NY Practice long briefed

NY Practice long briefed - NY Practice CPLR Civil Practice...

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Unformatted text preview: NY Practice CPLR Civil Practice Law and Rules I. Jurisdiction A. Federal constitutional considerations 1. Pennoyer v. Neff (SCOTUS 1877): States have jurisdiction over any person ( in personam ) or property ( in rem ) in that State. Therefore, if person or property is not in the State, the State has no jurisdiction. For in rem jurisdiction, the land must be attached before jurisdiction is found. 2. International Shoe v. Washington (SCOTUS 1945): a civil defendant could not be subject to personal jurisdiction by the courts of a State unless the defendant had certain minimum contacts within that State. 1. Rollback of Pennoyer: presence within the territory of the State is not enough, by itself, to warrant personal jurisdiction. 2. Company had continuance and systematic presence within the State, as opposed to casual presence in the state. a. Some activity that is continuing and systematic may be too trivial to warrant jurisdiction. On the other hand, one activity may be so great that jurisdiction may be found. b. The test is of quality and nature of the activity. 3. No bright-line test; each case must be decided on a case by case basis. 3. Burger King v. Rudzewicz (SCOTUS 1985): In considering whether a contract creates a contact, there are four factors to be considered: 1. The nature of prior negotiations between the parties; 2. The contemplated future consequences of entering into the contract; 3. The terms of the contract; and 4. The course of dealing between the parties B. There are two essentials to jurisdiction: (1)basis for jurisdiction and (2) notice 1. Basis is the states power over defendants interest; the state must have substantial relationship with defendant. 2. Authority for the basis must be statutory 1. CPLR 301: A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore. 3. Two types of jurisdiction 1. general jurisdiction : arise over the person 2. specific jurisdiction : arise over the conduct of person 4. Burnham v. Superior Court of California (SCOTUS 1990) : International Shoe did not overrule Pennoyer ; therefore, PJ exists to the extent that a person has contact with the State. The mere presence in the state, even for the shortest time, is enough for personal jurisdiction. Thus, when one is served while one is in the state, there is PJ. 5. cannot be served on Sunday or any other day you celebrate the Sabbath (sat, fri etc) C. NY Jurisdiction 1. Hammet v. Hammet (1980): As long as a person is voluntarily within the jurisdiction of a state when a person is served, there is PJ. Thus, one cannot be tricked into coming into the State for purposes of jurisdiction. 2. Mergione v. Seaborg Capital Corp. : Out-of-state litigants who came voluntarily for court proceedings are immune from service under in personam jurisdiction. However, CPLR 302 gave jurisdiction because he conducts business within NY and court action was from business conducted in NY so...
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NY Practice long briefed - NY Practice CPLR Civil Practice...

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