before seeking a default. Delivery by first class mail is okay.

* if defendant appeared originally and defaulted thereafter

* if seeking default judgment more than 1 year from the default

* when notice is required, give 5 days notice

* If damages are not a sum certain and defendant fails to appear, defendant will be entitled to notice of an inquest to determine damages

* Relief from a Judgment

* CPLR 5015: motion to vacate a default judgment for excusable default

* must show good cause for the default and an affidavit of merit of the defense

* must be made within 1 year of service of a copy of judgment with notice of entry

* CPLR 317: served by a method other than personal delivery and did not receive notice of the action in time to defend, must show lack of notice and affidavit of merit.

* CPLR 3215 (g)(4): When default judgment is based upon no appearance against a NY corp. and service was made under BCL 306, must submit an affidavit that the summons was mailed to last known address

* if moving to vacate based on lack of jurisdiction, an affidavit of merit is not required, merits are irrelevant

XVIII. Discovery

A. Scope and Exceptions

* CPLR 3101: you are entitled to discover all matter material and necessary in the prosecution or defense of an action

* you may discover evidence or information that could lead to evidence

* helpfulness standard: will disclosure assist is preparation for trial

* burden of proof is irrelevant, you can ask for information on matters that you have the burden of proving at trial

* there has been judicial limitations on disclosure

* in shareholder derivative actions you will not be allowed to dispose the director

* in matrimonial actions, you are not allowed to dispose anyone regarding the grounds for the action

* CPLR 3102 (b): unless otherwise provided, disclosure shall be obtained by stipulation on notice without leave of the court

* CPLR 3101 (b): statutory limitations on disclosure of privileged communications

* work product

* very narrow standard, must be uniquely the product of a lawyers skill or reasoning

* this is an absolute privilege

* material prepared in anticipation of litigation

* can be prepared by anyone as long as it is created with an eye to litigation

* only a qualified privilege, will be forced to disclose upon a showing of substantial need and inability to obtain otherwise

* CPLR 3101 (e): a party is always entitled to a copy of his own statement

* CPLR 3101 (i): videotapes, films, photos, etc. must be turned over. At common law a deposition was required before these had to be disclosed but the statute doesn't mention a deposition. Some appellate division cases have said that a deposition is not required

* CPLR 3101 (g): an accident report prepared in the ordinary course of business must be disclosed. This provision trumps the material prepared in preparation for litigation privilege

* this only applies when the party prepares it. For example if an insurance company creates accident reports in the ordinary course of their business it is privileged as material prepared in anticipation of litigation because the insurance company is not a party

* CPLR 3101 (f): an adversary's insurance policy is always discoverable

* CPLR 3101 (d)(1): Experts

* upon request witnesses must be identified and the subject matter of their testimony must be identified with reasonable detail. You must also summarize the facts on which the opinion is based, qualifications of the expert and a summary of the grounds for the expert opinion.

* in a medical malpractice action, the identity of the witness may be omitted

* further disclosure regarding experts is only obtained by court order, with a showing of special circumstances

* if you are unable to identify your witnesses when requested, you can't be compelled to do so but if you don't identify them within sufficient time to give your opponent fair notice you will be precluded from introducing the testimony

* consulting experts (who don't testify) are not covered, they are protected by privilege under 3101(d)(2)

* CPLR 3101 (h): parties have a duty to correct/supplement responses to disclosure requests if failure to do so would be materially misleading

* the order in which you use discovery devices is discretionary, but you must complete one method before you begin using another

B. Depositions

* 3101 (a): who may be deposed

* any party

* a person about to depart form the state, lives outside of the state, lives 100 miles or more from the court, is too sick to come to court

* your own expert

* a person who possessed a cause of action or defense asserted in the action

* any other person with notice specifying the reason for seeking the deposition

* case law is divided on the ability to depose non party witnesses, some courts have been very liberal and others very strict

* 3106 (d): when your opponent is a corporation you should specify who you want to depose as a representative of the corporation, otherwise you can allow the corporation to produce someone they deem relevant

*3107: to take a deposition you must serve a notice of deposition at least 20 days before deposition ( add 5 days if served by mail). No subpoena is needed to depose a party. You must serve a copy of the notice on all parties.

* 3106 (a): to take a deposition of the defendant before the time for service of the answer expires, the plaintiff must get a court order

* this gives the defendant priority for taking depositions, they can serve notice of deposition on the plaintiff at any time

* 3107: a party who is to be examined by another party may demand to examine the other party at the same time and place upon 10 days notice

* To depose a non-witness you must have a subpoena as well as serving the notice of deposition

* serve a subpoena the same way you serve a summons

* you must pay a witness fee

* an attorney has authority to issue a subpoena in the name of the court

* if you have jurisdiction over a party you can make him come to NY for a deposition, but if a non party witness does not live or work in NY a NY subpoena can not be served outside of NY. You must apply for a commission, which will “deputize” you to go into a court in the state where the witness is located, and ask the court to subpoena them (3108)

* At a deposition, you must have a court stenographer to swear in witnesses and transcribe the deposition. You can videotape the deposition if you wish but you must still have a stenographer to swear people in.

* At a deposition the opponent must be given the opportunity to cross-examine your witness

* Procedure at a deposition

* if you don't object during deposition you do not waive evidentiary objections

* errors, which might be obviated if, made known (like objections to the form of questions or questions that would reveal privileged communications) must be objected to at the deposition

* during a deposition the attorney may instruct their client to not answer a question when the question elicits privileged information or the question is grossly irrelevant, otherwise they shouldn't encourage not answering

* after the deposition, the witness has 60 days to read and sign the deposition. They are permitted to indicate any changes at the end of the deposition. After 60 days they forfeit the right to make any changes, it is deemed signed.

* 3110: Where to take a deposition

* when the person to be deposed is a party or an officer, director, member or employee of a party, within the county in which he resides or has an office for the regular tansaction of business or where the action is pending

* when any other person is to be examined is a resident, within the county he resides, is regularly employed or has an office for the regular transaction of business. If he is not a resident, within the county in which he is served, is regularly employed or has an office for the regular transaction of business

* when the party is a corporation or any officer, agent or employee within the county in which the action is pending. It shall be at the office of any of the attorneys for the corporation

* Use of the deposition at trial: 3117

* impeachment if the witness testifies at trial as a prior inconsistent statement

* there is a hearsay exception for a deposition, it can be used to prove the truth of the matter asserted as long as the other side had the opportunity to cross

* as a party admission. A party's deposition may be used against them for any purpose by an adverse party as long as they were a party, an officer, director, manager, employee of a party at the time of the deposition

* If at the time of the trial the witness is unavailable, a deposition of a nonparty witness or your own deposition can be used at trial. But, you cannot be responsible for the absence

* the deposition of a person authorized to practice medicine may be used by any party without the need for showing unavailability or special circumstances

* if the witness is not unavailable, there is a catch all “exceptional circumstances” provision to allow use of a deposition at trial

* if a party reads part of a deposition at trial, any other party may read any other part that in fairness ought to be read in connection with the part introduced

C. Interrogatories

* an interrogatory is a list of questions to be answered under oath

* 3130: generally interrogatories may only be served on parties

* 3132: defendant has priority in serving interrogatories

* 3133: answers to interrogatories must be served within 20 days and objections must be specified

* 3124: when a party fails to answer interrogatories , you can make a motion to compel

* answers to interrogatories can be used against you at trial as a party admission

* 3131: interrogatories may require the production of documents or other items

* interrogatories must not be burdensome

* 3130: except in a matrimonial action, a party may not serve interrogatories and a demand for a bill of particulars on the same party.

* in a matrimonial action, no depositions are allowed, therefore interrogatories can be freely used in conjunction with the bill of particulars

* with a court order, you will be allowed to serve interrogatories on a non-party for financial information

* in a negligence action, a party may not serve interrogatories on and conduct a deposition of the same party without leave of court

D. Notice for discovery and inspection

* use this when you want to enter upon land, inspect land or items, documents etc.

* 3120: you must identify what you want to inspect with sufficient particularity

* if it is a party, serve the notice 10 days in advance and provide a time and place for the inspection to occur

* if it is a non-party, you must have a court order, make a motion on notice for an order to inspect. Can't do it with a subpoena

* 3122: objections are made by serving a response stating grounds for objection, or you can make a motion for a protective order

E. Notice to admit

* only used between parties

* ask a party to admit genuineness of documents, accuracy of photographs, matters to which there could be no reasonable dispute at trial

* must be clear cut facts which can readily be admitted, asking a party to admit to an interpretation of law is not allowed

* you have 20 days to respond to a notice, admit or deny

* denials must be under oath

* failure to deny is deemed an admission

* an admission is binding, established as fact for this litigation

* an unreasonable denial which the other party later proves requires the party who made the denial to pay the expenses incurred in proving that issue

* notice to admit can be served up until 20 days before trial

F. Physical or Mental Exam

* 3121: whenever a party's physical or mental condition is in controversy they can be required to submit to an exam by the doctor of the other party's choice

* no court order required, serve notice

* you may also demand copies of hospital records concerning the condition in controversy, there is an implied waiver of doctor patient privilege when you are the plaintiff. A defendant does not waive his privilege unless he affirmatively pleads his condition, a denial to plaintiff's pleading won't do it.

G. Sanctions

* failure to comply with discovery can result in sanctions being imposed against you

* parties are obligated to make a good faith effort to resolve disputes without resort to the courts

* 3103: motion for a protective order

* 3124: motion to compel disclosure against any person

* 3126: motion for sanctions for failure to comply with an order to disclose

* made when a 3124 order is ignored or when a party willfully fails to disclose

* Potential penalties under a 3126 motion:

* an order that the issues to which the information is relevant are resolved in favor of the moving party

* an order prohibiting the disobedient party form raising, supporting, opposing certain claims or producing certain evidence

* dismissal, default judgment, strike pleading

* court can make any of these orders conditional and give the party time to comply

XIX. Note of Issue

* when your discovery is complete and you are ready to go to trial, file and serve a note of issue. It is a document which notifies the court that you are ready for trial and must be accompanied by a certificate of readiness for trial.

* To get more discovery after the note of issue is filed you need to make a motion to strike the note of issue

* one the note of issue is stricken, if it is not restored within 1 year the case is deemed abandoned

* 3123: the notice to admit can be used up until 20 days before trial, even after the note of issue is filed. No other discovery is allowed.

XX. Failure to Prosecute

* 3216: motion to dismiss for neglect to prosecute.

* when there is a delay from time that issue was joined, failing to move toward filing a note of issue

* defendant must serve a demand, demanding that note of issue be filed within 90 days of receipt of the demand

* CPLR 2004: court has discretion to grant an extension of any time limit except the statute of limitation

* a 3216 dismissal is not on the merits unless the court says otherwise, but be careful of statute of limitations, they won't get the grace period because this is within the failure to prosecute exception.

* once defendant serves their demand they waive their right to further discovery

XX. Special Proceedings

A. Generally

* a special proceeding seeks a final determination of someone's rights, a judgment

* A special proceeding is much faster than a regular action

* you can only use a special proceeding if there is explicit statutory authority

* 103: if a court has obtained jurisdiction, a special proceeding won't be dismissed because it isn't allowed to be a special proceeding, the court will convert it into a regular action

* Examples of statutory direction to use a special proceeding

* rpapl art. 7: landlord tenant proceeding

* bcl: proceeding for dissolution of a corporation

* mental hygiene law art. 81: guardianship proceeding

* election law

* CPLR Art. 75: arbitration agreements

* Gen. Munic. Law: seek permission to serve a late notice of claim

* CPLR Article 78 proceedings

* 401: a special proceeding is initiated by a petitioner against a respondent

* 402: pleadings

* initiated by a petition

* adverse party responds with an action

* petitioner must reply to any counterclaim

* 403: jurisdiction

* must serve a petition and notice of petition as initiatory papers; specify the return date and affidavits

* must serve the petition at least 8 days before hearing

* answer must be served at least 2 days before hearing

* if you serve the petition at least 12 days before hearing, answer is to be served at least 7 days before hearing and reply can be served at least 1 day before hearing

* the petition is to be served like a summons

* court may grant an order to show cause to be served in lieu of a petition

* 304: filing the petition commences the action.

* you must also file an RJI

* 306-b: in an action or proceeding where statue of limitations is 4 months or less, service is to be made no later than 15 days after the expiration of the statute of limitations

* 408: pretrial discovery is prohibited without a court order

409: Hearing

* on submission of papers unless there is a disputed issue of fact

* 410: if an issue of fact arises there will be a trial as soon as practicable

B. Article 78 Proceedings

* An article 78 proceeding is a proceeding against a body of officer

* 7802: body or officer includes every court, tribunal, board, corporation, officer or other person, aggregation of persons whose actions may be affected by a proceeding

* 7804: Procedures

* only the supreme court has subject matter jurisdiction

* pleadings must be verified

* you must serve the petition at least 20 days before the hearing unless it is commenced by an order to show cause

* 7806: Judgment

* judgment may annul or confirm a determination in whole or in part, or modify it and may direct or prohibit specific actions

* restitution or damages may be awarded, but they must be incidental to the primary relief sought

* incidental is case specific, it does not necessarily mean a small amount of money

* 217: statute of limitations is 4 months, running from the final action by the official

* cross reference 306-b: must serve no later than 15 days after the expiration of the statute of limitations

* 7803: Questions to be Raised

* whether the body or officer failed to perform a duty enjoined upon it by law (mandamus to compel)

* whether the body or officer proceeded , is proceeding or is about to proceed without or in excess of jurisdiction (prohibition)

* whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion (mandamus to review)

* whether a determination was made as a result of a hearing held, and at which evidence was taken pursuant to direction of law, is, on the entire record, supported by substantial evidence (certiorari)

* Article 78 proceedings are not proper where the agency had discretion in its decision, it is only proper where they were required by law to act a certain way

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