Term
| What are the three Basis of Personal Jurisdiction |
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Definition
| Personam, in rem, & Quasi in Rem |
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Term
| What are the minimums for a case? |
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Definition
| Basis, Proper Notice, and SMJ |
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Term
| What applies as In personam |
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Definition
| Presence in NY, Doing Business in NY, Domiciliary, consent, Long arm |
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Term
| What days can't process be served? |
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Definition
| Sunday and if you KNOW that the person celebrates Sat Sabbath |
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Term
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Definition
| To claim fraud, the fraud must be the sole reason for being in NY(total fraudulent enticement to enter the state) |
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Term
| Immunity Doctrine for in personam jurisdiction |
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Definition
| If D is in NY soley for another litigation, creates immunity for service. Will not get immunity if there is another basis besides presence(long arm, etc). |
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Term
| Implied consent for Basis of Jurisdiction |
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Definition
| Non-Domiciliary brings suit in NY against A, then A can no counterclaim with any and all unrelated and related claims. Third Party can now sue Non-domiciliary, but not an unrelated party. |
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Term
| Presence Doctrine and Partnerships |
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Definition
| Service over one member of partnership is enough for whole partnership. The individual served can have his assets taken but not the other partner's assets. |
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Term
| Presence Doctrine and Association |
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Definition
| If President or Treasurer is served in NY, that gives presence jurisdiction over association |
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Term
| Presence Doctrine for Corps. |
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Definition
Incorporated in NY? Serve process by delivering two copies to Sec State.
Foreign Corps. Reg in NY? Serve 2 copies to Sec State.
Foreign non-reg in NY? Go through 5 steps |
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Term
| Presence Doctrine Foreign Non NY Reg Corps. |
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Definition
1. Degree of permanence and continuity and regularly and systematically doing business in NY
Bank Accts, office, soliciting orders, etc
Office is not necessary
Service on officer does not grant jurisdiction. |
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Term
| Serving Domiciliary on NY |
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Definition
| Can serve a NY Domiciliary in FL. |
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Term
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Definition
Long arm Statute CPLR 302
1. Purposeful act by D directed towards foreign state.
2. P's cause of action is related to that act
3. D's purposeful act invokes benefits &privileges of the forum
4. D could reasonably anticipate being sued in the forum.
Then, balance the factors and act if its fair under due process. |
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Term
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Definition
Transacts any business within the state or contracts anywhere to supply goods or services in the state;
K signed in NY
Gallery Case - phonecall to NY was enough |
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Term
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Definition
| Allows jurisdiction over a cause of action arising from a contract to supply goods or services in NY, regardless of where the contract was made. |
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Term
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Definition
| Long arm statute for work performed in NY state or for k to supply goods or products in state. |
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Term
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Definition
| Long arm statute for committing tortious acts within the state except defamation. |
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Term
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Definition
| commits tortious act outside of state and it affects in state. Not Defamation. Must regularly solicit business, derive substantial revenue, reasonably suspects that they could be brought into NY for case. The minimal contacts does not have to be related to the tortious act. Mostly for individuals. |
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Term
| Traditional Notions of fair play and substantial justice |
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Definition
1. Burden on defendant
2. Ease for plaintiff in obtaining convenient and effective relief
3. Burden on NY
4. Ease on interstate judicial system in obtain the most efficient resolution and controversies |
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Term
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Definition
action brought against property in NY.
P lends D money. D gives him security in jewels he owns. D defaults P can attach jewels to case. |
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Term
| Basis for Jurisdiction waiver |
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Definition
| Failure to challenge basis means you waive it. Can challenge basis anytime before case is decided. |
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Term
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Definition
Foreign Corp., non res, or foreign state
Cause of action relates to obligation arising out of a transaction greater than 1 million and
Relates to K provides for NY choice of law , and NY forum selection. |
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Term
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Definition
| In county and supreme, when the summons is filed with the clerk of the court. In lower civil courts, action is commenced when service is performed |
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Term
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Definition
| Action is commmenced by filing process |
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Term
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Definition
| Filing an action requires purchasing an index number. |
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Term
| After filing summons and complaint, when must P serve D? |
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Definition
P must serve D w/in 120 days of Summons and Complaint.
D can motion for dismissal if not done properly. Ct. cannot dismiss sua sponte. |
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Term
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Definition
| Different type of commencement papers called a petition which creates a notice of petition. |
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Term
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Definition
Court of Appeals held that a defect in filing, improper commencement, is a personal jurisdictional defect.
No timely motion by D to dismiss(for failure to properly file), then D waves his objections. |
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Term
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Definition
If you serve or file a summons without a complaint, then the summons need to contain notice which gives the personal jurisdiction elements:
1. Nature of action
2. type of relief you are seeking
3. Amount of damages |
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Term
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Definition
| Allows a summons to be amended at any time upon motion if a substantial right of the D will not be prejudiced. |
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Term
| Tamburo v. P&C Food Markets |
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Definition
| Failure to name the court or county on the summons is a jurisdictional defect |
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Term
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Definition
| Service of summons without notice is a jurisdictional defect-cannot be amended. |
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Term
| Mistakes in names of parties in notice. |
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Definition
1. The person being served must have been fairly appraised that she was the intended D
2. D must have been served with process. |
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Term
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Definition
| Used when adding additional D. Motion must be made/judicial permission. Supplemental summons goes to county clerk and on D. |
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Term
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Definition
| Anyone 18 or older, not including parties. |
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Term
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Definition
| Use NY methods. But the server can comply with out of state regs for who can serve it. |
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Term
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Definition
Methods of Service
1. Personal delivery
2. Deliver and mail
3. Delivery to an agent
4. Nail and Mail |
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Term
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Definition
| Non-resident motorist statute providing for a way to serve process on out of state D's involved in car accidents. Serve to NY sec state and driver's home address |
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Term
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Definition
| allows D to vacate a default judgment once h receives actual notice to defend on the merits. |
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Term
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Definition
| allows you to get a CT order to serve by publication after you have demonstrated that you cannot service reasonable by other methods. For Mat or in rem actions only. |
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Term
| What are the three ways you can serve a corporation? |
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Definition
1. Personal service on authorized person
2. BCL 306
3. BCL 307 |
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Term
| Personal Service on an authorized person for Corporation. |
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Definition
Can serve on a officer, director, manager, etc.
Managing agent is someone authorized to exercise discretion. EG sec. is not authorized.
Person being served must have express or implied authority to be served. |
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Term
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Definition
| Domestic Corps. or foreign corps licensed in NY, you can serve 2 copies on the Sec of State for NY. Done! If the Sec. of State screws up, it is not your problem |
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Term
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Definition
If an unlicensed foreign corp, but have basis for long-arm jurisdiction, you can also mail Sec. of State and mail 2nd copy by registered/certified mail, return receipt to the corp.
Service is complete after ten days.
If the corp refuses the mail, you can follow up with regular mail. |
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Term
| Flick Case(service of foreign business) |
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Definition
P thought D was foreign corp. licensed in NY state. It wasn't. P mailed Sec State under BCL 306. D still received notice from SSNY, but was granted motion for dismissal because was not proper service.
Absent strict compliance, no jurisdiction. |
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Term
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Definition
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Term
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Definition
| 309. Infant name appears onthe summons and complaint, but someone else must be served. Adult: Parent, guardian, legal custodian, adult spouse of the infant, any other adult person with whom the infant resides, infant's employer. |
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Term
| Service of children under 14 |
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Definition
| Serve only adult: parent, custodian, spouse of parent, guardian, or any other person residing with child |
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Term
| Service of Infants over 14 |
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Definition
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Term
| Service of incapacitated person |
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Definition
| must serve the incapacitated person and the guardian. CAN get court order to serve just the guardian b/c violent, institutionalized, etc. |
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Term
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Definition
| If there has been no adjudication to declare the D a person who is incapacitated, then you can use 308 to get a guardian ad litum appointed for the litigation. |
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Term
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Definition
| service by mail requirements |
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Term
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Definition
1. Serving notice of appearance
2. serving an answer
3. making a motion which has the effect of extending answering time |
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Term
| Motions considered appearance |
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Definition
3024 is a corrective motion for a more definitive statement of complaint or a motion to strike scandalous allegations
3211 motion to dismiss for various grounds(SOL, statute of frauds, capacity, failure to state a claim, Lack of jurisdiction[personam, in rem, or summons defect]) |
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Term
| When serving summons with notice instead of complaint, a D will respond w/? |
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Definition
| serving notice of appearance and demand for a complaint, although that is an appearance, does not waive jurisdictional attacks. |
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Term
| When there is service by mail, D sends the acknowledgement, but that is not an appearance.... now what? |
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Definition
| D has 20 days after mailing acknowledgement to serve an answer or make a motion extending time for answer. |
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Term
| Is there special appearance concept in NY? |
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Definition
No. You must respond with two options.
1. Before serving answer, makea motion to dismiss for lack of jurisdiction
2. Serve an answer that includes lack of jurisdiction as a defense.
Failure to do either is a waiver |
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Term
| Does an amended complaint revive the ability to object on jurisdictional grounds? |
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Definition
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Term
| How far can you go in responding to a complaint where there are jurisdictional questions? |
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Definition
| You can object to merits and lack of jurisdiction at the same time. |
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Term
| Can you raise a counterclaim in your answer when jurisdictional questions are still present? |
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Definition
Yes. However, the counterclaim must stem from the same transaction P is suing on. It must be accompanied by jurisdictional complaint.
Unrelated counterclaim can be waiver of jursidictional complaint. |
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Term
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Definition
| Demand for complaint after being served a summons with notice. |
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Term
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Definition
| Summons w/o complaint can be served. 320 allows you to demand the complaint. |
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Term
Service of complaint must be made within how many days of demand for complaint?
When summons is served without complaint. |
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Definition
| 20 days after demand, complaint must be served. |
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Term
| If no demand for complaint is made, the complaint shall be served within |
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Definition
| 20 days after service of the notice of appearance |
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Term
| Does Filing notice of appearance or demanding a complaint limiti jurisdictional issues |
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Definition
| No. You can still raise jurisdictional issues. |
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Term
| If P fails to to timely serve complaint after summons(w/o complaint), Can D motion to Dismiss? |
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Definition
| Yes. HOwever, dismissal is done w/o prejudice. |
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Term
| Limited appearance. If D appears based solely on quasi-in rem, are there an restrictions? |
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Definition
| Yes. D's appearance is limited to the value of the attached property |
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Term
| Is there a limited appearance for In Rem jurisdiction? |
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Definition
| No. If you appear, raise jurisdictional objections, and then fight on the merits, the court gets personal jurisdiction and the judgment will be against you for entire amount not limited to value of the attached property. |
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Term
| Is asking for an extension of time to answer an informal appearance |
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Definition
| No. It is not a waiver of jurisdictional defense. |
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Term
| Venue is a component of Jurisdiction |
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Definition
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Term
| Venue is regulated by what article |
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Definition
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Term
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Definition
| Place of trial shall be where the parties resided at the time the action commenced. |
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Term
| Consumer Credit Transactions Venue |
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Definition
| Venue is based on the location of the D. Where the D resides. |
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Term
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Definition
Venue is in the county where the real property is located.
NOTE: Action by broker for non-payment as a result of a failed real estate deal is really a money judgment action, nota real property action.
Subj. Matter must affect title, use or possession of the property. |
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Term
| Venue: P picks the wrong county. |
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Definition
| Too bad, Stay in that county unless D timely objects. Court cannot raise venue sua sponte. |
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Term
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Definition
| Parties can contract to venue before trial. |
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Term
| Changing Venue: Venue not proper |
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Definition
D has a presumptive right to demand a change of venue if its not proper. Only D can raise this.
D serves a demand on P either with answer or before the service of his answer with an explanation of why the new county is better.
P can concede and file a consent within 5 days.
If P does not consent, D must make motion in court. Must be made w/in 15 days of service of improper venue on P.
If venue was improper, P loses right to choose county.
P can make a motion in opposition. |
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Term
| Changing Venue: What are the 3 ground for changing venue? |
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Definition
1. Venue not proper
2. Impartial Trial
3. Convenience of witness |
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Term
| Changing Venue: Impartial Trial |
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Definition
| Either party can make a motion to move based on this. Court has discretion whether or not to grant. No presumptive right. |
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Term
| Changing Venue: Convenience of Witness |
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Definition
Most popular ground.
Must submit an affadavit of merit, specify name/address/occupation of the witnesses, what the witnesses, what the witnesses will prove or the subtstance of their testimony. |
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Term
| statute of limitations: breach of K, Negligence, Defamation |
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Definition
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Term
| When does SOL begin Accruing? Which CPLR |
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Definition
CPLR 203(a)
Accrual of the cause of action |
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Term
SOLS
Enforcement of a judgment
Contract
Fraud
Negligence
Intentional Torts
defamation
recovery of real property
No legislation |
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Definition
EoJ=20
K= 6
Fraud = 6 or 2 yrs after discovery
Negligence = 3
Int. Tort = 3
Def = 1
Recovery = 10
No legislation = 6 |
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Term
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Definition
3 years
Medical Malpractice = 2.5 years. |
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Term
| Continuous Treatment Exception |
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Definition
For Drs., Attorney, and Acct. 2.5 years from act or last treatemnt in the event of continuous treatment.
Does not include routine check ups. |
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Term
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Definition
| P can bring claim within 2..5 years of surgery, or 1 year from the date of discovery of the foreign object. Not including Chemical, prosthetic or fixation device |
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Term
| Equitable Estoppel in SOL |
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Definition
need affirmative misrepresentation by D
Justifiable reliance upon the D
Resulting in the Delay of the commencement of the suit |
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Term
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Definition
Personal injury action against an engineer or architect, if the project was completed more than 10 yrs ago, P has a hurdle to meet. P must serve D 90 days before commencing action(allows for pre-trial discover)
P must demonstrate a substantial basis that the architects negligence was the proximate cause of P's injuries. |
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Term
Products Liability:SOL
Strict Products?
Negligent Design Manufacturing?
Breach of implied warranty of merchantability? |
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Definition
Strict Products - 3 yrs from date of injury
Negligent desig/maufacturing - 3 years from date of injury
Breach of implied warranty of merchantability - 4 years from tender of delivery |
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Term
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Definition
3 years after discovery of injury. Think about ASBESTOS
Where discovery of cause of injury is alleged to have occured less than 5 years from the discovery of the injury, P may get a 1 year extension from the discovery of cause. MUST SHOW scientific, medical, technological advances could not discover the cause during the normal 3 years timeframe after discover of his injury. |
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Term
Contractual Manipulation of SOL:
Can Lengthen/shorten? |
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Definition
| May shorten by written agreement not less than one year ONLY AFTER COA arises. Reasonable amount of time. |
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Term
| CPLR 203(f) Interposing a claim for SOL Purposes |
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Definition
If P makes a timely suit over a transaction, he can later amend/add to the complaint as long as the addition is over the same transaction.
The relation back will not work out if the amended claim would not have been timely on the original pleading date. |
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Term
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Definition
Defendants united in interest.
When multiple D's are united in interest, P's timely commencement of action against one D is deemed timely against all. |
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Term
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Definition
Joint obligors under K
Joint owners of property
Co-signors of a promissory note
Vicarious liability; employee/er |
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Term
| Relation Rule Back to new Co-D |
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Definition
1. Same transaction or Occurence
2. New Party United in Interest
3. New party should have known, but for a mistake by P as to the indentity of the proper parties, the action would have been brought against him as well. |
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Term
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Definition
1. If, when the cause of action accrues the D was out of state, the SOL tolls until the D returns to the state.
2. If, D was within the state when the cause of action accrued, then left the state for at least three months, the entire period of absence gives you the toll - wont run again until the D returns to NY
3. If D resides in thes tate and uses a false name unknown to P.
Does NOT apply when jurisdiction over the person could have been obtained without presence in the state of NY. |
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Term
| Toll for infancy or insanity... |
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Definition
| SOL is 3 years after the time the disability ends or however much time is still remaining on the accrual, whichever is longer |
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Term
| Death of Claimant. /What happens after claimant is dead? |
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Definition
The survival claim is extended by 1 year from the date of death if the decedent's representative needs it.
1 year from date of death or whatever remains on the normal SOL. Whatever is longer. |
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Term
| What is a Survival Claim? |
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Definition
| Claim outlives the decedent; it's a claim the decedent herself could have brough if she had lived. The executor steps ino the shoes of the decedent. |
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Term
| What is a Wrongful Death claim? |
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Definition
Intestate distributes will get the proceeds; can only recover for economic loss suffered by those distributees as a result of the death.
No emotoinal loss or pain and suffering damages. |
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Term
| SOL for Wrongful Death Action |
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Definition
2 years from date of death unless the decedent's own personal injury cause of action would have been barred on the date of the death.
Must also show that at the time of death, the decedent had a cause of action for personal injury.
EX: injury in '92, sue in '93, undecided in '99, and dies in '00. Now has 2 years to add wrongful death claim to claims. |
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Term
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Definition
| 6 YearSOL where no other SOL is prescribed by law |
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Term
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Definition
Period of 18 mo. after D dies is not counted in SOL.
P can also go to Surrogate court to get a temporary admin if no Admin after 18 mo. |
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Term
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Definition
Period of 18 mo. after D dies is not counted in SOL.
P can also go to Surrogate court to get a temporary admin if no Admin after 18 mo. |
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Term
| SOL if claim arises outside of NY |
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Definition
P is NY'er follow NY
P is a non-resident NY'er, it is the shorter SOL of the two applicable ones.
Test is Residency, not domiciliary.
If you live in NY and sue in NY, NY SOL regardlesso f where claim arises |
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Term
| Statutory Conditions Precedent |
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Definition
Timeframe that a suit must be brought or notice must be given.
It is an ingredient for the suit itself and has nothing to do with the SOL |
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Term
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Definition
allows ct to split up claims(not parties) for convenience of parties or to avoid prejudice or confusion of jury.
Can even split issues
bifurcated trial etc etc |
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Term
| Permissive joinder of parties |
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Definition
P or D's choice, but two Req's:
1. Show that the claims arose out of the same transaction or occurence AND
2. There is a common question of law or fact |
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Term
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Definition
| Multiple P's sue D for stock manipulation. D asks for separation. CT says no because there was a series of transactions with a common issue of fact - so joinder of the P's was ok |
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Term
Joinder of Parties:
D hits P w/ car. P gets taken to hospital. Doc fucks up. Can P sue both D and Doc |
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Definition
| Yes, same series of transactions. Successive tortfeasors. Common question of law since both D's could be held liable. |
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Term
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Definition
| Joinder of Claims. Once parties are joined under 1002, 601 kicks in and P can bring multiple claims against D's |
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Term
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Definition
Can add parties at any state,
by leave of court OR
Stipulation of all current parties
OR if w/o CT if you do so w/in 20 days of serving the orig. summons or w/in 20 days of the other side serving response papers. |
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Term
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Definition
| Must have common Q of law or fact |
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Term
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Definition
Dismiss for failure to join a necessary party.
Is party necessary?
Can he be summoned?
If not, can CT proceed w/o party |
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Term
| Can a tort action be dismissed for failure to join Necessary parties? |
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Definition
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Term
| Offensive Interpleader CPLR 1006 |
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Definition
| Party against whom conflicting claims have been asserted. Interplead the claims to have them both bound by Res Judicata |
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Term
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Definition
Right to intervene if:
3rd party interests are not being adequetly represented and the 3rd party would be bound by judgment.
3rd party has interest in property and judgment would adversely affect the interest |
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Term
CPLR 1201
CPLR 1202
CPLR 1203 |
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Definition
1201 Kids must have guardians appear for them or judgment is null and void
1202 P can seek apointment for guardian for an infant D if refuses proper representation
CPLR1203 Default judgment? Adjust this card |
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Term
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Definition
| Impleader - D brings in 3rd party. |
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Term
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Definition
| Impleader - D brings in 3rd party. |
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Term
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Definition
| A claim for 100% reimbursement |
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Term
|
Definition
| Not seeking 100%. Equitable share of damages. |
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Term
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Definition
| Contribution to Joint and Several Liable D's |
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Term
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Definition
| RIght of persons entitled to damages. Nothing can screw with P's right to damages. |
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Term
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Definition
| Are only responsible for subsequent damages |
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Term
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Definition
| are responsible for original damages and successive damages, therefore original tortfeasors entitled to contribution for the successive damages. |
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Term
| Workers Comp and Contribution |
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Definition
| You can only get contribution from an employer who provided worker's comp if there was a grave injury |
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Term
| Settling with One tortfeasor |
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Definition
P settles with A, P can still go against B for the remaining balance of P's claim.
B is precluded from seeking contribution from A |
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Term
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Definition
Limited Liability of Persons Jointly Liable
1. Has to be person injury(not prop., wrongful death, etc)
2. Liability of D is 50% or less
3. then the liability of a D for non econmic loss share shall not exceed the amount of his equitable share.
Non-economic losses = pain and suffering etc
Not applicable to automobiles |
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Term
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Definition
| pain and suffering, loss of consortium |
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Term
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Definition
The complaint shall be sufficiently particular to give the court and parties notice of the trnasaction or occurence intended to be proven and the material elements of each cause of action or defense.
Must give notice and cover material elements that make up the cause of action you are relying on = defeat a 3211 motion(failure to state a cause of action. |
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Term
|
Definition
| The complaint is to be liberally construed and defects will be ignored if a substantive right is not prejudiced. |
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Term
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Definition
1. Plain and concise statements
2. Numbered paragraphs with single allegation in each paragraph
3. COA labeled individually
Can make allegations that are not inconsistent as long as in good faith(P doesn't know all facts). |
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Term
|
Definition
some things must be pleaded with PARTICULARITY
1. Condition precedent of a K
2. Corp. status of any party
3. Contractors to allege in complaint that they are licensed to do so |
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Term
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Definition
Demand for relief
Must state the type of relief you are seeking. Ad Damdum clause tells us the amount of damages sought
Personal injury or wrongful death actions you do not specify particular amount of damages
EXCEPTION - unless you start a medical malpractice action by serving summons with notice. |
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Term
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Definition
| When it appears that the relife sought entitles the adverse party to a jury trial, the D can make a demand fora jury trial and get one. |
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Term
|
Definition
1. Shall deny statements he knows to be untrue or believes not true.
2. Deny knowledge of Information
Anything not denied is admitted - cannot offer evidence to the contrary unless amended pleading |
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Term
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Definition
| Allows costs or sanctions. Mandatory in tort with frivilous nature. |
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Term
|
Definition
Must raise all matters which if not pleaded would take adverse party by surprise or would raise issues of fact not appearing on the face of the prior pleading
Things like contributory negligence, assumption of risk, fraud, etc |
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Term
|
Definition
CPLR 3018(b) must raise all affirmative defenses in pleadings.
Plaintiff forgot to raise his affirmative D to a counterclaim |
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Term
| Counterclaims Rule of NY is... |
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Definition
| Permissive, not mandatory for counterclaims |
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Term
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Definition
| Mandatory to reply to a counterclaim or suffer a default judgment on the counterclaim. |
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Term
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Definition
Claims between Co-parties. Only need to answer if the cross claims demands an answer. It is assumed that the party denies the allegations.
If you demand an answer, must be served in 20 days |
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Term
|
Definition
| If a party verifies a pleading, then all later pleadings have to be verified. |
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Term
| Mandatory verified pleadings |
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Definition
Domestic Law
All eviction proceedings
A defense not involving the merits(lack of PJ) |
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Term
|
Definition
| Demand for Bill of Particulars |
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Term
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Definition
Mechanics of Demands for bill of particulars.
Responding party has 30 days to return.
Can be amended at any time prior to filing note of issue |
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Term
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Definition
Supplemental Bill of Particulars
Can file supplemental bill of Parts w/o permission of the court no later than 30 days prior to trial.
For additional damages, med $$, etc |
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Term
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Definition
Additional 5 days for interlocutory papers served via mail.
Overnight mail is only 1 extra day. |
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