NY Practice-LS - Litigation in NY 1 Pleadings(complaint and...

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Litigation in NY 1. Pleadings (complaint and answer): complaint is a blueprint that recites the facts the plaintiff will prove; answer responds to the blueprint by trying to defeat it or adding to it with affirmative defenses 2. Motions : first motion is usually a motion to dismiss (i.e. for failure to state a claim upon which relief can be granted) 3. Discovery : process through which the parties collect the facts (from your own party as well as the other side) - how cases are evaluated and settlements are reached - often involves the courts (because of discovery disputes) 4. Preparation of expert witnesses 5. Motions : 2 nd is usually for summary judgment - Look at the facts that are undisputed; given those facts, the plaintiff can’t prove his claim (first place to look is the plaintiff’s own deposition) 6. Trial 7. Appeal : usually only at the end of the case at the entry of final judgment - In NY, a party can appeal any order that affects a substantial right - Every appeal takes a minimum of 9 months and is very expensive (a good reason for choosing a forum other than NY) Procedural law descended from the common law §103(a) – no more distinction between law and equity (only one form of civil action) §104 – construction: purpose of the CPLR is to secure the just, speedy and inexpensive resolution of every civil judicial proceeding Elements of Jurisdiction Basis (Personal) Jurisdiction: court’s power over a particular defendant Notice: accomplished by service of process, part of personal jurisdiction o if service satisfies the NY rule, it satisfies the Constitution Subject Matter Jurisdiction: court’s power over the cause of action Basis Jurisdiction 1. In personam : power over the person of the defendant (the judgment follows the defendant everywhere and can be enforced in any state under full faith and credit) 2. In rem : power over the defendant’s property (does not attach to the defendant himself, judgment enforced only to the extent of that property) 3. Quasi in rem : judgment limited to the value of property in the state In Personam Jurisdiction General : gives court power over all causes of action against the defendant ( §301 ) Presence : even if fleeting (tag jurisdiction) o Exceptions o Fraudulent enticement: deception in procuring presence in state once defendant is in the jurisdiction, can use deception to get the defendant to come to the place of service 1
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fact-intensive: if the defendant has other reasons for being there, the fact that he was deceived won’t have an impact o Immunity if coming to NY to attend court (includes parties, witnesses, etc., and depositions and trials) Does not count if subject to jurisdiction for other reasons (must be the sole reason for presence in NY) §303 : commencement of an action confers personal jurisdiction over plaintiff during the action in any separate action in which he is a defendant and another party is a plaintiff Domicile in the state when the action is commenced (created by physical presence
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NY Practice-LS - Litigation in NY 1 Pleadings(complaint and...

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