NY Practice New York Bar Exam Preparation Condensed Revision Notes
SUBJECT MATTER JURISDICTION
–A court must have SUBJECT MATTER JURISDICTION (competence) to hear and adjudicate the type of controversy brought before it.
–GENERAL JURISDICTION: right to hear any type of action
–Supreme Court (SC) most important trial court- 62 counties in NY- 1 branch of SC in every county
–SC subject matter jurisdiction is general and unlimited re:
Monetary amount (any amount, damages)
Unlimited ability to assert equity claims (unltd equity jurisdiction)
Residency of parties doesn’t matter
Place where cause of action arose
: court has discretion upon motion, to dismiss on the ground of forum non conveniens -action lack any substantial nexus to NY.
Motion must be made by D.
Exceptions to Supreme Court’s General Jurisdiciton
ý Claims for money damages in tort or contract against the state of NY – NY COURT OF CLAIMS – only STATE OF NY can be sued- employees and subdivisions of state must be sued in SC
þ SC has exclusive subject matter jurisdiction over:
Matrimonial action: action in which court is asked to adjudicate on MARITAL STATUS (divorce, separation, annulment)
CPLR Article 78 proceedings (judicial review of NY state and local govt admin action).
STATUTE OF LIMITATIONS
SOL: Time within which a lawsuit must be brought
Affirmative defense, based on passage of time, to be raised by D
µ Begins to run when the cause of action accrues or when injury occurs
µPersonal injury/property damage action: cause of action accrues on date of injury 3 YEARS
µBreach of contract, cause of action accrues on the date of breach 6 YEARS
SOL does not begin to run from discovery of injury/breach even if P unaware
µ The action must be commenced no later than last day of prescribed period of limitations
µ Commencement= filing. The filing must be made with clerk of court on or before last day of SOL,
µ Exclude the day upon which triggering event occurs and count next day
Exam states TIMELY COMMENCED- do not discuss
J Medical Malpractice
MM applies to doctors, dentists, nurses and hospitals.
SOL is 2 ½ years
Date of accrual begins to run from the date of malpractice.
Date of discovery of malpractice is generally irrelevant
Negligent hiring by hospital – 3 years
µ Continuous treatment rule
Physician continues to treat patient after operation for the SAME MEDICAL CONDITION that gives rise to malpractice
SOL 2 ½ years from END of CONTINUOUS TREATMENT
µ Foreign Object Rule
If physician responsible for introducing a FOREIGN OBJECT into patient’s body and then leaves it behind, P gets whichever is longer
2 ½ years from operation OR
1 year from the date P discovers the presence of object or should have discovered object with due diligence
FOREIGN OBJECT- sth the doctor did not intend to leave behind i.e. temporary surgical clamps, sponges, scalpels
These are not foreign objects: chemical substances, prosthetic devices, fixation device
Re these exceptions, SOL runs from the date of doctor’s malpractice
µ Other professional malpractice (non-medical)
Claims by clients of architects, engineers, accountants, attorneys, etc. MEMBERS OF A LEARNED PROFESSION doesn’t include brokers, securities analysts, plumbers
CLIENT’S CAUSE OF ACTION for malpractice against non-medical professional for FINANCIAL LOSS has SOL 3 years
Regardless of whether the claim is based on tort or breach of contract
SOL begins to run when SERVICES ARE COMPLETED regardless of P’s lack of awareness of malpractice.
O Any person who suffers BODILY INJURY as a result of non-medical professional’s malpractice has 3 year SOL running from date bodily injury regardless of date work was completed.
µ Special procedures when building complete >10 years ago:
P must serve notice of claim on D at least 90 days before suit
P may obtain pre-action discovery from D during 90 day waiting period
After suit commenced, D moves for summary judgment- burden on P to show that there is substantial basis to believe that D’s negligence was proximate cause of injuries.
µ Municipal Tort Liability
SOL in action for personal injury or property damage against govt sub-division of state SOL is 1 year 90 days
Notice of claim prerequisite must be served by P on potential municipal D within 90 days of accident
Lack of notice= municipal D can dismiss action on ground of failure to state a cause of action.
Must wait for 30 days before can commence action against municipal D
µ Products Liability
Defective product causes personal injury- P 3 possible causes of action
NEGLIGENCE: 3 years from P’s injury
STRICT PRODUCTS LIABILITY: 3 years from P’s injury
BREACH OF WARRANTY: UCC, 4 years begins to run when D made delivery of product
µ Indemnity and Contribution
SOL 6 years from date of actual payment of judgment
µ Exposure to toxic substances
Toxic substance= inherently harmful toxin that has latent or slow-developing effects
3 year SOL begins to run against manuf, distrib, supplier upon the earlier of either:
Discovery of injury (P becomes aware of symptoms) OR
Date when injury should have been discovered with reasonable diligence
J GENERAL TOLLS AND EXTENSIONS
Tolls= SOL not running/ time out
TOLL for D’s absence
µ D not in NY when cause of action accrues- SOL doesn’t begin to run until D comes back
O Exception: TOLL for absence not available if P has a basis of PERSONAL JURISDICTION over D- process can be validly served on D outside NY
OBecause of Exception- P rarely entitled to absence toll!
P’s Infancy or Insanity
µ Infants under 18 or insane P may sue within regular SOL through adult but also benefit of toll:
P infant or insane @ time cause of action accrues SOL is tolled until infant reaches 18 or insanity clears up.
µ Original SOL 3 years or more P gets whichever is longer:
Usual SOL running from date of accrual
3 years from date legal disability ends
µ Original SOL less than 3 years
When legal disability ends P gets specified statutory period from date disability ends
10 year max period for commencing action
Applies when using infancy or insanity provisions
Medical malpractice must be commenced no later than 10 years from accrual
Tolls for Death
Survival claim- cause of action D could have brought himself if he were still alive (PAIN AND SUFFERING)
SOL: P dies before SOL expires estate rep gets whichever is LONGER: time remaining under applicable SOL running from date of accrual or 1 year from P’s death
Wrongful death- cause of action is tort for ECONOMIC DAMAGES not emotional suffering
SOL 2 years from death
If potential D dies at any time before SOL expires- 18 months are added to SOL
6 month grace period
If NY action timely commenced but there’s dismissal before trial AND at time of dismissal SOL expired or less than 6 months remaining- P gets 6 months from date of dismissal to refile the same action and serve process on same D.
Exceptions- doesn’t apply to these dismissals:
Dismissal based on P’s neglect to prosecute- general pattern of delay
Lack of personal jurisdiction
Cause of action arises outside NY
Problem- SOL of other state different from that in NY
µ P non-resident when out of state claim arose- NY will apply SOL of state where claim arose
BUT NY will apply its own SOL if state where cause of action arose has longer SOL
µ P NY resident when out of state claim arose- always apply NY SOL
JURISDICTION OVER PARTICULAR CASE
J Commencement procedures
Exam says duly commenced don’t discuss issue
Action commenced by filing process with clerk of court.
Filing + fee for index number è serve process on D within 120 Days
Court has discretion to extend 120 day period upon motion from P showing:
Good cause or interest of justice justifies ext
Form of process
SUMMONS AND COMPLAINT
SUMMONS: advises D that P is suing in particular court
COMPLAINT: P’s pleading specifies transaction or occurrence that is subject matter of action + essential elements of cause of action
SUMMONS WITH NOTICE
Summons must have sufficient notice: 1) brief statement of nature of action 2) type of relief being sought 3) If P seeking damages, amount
Methods of serving Process
Exam- duly served- don’t discuss issue
Can be served by any person who is at least 18 & not party to action
Process can be served on any day except Sunday (can on holiday)
Service on NATURAL PERSONS
Personal delivery to D- complete upon tender of process to D
If not delivered to D personally, D must raise defense of lack of proper service
Leave and Mail
Process server deliver process to person of SUITABLE AGE AND DISCRETION @ D’s ACTUAL dwelling place or ACTUAL place of business + MAIL to D’s ACTUAL place of business or last known residence
If suit is against more than 1 D, each D must get a copy of process.
2 service steps must be performed within 20 days of each other and within 120 days from filing
Steps can be performed in any order.
Affixing and Mailing
Affixing- taping or using rubber band
Process server may affix process to DOOR of D’s ACTUAL dwelling place or ACTUAL place of business + MAIL a copy of process by regular mail to D’s ACTUAL PLACE OF BUSINESS and LAST KNOWN residence
Must be performed in any order within 20 days of each other- both steps within 120 days from filing process
BUT process server must 1st exercise due diligence- make an attempt to serve directly & if fails try leave and mail
Due diligence- several attempts different days of week & different time of day
Proof of Service
Leave and Mail & Affix and Mail – proof of service must be filed (AFFIDAVIT)
Proof of service- makes process complete 10 days after proof of service is filed
D’s response time begins to run
Delay in filing proof of service postpones D’s time to respond.
Expedient Service (court invented)
Foregoing methods not practicable P can make ex parte motion to court allowing an improvised, expedient method- reasonable alternative appropriate in circumstances
Service on infants and mentally incapacitated
D infant, process must be served on following adults:
Any person having legal custody
Adult spouse with whom infant resides
Infant 14 or over: process must be served on eligible adult + infant= DUAL PROCESS
Service outside NY
Same methods as in NY used when D outside NY- NY METHODS CONTROLLING
Who may serve process in other jurisdiction:
Any NY resident 18 or over
Anyone authorised to serve process by place where service being made
Any attorney licensed in jurisdiction where service is made
Service of Corporations 2 methods
PERSONAL DELIVERY to these corp rep:
Officer of corp
Leave an Mail not available for corps
Service on NY Sec of State
DOMESTIC CORP incorp in NY OR foreign corp authorised to do business in NY (LICENSED CORP)
Personally deliver 2 copies of process to Office of NY Sec of State (designated agent as per CI)
Sec of State will mail 1 copy by certified mail to corp at address on file at Sec’s office. Service of process complete upon delivery of process to Sec.
UNLICENSED FOREIGN CORP
Personally deliver 1 copy of process to office of NY Sec of State + P mails 1 copy to corp by certified mail + return receipt (Sec wouldn’t know the address).
Non-Traditional Method Service by FIRST CLASS MAIL + ACKNOWLEDGEMENT
µ Mail D by 1st class mail + enclose 2 copies of a statutory acknowledgment form+ return
envelope + postage prepaid, addressed to sender.
µ Service only effective if D signs and returns one of acknowledgment forms to P within 30 days after D receives mailed process.
If D doesn’t return acknowledgment form, service by mail not effective- P serves process again using traditional method- D who refuses to acknowledge process by mail pays cost of 2nd service.
Available to all types of Ds except infants and mentally incapacitated
J BASIS OF JURISDICTION over D’s person
Personal Jurisdiction enables a judgment for money to be enforced in full.
Territorial connection b/w D and State of NY
General Jurisdiction (doesn’t matter where claim arose)
Presence in NY
Doing Business in NY
Domicile in NY
Specific Jurisdiction (claim must be specific to D’s NY activity)
Non-resident motorist statute
General Jurisdiction (doesn’t matter where claim arose)
Presence in NY
Personal delivery of process to D while D is PHYSICALLY PRESENT IN NY
Doing Business in NY
DOMESTIC CORP (incorporated in NY) and LICENSED FOREIGN CORP subject to personal jurisdiction in NY on any claim (doesn’t matter where arose).
UNLICENSED FOREIGN CORP- present if “DOING BUSINESS IN NY”
µ TEST for DOING BUSINESS IN NY
P must show that @ time action commenced, the corp’s employees/agents in NY engaging in COMMERCIAL ACTIVITY FOR CORP ON A REGULAR, SYSTEMATIC AND ONGOING BASIS.
If corp doing business in NY service of process can be made using personal delivery to proper corp rep.
µ 3 LIMITATION to above test:
SALES of corps products in NY
ADVERTISING by corp
TRANSIENT PRESENCE of corp officer
=NOT DOING BUSINESS
O SATISFACTION OF DOING BUSINESS STANDARD IS NECESSARY IF CAUSE OF ACTION AROSE OUTSIDE NY. IF WITHIN NY- LONG-ARM JURISDICTION WILL PROBABLY BE AVAILABLE
Domicile in NY
Individual D domiciliary of NY @ time action is commenced can be served with process anywhere in US- gives P general personal jurisdiction
Specific Jurisdiction (claim must be specific to D’s NY activity)
Allows for OUT OF STATE SERVICE conferring personal jurisdiction on basis of certain acts by D that have a SUFFICIENT CONNECTION WITH NY- claim must arise from those acts
The facts of P’s case must arise out of any of 5 categories of NY related activity:
P’s CLAIM ARISES FROM A TRANSACTION OF BUSINESS BY D IN NY
“doing business” – continuous business activity
“transaction of business”- single commercial event in NY that must give rise to the cause of action.
D can “project himself into NY” (D never physically came to NY)
Dozens of faxes, emails, communications
P’S CLAIM ARISES FROM CONTRACT TRANSACTED ANYWHERE BY WHICH D AGREED TO SUPPLY GOODS OR SERVICES IN NY
Contracts for goods or services- “economically significant”
P’S CLAIM ARISES FROM D’S TORTIOUS ACT IN NY
P’S CLAIM ARISES FROM D’S TORTIOUS ACT OUTSIDE NY WHICH CAUSES INJURY IN NY
µ + ADDITIONAL LINK B/W D & NY:
–D regularly solicits business
–D derives substantial revenue from goods used/consumed or services rendered in NY
–D expects/should reasonably expect the act to have consequences in NY AND D derives SUBSTANTIAL REVENUE from INTERSTATE OR INTERNATIONAL COMMERCE
(must purposefully include NY)
Injury must originate in NY
P’s CLAIM ARISES FROM D’S OWNERSHIP, USE OR POSSESSION OF REAL PROPERTY IN NY
Long-arm jurisdiction covers all types of D’s (corps, individuals, partnerships)
Acts giving rise to jurisdiction can be performed by D or her agent or employee
CONSTITUTIONAL DUE PROCESS: claim arises of conduct of D that is purposefully directed towards NY that D should reasonably anticipate being sued on that claim in NY court
Non-resident motorist statute
Confers personal jurisdiction over accident claim arising from a non-domiciliary motorist’s ownership or use of a car on NY roadway. Unique features:
Service of process: P serves process on D by personally serving 1 copy on NY Secretary of state + mailing 2nd copy to D by certified mail to D’s out of state residence
Applies to non-domiciliary vehicle owner who gave permission to drive in NY.
Supreme Court is proper court (with subject matter jurisdiction)
µ MATRIMONIAL- status of marriage
Valid BASIS OF PERSONAL JURISDICTION not required in matrimonial action (IN REM JURISDICTION)
To obtain DIVORCE, SEPARATION OR ANNULMENT, P must be a DOMICILIARY OF NY
If P NY domiciliary- marital status located in NY
Court has in rem jurisdiction over the marriage
Basis of personal jurisdiction required
µ Matrimonial Long-Arm Statute
P spouse resident of NY + grounds:
NY was matrimonial domicile of P and D prior to separation
D abandoned P in NY
D’s monetary obligation accrued under agreement executed in NY
D’s monetary obligation accrued under laws of NY
ONLY proper method of service in matrimonial action is PERSONAL DELIVERY to D.
DURATIONAL RESIDENCY REQUIREMENTS DRR
Sufficient connection of marriage to NY
Part of substance/merits
Required for MATRIMONIAL ACTION ONLY NOT MONETARY SUPPORT
Statutory conditions precedent to MATRIMONIAL ACTION
P’s complaint must satisfy any one of DRR:
BOTH PARTIES are NY RESIDENTS at the time cause of action commenced AND GROUNDS FOR MATRIMONIAL ACTION AROSE IN NY
1 YEAR RESIDENCY: either PARTY has been NY RESIDENT for continuous period of at least 1 YEAR immediately prior to action AND NY has 1 prior link to NY
Marriage took place in NY
NY was matrimonial domicile of spouses at some point
Grounds for divorce action arose in NY
2 YEAR RESIDENCY: EITHER PARTY has been NY RESIDENT for continuous period of at least 2 years prior to action – NO GROUNDS or LINKS
If P FAILS to show any of these DRR- defense – FAILURE TO STATE A CAUSE OF ACTION NOT LACK OF PERSONAL JURISDICTION
P- DOESN’T SHOW DRR= FAILURE TO STATE A CAUSE OF ACTION
Regulate proper county for Supreme Court action – P chooses and satisfies venue
P chooses venue and specifies it in the summons in accordance with following rules:
µAction involving TITLE OR POSSESSION TO REAL PROPERTY- county in which real property is located
µ Other actions: Any county in NY in which any of the parties reside at the time action is commenced
Improper venue- not jurisdictional defect and not basis for dismissal
D’s remedy for improper venue= serve a demand for change of venue to a proper county designated by D.
Demand must be served before or with answer.
P consents- change in venue spec by D automatic
If P objects- D must make motion for change of venue
Discretionary grounds for change in venue
Convenience of material witnesses.
Avoid being in default
J Response to SUMMONS AND COMPLAINT
1 Serve and Answer (D’s pleading, admits or denies P’s allegations + affirmative defenses)
2 Pre-answer motion to dismiss
PLEADINGS= P’s complaint and D’s answer
1 Denials of allegations
2 Affirmative Defenses (SOL, lack of personal jurisdiction, P’s comparative negligence)
AFFIRMATIVE DEFENSES NOT RAISED IN ANSWER ARE WAIVED
3 AFFIRMATIVE DEFENCES NEVER WAIVED:
1 NON-JOINDER OF A NECESSARY PARTY
2 FAILURE TO STATE A CAUSE OF ACTION
3 LACK OF SUBJECT MATTER JURISDICTION
COUNTERCLAIM- D’s own cause of action against P
REPLY- P’s pleading in response to counter-claim
REPLY= DENIALS + AFFIRMATIVE DEFENCES
Parties must serve copies of pleadings on all other parties who have appeared in action
Ordinary mail can be used to serve answer- service of interlocutory paper by mail deemed made upon mailing not receipt.
Mail= must be made through NY post office.
TIME LIMITS FOR SERVING ANSWER
D served with process by
PERSONAL DELIVERY WITHIN NY – MUST SERVE ANSWER WITHIN 20 DAYS
FIRST CLASS MAIL PLUS ACKNOWLEDGEMENT- MUST SERVE ANSWER WITHIN 20 DAYS OF P’s MAILING OF ACKNOWLEDGEMENT
ANY OTHER CIRCUMSTANCES- D MUST SERVE ANSWER 30 DAYS AFTER SERVICE COMPLETE
If exam says “timely responded” do not discuss issue
MOTION TO DISMISS (CPLR 3211)
Affirmative defences usually asserted in D’s answer.
CPLR 3211 PRE-ANSWER MOTION TO DISMISS DEFENSES
8 AFFIRMATIVE DEFENCES
Other action pending (b/w same parties & same cause of action)
Want of capacity (infant)
Non-joinder of a necessary party
Failure to state a cause of action
Standard used by courts in deciding this motion:
1 PP entitled to every favourable inference
2 Motion should be denied if there is basis for relief under substantive law
Additional affirmative defences
Lack of personal jurisdiction PJ
1 Improper commencement procedure
2 Improper service of process
3 Lack of basis jurisdiction
Lack of subject matter jurisdiction SMJ
Additional Affirmative Defences
Statute of Limitations
Payment (of debt)
Release (paid money)
Estoppel (collateral estoppel)
Infancy of D
Statute of Frauds
Motion is made before service of answer
Making motion extends D’s time to answer
If motion denied, D must serve answer within 10 days
Does not have to make a CPLR 3211 motion to dismiss, can put in answer as AFFIRMATIVE DEFENSES
Allowed to make one CPLR 3211 motion to dismiss but can state multiple grounds
AFFIRMATIVE DEFENSES NOT RAISED IN ANSWER ARE WAIVED + EXCEPTION
PRESERVING PERSONAL JURISDICTION DEFENSES:
1 before serving answer, make CPLR 3211 motion to dismiss that includes lack of personal jurisdiction
2 No CPLR 3211 motion to dismiss and instead put lack of personal jurisdiction as defence in answer
For improper service of process, have to make follow-up MOTION FOR SUMMARY JUDGMENT within 60 days of serving answer
Motion to amend answer (right) can include affirmative defences
J Responses to SUMMONS WITH NOTICE
Force P to serve complaint
1 serve demand for complaint
2 serve notice of appearance
Time limit for reply
20 days if D served by PERSONAL DELIVERY
20 days from acknowledgment if D served by 1st class mail
30 days- OTHER CIRCUMSTANCES (after service complete)
P DEMAND FOR COMPLAINT = P must respond within 20 days of service
When P responds= D has 20 days from such service to:
1 Serve ANSWER to complaint
2 PRE ANSWER MOTION TO DISMISS CPLR 3211
If P fails to meet 20 day limit to serve complaint, D may move to dismiss action. To avoid dismissal, P must:
1 Show reasonable excuse for delay
2 Make evidentiary showing of merit to P cause of action (affidavit, W/S with personal knowledge of facts)
Amendments to Pleadings
Each party entitled to amend their pleadings as a matter of right ONCE
Thereafter- judicial permission required
Party can put anything into the pleading that could have been in the original.
Right of amendment can be made within 20 days after D serves Answer
Personal jurisdiction defence can still be made (amendment of right) provided:
1 D made no pre-answers motion to dismiss
2 D adds personal jurisdiction defence no later than 20 days after serving original answer.
Motion for leave to amend required when amendment right used up or expired (20 days after answer served)
THIRD PARTY PRACTICE, CONTRIBUTION, INDEMNIFICATION
IMPLEADER- procedural device used to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P.
Usual claim- indemnity or contribution
Claims by D for reimbursement arising from same T/O transaction or occurrence as P’s cause of action.
THIRD PARTY DEFENDANT
Court order not required & no need to make a motion
D may implead TPD @ any time after D serves answer to complaint.
STEPS for JOINING TPD:
1 File summons + TP complaint
2 Serve within 120 days of filing- D serves summons and complaint on TPD
TPD must serve TP answer on D, P and other parties in action.
Time limit is same.
After TPD joined, P may amend complaint to assert a claim directly against TPD- TPD becomes additional D in P’s action. Must do this within 20 days after P served with TP answer.
GENERAL RULE for measuring compliance with SOL for claim in amended complaint: date of amendment
EXCEPTION: RELATION-BACK BENEFIT for IMPLEADER-RELATED CLAIMS
For SOL purposes- P’s added claim against TPD will be deemed interposed on date TPD was impleaded (when D filed impleader papers) provided:
1 P’s claim against TPD based on same transaction or occurrence as impleader claim AND
2 Ps claim against TPD timely on date of impleader
Regardless of when TPD asserts his related claim against TPD amendment will relate BACK FOR S/L PURPOSES TO DATE THAT D IMPLEASED TPD.
Allows party to shift 100% blame to another party
Sharing the loss among multiple tortfeasors who are all actual participants in tort
Purpose is to mitigate harshness of joint and several liability
MS RULE: cant seek contribution- intentional wrongdoing
NY RULE: can seek contribution
Asserting claims for Contribution
If tortfeasors are co-Ds, can assert cross- claims
Can implead D as outside TPD
Tortfeasor may sue TPD in separate action
Contribution= 6 year SOL runs from date of payment of the judgement for which contribution is sought
Equal shares formula for contribution (minority view) contribution shares always equal in amount
Comparative degree of fault (Majority):
µ The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment.
Each tortfeasor liable for contribution in accordance with level of fault
µ A party from whom contribution is sought cannot be required to pay more than her equitable share.
µ Rules of contribution do not change P’s right to impose joint and several liability on any one of the Ds
LIMITATION ON CONTRIBUTION IN WORKER’S COMPENSATION CASES
Employee injured on job cannot sue her employer (workers’ compensation law)
Employees entitled to recover fixed amounts from employers insurer on no-fault basis.
Employee can sue a 3rd party partially at fault for accident (manufacturer of product)
Can 3rd person seek contribution/indemnity from employer?
MS RULE: NO
NY RULE: No unless employee sustained GRAVE INJURY
Successive tort liability- injuries that proximately flow from accident
SETTLEMENTS IN CASES INVOLVING MULTIPLE TORTFEASORS
Law prohibits excess recovery for P so any judgment for P against non-settling tortfeasor will have to be reduced to take account of settlement
REDUCTION FORMULA: Any judgment for P against a non-settling tortfeasor must be reduced by EITHER:
Amount of settlement OR
Settling tortfeasor’s equitable share of fault
WHICHEVER IS LARGER
Effect of settlement: party who settles cannot sue or be sued for contribution
BUT can sue and be sued for indemnity
CPLR Article 16
Modifies law on joint and several liability
Personal injury claim. When joint tortfeasor is:
1 50% or less at fault
2 P sustained non-economic damages
Then Joint tortfeasor can only be required to pay her own share of P’s NON-ECONOMIC DAMAGES
NON-ECONOMIC DAMAGES = 1) pain and suffering 2) mental anguish 3) loss of consortium
ECONOMIC DAMAGES= out of pocket monetary losses, lost income and medical expenses.
P 51% or more liable for total liability for personal injury claim is jointly and severally liable for entire judgement both economic and non-economic damages
EXCLUSIONS FROM ARTICLE 16:
Tortfeasors who acted with INTENT or RECKLESS DISREGARD for safety of others.
Tortfeasors who released hazardous substance into environment.
Drivers and owners of motor vehicles other than police and fire vehicles
MOTION- application or an order of the court(preliminary incidental relief in a pending action)
MOTIONS ON NOTICE
Gives adversary the opportunity to be heard in opposition
Following papers are served on other party:
1 Notice of motion (specifies nature of motion and return date)
2 Affidavits of fact (why motion should be granted)
MOTION is made when motion papers are served on other party
RETURN DATE- day upon which motions papers presented to court (hearing date)
MOVING party must give opponent at least 8 days notice before RETURN DATE
All MOTION PAPERS (those of MOVING and OPPOSING parties) must be filed with court no later than RETURN DATE.
Court begins decision making process on return date and then issues order either granting or denying motion.
ORDER TO SHOW CAUSE
Alt way of making motion on notice
Preliminary order signed ex parte by judge directing ADVERSARY to SHOW CAUSE on date specified by judge why MOTION should not be granted. JUDGE rather than party is giving notice on motion.
Accelerates return date (where 8 day period too long). Judge can specify date that is sooner than 8 day minimum that would apply.
Judge can grant temporary restraining order
Statute may require it
THE DECIDING ORDER
After RETURN DATE of MOTION ON NOTICE, COURT issues decision in WRITTEN ORDER signed by court and entered with clerk. Prevailing party serves order on losing party with NOTICE OF ENTRY OF ORDER.
EFFECTS of service of copy of order
GIVES EFFECT TO ORDER
Starts running of 30 day time period to appeal
APPEALS OF ORDERS FROM MOTION ON NOTICE
File and serve a notice of appeal within 30 days from service of order or judgement with notice of entry.
EX PARTE MOTION
NO ADVANCE NOTICE given to adversary (no opportunity to be heard)
MOVING PARTY goes straight to court with MOTION PAPERS & requests an order granting relief sought.
Circumstances- rare unless express statutory authorisation
Assume motion must be made on notice
Opponent cant appeal but can make a motion to vacate ex parte order (if denied, appeal motion to vacate)
MOTION FOR SUMMARY JUDGMENT
To enable to show party that even though pleadings may be sufficient on their face, NO GENUINE ISSUE OF MATERIAL FACT REQUIRING A TRIAL
After service of ANSWER, P or D can move for summary judgment with respect to any claim or defence asserted in pleadings.
Time limit for SUMMARY JUDGMENT MOTION
No later than 120 days from filing of NOTE OF ISSUE (puts case on court’s trial calendar)
MOVING party has burden of showing that there are NO MATERIAL ISSUES OF FACT REQUIRING A TRIAL and that she is ENTITLED TO JUDGMENT AS A MATTER OF LAW
MOVING party must submit evidence from AFFIDAVITS + DISCOVERY MATERIAL
AFFIDAVITS must be submitted by persons WITH ACTUAL KNOWLEDGE OF FACTS
Opponent can defeat a motion for summary judgment by producing and presenting contrary evidence showing that triable issue exists (issue of fact)- same evidence as moving party may have used
Searching the record
Motion for summary judgment “searches the record”
“searches the record”= court reviews all evidence in the record (regardless on which side submitted it)
Effect of denial of Summary Judgment: triable issue of fact does exist
PRE-ANSWER MOTION FOR SUMMARY JUDGMENT
“Summary Judgment”= discussion of evidence- go behind pleading and decide matter on basis of evidence
2 situation- summary judgment permitted prior to service of answer:
1 CONVERSION OF MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION
Court can convert D’s pre-answer motion to dismiss for failure to state a cause of action into summary judgment – allows for decision on basis of evidence rather than on face of pleadings.
1 1 of parties submitted affidavits in connectio
n with motion to dismiss
2 court must give notice to parties of conversion to summary judgment- opp for parties to submit extra evidence.
2 MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT
SUMMONS + MOTION PAPERS FOR SUMMARY JUDGMENT
1 Action on instrument for payment of money ONLY
2 Out of state action (converting out of state action into NY action)
Rationale: both actions are based on docs that are prima facie valid when supported by affidavit for non-compliance.
File process with court + P must serve on D with summons a notice of summary judgment + supporting documentations and affidavits
This is motion- return date needed
Lawsuits take time to resolve & P’s rights may be jeopardized while matter is pending.
Provisional remedies= measure of security to P for ultimate enforcement of judgment.
5 provisional remedies
Order to Seize Chattel in action to recover chattel (REPLEVIN)
Notice of Pendency (lis pendens)
COURT ORDER required for all remedies except notice of pendency
Each remedy can only be used in CERTAIN TYPES OF ACTIONS
Provide security for the enforcement of a money judgmentO
P obtains order of attachment from court
Gives it to Sheriff who LEVIES upon D’s property in NY.
LEVY imposes a LIEN on property pending outcome of an action.
Gives P a security interest in the property that is superior to that of any subsequent lien holder.
LEVY can be made on REAL or PERSONAL PROPERTY located in NY
Sheriff files order of attachment with county clerk if county in NY in which property located.
PERSONAL PROPERTY: tangible or intangible- debt
3rd person who holds D’s property or owes debt to D is GARNISHEE
METHOD OF SHERIFF’s LEVY ON PERSONAL PROPERTY:
Sheriff delivers order of attachment to person in NY holding D’s property interest (i.e. bank)
Delivery by Sheriff imposes a LIEN in personal property + injunction against transfer of property pending outcome of action.
P gets priority over property.
Situations in which attachment may be used:
µ P MUST BE SEEKING MONEY DAMAGES
1) D is an UNLICENSED FOREIGN CORP/ NON-DIMICILIARY RESIDING OUTSIDE NY
2) D is about to CONCEAL OR REMOVE ASSETS from NY WITH THE INTENT TO DEFRAUD CREDITORS or FRUSTRATE THE ENFORCEMENT OF A JUDGMENT
How to obtain attachment?
P must make MOTION FOR AN ORDER OF ATTACHMENT
µ Requirements of motion:
1 Affidavits in support of motion must show 1 OR OTHER GROUNDS OF ATTACHMENT
2 Affidavits in support of motion must show a PROBABILITY OF SUCCESS ON MERITS OF P’s UNDERLYING ACTION
3 P must provide an UNDERTAKING (BOND) to INDEMNIFY D FOR ANY DAMAGES + EXPENSES caused by attachment.
D entitled to damages if:
1 Attachment made by IMPROPER PROCEDURE
2 D wins case on MERITS
Motion can be made on NOTICE or EX PARTE
Additional requirements for EX PARTE MOTION to satisfy DUE PROCESS:
D have opportunity for a PROMPT HEARING after LEVY on property (D can contest attachment)
After SHERIFF LEVIES on D’s property, P must make a FOLLOW UP MOTION
FOLLOW UP MOTION: motion on notice to CONFIRM ex parte order
GIVES EFFECT TO ORDER otherwise order is VOID and
Provides D with an OPPORTUNITY TO BE HEARD to CONTEST ATTACHMENT
Time limits for MOTION TO CONFIRM
If D= unlicensed foreign corp/ non-domiciliary residing outside NY # CATEGORY 1 - no later than 10 days after levy
If D= fraudulently moving assets (attach #categ 2) no later than 5 days after levy
PI used to maintain status quo while EQUITY ACTION is pending
Types of actions in which PI can be used:
µ EQUITY action in which complaint seeks either:
PERMANENT INJUNCTION or
D THREATENS TO HARM P’s INTEREST IN SUBJECT MATTER OF ACTION
O ACTION SEEKING SOLELY MONEY DAMAGES WILL NOT SUPPORT PRELIMINARY INJUNCTION
Motion for PI must be made ON NOTICE
Motion papers can be served with or after summons
Requirements for MOTION:
1 P’s AFFIDAVITS- MUST SHOW GROUNDS FOR EQUITABLE RELIEF(inc threat of irreparable injury)
2 PROBABILITY OF SUCCESS ON MERITS of P’s UNDERLYING CLAIM
3 P must provide UNDERTAKING (BOND) to indemnify D for damages if later determined PI should not have been granted
TRO- Temporary Restraining Order
PI – file summons and complaint
Commence action seeking equity claim
PI can only be made with service of process
Motion for PI is motion on notice
PI= minimum advance notice 8 days
TRO involves threat of immediate injury
Can ask for TRO on ex parte basis
Purpose= maintain status quo for period during which PI is being litigated
How to obtain TRO?
Make motion for PI by order to show cause
Go to court
Judge- sign order to show cause
Early return date for hearing on motion for PI + sign TRO for immediate injunctive relief
Person appointed by court to manage property in D’s possession
µ Available in:
1 P must be asserting EQUITY CLAIM in which SPECIFIC PROPERTY IS SUBJECT MATTER OF ACTION
2 There is a danger that D will INJURE OR DESTROY THE VALUE OF THE PROPERTY while action is pending
TR not available for SOLELY MONEY DAMAGES
Appointment of TR requires a MOTION ON NOTICE
Seizure of Chattel
Available in action that seeks TO RECOVER POSSESSION OF CHATTEL
Ensures enforcement of a judgment awarding possession of the chattel to P.
Sheriff who seizes chattel, retains custody of it (IMPOUND).
Otherwise, chattel is lost or destroyed while action is pending- judgment will be limited to monetary value of chattel.
Motion for an order of seizure
1 P AFFIDAVIT must show PROBABILITY OF SUCCESS ON MERITS OF UNDERLYING CAUSE OF ACTION
2 PROVIDE UNDERTAKING to indemnify D for damages if seizure wrongful
Can be made ON NOTICE OR EX PARTE:
1 P must show THREAT OF IMMEDIATE LOSS OF CHATTEL
2 P MAKE FOLLOW UP MOTION ON NOTICE within 5 days of seizure to CONFIRM EX PARTE ORDER
Notice of Pendency
EQUITY ACTION- judgment has direct effect on real property
Filing of notice of pendency gives record notice to any potential buyers or mortgagees that any interest they acquire in the property will be subordinate to that of the P.
RENDERS TITLE UNMARKETABLE
NP may be used in EQUITY action where judgment will have DIRECT EFFECT on TITLE, POSSESSION or USE OF REAL PROPERTY (spec perf, ejectment)
P files NP with county clerk in NY in county in which real property is located.
This gives RECORD NOTICE of pendency of P’s action
NO COURT ORDER REQUIRED all other provisional remedies require court order
No bond required
NP is effective for 3 years after filing
P can move for 3 year extension of NP but must make motion for extension prior to expiration of original 3 year period.
P fails to obtain extension prior to expiration of 3 year period
1 NP becomes VOID and has no further effect AND
2 cannot obtain another NP on same property on same cause of action
P CAN ONLY PICK ONE PROVISIONAL REMEDY AND COURT HAS DISCRETION TO DECIDE
Trial Procedures and RES JUDICATA
Case ready for trial
Filing a NOTE OF ISSUE places matter on court’s calendar + serve copy on other parties
Party entitled to JURY:
Files note of issue: make demand for jury trial in note of issue- if filing party makes no demand for jury trial, waives ut
RIGHT TO TRIAL BY JURY:
1 action seeking solely money damages
2 Replevin (chattel recovery)
3 Claim to real property
4 Annulment of Marriage
5 in divorce action (adultery)
Res judicata and collateral estoppels
RES JUDICATA – claim preclusion
Purpose- avoidance and prevention of re-litigation of same claim.
NY uses TRANSACTIONAL APPROACH
Claim against a particular D brought to final judgment on merits – all other claims by P against D are barred if:
Other claims arise out of the same transaction or occurrence
POLICY EXCEPTION- matrimonial disputes based on DOMESTIC ABUSE
µ Issue preclusion avoids the need for re-litigation of specific fact issues in prior proceeding upon 3 part showing:
1 Issue in former and current proceeding identical
2 Issue was actually litigated and decided in former proceeding
3 party against whom issue preclusion asserted had full and fair opportunity to litigate issue in former proceeding (had a day in court).
Arbitration and other forms of ADR
Arbitration- private procedure based on contract- binding resolution of disputes
Arbitrators- not bound by substantive law or rules of evidence (do justice as they see fit)
Scope of judicial review is narrow
1 of parties to Arbitration agreement resists arbitration in effort to resolve case by conventional judicial proceeding- courts may be called to decide conventional THRESHOLD ISSUES as to whether arbitration should proceed.
NY PUBLIC POLICY favours arbitration.
“threshold issues” 5:
1 Did parties AGREE to arbitrate
B agreement clear, express and unequivocal
C Right to arbitrate need not be mutual ok if 1 party has the right to arbitrate
2 Is dispute within arbitration clause?
3 is arbitration clause valid?
Invalid and unenforceable only if induced by fraud, duress or coercion (difficult to prove)
Doctrine of severability
4 Express condition precedent to arbitration?
Bringing threshold issues to COURT:
Pending action: D makes motion to compel arbitration & stay action
No action pending: proponent of arbitration seeks to invoke arbitration by serving opponent with “notice of intention to arbitrate”- special proceeding for a stay of arbitration can be commenced by opponent- can raise 1 of 5 threshold issues- act quickly
Time limit to commence special proceeding to stay arbitration- no later than 20 days from receipt of notice of intention to arbitrate- otherwise threshold issues waived
Judicial Review & Arbitration Awards
3 grounds for vacating arbitration award:
1 corruption, fraud or misconduct
2 Bias on part of arbitrator
3 Arbitrator exceeded their powers (rare- arbitrator has virtually unlimited powers).
Other forms of ADR in NY
Additional ADR devices NON-BINDING (unless parties agree otherwise) because their purpose is to help parties reach a voluntary settlement.
No statutory rules – see judicial gatekeeping
Neutral mediator attempts to facilitate a settlement by speaking confidentially to each party and then jointly with both parties present
Summary Jury Trial
Article 78 Proceedings
Judicial review of admin actions by state and local governmental or quasi-governmental officers or bodies. Respondent is usually a local govt entity or officer
Corporation- qualifies as quasi-govt entity (corps privilege of existence comes from state)
4 grounds for Art 78 Proceedings:
MANDAMUS TO COMPEL: compel performance of an act required by law- no discretion involved.
PROHIBITION: stop judicial officer from exercising power that exceeds officer’s lawful jurisdiction. Excess must be GROSS.
CERTIORARI: challenge results of a trial-type hearing conducted by an admin agency.
Persons- vested property right, license holders/tenured court- uphold if shows a substantial evidentiary showing
MANDAMUS TO REVIEW: review any type of admin action not covered by categories 1-3 (investigation, trial type hearing not required)
Court must uphold agency’s determination UNLESS IT WAS ARBITRARY AND CAPRICIOUS
Art 78 proceedings may only be brought in SUPREME COURT
SOL 4 months
Papers in Art 78 proceeding must be served 20 days before return date
Declaratory Relief (annul agency’s determination)
Injunctive (re-instate discharged civil service employee)
Damages- if incidental to main declaratory/injunctive relief
 Substantive insufficiency of the complaint on its face