new york practice

7/30/2019 New York Practice

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NEW YORK PRACTICE

I. INTRODUCTION

Most Commonly Tested Areas: Statute of limitations, service of process, personal jurisdiction,matrimonial jurisdiction, motion to dismiss and summary judgment, contribution and third partyreliance, provisional remedies, arbitration

Other Topicso Verification of Pleadings Generally, verification of pleadings is optional Exceptions:

1) Complaints: Actions against co-obligors; actions for goods or servicesrendered; article 78 proceedings; statutory requirement for suit

2) Answers: If the complaint to which it responds is verified, response tocommon law fraud or fraudulent conveyances, promissory notes, dilatorydefense is asserted

-Bill of particulars, Negligence bills of particulars must be verified BUTpleadings of infants need not be verified

o Bill of Particulars Purpose: If party believes that the adversarys pleading is deficient Litigation paper in which plaintiff, upon demand, is required to amplify the

allegations of the complaint (only on issues in which the pleader has the burder ofproof)

If the party fails to timely serve a bill or fails to comply fully with the demand,party can move to compel compliance; but if failure was willful, may get an orderof preclusion

o Default Judgment If the defendant fails to appear, to plead, or to proceed with trial when the action is

reached and called for trail, P may seek a default judgment

ProcedureMake application to the court for judgment by default within one year of thedefault

If P fails to apply, permits judgment dismissal by court (1) sua sponte) or(2) upon defendants motion

Relief from Default JudgmentMotion must be made to the court that rendered the judgment or within oneyear after judgment or order

Requires showing of (1) reasonable excuse for the delay (newly discoveredevidence, fraud or misrepresentation, lack of jurisdiction, prior judgment,law office failure and (2) a meritorious claim or defense

If Defendant was not personally served, may move to open the default IF(1) less than 1 year has elapsed since the time defendant learned ofjudgment, (2) less than 5 years from time judgment was entered, (3)defendant did not have personal notice of the action in time to defend, (4)meritorious defense = defendant can get restitution

o Neglect to Prosecute


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Action may be dismissed if the plaintiff unreasonably neglects to proceed generallyor otherwise delays prosecution of his claim, OR unreasonably fails to serve andfile a notice of issue

May dismiss upon courts own initiative or upon motion of adverse party (applywithin 1 year of default to the court)

See above for relief from defaulto

Discovery Any relevant document or physical evidence may be examined on request servedon any party

Party may photocopy, test, and photograh the subject mattero Appeals

Appeal within 30 days after the appellant is served with a copy of the judgment, noextension unless provided by statute

Extension only if: 1) an alternative method of appeal is available after initialappeal is dismissed or denied; 2) the attorney for aggrieved party becomesdisabled; 3) potential appellant dies or there is a transfer of his interest

Appeal as of Right from any final or interlocutory judgment or any order of thesupreme or county court; court of appeals hears constitutionality of federal or NYstatute

o JudgmentsII. SUBJECT MATTER JURISDICTION

A. Supreme Court A court must have subject matter jurisdiction (competence) to hear and adjudicate the type of

controversy brought before it

Court of Original Subject Matter Jurisdiction: The court in which an action is commenced (trialcourt)

If court hasgeneral jurisdiction, it has the power to hear any type of action The Supreme Court is the only trial court in NY that has general subject matter jurisdiction

o One branch in each of the 62 NY countieso Particular Counties are a question of venue, BUT when one Supreme Court has

jurisdiction, they all have ito The Supreme Court has unlimited monetary jurisdiction (no maximums or minimums);

COMPARE, other courts have capso The Supreme Court- only court in NY withfull equity jurisdiction (Like injunctions,

specific performance)

For Subject Matter Jurisdiction, Supreme Court can hear any type of action, regardless of whereparties are from or where claim arose (Remember, not true forPersonal Jurisdiction)

o Note: Court has discretion, upon motion by defendantcourt cannot dismiss alone, todismiss on the ground offorum non conveniens when the action lacks any substantialnexus to NY

B. Exceptions to Supreme Courts General Jurisdiction 1) Cases as to which Federal Law confers exclusivejurisdiction on federal courts (bankruptcy,

patents, and copyrights, etc)

2) Claims for $ damages in tort or K against the State of NYo Claims against State of NY must be brought inNY Court of Claimso The only defendant in the Court of Claims is the State of NY


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Generally, a plaintiff can sue multiple defendants in one court if it arises out of thesame transaction (vicarious liability/respondeat superior)

Plaintiff will have to bring two separate action: for instance, sue State of NY inCourt of Claims, and State Employee in Supreme Court

o Proper Venue for Government subdivisions: counties, cities, towns, school districts(municipal defendants) is Supreme Court

Suit against County and County Police Officer can be filed jointly in SupremeCourt

C. The Supreme Court Has Exclusive Subject Matter Jurisdiction Over 1) Matrimonial Actions

o Actions in which the court is asked to adjudicate marital status (divorce, separation,annulment, declaration of validity of marriage)

o Contrast, Family Court- children (domestic abuse, adoption) 2) CPLR Article 78 Proceeding (e.g., judicial review of administrative agency action) 3) Declaratory Judgment Actiona judicial declaration of the rights and obligations of the parties

to an actual controversy before one of them engages in conduct that could lead to liabilityo Ex: Declaratory Judgment that a restrictive covenant, a non-compete, is unenforceable

before X begins employment in violationD. All Other Courts

All other courts of Civil Jurisdiction in NY are characterized by limited monetary Jurisdictiono County Courts/ NYC Civil Court: Maximum of $25,000

County Courts: Actions respecting real property located within the countyo Justice Courts: $3000

Supreme Court (Trial Court) >> Appellate Division >> Court of AppealsIII. STATUTE OF LIMITATIONS (SoL)

Period Important Claims Comments

20 Years (1) Action of Judgment

(2) Adverse Possession Against Co-Tenant

10 Years (1) Action to Recover Reality

(2) Action by Crime Victim AgainstConvicted

(1) Same Period as AdversePossession

(2) Period runs from date ofconvictionvictim may also sue for

damages up to 3 years from thediscovery of Ds receipt of money or

property from any source

6 Years 1) Non-UCC Contracts

2) Indemnity & Contribution

3) Fraud

1) Accrual on Date of Breachregardless of Ps lack of knowledge

2) Accrual on date of paymentforwhich indemnity or contribution issought

3) P may sue within 6 years ofcommission of fraud, or 2 years ofdiscovery (actual or imputed)


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4) Equity Actions (Rescission,Reformation, Accounting)

whichever is longer

4 Years UCC Contracts Breach of warranty claim accruesupon tender of delivery

3 Years 1) Personal Injury based onnegligence and strict products

liability

2) Property Damage (IncludingReplevin and conversion)

3) Professional Malpractice (otherthan medical malpractice)

1) Personal injury and propertydamage claims accrue on date

original injury occurs (No discoveryrule applies except in case of toxic

torts)

2.5 Years Medical, Dental, and PodiatricMalpractice

Cause of action generally accrues onthe date of malpractice (exception

for continuous treatment, period runsfrom end of treatment) & foreign

objects (one year from discovery ifinsufficient under regular 2.5 years)

2 Years Wrongful Death (Statutory cause ofaction in favor of decedents

distributees where Ds tortuous

conduct caused death; damageslimited solely to distributees

economic losses

Two years runs from the date ofdeath, except it must also be shownthat the statute of limitation ondecedents underlying personal

injury claim had not expired on thedate of death

If criminal proceeding is broughtagainst D, executor gets optional andindependent 1 year period fromtermination of criminal proceedings

(regardless of acquittal)

1 Year Intentional torts to the person(assault, battery, false imprisonment,

defamation)

4 months Article 78 Proceedings

A. General Concepts Definition: An affirmative defense, based on the passage of time, to be raised by the defendant

o Generally, the SoL begins to run when the cause of action accrues (when the injury firstoccurs), NOT upon discovery of harmthis is true even if the plaintiff is unaware of theinjury or breach

Personal Injury/Property Damage: 3 Years, Date of Injury Breach of Contract: 6 Years, Date of Breach

o Under substantive law, when an infant is injured in utero, the child has no cause of actionunless the child is born aliveSoL begins at DOB


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Satisfaction of SoL: Commencedno later than the last day of the prescribed limitations periodo Commencement: Filing Process (summons and complaint OR summons with notice)o Filing must be made with the clerk of the court on or before the last day of the SoL

Compute SoL: Exclude the day upon which the triggering event occurs and begin counting thenext day (brings you to the anniversary day)

o Ex: Car Accident on June 1, 2010. The last day for timely commencement of action is June1, 2013

If the last day within SoL falls on a Saturday, Sunday, or public holiday, plaintiff gets until the endof the next business day to perform the required act

B. Medical Malpractice Applies to doctors, dentists, podiatrists, nurses, and hospitals

o SoL = 2.5 yearso Date of Accrual: Date of the Malpractice (discovery of malpractice irrelevant)o Vicarious Liability/Respondeat Superior: Same SoL and same method of calculation as

used against the employee Note: Pay close attention to the actions being filed. E.g. Suit against doctor for medical malpractice, and lawsuit against hospital for

negligent hiring (in instances like this, the SoLs are not to be added together; ratherthey run concurrently)

2 Exceptions (SoL runs from the date of the malpractice, not discovery)o Continuous Treatment Rule: Plaintiff gets 2.5 years from the end of the continuous

treatment ifthe continuous treatment is the one that gave rise to the malpracticeo Foreign Object Rule:

If a doctor was responsible for introducing a foreign object into patients body andleaving it behind, the patient gets longer of either:

A) 2.5 years from the date of the operation; OR

B) 1 year from the date plaintiff discovers presence of object or reasonableshould have discovered the object with reasonable diligence

Foreign Object: Something the doctor did not intend to leave behind, liketemporary surgical clamps, sponges, scalpels

Foreign Objects do NOT include: chemical substances (medicine);prosthetic devices (plastic hip joint); and fixation devices (an item that thedoctor deliberately placed in the body with the intent that it remain to servesome continuing treatment function (internal sutures, pacemaker,prophylactic diaphragm)

C. Other Professional Malpractice Learned professionals: architects, engineers, accountants, attorneys; NOT: insurance brokers,

securities analysts, plumbers, etc.

Clients cause of action for malpractice against a non-medical professional for FINANCIALLOSS has an exclusive (whether tort or K) SoL of 3 Years(therefore the typical 6-year SOL forBreach of K is inapplicable)

o Runs from termination of particular services: Date of the clients injury, even if the clientis unaware of the harm

Architects: completion of building Lawyer/Accountant: Delivery of work product to client

o Subject to Doctrine of Continuous Representation: Similar to continuous treatmentdoctrine applied to doctors


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Ex: IF a building was completed in 1990, collapses in 2010 and causes personal injury, last year inwhich the injured person may sue is 2013 (when personal injury is involved, the injured personcan sue responsible tortfeasor up to 3 years from the date of the bodily injury) ... SEE BELOW

Special Procedure for Personal Injury Actions Against Architects and Engineers:o When action is brought more than 10 years after the building was completed:

(1) Plaintiff must serve a notice of claim on the architect or engineer at least 90days before suit

(2) Plaintiff may obtain pre-action discovery from the potential defendant duringthe 90-day waiting period

(3) After suit is commenced, if Defendant moves for summary judgment, the burdenwill be on Plaintiff to make an immediate evidentiary showing that there is asubstantial basis to believe that Defendants negligence was proximate cause of

injuries

D. Municipal Tort Liability Statute of Limitations: For personal injury or property damage against a government subdivision,

SoL= 1 year plus 90 days from the date of accident

Separate Notice of Claim Prerequisiteo 1) As a condition precedent to tort action, Plaintiff must serve a notice of claim on thepotential muni defendant NO later than 90 days from the date of accident (this is NOT

commencement of action) This gives potential defendant advance warning of the potential lawsuit to enable

municipality to engage in early investigation and possible settlement without needfor litigation

If Plaintiff commences action without prior timely compliance with notice of claimprerequisite, the muni defendant can dismiss on ground of failure to state cause ofaction

o 2) After service of Notice of Claim on Muni Entity, the plaintiff must commence an actionagainst the entity, and the complaint mustplead compliance with the notice of claim

requiremento Note: If the 90 day period has expired, but time remains on the one year and 90 day SoL,

plaintiffmay make a motion to serve late notice of claim Court can grant motion if municipality wont be prejudiced, for example, where it

had actual knowledge of facts within 90 days of accident

E. Products Liability Three Possible Causes of Action which, as a matter of pleading, can all be asserted in the same

complainto 1) Negligence: 3 Year SoL/ runs from date of injury/ applies against all defendants in chain

of distributiono 2) Strict Products Liability: 3 Year SoL/ Runs from Date of Injury/ against all defendantso

3) Breach of Warranty (UCC): 4 Year SoL/ Runs when particular defendant against whomwarranty was asserted made its delivery of the product (when breach of warranty occurs)

Indemnity and Contribution (On Exam, look for a products liability fact pattern)o SoL: 6 years/ Running from date of actual payment of the judgment by named defendant

for which indemnity or contribution by other potential tortfeasors is sought

Discovery Rule in Cases of Exposure to Toxic Substanceso Definitions: Toxic Substance (any inherently harmful toxin that has latent or slow-

developing effects); Exposure (any sort of assimilation into ones body or property); DES,asbestos, insecticides, HIV-Virus, Leaking Petroleum


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o 3 Year SoLo Runs upon the earlier of a) the discovery of the injury OR b) the date the injury should

have been discovered with reasonable diligenceo Does not apply to dispensation of medicine, that is medical malpractice

F. Tolls and Extensions Tolls for Defendants Absence from State of New York

oIf defendant is NOT in NY when cause of action accrues, S/L does not begin to run untilDefendant comes to NY

Example: In TX, A (of NY) hires B (of TX) to perform a K in TX. B breaches theK in TX in 2010. B comes to NY in 2015. SoL is tolled until 2015

o If defendant IS in NY when cause of action accrues, but defendant thereafter leaves thestate and is continuously absent forat least 4 months, then toll applies to entire period ofabsence, UNLESS

Unless plaintiff has valid basis of personal jurisdiction such that process could bevalidly served on Defendant outside NY (like Long-Arm Statute) --- NOTE:EXCEPTION USUALLY SWALLOWS RULE AND PLAINTIFF IS RARELYENTITLED TO ABSENCE TOLL

Example: Defendant is visiting NY from home state, and while there, he assaultsplaintiff. Defendant returns to his home where he remains. Plaintiff gets no tollbased on defendants absence because there would be a long-arm jurisdiction overdefendant (commission of tortuous act within NY)

Plaintiffs Infancy or Insanity (Legal Disability)o Infants (under 18) or insane plaintiffs may sue within regular SoL through a competent

adult representative, BUT they also get benefit of a toll If plaintiff is an infant or insane at the time cause of action accrues, the S/L is tolled

until the disability ends

Until infant reaches 18 years old

Insanity clears up; Insanity = Any mental disorder that causes overall

inability to function in society, no need for formal judicial proceeding forappointment

o Disability ENDS, how long does Plaintiff have to sue 1) If original SoL was 3+ years, plaintiff gets the longer of:

a) 3 years from end of disability; OR

b) The time remaining on the statutory period as measured from the originaldate of accrual

Example: Breach of K (SoL=6 years) accrues in favor of 16 year old HarryPotter. When he reaches 18, he will have until he is 22 (3 years (a) is lessthan the 4 years (6(18-16)))

2) If original SoL was


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Example: A 3-year-old infant is injured by med mal on 1/1/2010. Claimagainst doctor becomes time barred Jan. 10, 2010

INSANE: Regardless of nature of cause of action, claims of insane are time barredafter 10 years from date of accrual, when relying on toll for insanity

CAVEAT: In medical malpractice, the continuous treatment toll and infancy tollare separate tolls. Do NOT add tolls together when computer SoL. If both tolls are

applicable, run each separately and determine if the action is timely under eithertoll

Example: Assume Doctor commits medmal on 3 year old Jordan on 1/1/00,and continued to treat him for the same condition until 1/10/12.Bartholomews action is timely up thru 7/1/14. Under the infancy toll, theaction expired in 1/10. But the continuous treatment toll operatesindependently to give any eligible patient, including an infant, up to 2/5years from termination of treatment

Tolls for Deatho Potential Plaintiffs: Distinguish survival claim from wrongful death claim (may be asserted

in the same action)

Survival Claim: Cause of action plaintiff herself could have brought if she werestill alive; not limited to torts, and recoverable damages include all damagesincurred by plaintiff prior to death, like pain and suffering

Wrongful Death: Cause of action in tort for pecuniary (economic) damages ofdecedents statutory distributes (e.g., surviving spouse, children); punitive damages

are also recoverable but not emotional suffering of the distributes or the decedentspersonal pain and suffering; brought by executor

o SoL: 1) Survival Claim: If plaintiff dies before S/L expires, the estate representative gets

the time remaining on the S/L or 1 year from plaintiffs death to commence asurvival action, whichever is longer

Example: Auto accident on 6/1/08, in which Lady Gaga negligently causedPapa Razzis death on 5/1/11. The last date of an action for Papas pain and

suffering: May 1, 2012, one year extension from death 2) Wrongful Death: 2 years from the date of death; but it must also be shown that

decedent possessed a timely cause of action at the time of death

Example: Same facts as above. 5/1/13

Interest accrues on wrongful death awards at 9% interest per annum fromdate of death

o Potential Defendants: If potential defendant dies AT ANY TIME before SoL expires, 18months are always addedto relevant limitations period (regardless of whether plaintiffneeds extra time); action against estate

EXTENSION: 6- Month Grace Periodo If a NY action is timely commenced, but is thereafter dismissed before trial, AND at the

time of dismissal, the SoL has either expired or has less than 6 months remaining, plaintiffgets 6 months from date of dismissal to re-file the same action and serve process on samedefendant

Example: Father commences a timely action in name of his deceased child, butfather failed to obtain necessary letter of administration appointing himrepresentative of the estate. Action dismissed for lack of capacity, and S/L has


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expired. Within 6 months of dismissal, plaintiff can cure capacity defect and sueagain.

o 4 Types of Prior Dismissals to which 6-Month Grade Period does NOT apply 1) Dismissal on the merits 2) Voluntary Discontinuance by Plaintiff 3) Based on plaintiffs neglect to prosecute, consisting of a general pattern of delay

4) If its a dismissal based on lack of personal jurisdiction (Improper service, badsummons, out of state with no long-arm)

Dismissal because of subject matter jurisdiction (diversity citizenship) stillentitles plaintiff to 6-month

G. The Borrowing Statute Purpose: To prevent forum shopping by non-residents looking for a longer SoL If Cause of Action arises out of NY, choice of law issue if SoLs are different:

o For non-resident P, when out of state claim arose: If SoL is shorter than that of NY, NY will apply SoL where claim arose If SoL is longer than that of NY, NY will apply its own SoL

o For resident P, when out of state claim arose: NY will always apply NY SoL regardless of whether NY SoL was longer or shorterthan the place where the claim arose

IV. JURISDICTION OVER THE PARTICULAR CASE

A. Overview In addition to SMJ, 3 additional jurisdictional elements must be satisfied in order for a court to

render a valid judgment (one which can be enforced in NY and entitled to full faith and credit)o 1) Proper commencement of the actiono 2) Proper service of process on the defendant o 3) Proper basis of jurisdiction over the person or property involved in the action

B. Commencement Procedures FIRST, Action is commenced by Filing Process with the County Clerk (clerk of the court)

o Process means either 1) Summons and Notice or 2) Summons and Complainto Filing must be accompanied by payment of a fee for the PURCHASE OF AN INDEX

NUMBER

SECOND, service of process on the Defendants Filing of process is valid commencement, provided process is thereafterserved on defendant

within 120 days from the filing with the County Clerko If plaintiff has trouble serving defendant within 120 day period, the court has the

discretion, upon plaintiffs motion, to extend the time to make service IF PLAINTIFFCAN SHOW EITHER to warrant extension:

Good Cause (diligence) Interests of Justice (subjective opinion of the judge)

o If Defendant wants to challenge plaintiffs untimely service of process, defendant mustpreserve defense and make motion. If defendant fails to raise, it is waived

Note: If plaintiff makes a mistake in the filing procedure, such as service process before the filingofsuch process, or failing to purchase an index number, court has discretion, upon plaintiffsmotion, to permit correction of the mistake; PROVIDED THAT defendant suffers no prejudice,filing occurs within the SoL, and the filing fee is paidC. Form of Process

Summons and Complaint


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o Summons: Advises defendant that plaintiff is suing Defendant in a particular courto Complaint: Plaintiffs pleading, specifying the transaction or occurrence that is subject

matter of the action and spells out the essential elements of plaintiffs cause of action

Summons with Noticeo Summons: See Aboveo Notice: Summons must have sufficient notice inscribed on the face of the summons OR a

one-page attachment; CONSISTING OF: 1) a brief statement of nature of the action (This is a breachof K action) 2) Type of Relief being sought (injunction, declaratory judgment, etc) 3) If plaintiff is seeking damages, specify amount of damages being sought

EXCEPT, In a personal injury or wrongful death action, neither the noticenor the complaint may specify amount of damages sought (Tort Reform)

If plaintiff commences action with a naked summons/ naked complaint or notice, i.e.,unaccompanied by either a complaint or notice, that is a defect in personal jurisdiction; an actionsubject to dismissal for that reason alone (provided defendant made timely objection)D. Methods of Serving Process(Was Defendant Duly Served?)

Basic Points:o Process may be served by any person who is at least 18 years old, provided the person isnot party to the action (plaintiff cant but lawyer/spouse can)o Process may be served on any day of the week except:

Sunday If defendant is a Saturday-Sabbath observer, and plaintiff knows it, plaintiff may

not properly serve that particular defendant on Saturday. Innocent service is NOT adefect

Holidays OK so long as they dont fall on a Sundayo Actual Notice is irrelevant to a determination of whether there has been proper service of

process/ To be valid, statutory methods MUST be followed

Natural Persons- Traditional Methodso 1) Personal Delivery to Defendant: Complete when Process Server tenders summonsdirectly to defendant (Defendants response time begins to run from date service is

complete) If defendant refuses to accept delivery of process, process can be left in immediate

vicinity Note: Delivery to someone, like Defendants son, who in turn delivers to Defendant

is NOT Personal Delivery (subject to dismissal)o 2) Leave and Mail: Process Server may deliver process to person of suitable age and

discretion at Defendants actual dwelling place or actual place of business PLUS mail acopy by regular mail to Defendant at Defendants actual place of business or his last

known residence

Note: Two step process must be performed within 20 days of each other, and bothsteps must take place within 120 days from filing processDoes NOT matter which step occurs first so long as they occur within 20days of each other

Mailing to and delivery at do NOT need to be same location

Certified Mail not necessary Person of Suitable Age and Discretion: Teenager and above If suit is against more than 1 person, each must be served with own set of process


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REVIEW: Four Step Process- (1) Guard is of suitable age/discretion (2) Deliveryat actual dwelling, Lobby of apartment building enough; (3) Mailing took placewithin 20 days, (4) Copies for all named defendants

o 3) Affixing and Mailing (Nail and Mail): No nails, rubber bands/tape Process serve may AFFIX process to the door of Defendants actual dwelling place

or actual place of business PLUS mail a copy by regular mail to Defendant at

Defendants actual place of business or last known residenceAffixing and mailing must be performed within 20 days of each other, and120 days from filing process

NOTE: Process server must first exercise due diligence by (1) making an attemptto serve defendant directly OR (2) to leave process with a person of suitable age atthe home or place of business

1 Attempt is not enough; requires several attempts on different days of theweek at different times of day

o Note on Filing Proof of Service/ Affadavit of Service For Leave and Mail and Affix and Mail, Proof of Service must be filed after

the two service steps have been performed

Proof of Service: Affadavit by Process Server describing the details of the service,e.g., date, time, place, description of person served, due diligence if relevant Purpose: Necessary step to complete Service (recall Defendants response

obligations do not begin until service is complete) Completion 10 days after proof of service is filed NOT a jurisdictional defect to fail to file proof of service; the only consequence is

postponing defendants time to respond; does NOT need to take place within 120day period

o 4) Expedient ServiceCourt Invented Service: If other methods are impractical Plaintiff may make an ex parte motion to the court for an order allowing an

improvised expedient method; requires court order

Test: A reasonable alternative appropriate in the circumstances (to insurer, familymember or business associate, email)o 5) Agent Specifically Designated by Defendant to Receive Process (party expressly

specifies agent upon whom process may be served)o 6) Service on Infants and Mentally Incapacitated:

Service on: Parent, Guardian, Any person having legal custody, OR if the infant ismarried, upon an adult spouse with whom an infant resides

If Infant is 14 or older, service on eligible adult (above) AND the infant If Mental for Whom Court has appointed a guardian, process must be served on the

guardian AND the incapacitated person; If NO guardian, serve incapitated personas any other defendant and court will later appoint a guardian ad litem

o 7) Service Outside NY (BAR LOVESSSSSSS THIS) Same methods used to serve Defendant within NY are used when located outsideNew York

Who May Serve?Any NY Resident 18 or older

Anyone authorized to serve process by laws of jurisdiction where service ismade

Any attorney licensed in jurisdiction where service is made


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Example: In a NY Case assume Defendant, in CA, is served by a 17 year oldprocess server, who is licensed under CA law, by the affix and mail method, whichis not recognized by CA law. Is service valid?

YES: New York methods are controlling, so affix and mail okay, and 17year old server of process is permissible

Service on CorporationsTwo Traditional Methodso 1) Personal Delivery: any one of the following corporate representatives anywhere in theUS:

1) Officer of the corporation 2) Director 3) Designated Agent 4) Managing Agent (Corporate Employee with supervisory Role)

o 2) Service on the NY Secretary of State For a domestic corporation (incorporated in NY), OR aforeign corporation

(incorporated outside NY) authorized to do business in NY:

Personally deliver TWO COPIES OF PROCESS to NY Secretary of State(Secretary, designated agent as per certificate of incorporation, will mail

one copy by certified mail to corporate at the address on file in Secretarysoffice.)

Service of Process is complete upon delivery of process by Secretaryregardless of when corporation receives it

For an unlicensed foreign corporation, personally deliver 1 copy to the NYSecretary of State PLUS plaintiff mails one copy to the corporation by certifiedmail, return receipt requested

o **Leave and Mail Method NOT valid for service on Corporations Non Traditional Methods: Service by First-Class Mail PLUS Acknowledgment

o Mail process to Defendant by First-class mail, enclosing (1) two copies of StatutoryAcknowledgment Form, (2) Return Envelope, (3) Postage Prepaid, (4) Addressed to

Sendero Service is effective ONLY if Defendant signs and returns one of the acknowledgment

forms to Plaintiff within 30 days AFTER defendant receives the mailed process If defendant does not return the acknowledgement form, Service is NOT effective,

so use traditional methodBUT defendant must pay plaintiffs 2nd service ofprocess expenses

Service is Complete upon Defendants posting of the signed formo Service by First-Class Mail Plus Acknowledgment may be used regardless of whether

defendant is within or outside NYo Available to all types of defendants EXCEPT infants/mentally incapacitated persons for

whom guardians have been appointed (only traditional for these)

o If Defendant returns acknowledgment form, this is NOT a concession that the court hasjurisdiction

E. Basis of Jurisdiction over Defendants Person Personal Jurisdiction enables a judgment for money damages to be enforced in full

o General Jurisdiction (Does NOT matter where claim arose) Defendants Presence in NY

SCOTUS said good old fashion physical presence in NY is a valid basis forpersonal jurisdiction, aka Gotcha Jurisdiction

Does NOT matter if the defendant is from NJ or the claim arises out of NY


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Doing business in NYA domestic corporation is subject to personal jurisdiction in NY on anyclaim whatsoever, no matter where in the world the claim arose

A foreign corporation that has become authorized to do business in NY, iethe licensed corporation

On BAR: Watch out for Unlicensed Foreign CorporationPresent in NY if

doing business there TEST: Are the corporations employees or agents in NY engaging

in commercial activity for the corporation on a regular, systematic,and ongoing basis?

FACTORS TO CONSIDER: Offices or other physical facilitieswith employees coming and going on a continuing basis

Transient presence of corporate officer in NY does not makecorporation present, EVEN if the officer is served withprocess in NY (no gotcha jurisdiction)

Mere sales of corporations products in NY not doingbusiness

Mere advertising does not constitute business NOT NECESSARY that the claim arose from corporations NY

business = doing business is a form of presence so it is a form ofgeneral personal jurisdiction

Note: Satisfaction of doing business is usually only necessary if the cause ofaction arose outside NY. If the cause of action arose within the state, long-arm jurisdiction will probably be available, so no need for doing business

Service of Process made ANYWHERE; Doing business gives plaintiff basisof personal jurisdiction

Likely can get individuals and partnerships in addition to corporations Domicile in NY

A defendant domiciliary of NY can be served with process anywhere in US;Sue in NY for any claim at all regardless of where the claims occurred

Distinguish between Domicile and Residence Residence: Place where a person lives for a fair amount of time with

some degree of permanency (can have multiple residences) Domiciles: One residence at which a person intends to remain

indefinitely and is treated by her as the principal home (can onlyhave one)

o Specific Jurisdiction (Claim specifically related to defendants NY Activity or within termsof K)

Long Arm JurisdictionDifferent from General Jurisdiction: With physical presence, doing businessand domicile, it does not matter where the claim arose

Basic Concept: CPLR 302 (NYs Long Arm Statute); allows for out-of-stateservice conferring personal jurisdiction on the basis ofcertain acts byDefendant that have sufficient connectionwith NY, provided plaintiffs

claimmust arise from out of one of five categories of NY-relatedactivity

1) Plaintiffs Claim Arises from a Transaction by Defendant in NY:


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A one day negotiation that leads to a K signing in NY, andworkers employment K is for a job in OH is enough for

service in OH and personal jurisdiction in NY (note how thisis different from doing business standard for general

jurisdiction) Same facts as above, except worker did not sign: Still

jurisdictionno need for execution of the K, it is sufficientprovided the employment K arised out of the negotiations Worker, as employee in OH, injured another in a car

accident. NY does not have personal jurisdiction because theclaim does not arise out of Employees transaction of

business in NY Court of Appeals Case: In some cases, Defendants phone,

electronic, and mail transmissions from out of state, if

substantial in number AND relating to the performanceof a significant contract, can rise to the level of transactionof business in NY (projecting himself into NY throughmultiple electronic communications there was asubstantial nexus to the transaction)

2) Plaintiffs Claims Arise from a Contract in which a DefendantAgreed to Supply Goods or Services in NY

Contract Must be economically significantly Hypo Repeatedly on Bar Exam: Assume Buyer in MA

makes a telephone call to NY Seller to order some goodsupon their delivery. NY Seller ships them to MA buyer, whorefuses to pay. Does seller have basis for long-armjurisdiction over Buyer for non-payment action in NY?ANSWER NO! A one shot boiler plate

telephone/mail/fax/internet order from an out of state

buyer is not enough to qualify as transaction of business

in NY/ A promise to pay $$ in New York is not goods

or services; Court of Appeals says too minimal

3) Plaintiffs Claims Arise from Defendants Tortious Act (ExcludeDefamation): driving negligently on NY roadway, makingfraudulent statements during a sales negotiation in NY, convertinggoods while in NY, or assaulting Plaintiff in NY

4) Plaintiffs Claims Arise from Defendants (a) Tortious Act Outside New York Which Causes Injury In

New York (ex: good made in Wisc. That explodes in NY) Injury in NY means injury must originate in NY For a commercial tort: fraud, conversion, trade

secrets, NY is the situs of injury only if plaintiff

suffers direct financial effects in NY(loss of

customers/sales) (b) PLUS there exists an additional linkbetween Defendant

and NY (i) D regularly solicits business or engages in

persistent course of conduct in NY; or


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(ii) D derives substantial revenue from goods used orconsumed, or services rendered in NY; OR

(iii) D expects or should reasonably expect the act tohave consequences in NY and derives substantialrevenue from interstate (MUST also include NY) orinternational commerce

HYPO: Transaction in Boston, NY plaintiff buys a car fromR, a retail dealer who advertises only in MA and RI. Car wasmanufactured by VT company M, whose cars are sold byindependent retailers in all 50 states, including 15% in NY.Plaintiffs car blows up. Plaintiff sues M and R in NY,serving process out of state.

M: Not doing business in NY, mere sales are notenough, BUT Long Arm Statute The COA arisesfrom tortuous act out of state which caused in jury inNY PLUS (ii) 15% = substantial revenue; could alsouse (iii)

R: NO! Though R is engaging in interstatecommerce, none of Rs interstate business efforts are

purposely directed toward NY (due process requires) Rule: A physicians medical services, even when provided

by a well-known speciailist who attracts out of state patients,are inherently local in nature

NO DEFAMATION: must find another basis for personaljurisdiction; Policy reasonNY is media capital)

5) Plaintiffs Claim Arises from Ownership, Use or Possession ofReal Property Located in NY: CT Def who owns building in NYbacks out of sale; slips and falls in CT Defs Building

General Points About Long Arm Statute 1) Covers all types of defendants: corporations, individuals,partnerships

2) Acts can be performed by Defendant herself or agent/employee;also subject agent/employee to jurisdiction

3) Even if Defendant dies, decedents estate representative can beserved outside NY (Steps into shoes of)

4) Service Process: Plaintiff must use the same methods of serviceon Defendant outside NY as would be used inside NY (CA 17Process Server Hypo earlier in outline)

ESSAY EXAM ORGANIZATIONS FOR LONG ARM

FIRST, DISCUSS BRIEFLY WHETHER PLAINTIFF CANESTABLISH JURISDICTION UNDER ANY NON-LONG-ARM CATEGORIES

SECOND, DISCUSS WHETHERFACTS OF PLAINTIFFSCASE FALL WITHIN ONE OR MORE OF THE LONG-ARM

CATEGORIES

THIRD, BRIEFLY DISCUSS WHETHER THE PARTICULARASSERTION WOULD SATISFY CONSTITUTIONAL DUE

PROCESS


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Due Process Test: DP will be satisfied if claim arises out ofconduct of D that is so purposefully directed toward NYthat the defendant should reasonably anticipate being suedon that claim in NY Court

Non-Resident (Non-Domiciliary) Motorist StatuteConfers Personal Jurisdiction over an accident claim arising from a non-

domiciliary motorists ownership or use of an auto on a NY roadway/ Canoverlap with tortuous act in NY, but has two unique features

1) Service of Process: Plaintiff serves process on Defendant bypersonally serving one copy to NY Sec. of State and mailing secondcopy to defendant by certified mail

2) Applies to Vehicle Owner who Gave Permission to Drive In NY:While the Long Arm Statute could get the driver of the car, thisspecifically allows for jurisdiction over the cars owner if the car

was being driven with the owners permission Consent: Parties to a K may consent in advance to personal jurisdiction in NY in a

forum selection clause); enforceable in absence of fraud, overreaching, and

unreasonablenessF. Matrimonial Jurisdiction Proper court for Matrimonial Action is Supreme Court Having a valid basis of Personal Jurisdiction is NOT necessary for matrimonial action

o To obtain a divorce, separation, or annulment, all that is necessary is that plaintiff spouseis a domiciliary of NY

o The court has in rem jurisdiction over the marriage (In Rem: If plaintiff is domiciled inNY, the marital status is in NY), so plaintiff spouse can serve defendant spouse in anotherstate

Ifplaintiff spouse (NY) seeks monetary support, he must have a basis of personal jurisdictionover Juliet if she cannot be served in NY (no presence or domicile)

o Matrimonial Long-Arm Statute: When Plaintiff spouse is a resident of NY, Long ArmJurisdiction can be acquired over Defendant-spouse for monetary support, IF: 1) NY was the matrimonial domicile of Plaintiff and Defendant prior to separation,

OR 2) Defendant abandoned plaintiff in NY, OR 3) Defendants Monetary Obligation accrued under an agreement executed in NY

(e.g. separation agreement); OR Defendants monetary obligation accrued under the laws of NY

Only proper process serving methods: PERSONAL Delivery; to use alternative methods likedeliver-and-mail requires judicial permission in a court order

Durational Residency Requirements:o Part of Substance (The merits) and NOT a part of the jurisdiction (subject matter, basis, orotherwise). Purpose is to ensure NY has sufficient marital interest to adjudicateo Statutory Conditions Precedent to a Matrimonial Action: Plaintiffs complain must

allege satisfaction of any 1 of 3 durational requirements 1) If Both parties are NY residents at the time the action is commenced AND the

grounds for the matrimonial action arose in NY, then no period of prior NYresidency requirement


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2) One Year Residency: If EITHER PARTY has been a NY RESIDENT for acontinuous period of at least 1 year immediately prior to the action AND NY hasany 1 of 3 possible prior links to the Marriage

a) Marriage took place in NY

b) New York was the matrimonial domicile of the spouse at some point

c) Grounds for Divorce Action Arose in NY

3) Two Year Residency: If EITHER PARTY has been a NY RESIDENT for acontinuous period of at least 2 years immediately prior to action

o Without Durational Residency Requirement, Proper Defense is Failure to state a Cause ofAction (not a lack of jurisdiction, but a defect in the merits)

o Note: Durational Requirements do NOT apply in an action solely to enforce monetarysupport obligation; Only in actions seeking to affect marital status

V. VENUE

A. Venue

If the Supreme Court has acquired jurisdiction, every Supreme Court in the state, regardless ofcounty, would have the power to hear the case, though rules of Venue regulate which is the

appropriate county Situs of cause of action is generally irrelevant to determine proper venue Rules for Proper Venue: Plaintiff choose venue and specifies it in the summons in accordance to

following rules;o 1) In an action in which the judgment would affect title or POSSESSION OF REAL

PROPERTY, proper venue is the County in New York in which the real property is locatedo 2) In all OTHER ACTIONS: Proper venue is any county in NY in which any one party

resides at the time action is commenced If neither party resides in NY, plaintiff may choose any county in New York

B. Improper Venue Is Not Jurisdicitional Defect, and Therefore Not a Basis for Dismissal

Defendants Remedy for Improper Venue (DEMAND PROCEDURE)o 1) Serve a Demand for Change of Venue to Proper County Designated by Defendant

Demand must be served before or with the answero 2) If Plaintiff consents to Demand, then change of venue to the defendants designated city

will be automatico 3) HOWEVER, if plaintiff objects to the demand or fails to respond, then Defendant will

have to make a motion for change of venue Defendants motion must be granted as a matter of right if the Plaintiff chose an

improper venue and Defendant selected proper venue in his demandC. Discretionary Grounds for Change of Venue

The convenience of a material witnesso Either party, by motion, may request change of venue for the convenience of a witness;

often where the cause of action arose If there is reason to believe trial will be partial in county where action is commenced, either party

may make motion

VI. DEFENDANTS RESPONSE

A. Response to Summons and Complaint Overview

o Defendant can respond to summons and complaint by either:


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1) Serve an Answer, a pleading which Defendant admits/denies plaintiffsallegations and sets forth affirmative defenses

2) Make a Pre-Answer Motion to Dismiss The Answer and Other Pleadings

o Answer consists of: 1)DENIALS OF ALLEGATIONSDefendant wishes to contest (failure to deny an

allegation is an implied admission), and 2) Any AFFIRMATIVE DEFENSES(SoL, Lack of Jurisdiction, ComparativeNegligence); If not raised in the answers, Ads are waived (subject only toDefendants possible amendment of the pleading)

3) COUNTERCLAIM: If Defendant wishes assert own cause of action 4) CROSS CLAIMS: Based on ANY TYPE OF CLAIM that Defendant has against

other Defendants

Example: P sues A and B for personal Injury. A can cross claim B forbreach of K

o The REPLY is Plaintiffs pleading in response to counterclaim Consists of denials and affirmative defenses

Without counterclaim, NO reply without court permissiono Parties must serve copies of their pleadings on all other parties who have appeared in the

action in multi-party litigation

How the Answer and Other Interlocutory Papers are Servedo Included: Answer, all other pleadings, motions, discovery notices, etc.o Service: By regular first class mail to ATTORNEYS/ Note Personal Delivery is Not

necessary Service of an interlocutory paper by mail is deemed made upon the mailing

NOT the receipt (The Mailbox Rule) Service by mail must be made through a post office or official depository under the

exclusive care and custody of the United States Postal Service within the State of

New York Time Limits for Serving the Answer

o If Defendant was served with process by PERSONAL DELIVERY WITHIN NY STATE:Answer must be delivered within 20 Days

o If Defendant was served with process by FIRST CLASS MAIL PLUSACKNOWLEDGMENT, defendants return of acknowledgment is merely notification of

Defendants receipt of process. Therefore, Defendants answer within 20 days of

defendants mailing the acknowledgmento IF Defendant was served with process UNDER ANY OTHER CIRCUMSTNACES

(personal delivery out of state, affix and mail, delivery and mail), defendant must servewithin 30 days after service is complete

GROUNDS FOR MOTION TO DISMISS (CPLR 3211)o D.O.W.N.F.A.L.L. DOCUMENTARY EVIDENCEas the basis for defense (legally operative

documentsmortgage, deed or K that disproves claim) OTHER ACTION PENDINGbetween the same parties on the same cause of

action (avoid redundancy) Want of Capacity of PlaintiffLack of Capacity, like infant is suing without

proper representative Non-Joinder of Necessary Party (co-makers of a promissory note)


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Failure to State Cause of ActionThis motion is directed to the substantiveinsufficiency of the complaint on its face; even if the allegations are true, thesubstantive law does not recognize a cause of action. Standards used by court indeciding this motion:

1) Plaintiff is entitled every favorable inference drawn from complaintallegations

2) The motion should be denied if there is any basis for relief undersubstantive law

BAR EXAM: Remember the discuss the elements of the underlying causeof action

(To dismiss As claim, the court must take all allegations of the Claim

as true and determine that ___ has stated no cause of action upon

which relief may be granted.) Additional Affirmative (SPARERIBS) Lack of Personal Jurisdiction

1) Improper Commencement Procedure (File with Wrong Clerk)

2) Improper Service of Process3) Lack of Basis Jurisdiction Lack of Subject Matter Jurisdiction

o S.P.A.R.E.R.I.B.S. Statute of Limitations PaymentAlready Paid Debt Arbitral AwardAlready Decided in Arbitration Release Estoppel (Collateral Estoppel) Res Judicata (Claim Preclusion) Infancy of Defendant

Bankruptcy Discharge Statute of Frauds (Oral Ks)o Procedural Aspects of Pre-Answer Motion to Dismiss

The motion to dismiss is made BEFORE service of the answer (on or before thelast day of the prescribed time limit for service of the answer)

Making the Motion extends Defendants Time to ANSWER.If the motion is denied, Defendant must serve the answer within 10 days

Defendant is permitted to make only ONE pre-answer motion, but may do so onmultiple grounds

Defendant is NOT required to raise his defenses in the motion, you maysave them for the Answer

Rules on WaiverA motion to dismiss on any 3211 ground does NOT preclude raising anyother ground in the Answer EXCEPT lack of personal jurisdiction

If Defendant does not Raise AD in Answer, the AD is waived with the onlyremedy being Amendment

THREE DEFENSES ARE NEVER WAIVED Non-joinder of a necessary party Failure to state cause of Action Lack of SMJ


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SUMMARY1) Before serving an answer, make 3211 motion to dismiss for lack of

personal jurisdictionOR-

2) Make no 3211 Motion on Any Ground and instead include lack of

personal jurisdiction as an affirmative defense in the answer

NOTE: Although pleading improper service of process as a defense in

the answer is a proper way to assert that particular jurisdictionaldefect, the objection of improper service will nevertheless be waived if

defendant does NOT make a follow-up motion for Summary judgment

on that ground within 60 days after serving the answer This is only for improper service, not basis jurisdiction

B. Responses to Summons with Notice No complaint was served so how can you answer?

o Defendants Goals: avoid default, and Force Plaintiff to SERVE the Complaint 1) Serve demand for complaint; OR 2) Serve Notice of Appearance

Time Limit for Demand/Notice of Appearanceo 1) 20 Days (Personal Delivery in NY)o 2) 20 Days from Acknowledgment (Served by 1st Class Mail)o 3) 30 Days After Service is Complete (All other circumstances)

Service of a Demand for Complaint and/or a notice of appearance both have the effect of requiringPlaintiff to serve the complaint within 20 days of Defendants service

o If Plaintiff Timely serves, Defendant has 20 days from such service to either serve theanswer or serve the pre-answer motion to dismiss

o If Plaintiff FAILS to meet the 20 day limit to serve, Defendant may move to dismiss basedon Plaintiffs Noncompliance

To Avoid dismissal: Plaintiff must show 1) a reasonable excuse for delay AND 2)make an evidentiary showing of merit, by submitting an affadavit of merit

o After Plaintiff serves the complaint, defendant STILL may object to personal jurisdiction(demand for complaint or notice to appear does not waive PJcan still raise it in pre-answer M2D or Answer

C. Amendments of Pleadings Each party is entitled to amend her pleading once as a matter of right within 20 days after service

of Defendants answer (without the need for judicial permission) to include anything that couldhave been in the original pleading

Defendant may raise an omitted Personal Jurisdiction objection by means of an AMENDMENTOF RIGHT provided that:

o Defendant made no pre-answer motion to dismiss (because he would have waived the PJdefense there)

o Defendant adds jurisdictional amendment to the answer within 20 days after serving theoriginal answer

If the 20 day period has expired, OR the party has already used up its amendment as of right, aMOTION FOR LEAVE TO AMEND

o Standard: Amendment is allowed if the opponent will suffer no incurable prejudice Prejudice: A detrimental change of position as a result of the delay Examples: Loss of Evidence, death of key witness

o A party opposing a motion to amend can also demonstrate that the proposed amendmenthas no merit (cause of action does not lie under substantive law)


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VII. THIRD PARTY PRACTICE, CONTRIBUTION, & INDEMNIFICATION

A. Impleader Impleader: 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 Plaintiffo Usually for Indemnity or ContributionReimbursement arising out of the same

transaction or occurrence as Plaintiffs cause of actiono Enables Defendant to join the other party as third-party defendant, and Defendant becomes

Third-Party Plaintiff

Mechanics:o Defendant does not need a court order (no motion)o Impleader at any time after defendant serves the answer to the complainto STEPS:

1) FILE: Defendant files Summons and 3rd Party Complaint 2) SERVE: Within 120 days of the filing, Defendant serves a copy of the summons

and 3rd Party Complaint on the Third Party Defendant (must have basis ofjurisdiction for Third Party Defendant)

NOTE: Plaintiff and all other parties to action is also entitled to a copy of all papersserved on TPD

o TIME FOR ANSWER: 20 (personal delivery/first class) -30 Days (all other) depending onwhere and how TPD was served with process

o After TPD is joined, Plaintiff may amend her complaint to assert a claim directly againstTPD

Within 20 days, no need for Judicial Permission After 20 days, Judicial Permission to join TPD as defendant to action WHAT ABOUT S/L then?

RELATION BACK DOCTRINE: For S/L Purposes, Plaintiffs cliamagainst a TPD will be deemed interposed on the date TPD was impleaded,

provided that 1) The same transaction or occurrence as the impleader claim 2) Defendants claim against TPD would have been timely on the

date of the impleader NOTE: There is no prejudice to the TPD, who received notice,

within S/L, of a possible claim by Plaintiff (the impleader serves asnotice)

B. Indemnity This allows one party to shift 100% of the responsibility to another party

o 1) By K: In a construction contract, subcontractor may agree to indemnify generalcontractor for any losses that contractor has to pay as a result of subcontractors inadequate

performanceo 2) Implied in Law Indemnity (COMMON ON THE BAR)

Products Liability: Retailer held liable for selling defective product is entitled toindemnity from manufacturer

Vicarious Liability Situations: Owner of car who pays victim as result ofvicarious liability is entitled to indemnity from driver

C. Contribution Contribution involvessharing of loss among multiple tortfeasors who are all ACTUAL

participants in the tort (to mitigate harshness of Joint and Several Liability)


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o J/S Liability: One of the tortfeasors could be compelled to pay the entire judgment againstall the tortfeasors

Multistate prohibits contribution when liability is based on intentional wrongdoing (onlynegligence), while NY permits contribution in all Tort

To Assert Claims for Contribution/Indemnity:o 1) If Plaintiff originally joined the tortfeasors as co-Defendants, they can assert cross-

claims against each othero 2) If Plaintiff omits a tortfeasor, a defendant can implead the outsider as TPDo 3) Tortfeasor may sue TPD in separate action

This is MOST inefficient and uncertain: No finds of fact and percentage of fault inaction 1 are binding on the tortfeasors in Issue 2

A party cannot assert collateral estoppel (issue preclusion) against a party whohas not had her day in court

Equal Shares Formula of Contribution (MINORITY VIEW): The contribution shares arealways equal in amount (regardless of percentage of fault)

Comparative Degrees of Faulto Multistate/NY Formula: The amount of contribution to which a tortfeasor is entitled is

Total less his actual percentage of faulto A party from whom contribution is sought cannot be required to pay more than her

equitable share (even if the other contributing party is insolvent)o The rules of contribution do not change plaintiffs right to impose joint and several liability

on any one of the defendants (even if all other tortfeasors are insolvent)

Substantive Law Rule for Contributiono Right to contribution exists whenever TPD breached a duty in tort which contributed to or

aggravated the damages for which defendant may be held liable to plaintiffo Defendant may seek contribution from TPD even if injured plaintiff has no right of

recovery against TPD HYPO: Plaintiff a building owner, installed a fire alarm manufactured by A. P

entered into a written K with B for fire monitoring services. K limited Bs liabilityto gross negligence thru an exculpatory clause. Fire that B negligently responded totoo late. Plaintiff sues A for products liability and A impleads B for contributionbased on Bs negligence. Answer: B can be impleaded because Bs negligence

aggravated the damages for which A can be held liable to the plaintiff; clause

does NOT preclude contribution liability

o LIMITATION ON CONTRIBUTION (AND INDEMNITY) IN Workers Comp: Tominimize contribution and indemnity liability of employers

Because of Workers Comp Law, an employee injured on the job cannot sueemployer; rather tradeoff is employees get fixe comp from employer insurance

Though Third Party can sue a third party who is partially at fault or accident, e.g., amanufacturer of a product that the employe was using, the third party is barredfrom seeking contribution or indemnity from the Plaintiffs Employer,UNLESS plaintiff, the injured employee, sustained a grave in jury

Grave Injury: death, total loss of arm, leg, hand, foot, nose, ear or indexfinger, total loss of multiple fingers and toes, paraplegia or quadriplegia,severe facial disfigurement, deafness or blindess, or brain damage causingtotal disability

Court of Appeals applies strict construction to grave injury categories


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Whereas in NY there is a grave injuries distinction, on the multistate, the 3rd partyNEVER has a right of contribution

o Contribution in Cases Involving Successive Tortfeasors Even if you are outside the S/L for the underlying tort, look who is asserting the

claim against the successive tortfeasor; if it is the defendant, the defendant has aSIX YEAR S/L for contribution that runs from the date of payment of judgment

for which contribution is soughtD. Settlements in Cases Involving Multiple Tortfeasors (NY Rules) A plaintiffs pretrial release in partial satisfaction of claim does NOT discharge claim against the

other tortfeasors (A v. B/C/D, settles with B, A still has claims against C/D)

The law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have tobe reduced to take account of the settlement

o The Reduction Formula: Any judgment for Plaintiff against a non-settling tortfeasor mustbe reduced by EITHER:

(1) The amount of the settlement; OR (2) The settling tortfeasors equitable share of the fault, WHICHEVER is larger

Effect of Settlement on Contribution Claims: A party who settles cannot sue or be sued forcontribution, even if the amount settled for is greater or less than the actual percentage of fault Effect of Settlement on Indemnity Claims: A party who settles can sue, and be sued, for Indemnity

o Hypo: Js car being driven by Pauly. Mike sues J alone, asserting Js vicarious liability forPs driving. J settles with M. J can file a claim for indemnity against P.

E. CPLR 16 Subject to certain exclusions in a personal injury claim: When a joint tortfeasor is:

o 1) 50% or less at fault ANDo 2) Plaintiff has sustained non-economic damages, THEN

The joint tortfeasor can only be required to pay her own share of the plaintiffs NON-ECONOMICDAMAGES

Non-economic: 1) pain and suffering; 2) mental anguish; 3) loss of consortium Therefore, any defendant found 51% or more liable, he will be jointly and severally Article 16 does not apply to wrongful death, medical expenses, property damage; it applies to

personal injury

EXCLUSIONS from Article 16o Tortfeasors are subject to full and several liability for all damages if they acted with intent

and reckless disregardfor the safety of the others There could be a case, intruder who assaults (intent) vs. landlord who negligently

failed to provide security, where some acted intentionally (no 16) and others actednegligently (yes 16)

Releasing hazardous substance into the environmento DRIVERS and OWNERS of MOTOR VEHICLES OTHER THAN POLICE and FIREVEHICLES

If you are the driver or owner of a vehicle, even if negligent tort, you will beeligible for full J/S Liability, UNLESS You are driving a police car or fire truck

VIII. MOTION PROCEDURE


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Motion: An application for an order of the court (a request for some type of preliminary orincidental relief); motions to dismiss, to change venue, for leave to amend, to comply with adiscovery request

A. Motions on Notice What papers are served on the other party? (first two are mandatory, third optional)

o 1)Notice of Motion: paper advising adversary of nature of motion, specifying the returndate

o 2)Affadavit of Facts: Shows courts why motion should be grantedo 3)Memorandum of Law (Optional): Setting forth satisfaction of legal requirements

Motions are made when the motion papers are served on the other partyo If the motions are sent by mail, motion is made when the papers are dropped in the

mailbox (mailbox rule)

Return Date: The day upon which the motion papers are presented to the court; also known as thehearing date

Advance Notice: The moving party must serve the motions papers on the opponent at least 8 daysbefore the return date

All motion papers, those of the moving party AND the opponent, must be fild with the court nolater than the return date.

The court begins the decision making process on the return dateB. Order to Show Cause

A preliminary order, alternative way to make a Motion on Noticeo Signed ex parte by a judge, directing the adversary to show cause on a date specified by

the judge, why the motion should not be grantedo The judge giving notice of motion, rather than the party

Three Reasons for Moving by Order to Show Causeo 1) Accelerating the Return Date = exigent circumstances make the usual 8-day advance

notice too long to wait for judicial assistance; judge can specify an earlier return date thanthe 8 day minimum

o 2) Temporary Restraining Order/Immediate Stayo 3) Statute Requires you to make an order to show cause

Procedureo 1) Moving Party drafts the Order to Show Cause and Underlying Affadavits and submits it

directly to judgeo 2) Judge will set return date in the order and specify method of service on adversary

(usually personal delivery)o 3) After OTSC is signed, the order and underlying motion papers are served on opponento 4) Opponent then has to submit opposition papers on the return date

C. The Deciding Order Following Return Date, Courts Decision must be embodied in WRITTEN ORDER signed by the

courto Order must be entered with the Court Clerk, and it will specify that it was entered on a

certain date

The prevailing party (whether moving or not) serves a copy of order on the losing party withnotice of entry on the order

o Even if the court provides a copy of the order, the prevailing party still must serve copies Two Effects of Service of the Copy of the Order

o 1) Service of the Order is necessary to give effect to the ordero 2) Service of the order starts running of a 30-day time limit to appeal from the order


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Appeals of Orders from Motions on Noticeo A party can appeal from most interlocutory orders (interlocutoryan order that awards

some relief but does not finally determine all matters in controversy in that action) o To appeal, party must file AND SERVE a notice of appeal within 30 days from service of

the order or judgment, with notice of entry Not required to appeal within 30 days, the losing party can wait until after the

action has concluded (this is the federal law)D. Ex Parte Motion A motion in which no advance notice is given to the adversary; moving party goes straight to court

with the motion papers and requests and order granting the relief sought

Circumstances for Ex Parte Motion are rare and are only permitted with express statutoryauthorizationexpedient service of process, request for extension of time to serve process; otherprovisional remedies

Remedies for Aggrieved Party:o No appeal Remedyo Make a motion on notice to vacate the ex-parte order, and if this is denied, THEN the

aggrieved party can appeal the denial

IX. MOTION FOR SUMMARY JUDGMENT

A. Purpose/Procedure Even if the pleadings may be sufficient on their face, there is NO genuine issue of fact that

requires a trial; reasonable persons cannot differ, so she is entitled to judgment as a matter of law

BAR TIP: When discussing a summary judgment motion, make sure to discuss the elements of theunderlying cause of action (whether they are met)

Parties generally cannot move for summary judgment prior to SERVICE of DEFENDANTSANSWER (First time you can make summary judgment)

The latest point for summary judgment: 120 days form the filing of the note of issue (device thatplaces the case on the courts calendar)

o Exception: Motion may be permitted after expiration of the 120 days from filing the noteof issueIF MOVING PARTY SHOWS GOOD CAUSE(procedural excuse, the merit of themotion itself does not qualify)

SCOPE OF SUMMARY JUDGMENTo Defendant can move on any or all of the defenses raised in the answer OR can move on the

grounds that Plaintiffs claims are based upono Plaintiff can do the same, just the opposite

Evidentiary Showingo Moving party and opponents must submit evidence: affadavits, relevant documents and

deposition materials Affadavits must be submitted by persons with actual knowledge of the facts

(parties themselves or eye witnesses Opponents cannot simply rely on pleadings

o If opponent cannot establish with affadvait that he is not yet able, through no fault of hisown, to produce opposing evidence, the court can either deny the motion or grant acontinuance to permit additional evidence be obtains

BURDEN:o Moving party must produce PROOF that establishes she is entitled to judgment as a matter

of law; REASONABLE MINDS COULD NOT DIFFERo Opponent: Presenting contrary envidence showing that a triable issue of fact does exist


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Searching the record: MSJ searches the record, meaning the court reviews all of the evidence inthe record, regardless of which side submitted it, and if the court condlues that the opponent,rather than the moving party is entitled to summary judgment on an issue addressed by the parties,the court may grant SJ to the opponent EVEN IF the opponent to did not make a cross-motion forsuch relief (boomerang effect)

If Summary Judgment is granted as to the merits, and the only remaining issue of fact concernsdamages, court can grant partial summary judgment and grant trial on issue of damagesB. Pre-Answer Motions for Summary Judgment (TWO TYPES)

1) Conversion of Motion to Dismiss: Defendants pre-answer motion to dismiss for failure tostate a claim can be CONVERTED BY THE COURT into SJ, allowing for decision on basis ofevidence

o Prerequisites: 1) At least 1 of the parties has submitted factual affadavits in connection with M2D 2) Court must give notice to parties for conversion to SJ, so the parties have the

opportunity to submit additional evidence

2) Motion for Summary Judgment in Lieu of Complaint (Policy Based on docs that are primafacie valid when supported by affadavits of noncompliance)

o Moving for summary judgment at the same time she serves process, process PLUS motionpapers for SJo Two Types of Actions

1) Action on an instrument that contains defendants unconditional promise forpayment of money only (e.g. promissory note)

2) An action to sue on an out-of-state judgmento Procedure

1) File Process with the Court 2) Plaintiff must serve on Defendant, with the summons, a notice of motion for

Summary Judgment with supporting Documentation and Affadavits

Motion must specify return date

3) Advance notice must be equivalent to the time limit for defendants appearancein the ActionPersonal Delivery: 20 days

Other: 30 Days after service is COMPLETE

X. PROVISIONAL REMEDIES

A. Overview

Provisional remedies provide security to the plaintiff for the ultimate enforcement of the potentialjudgment

FIVE REMEDIESo 1) Attachmento 2) Preliminary Injunctiono 3) Temporary Receivershipo 4) Order to Seize Chattel In Replevin Action (Recover Chattel)o 5) Notice of Pendency (Lis Pendens)

Court order always required for provisional remedies, EXCEPT Notice of Pendency If Plaintiff can show grounds for more than one provisional remedy, the court has discretion to

require plaintiff to elect between those remedies to which she would otherwise be entitled

C. Attachment


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Purpose: Provides security for the enforcement of a money judgment; you dont want to give themoney to plaintiff right away, but puts money in place just in case

Types of Property: Attachment to tangible property (car, boat) OR intangible property like a debtowed to the defendant (bank account)

o Third Party Who Holds Defendants Property, e.g. a Bank or creditor, is called aGarnishee

TYPES OF ACTIONS: PLAINTIFF MUST BE SEEKING MONEY DAMAGES!! (OK to joinother claims seeking equitable relief), ANDo 1) Defendant is an unlicensed foreign corporation; ORo 2) Defendant is a non-domiciliary residing outside NY; ORo 3) Defendant is about to conceal or remove assets from NY with the intent to defraud

creditors or frustrate the enforcement of a Judgment Intent to frustrate the action is enough

Procedureo MOTION

(1) Plaintiff submits affidavits showing that Attachment applies in this case; (2)Plaintiff must show probability of success on the merits of underlying cause of

action; (3) Must provide an undertaking to indemnify defendant for any damages orexpenses caused by the attachment (bonds)

Defendant is entitled to damages IF: 1) It turns out attachment is made byimproper procedure; 2) defendant wins on the merits

(2) Motion can be made on notice or ex parte (most common because you dontwant to tip off opponent)

DUE PROCESS REQUIREMENTS IF EX PARTE Defendant have the opportunity for a prompt hearing after levy,

prompt opportunity to contesto Plaintiff obtains order of attachment from the courto Sheriff Levies upon Defendants property, which imposes a lien on the property pending

outcome (a freeze on the property) Sheriff files order of attachment with the County Court of the County in NY which

the real property is located Sheriff delivers the order of attachment to the person in NY who is holding the

persons personal property interest (could be defendant or garnishee) Delivery imposes the lien and serves as an injunction on transfer pending outcome

o After Sheriff levies, Plaintiff must make follow up motion on notice to confirm the ex-parte order (MUST BE MADE BY ORDER TO SHOW CAUSE FOR EXPEDITEDRETURN DATE, as due process requires)

TIME LIMITS within motion to confirmIf Defendant is unlicensed foreign corporation or non-domiciliaryno later

than 10 days after levyIf defendant is fraudulently moving assetsno later than 5 days after thelevy

o In all, Plaintiff gains a security interest in the property that is superior to subsequent lienholders

D. Preliminary Injunction A preliminary injunctionMaintain status quo while an equity action is pending SCOPE: An EQUITY ACTION (e.g. rescission) in which Plaintifffs complaint seeks EITHER:

o 1) A permanent injunction; OR


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o 2) A showing Defendant threatens to harm plaintiffs interest in subject matter of theaction

NOTE: An action that seeks solely money damages will NOT support a preliminary injunctiono E.g.: Plaintiff sues defendant for nonpayment of an 80k debt. Prior to judgment plaintiff

CANNOT ENJOIN Defendant from transferring assets or spending money; Plaintiffs only

possible remedy in purely money action is attachment

PROCEDURE: Requirements for Motion-o (1) Plantiffs affidavits must show grounds for equitable remedy including THREAT OFirreparable INJURY

o (2) Probability of success on the merits of underlying COAo (3) Plaintiff must provide an undertaking ot indemnify defendant for damages IF later

determine that the preliminary injunction should not have been granted

TEMPORARY RESTRAINING ORDERo In a case involving a threat of immediate injury, a party may ask the Court to grant a TRO

ex parte with purpose to maintain the status quo until motion for preliminary injunction isdecided (it fills the time gap)

ANY ex parte application for a TRO must contain an affidavit demonstrating therewill be significant prejudice to the party seeking TRO if notice is provided to theadversary

o Party obtains a TRO by making a motion for preliminary injunction by Order to ShowCause (which remember schedules an early return date) for preliminary injunction motion

o Within the Order, the Judge can include a TRO If the OTSC with a TRO is served on the defendant, she will be immediately

enjoined pending resolution of the motion for preliminary injunction (satisfyingdue process)

RECAP:o (1) Plaintiff commences an action seeking equitable reliefo (2) Plaintiff moves (by order to show cause) for a preliminary injunction to maintain status

quo until overall action is resolvedo In order to show cause, plaintiff requests TRO to obtain immediate injunctive relief

pending the outcome for preliminary injunction motion

E. Temporary Receivership Temporary Receiver: person appointed by Court to manage property in defendants possession Scope:

o 1) Plaintiff must be asserting an equity claim in which specific property is subject matter ofthe action AND

o 2) There is a danger that defendant will injure or destroy property value while the action ispending

o NOTE: IF THE ACTION IS SEEKING SOLELY MONEY DAMAGES,TEMPORARY RECEIVERSHIP IS NOT AVAILABLE

Example: Cs action against T to rescind sale of her corporate stock to T. If T threatens to squander thecorporations assets while the action is pending, C has sufficient grounds for a receiver equity claim(rescission), seeking her stock which is the subject matter of the suit, and there is a danger that defendantwill sell or squander

Procedure:o The appointment of temporary receiver requires the making of a motion on Notice

F. Seizure of a Chattel (Piece of Personal Property)


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Available for REPLEVIN: an action that seeks to recover chattel (laptops, cars, horses, pieces ofpersonal property)

Function: To ensure enforcement of a judgment awarding possession of the chattel to Plaintiff Procedure

o Motion made on Notice or Ex Parte. IfEX PARTE, 1) Must show threat of immediate loss of chattel 2) If the court grants ex parte order of seizure, plaintiff must make follow Motionon Notice within 5 days of seizure to confirm ex-parte order

o Requirements of the Motion Plaintiffs affidavits show a probability of success on the merits of the underlying

claim; AND Plaintiff must make an undertaking/bond to indemnify defendant for wrongful

seizureo The Sheriff, who seizes the chattel, is lost or destroyed while action is pneidng, the

judgment will be limited to MONETARY value of the chattel

G. Notice of Pendency (Lis Pendens) Available FOR: Equity Action (rescission, specific performance, ejecment) in which judgment

will have a DIRECT EFFECT on title, possession, or use ofreal propertyo In a mortgage foreclosure, the filing of a notice of pendency is statutorily required

Effect: The filing of notice of pendency gives record notice to any potential buyers or mortgageesthat any interest they acquire in the property will be subordinate to that of the Plaintiff

Procedure:o Plaintiff files a notice of pendency with the County Clerk of the County in NY in which

the real property is located (GIVES RECORD OF PENDENCY OF PLAINTIFFSACTION)

Does NOT require a court order: ONLY provisional remedy without a court order NO need to file a bond

Remedy for Opponent: If Notice is filed improperly, defendant can motion to cancel the notice ofpendency

o Notice of Pendency is canceled if the plaintiff fails to serve the summons and complaintwithin 30 days after the notice of pendency is granted

Duration of Notice of Pendency:o Effective 3 years after filingo Plaintiff can move for a 3-year extension of a notice of pendency, but MUST make the

motion for extension prior to the expiration of the original three year periodo I F Plainti ff fail s to obtain an extension prior to expiration:

A) The notice of pendency becomes void and has no further effect AND B) Plaintiff cannot obtain another notice of pendency on the same property for the

same cause of action

EXCEPTIn a mortgage foreclosure action, the court may grant a motion for anew notice of pendency even with expirationXI. TRIAL PROCEDURESAND RES JUDICATA

Note of Issue: Either party may file a note of issue which tells the court, the case is ready for trial,AND file and service of copies to all other parties

o To obtain a jury trail: FILING PARTY: party should make a demandfor a jury trial in the note of

issue; no demand constitutes waiver


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OTHER PARTY: Other party can file their own separate demand for jury;otherwise waiver

Right to Trial By Juryo 1) Action seeking solely money damageso 2) Replevino 3) Claim to Real Propertyo

4) Annulment of the Marriageo 5) In a divorce action, the right to jury trial on the issue of GROUNDS for divorce (not

money support or child custody)

Civil Jury consists of 6, and verdicts require 5/6 vote Res Judicata and Collateral Estoppel

o Res Judicata (Claim Preclusion): To avoid and prevent relitigation of the same claim NY uses the transactional approach to Claim Preclusion:

When a claim against a particular defendant has been brought to a finaljudgment on the merits, all other claims by the plaintiff against thatdefendant are barred IF:

The other claims arise out of the same transaction Even if the other claims are based on different theories or seekdifferent remedies

POLICY EXCEPTION: Matrimonial Disputes Based on Domestic AbuseTransaction Approach does not apply

E.g., separate divorce and personal injury tort action againstspouses, even if it evolves from the same transaction

Dont want to bog down divorce with a personal injury claimbecause it will slow things down to much

o Collateral Estoppel (Issue Preclusion): Avoid and prevent the need for re-litigation ofspecific fact issues, decided in the prior proceeding upon a 3 part showing

1) Issue in former and current proceeding is identical 2) Issue actually litigated and decided in former proceeding 3) ************Party against whom issue preclusion is asserted had a full and fair

opportunity to litigate in the former proceeding (Due Process, day in court issatisfied

Defendant to an action with two separate plaintiffs in separate actions butsame transaction will be collaterally estopped

That separate plaintiff to the second action wont be estopped

XII. SPECIAL PROCEEDINGS

Overviewo A speedy, streamlined procedure, akin to motion practice, to obtain a judgment as a final

resolution of a dispute E.g., probate of a will, election disputes, summary proceedings by a landlord for

eviction, dissolution of corporation, enforcement of an arbitration agreement,CPLR Article 78 Proceeding

Requires SPECIFIC statutory authorizationo If a party mistakenly sues by way of a special proceeding, the court has the authority to

convertthe special proceeding into an action; and vice versa

Procedure


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o 1) To commence a special proceeding, the Petitioner files the petion, and the act of thefiling is commencement

o 2) Next, the petition and notice of petition must be served on the RESPONDENT (personfrom whom relief is sought) by using same methods used to serve process in an action(personal delivery, deliver and mail, nail and mail, first class)

o 3) The notice of petition advices the respondent to serve an answer and to appear on thespecified return date for the hearing Return date can be no sooner than 8 days from the service of process, EXCEPT

With article 78 Proceedings, the return date can be no sooner than 20 days (specialrule to protect the govt)

If the petitioner needs an accelerated retrun date, the petition can expedite byinitiating an order to show cause

o 4) Affidavits are usually served in support of and in opposition to the petition All pleadings and affidavits are submitted to the court on the return date for

decision by the court Dispute is decided like Summary judgment: on affadavits and pleading

XIII. ARBITRATION AND OTHER FORMS OF ADR Overview of Arbitration

o A private procedure, based on K, for the binding resolution of disputes o Two parties may agree to submit any existing or future dispute to arbitration, through

arbitration clauseso Arbitrators are NOT bound by the substantive law or the rules of evidence and the scope of

judicial review is very narrow

Judicial Gatekeepingo If one party resists arbitration, the courts may be called to decide certain threshold issues as

to whether the arbitration should proceed

Public Policy of NY FAVORS Arbitration: The courts are guided by this principle whendeciding whether particular disputes are arbitrable

Threshold Issues Presented to Court to Avoid Arbirtationo 1) Did the parties agree to Arbitrate?

Must be in writing, though not signed Must be clear, express, and unequivocal

o 2) Is it a dispute within the scope of the arbitration clause? Typically very broad, so the court will likely decide on S/L and conditions

precedent (e.g., did the architect look before you commenced this action)o 3) Is the arbitration clause valid?

Presumption of Validity; the only time it is invalid is if the arbitration clause wasinduced by fraud or duress or coercion or if it involves a matter contrary to public

policyo 4) Is there an express condition precedent to arbitration, and has it been complied with?o 5) Statute of Limitations

TO BRING THE THRESHOLD ISSUES TO COURTo Pending Action: D should make motion to stay action and compel plaintiff to arbitrationo Before Pending Action, if proponent of arbitration serves a notice of intention to arbitrate

on opponent, if opponent want to avoid arbitration, burden on opponent to commence aspecial proceeding to stay arbitration, during which eh can raise any of the 5 thresholdissues


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TIME LIMIT: 120 days of receipt of notice of intention to arb Plaintiff cannot argue that the arbitration clause was unenforceable if he argues that the whole

contract was procured by fraud or duress. WHY? Because of the Doctrine of Severability

o The validity of the arbitration clause is determined separately from the validity of the Kinwhich the arbitration clasue appears

o If the arbitration clause itself is valid, the arbitral duty is enforceable separate and aparto

Validity is determined by the arbitrators Judicial Review of Arbitral Awards

o 1) Corruption, fraud, or misconduct in the proceedingo 2) Bias of arbitrator chosen to be neutralo 3) Arbitrator exceeded his powers (almost always a loser; only parties can narrowly

circumscribe arbitrators powers)

OTHER FORMS OF ADRo General Points

Creatures of K and are enforced in accordance with the terms of the agreemenet NY Public Policy favors ADR Courts can recommend but generally cannot require the parties to agree to ADR

Two major differences from ArbitrationUsually non-binding (unless the parties agree otherwise) because theirpurpose is to help parties reach a voluntary settlement

No specific statutory rules governing mechanics of enforcing other ADRagreements

o Mediation Non binding process, neutral mediator to facilitate a settlement by speaking

confidentially to each party and joint with both parties present Encourages both parties to consider practical concerns, merits of each side Mediation Agreement may require confidentiality whether or not agreement is

reached; may include waiver of confidentiality

o Neutral Evaluation Non-binding process, neutral expert in the subject matter at issue receives a

condensed presentation about the merits of each side, evaluates the presentationsand predicts how a court would decide the dispute

Intended to help reach a voluntary settlement Parties themselves choose the facilitator from either the private sector or courts

maintain rosterso Summary Jury Trial

Requires an agreement that includes the participation of the court Condensed version of a real trial in which a real judge presides and a real jury is

empanelled to hear the case and render a verdict

Usually limited to one day with 2 to 3 hours for each party to present Technical evidence rules are rela

new york practice

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