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How are interlocutory papers served?
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First class mail.
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SOL for Intentional torts to the person (e.g., assault, battery, false imprisonment, defamation)?
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1 year.
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SOL for Contracts governed by UCC Article 2 - Sales?
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4 years
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what are INTERLOCUTORY PAPERS?
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After π’s initial service of process, all other litigation papers are called INTERLOCUTORY PAPERS. These include the ∆’s ANSWER, all other pleadings, motions, discovery notices, etc. . .
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What court has exclusive subject matter jurisdiction over Matrimonial actions (divorce, separation, annulment, declaration of validity of a marriage);
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The NY Supreme Court
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What is impleader?
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Impleader is a procedural device used by Defendant to join another party alleged to be liable in whole or in part to Defendant for damages that Defendant may have to pay Plaintiff. The usual claim in these circumstances is for indemnity or contribution.
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what court has exclusive jurisdiction to hear claims for money damages in tort or contract against the state of NY?
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NY court of claims
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if an unlicensed foreign corproation that is not otherwise present in NY has an officer that is present temporarily in NY can he be served with process for his corporaiton?
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Transient presence by the corporation's officer in NY is NOT enough. It is enough to acquire personal jurisdiction over the president by not the corporation.
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What is the "certiorari" ground for Art 78 proceedings? What is the standard involved?
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Certiroari is a proceeding to challenge the results of a trial type hearing of an administrative agency. A trial type hearing is one which testimony was taken under oath with a right to cross-examination.
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Assume Defendant makes a pre-answer motion to dismiss on the ground of release, and the motion is denied. When Defendant serves the answer, could he properly assert, as an affirmative defense: Statute of frauds? or Improper service of process?
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Statute of frauds: Yes.
Improper service of process: No. Improper service of process is a lack of personal jurisdiction defect which is waived if not included in the pre-answer motion to dismiss.
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what is the non-resident motorist statute?
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confers personal jurisdiction over an accident claim arising from a nondomiciliary motorist's ownership or use of an auto on a NY roadway.
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who can serve process?
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Process may be served by any person who is at least 18 years old, provided the person is not a party to the action.
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Who can serve process?
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Process may be served by any person who is at least 18 years old, provided the person is NOT A PARTY to the action.
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Assume Rachel, Monica and Phoebe collided on June 1, 2000. Rachel sues Monica for her injuries on April 1, 2003, and Monica impleads Phoebe for contribution on May 1, 2003. On August 1, 2003, Rachel seeks permission to amend her complaint to assert a clai
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No. Plaintiff's claim against 3rd Party Defendant is deemed timely since the 3rd Party Defendant was impleaded as such within the SoL period. Rachel gets the benefit of "relation back" concept.
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What are the 3 defenses that are never waived?
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1. Non-joinder of a necessary party.2. Failure to state a cause of action.3. Lack of subject matter jurisdiction.These can be raised at any stage of the litigation.
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EXCLUSIONS FROM ARTICLE 16 What are the three categories of tortfeasors that are subject to full joint and several liability for all damages, regardless of equitable share of responsibility?
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a. Tortfeasors who acted with intent or reckless disregard for the safety of others.b. Tortfeasors who are liable for releasing a hazardous substance into the environment. c. Drivers and owners of motor vehicles other than police and fire vehicles.
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what are the five categories of NY-related activity that can give rise to long-arm jurisdiction?
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(1) π's claim arises from a transaction of business by ∆ in NY.(2) π's claim arises from a contract made outside NY in which ∆ agreed to supply goods or services in NY.π's claim arises from ∆'s commission of a tortious act within NY. (See note below about exclusion for defamation.)π's claim arises from ∆'s tortious act outside NY which causes injury in NY- PLUS there exists some additional link between ∆ and NY5. π's claim arises from ∆'s ownership, use or possession of real property in NY.
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For both leave-and-mail and nail-and-mail, when is service COMPLETE ?
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10 days after proof of service is filed. Personal delivery has no requirement for filing proof of service. Proof can be filed, but is not required.
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Assume ∆ makes a pre-answer motion to dismiss on the ground of release, and the motion is denied. When ∆ serves the answer, could he properly assert, as an affirmative defense: Statute of frauds? or Improper service of process?
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Statute of frauds - Yes.Improper service of process - no - No. Improper service of process is a lack of personal jurisdiction defect which is waived if not included in the pre-answer motion to dismiss.
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how can D PRESERVE PERSONAL JURISDICTION DEFENSES?
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(1) Before serving the answer make a 3211 motion to dismiss and include lack of personal jurisdiction as one of the grounds. (2) Make no 3211 motion (on any grounds) and instead include lack of personal jurisdiction as an affirmative defense in the answer.
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what is the statute of limitations
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An affirmative defense, based on the passage of time, to be raised by the D.
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what is the SoL for Action on judgment?
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20 years (the longest SoL)
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What is the "leave and mail" form of service on a natural person?
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Process server may:
1. DELIVER process to person of suitable age and discretion (PSA&D) at D 's actual dwelling place OR actual place of business;
PLUS,
2. mail a copy by regular mail (i.e. first class mail) to D 's actual place of business OR last known residence.
These 2 steps must be performed within 20 days of each other, AND must take place within 120 days from filing process. The delivery and mailing can be done in any order and can mix and choose between the residence and place of business.
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What is a PSA and D?
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Person of suitable age and discretion. Can be a doorman or someone under 18.
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What additional step is required if the D objects on the grounds of improper service of process?
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Although pleading improper service of process as a defense in the answer is a proper way to assert jurisdictional objection, the objection will nevertheless be waived if defendant does not make a follow-up MOTION FOR SUMMARY JUDGMENT on this ground within 60 days after serving the answer. Note that the 60-day time limit DOES NOT apply to the defense that court lacks a BASIS of personal jurisdiction.
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Assume that, after exercising due diligence, P has been unable to find a residential address or place of business for Defendant. Plaintiff then publishes, once a week for 4 weeks, a copy of the summons and complaint in a newspaper distributed in the neigh
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No, service is not valid. The plaintiff must first get a court order permitting expedient service before this method will be valid.
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What are 3 examples of express statutory authorization to make an ex parte motion?
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(1) Expedient service of process;
(2) Extension of the time to serve process;
(3) Provisional remedies
For test assume all motions need notice.
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When discovery is completed and the case is ready for trial, how is the matter placed on the trial Court's calendar?
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When discovery is complete, either party may file NOTE OF ISSUE (tells CT that it is ready to be put on calendar) and then serve all the parties with the note of issue.
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What is the durational residency requirement if BOTH parties are NY RESIDENTS at the time the divorce action is commenced, AND the GROUNDS for the matrimonial action AROSE IN NY?
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No period of prior residency is required.
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***What type of action is attachment used in?
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Plaintiff must be seeking money damages AND must show one of the following:
1. Defendant is an unlicensed foreign corporation or a non-domiciliary of NY OR
2. Defendant is about to conceal or remove assets from the state w/intent to defraud creditors or frustrate the enforcement of a judgment.
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When is personal service to a natural person "complete?
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Service by personal delivery is "complete" upon process server's tender of summons DIRECTLY to ∆
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who can be sued in the Court of Claims?
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only the state of NY.
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what is the Comparative Degrees of Fault formula of contribution?
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Multistate and NY formula: 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.
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What is a summons and complaint?
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The summons advises ∆ that π is suing ∆ in a particular court. The complaint is π's pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of π 's cause of action;
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Assume Piazza was an employee of Torre, and Piazza was on the job when the auto accident with Jeter, A-Rod and Torre occurred. Piazza suffered two broken legs, a broken arm and several puncture wounds. Piazza sues only Jeter andA-Rod, who implead T
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The motion will be granted. Since Piazza's injury is not "grave injury" there is no contribution from the employerMS: Third person has no right of contribution from π's employer.NY: Third person has a right of contribution from π's employer if π's injury is grave injury.
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When is a domestic corporation subject to personal jurisdiction in NY?
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A domestic corporation is subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world the claim arose. The same applies to a foreign corporation (not incorporated in NY) that has become authorized to do business in NY, i.e., the "licensed" corporation.
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** If Defendant was served with process other than by PERSONAL DELIVERY WITHIN NY or FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, when must D's answer be served?
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Defendant must serve the answer within 30 days after service is complete.
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What is a policy-based EXCEPTION TO CLAIM PRECLUSION?
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A policy based exception to Res Judicata is in matrimonial actions based upon domestic abuse. Plaintiff can sue spouse for tort damages even if grounds are abuse.
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What is sufficient notice for a summons with notice?
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An abbreviated complaint which has to include:
1. A brief statement of the nature of the action (one sentence is sufficient).
2. Specify the nature of the relief being sought (damages, injunction, etc.)
3. If money damages are sought P must state the amount sought, unless medical malpractice.
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What is the SOL for fraud?
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Plaintiff may sue within 6 years of commission of fraud
OR
2 years of discovery (actual or imputed), whichever is longer.
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After 3rd Party Defendant is joined, can Plaintiff amend her complaint to assert a claim directly against 3rd Party Defendant, thereby making 3rd Party Defendant an additional Defendant in Plaintiffs action?
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Yes. Plaintiff can make this amendment without the need to obtain judicial permission if she does so within 20 days after Plaintiff was served with the third-party answer. If Plaintiff waits beyond 20 days, Plaintiff must make motion to get court's permission for such amendment.
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Assume Piazza sues Torre alone and gets a judgment for $100,000. During the course of the trial, it was established that Jeter's conduct also contributed to Piazza's injuries. If Torre thereafter sues Jeter in a separate action for contribution, would Jet
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No. The findings of fact and percentages of fault in action #1 are not binding on the other tortfeasors in action #2. Res judicata and collateral estoppel cannot be raised against tortfeasors who weren't a party to action #1.
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What are the 2 prerequisites for a pre-answer motion to be CONVERTED BY THE COURT into summary judgment?
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Converted by the Court:
(1) parties must have submitted factual affidavits in connection w/ the motion to dismiss AND
(2) CT must give notice to the parties of the conversion to summary judgment
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What are the two situations that give rise to indemnity?
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1. By contract: E.g., construction contract, subcontractor may agree to indemnify general contractor or any losses that contractor incurs in connection with subcontractor's performance in the construction project.
2. Implied-in-law indemnity:
a. Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.
b. Vicarious liability situations: E.g., in New York, owner of car is vicariously liable for damages caused by negligent driving of any person to whom owner has given permission to drive the car. Owner who pays victim is entitled to indemnity from driver.
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what are the two exceptions to the NYSC's general jurisdiction?
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Two exceptions to NYSC's general jurisdcition are:
1. Cases as to which federal law confers exclusive jurisdiction to federal courts eg bankruptcy, patents, etc.
2. Claims for money damages in tort or contract against the State of NY. (Ct of Claims)
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Who may serve process in a non-NY jurisdiction?
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1. Any NY resident who is authorized under NY law.2. Anyone authorized to serve process by the laws of the jurisdiction where the process is served.3. Any attorney licensed in the jurisdiction where process is served.
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in general, when does the SOL begin to run?
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When the cause of action accrues. This means when the injury accrues.
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Assume that ∆ has been served with process in an unauthorized manner (e.g., tied with a red ribbon on the steering wheel of ∆'s car) but ∆ finds the process. Is it sufficient that ∆ has "notice" of the action?
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No. Defective process is ground for dismissal. The statutory methods must be observed precisely.
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If D does not raise a particular affirmative defense in its answer, can it raise it later?
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No - Affirmative defenses not raised in the answer are WAIVED (subject only to ∆’s possible amendment of the pleadings).
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what are The steps for joining TPD?
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1) FILE with the court a summons and third party complaint.(2) SERVE within a 120 days of the filing a copy of the summons and third party complaint on the TPΔ and a copy on the π.Note there has to be a personal jurisdiction basis on the TPΔ.
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what is the basis for the long-arm statute?
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that an ohterwise not-present D has done one of the 6 things in NY that are sufficient links to NY to assert jurisdiciton over him. CONTACTS IN NY.
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what is the foreign object rule for medical malpractice SOL?
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If Dr was responsible for introducing a foreign object into P's body and leaves it behind: The SoL is either 2.5 years from the date of the operation or 1 year from the date the P discovered or should have discovered with due diligence the object, whichever is longer.
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what are the 3 ways to Assert Claims for Contribution/Indemnity?
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a. If π originally joined the tortfeasors as co-∆s, they can assert cross-claims against each other.b. If π omits a tortfeasor, a ∆ can implead the outsider as TPD. c. Tortfeasor may sue TPD in a separate action.
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What is the moving party contending in a motion for summary judgment?
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The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to judgment as a matter of law (JMOL).
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What is the procedure for a summary judgment in LIEU OF COMPLAINT?
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After filing process with the court, Plaintiff must serve Defendant w/the summons, a notice for summary judgment w/ supporting docs & affidavits
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When will an ex parte attachment motion become automatically void?
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An ex parte motion of attachment will become automatically void if the plaintiff fails to make a follow-up motion to confirm within:
(1) 10 Days if defendant is an unlicensed corp. or non-domiciliary of NY
(2) 5 Days is defendant is about to conceal or remove assets from the state with intent to defraud creditors or frustrate judgment.
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What are the D's possible Responses to Summons with Notice?
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Serve either:
1. A demand for the complaint.
2. A notice of appearance.
Both have the same effect.
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What is an ORDER TO SHOW CAUSE?
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Order to Show Cause is: An alternative way to make a motion on notice. The Order to Show Cause is a preliminary order, signed by a judge, directing the adversary to "show cause" on a date specified by judge, why the motion should not be granted. The Judge rather than the party is giving notice of motion.
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If D does not raise a particular affirmative defense in its answer, can it raise it later?
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No - Affirmative defenses not raised in the answer are WAIVED (subject only to Defendant's possible amendment of the pleadings).
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What is an Article 78 Proceeding? Who is typically the respondent?
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CPLR Art. 78 authorizes a special proceeding for judicial review of action (or inaction) by governmental or quasi-governmental officers or bodies of any kind.
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Where can cases from the NYSC be appealed to?
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1. Appellate Division;
2. Then to the NY Court of Appeals -- this is the highest court in NY.
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What are the 5 threshold issues considered by the court in an effort to AVOID arbitration?
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(1) Did the parties actually agree to arbitrate (Q of K law)
(a) Must be in Writing (does not have to be signed though (b) Must be clear, explicit & unequivocal;
(2) Is the dispute w/.in the scope of the arbitration clause?
(3) If BROAD clause then there are very few issues that CT can decide & arbitrator will decide virtually everything
*** (3) Whether arbitration clause is valid (Invalid and unenforceable viewed in isolation as induced by Fraud, duress, coercion, or if contrary to public policy);
(4) Whether there is some express condition precedent to arbitration & whether it has been complied with? (E.g. before submitted to arbitration, a construction dispute must 1st be submitted to the architect)
(5) SOL
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How is an action commenced in the Justice Courts and lower civil courts, i.e., NYC Civil Court, all other city courts, District Courts of Nassau and Suffolk Counties?
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Serving process on the ∆ (either summons and complaint or summons with notice). Therefore, for these courts the proper commencement and proper service requirements are one and the same.
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Assume Plaintiff's process server walks into the headquarters of Ink, Inc., and leaves process with the receptionist, who later hands it to the president of Ink, Inc. A second copy is mailed to Ink, Inc. at its headquarters. Valid service?
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No. The Leave and Mail method is NOT a valid method for serving process on a corporation; only the personal delivery method is valid.
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What is a summons and complaint?
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The summons advises a D that P is suing D in a particular court.
The complaint is P's pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of P's cause of action.
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What type of action is sufficient for a notice of pendency to be filed?
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An equity action in which judgment will have a direct effect on title, possession or use of real property (e.g. specific performance, ejectment, etc)
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what are the two exceptions to the NYSC's general jurisdiction?
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1. cases as to which federal law confers exclusive jurisdiction to federal courts eg bankruptcy, patents, etc…2. claims for money damages in tort or contract against the state of NY
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Assume ∆ makes a pre-answer motion on only one of the 3211 affirmative grounds and loses the motion. To what extent may ∆ thereafter raise the other 3211 objections in the answer, i.e., what is the rule on potential waiver of 3211 defenses?
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A motion to dismiss in any of the grounds listed in 3211 does NOT preclude raising any of the other grounds in the answer except that of personal jurisdiction.
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what is the only court in NY that has full equity jurisdiction?
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supreme court. Eg for injunction, specific performance, etc…
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what is the SoL for Contracts, express or implied (other than UCC Article 2 - Sales).
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6 years - Accrual on date of breach, regardless of plaintiff's lack of knowledge.
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How is process served when ∆ is a mentally incapacitated person for whom the court has appointed a guardian?
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process must be served on the guardian AND the incapacitated person.
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what is the test to determine whether the particular assertion of long-arm jurisdiction would satisfy constitutional due process?
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Due Process is satisfied if the π's claim arises out of conduct by the Δ that is so purposefully directed towards NY,that Δ reasonably should have anticipated being haled into a NYcourt.
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If D brings a motion to dismiss, what happens to his time to serve an answer?
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Making the motion extends ∆'s time to answer. If the motion is denied, ∆ must then serve the answer within 10 days.
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If the liability of three Ds is based on intentional tortious conduct, can one D who has had to pay the P's full award get contribution from the others?
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MS RULE: No. Contribution is NOT available when the nature of the liability involves intentional wrong doing.NY RULE: Yes. Contribution is available in all torts, including intentional torts.
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What happens when there is delivery of an attachment for personal property? What is the effect?
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Delivery of the order of attachment by the by the Sheriff automatically imposes the lien on the property and serves as an injunction against transfer of the property pending the outcome of the action.
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What is a Motion on Notice? What papers are involved?
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A MOTION ON NOTICE gives the adversary opportunity to be heard in opposition.
Motion on Notice Requires:
1. Notice of Motion (Nature and timing)
AND
2. Supporting Affidavits.
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EXAM TIP: What must you remember to do when discussing a motion for summary judgment?
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Discuss the elements of the underlying CoA!!! = Way for them to combine procedure w/ substantive elements of the law!!!
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Assume the process server arrives at defendant's place of business at noon and finds no one minding the store. Will service be valid if process is taped to the door and a second copy is mailed to defendant at defendant's last-known residential address?
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No, due to the lack of due diligence. One attempt is not enough; several attempts on different days of the week, at different times of the day, is necessary at the least.
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Who can move for motion for summary judgment after service of the answer and what can they make the motion based on?
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After service of the answer ANY party can make the motion w/respect to ANY claim OR defense asserted in the pleadings
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What is the min advance notice for the return date for a summary judgment in lieu of a complaint?
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Usually 8 days advance notice for hearing on a motion, but not here. IN THIS CASE return date can be no sooner than date for response to service of process. (20 days if personal service, 30 days if other method).
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When can a motion for summary judgment be made?
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MSJ cannot be made until AFTER the defendant has served the Answer.
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What is the SoL for an Action to recover realty?
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10 years
Same as period for adverse possession.
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If none of the parties reside in NY, does the NYSC have subject matter jurisdiction to hear the case?
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Yes, The court has jurisdiction to hear the case. But the court would have the discretion to dismiss the action on the ground of forum NON-CONVENIENS -- though this requires a motion on the part of one of the parties. But it is discretionary.
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What is the only court in NY with general subject matter jurisdiction and what does that mean?
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NY Supreme Court.
The NY Supreme Court is a court of general jurisdiction has the jurisdiction to hear ANY type of case.
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What are the 3 grounds on which a party can get judicial review of an arbitration decision?
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(1) Corruption, fraud or misconduct in arbitration proceeding;
(2) Bias of an arbitrator who was chosen to be neutral;
(3) Show that an arbitrator has exceeded his power (9xs out of 10 that is a loser unless parties themselves have agreed to restrict the arbitrator's powers b/c they have a lot of power)
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what are the two methods by which a Defendant can respond to the summons and complaint (and thereby avoid default)?
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1) Serve an answer. The answer is the Δ's pleading. In the answer the D responds to the π's allegations in the complaint. 2) Motion to dismiss under CPLR 3211.
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in an action not affecting title or possession to real property, where is the correct venue for the action?
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Proper venue is any county in NY in which any one of the parties resides at the time the action is commenced (not where the action arose). If no party resides in NY any county is proper venue.
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Assume π was injured by ∆ in an auto accident on March 1, 2000. She files process in an action against ∆ on March 1, 2003, and process is served on ∆ on June 25, 2003. Has π complied with the statute of limitations?
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Yes, since the filing occurred on the last day of the SoL. The service of process was timely as well - within 120 days of the filing.
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What is the only court in NY with general subject matter jurisdiction and what does that mean?
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NY Supreme court. A court of general jurisdiction has the jurisdiction to hear any type of case.
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what is the sol for Wrongful death cause of action?
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SoL is 2 years from the date of death, but is must also been shown that on the date of death decedent's underlying personal injury claim was still timely.
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What is the SOL for an indemnity & contribution claim
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6-year - running from the date of ACTUAL PAYMENT of the judgment for which indemnity or contribution is sought. The date of the original transaction or occurrence is irrelevant.
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What is the "mandamus to review ground" for Art 78 proceedings? What is the standard?
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A Mandamus to review under Art 78 is a proceeding to review any type of admin action not covered in other 3 categories. Most often this is the form used to challenge an agency determination that was made without a trial-type hearing. (e.g. denied a gun permit, denied application for a liquor license). The Standard of Review is that the court must uphold the agency determination unless it was arbitrary and capricious.
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What can the defendant do if the plaintiff fails to meet the 20-day time limit to serve the complaint? How can the plaintiff respond?
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If π fails to meet the 20-day time limit to serve the complaint, D may move to dismiss the action based on P’s noncompliance, which is a form of NEGLECT TO PROSECUTE. This is not a 3211 motion, this is unique. To avoid dismissal the P must show: 1. A reasonable excuse for the delay; AND 2. Make an Evidentiary showing there is merit to her cause of action. (Affidavit of merit by the plaintiff or witness).
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How is service of process made on a CORPORATION?
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Service on a CORPORATION is made by PRESONAL DELIVERY to any one of the following:
1. Officer of the Corp.;
2. Director of the Corp.;
3. Designated agent;
4. Managing agent, (person who has general supervisory authority);
5. Cashier/assistant cashier.
ANYWHERE in the U.S.
** MUST BE BY PERSONAL DELIVERY **
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How long can the SoL be tolled for an insane person? How long can the SoL be tolled for an infant's claim for medical malpractice?
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10 Years for Both.
(1) Claims of insane Ps regardless of the nature or cause of action, become time-barred after 10 years from date of accrual.
(2) When relying on the toll for infancy, a claim of medical malpractice must be commenced no later than 10 years from date of accrual.
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Where P is a domiciliary of NY, what is the requirement for personal jurisdiction over the D for divorce, separation and annulment?
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None - Only need that π be a domiciliary of NY. The reason is that this is an in rem claim and only the marital status needs to be located in NY.
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who must be served with an answer or a reply?
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Each party must serve a copy of her pleading on all other parties who have appeared in the action.
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What must other parties do if they want a jury trial and they do not file a note of issue?
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If a Party wants to demand a JT then they have to file a separate demand for jury.
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If Δ is domiciliary of NY at the time the action is commenced, but subsequently moves, does the court have personal jurisdiction?
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Yes - If Δ is domiciliary of NY at the time the action is commenced, he can be served with process anywhere in the US. π gets a basis of general personal jurisdiction.
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If ∆ wishes to assert her own cause of action against π, how can she do this?
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she may do so IN THE ANSWER by means of a COUNTERCLAIM.
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How many jurors are on a civil jury in NY? Does it need to be unanimous?
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A Civil Jury in NY contains 6 jurors and does NOT need to be unanimous (5/6 is sufficient for a verdict).
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