Term
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Definition
| NY Rule modifies the law of joint and several liability in NY to the following extent: A joint tortfeasor whose fault is found to be less than 50% can not be required to pay more than his equitable share of P's non-economic damage. |
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Term
| For purposes of Article 16, what are considered non-economic damages? |
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Definition
| loss of consortium, pain and suffering or mental anguish. |
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Term
| What type of tortfeasors are not excluded from Article 16 protection? |
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Definition
| 1. Tortfeasors who act with intent or reckless disregard for the safety of others, 2. Tortfeasors who are responsible for releasing hazardous substances into the environment. 3. Drivers and owners of motor vehicles, other than police and fire vehicles. |
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Term
| What is a motion on notice? |
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Definition
| A motion on notice is motion that gives the adversary the opportunity to reply to the motion. The motion on notice advces the opponent of the nature and timing of the motion. |
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Term
| What other documents must be submitted witht he Motion on Notice? |
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Definition
| In adiditon to the Motion on Notice, the proponent of the motion must submit supporting affidavits, written signed statements that were under oath. |
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Term
| A motion is made when the motion and the supporting documents.... |
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Definition
| are served on the other party. |
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Term
| What is the return date or hearing date? |
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Definition
| The return or hearing date is the day that the motions are presented tot he Court. |
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Term
| How many days before the hearing or return date must the proponent serve its opposition? |
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Definition
| 8 days before the return or hearing date. |
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Term
| What is the significance of the return or heairng date? |
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Definition
| It is the date that the Court begins to make a decision on whether to grant or deny the motion. Therefore, it is mecessary for both parties to submit all their paperwork to the court by the return or hearing date. |
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Term
| What is a motion to show cause? |
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Definition
| A motion to show cause is an alternative to a motion on notice. It is a preliminary order signed by the judge asking the opposing party to show cause why the motion should not be granted. The date by which the opposing party must show case is decided by the judge. |
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Term
| What are the three reasons that a P would move by Order to Show Cause in stead of teh ordinary Motion on Notice? |
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Definition
1. Te stattue that governs the motion may require it.
2. It is a means of advancing the 8-day notice period to the opponent, which is required by the Motion on Notice.
3. The judge can grant an immedite stay or the proceedings or a TRO (temporary restraining order). |
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Term
| Lay out the steps of how an opponent is served with the Order to Show Cause |
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Definition
1. P submits an O to Show Cause in conjunction with supporting affidavits to the Court.
2. The judge then sets a return date for the order and provides the P with the materials ordering particular type of delivery (personal delivery generally). The judge can set the hearing or return date for a date he choses. Moving party serves ppers on adversary and then the adversary has the opportunity to respnd to the ORder by the hearing date for the Court's consideration. |
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Term
| In the context of a Motion on Notice, what happens after the hearing/return date? |
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Definition
| The judge writes and signs and order and provides it to the prevailing party who then serves the judge's order to the losing party. |
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Term
| What are the two effects of serving the copy of the order? |
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Definition
| 1. Service of the order is required for the Order to take effect, and 2. Once service is complete the 30-day time limit to appeal the Order begins to run. |
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Term
| What is the rule on appealing orders of Motion on Notice? |
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Definition
| NY provides for an immediate appeal of an order from a Motion on Notice to an appelate court as a matter of right. Even though the NY litigant has this right, he may also appeal the order from the final judment providing he did not appeal prior. |
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Term
| What is an ex parte motion? |
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Definition
| An ex parte motion is filed wth the court requesting certain relief to be granted without notce or the opportunity to be heard by the opposing party. |
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Term
| Under what circumstances may a moton be made ex parte? |
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Definition
| A motion may be made ex parte where there is express statutory authorization. 2 main examples: expedient servcie or when P seeks an extension on the time to serve process. |
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Term
| Can an ex parte motion be appealed? |
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Definition
| Not directly. If a party believes they have been aggrieved by an ex parte motion they may submit a Motion on Notice attemptng to vacte the ex parte motion. If the Court denies the Motion on notice then the aggrieved party may appeal that judgment immediately within 30 days. |
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Term
| What is the purpose of a Motion for Summary Judgment? |
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Definition
| The purpose of a Motion for Summary Judgment is to afford a party show, before trial, that even though the pleadings may be suffiecient on their face, there is no genune issue of material fact requiring a trial. The moving party is arguing that reasonable persons would not differ, and thus seeks a judgment as a matter of law. |
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Term
| When moving for a Summary Judgment, what is important to remember to do? |
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Definition
| Always remember to discuss the elements of the underlying COA. |
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Term
| May a party move for Summary Judgment once service is complete? |
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Definition
| No. The motion would be premature. In NY, a Motion for Summary Judgment may only be made after the answer has been served by D. |
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Term
| Wha ts the note of issue? |
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Definition
| It is the date the case is set for trial. |
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Term
| How long does either party have to raise a Summary Judgment on the pleadings (any claim or defense)? |
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Definition
| The general rule is 120 dys, but a party may equest additional time if good cause is showed for the delay in filing SJM. |
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Term
| How does a party satisfy their burden under SJM? |
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Definition
| The movant must show that there are o genuine issues of material fact requiring a trial. The movant achieves this by submitting supporting affidavits, relevant documents and materials ascertained via discovery. Theevidence must show tha tthe movant deserves a judment as a matter law. |
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Term
| How does the opponent defeat the Motion for Summary Judgment? |
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Definition
| She will also submit affidavits, discovery materias and relevant dociuments to show the Court that there are genuines issues of material fact that warrant a trial. The parties need evidence. They cannot simply rely on their pleadings: that will not suffice. |
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Term
| What happens when the opposing party does not have enough time to gather the evidence needed to refute the movant's Motion for Summary Judgment? |
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Definition
| If the movant party provides the Court with adequate affidavits that exaplain why she cannot produce the needed evidence to refute movant's SJM, the Court may either dismiss movant's SJM or may grant a continuance, adjourring the proceeding until the opponent can gather the needed evidence. |
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Term
| What does it mean for the SJM to "Search the Record?" |
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Definition
| This means tha tthe court will review all maerial in the record, irrespective of which side submitted the evidence, and will evaluate it. At the close of its evaluation, the court may rule for a summary judgent moion for ither side,,,, even where the opponent has not cross-motioned for a SJM herself. |
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Term
| What are the two possible outcomes if the SJM is denied? |
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Definition
| 1. That menas tha tthe Court believed tha tthere was a triable issue of fact, and the trial proceedings will resume. OR the Court may decide that a SJM could be granted on the merits, providing for a SJM on the liability, but not the damages. In this case, the Court may provide the litigants an expedited trial on the amount of damages. |
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Term
| There are two situations where a SJM may be sought prior to the service of process and the answer. What are they? |
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Definition
1. D's pre-answer Motion to Dismiss may be converted by the Court into a Motion for Summary Judgment, thereby deciding the case on the facts opposed to on the pleadings.
2. Motion for Summary Judgment in Lieu of a Complaint (P serves D with a summons and SJM). This may arise in two types of actions: (1) an action on an instrument th tis solely to pay money: the instrument must provide the D's unconditional promise to pay money (promissory note). (2) An action that is based on an out-of-state judgment. |
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Term
| What prerequisites must be met in order for a D to adequately meet its burden of a Motion to Dismiss that the Court may convert into a SJM? |
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Definition
| 1. The parties must have submitted factual affidavits in response to the Motion to Dismiss. 2. The Court must provide notic tha the conversion from Motion to Dismiss to Motion for Summary Judgment will be made so that they have another opportunity to submit supplemental evidence to bolster their assertions and facts. |
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Term
| If a SJM is sought as a pre-answer motion (remember an exception in NY) wha tis the procedure? |
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Definition
| The P will file process with the Court and then serve the D with a summons and summary judgment witht he supporting affidavits and documentation. Here the D will have 20 days to respond if he is in state, and 30-days if he is out of state from the date of completed service. |
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Term
| What are provisional remedies? What provisional remedies are available to Ps? |
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Definition
Provisional remedies are remedies that provide P with security during litigation.
1. Attachment 2. Preliminary Injunction
3. Temporary Receivership 4. Order to Seize Chattel in an action to recover the chattel 5. Notice of Pendency |
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Term
| Can P's invoke a provisional remedy without a need for a court order? |
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Definition
| A court order is needed for all the provisonal remedies except for the Notice of Pendency. |
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Term
| What is the main purpose of the provisional remedy: attachment? |
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Definition
| The main purpose of attachment is to provide for the security for the enforcement of a monetary judgment. |
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Term
| What is the procedure for a P to get a attachment order? |
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Definition
| P gets an order of attachment from the Court. The P brings the order fo attachment to the Sherrif who levies D's property (meaning freezes the property). The levy gives the P a lien on the property: either real or personal. It also gives the P security interest tha ti s superior to subsequent lienholders. |
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Term
| How is a sherrif's levy made on real property? |
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Definition
| Sherrif file the order of attachment with the county clerk where the real property is located. |
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Term
| What type of personal property qualifies for a levy? |
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Definition
| Tangible items such as a car or boat or intangibles like a debt tha is owed to the D or his bank account. |
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Term
| How does a sherrif levy personal property? |
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Definition
| The Sherrif delovers the order fo attachment to the person holding the interest to D's personal property. The delivery may be to the D himself. Once the notice of attachment is delivered a lien exists on the personal property. It essentially serves as a injunction on the transfer of the property interest. |
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Term
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Definition
| A garnishee is a person who owes a debt to a D in the context of attachment. |
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Term
| In what type of actions may attachment be used? |
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Definition
P must be seeking pecuniary damages. P may also be seeking equitable damages too. All that is required is that there are some form of pecuniary damages being sought.
AND
D is an unlicensed foreign corporation or a non-domicilliary of NY
OR
D is about to concela or trnasfer assets from the state with the intent to defraud creditors or frustrate the enforcement of a judgment: basically D who are security risk. |
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Term
| What is the P required to provide the Court with to get an Order of Attachment? |
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Definition
1. P must make a motion for an Order of Attachment.
2. The affidavit in support of the motion must show either (a) D is an unlicensed foreign corporation or a non-domicilliary of NY or D is an untrustworthy D: transfer or conceal assets. (b) must show a probablility of success on the merits, and (c) the P must post an undertaking, which is a bond to indemnify the D for any injury sustained by attaching his property. |
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Term
| Should the Motion of Attachment be made through a Motion on Notice or an Exparte motion? |
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Definition
| The Motion of Attachment can be attained either way. There are adidtional requirements to satisfy if the P seeks to secure a Motion of Attachment via an Ex Parte motion. |
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Term
| How can DP be satisfied when a Motion to Attach is achieved via an Ex Parte Motion? |
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Definition
| DP, accorsing to the USSC is satisfied when D receives a prompt trial after the seizure of his property. The hearing gives the D an opportunity to contest the ttachment of his property. |
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Term
| Does the P have any additional obligations to the D if attachment of his property is ascertained via an ex parte motion? |
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Definition
| Yes. P must serve D notice to confirm the levy of D's property. If the D is an unlicensed corporation or a non-domicilliary f NY the D must be sertved no later than 10 dayys from the levy. If the D is the "untrustworthy D" the motion to confirm must be served on D no later than 5 days after the levy of his property. If the P fails to meet these time parameters, the P's ex parte motion is deemed void. |
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Term
| In what type of actions may a preliminary injunction be used? |
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Definition
It may be used in an equity action where the P's complaint seeks either:
(1) a permanent injunction
(2) Where D threatens to destroy or do something at issue in the lawsuit.
To seek a PI P may also be seeking pecuniary damages: the key here is that one part of the action must be seeking an equitable remedy. |
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Term
| If a P seeks to collect money from a D and sues, can P ask the court to grant her a PI to prevent the D from transferring the assets or spending the money? |
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Definition
| No. A PI is not appropriate here because the P is only seeking money damages. The PI is not the correct provisional remedy here: the P should seek an Order to Attachment D's bank acct. |
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Term
| How must a motion for a preliminary injunction be made? |
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Definition
| The motion for PI must be made by a Motion on Notice. The Motion for a PI can essentially be made at any time beginning at the time of the service of process. |
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Term
| What are the requirements for a Motion for a PI? |
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Definition
| 1. The P must submit affidvits showing grounds for equitable relief: essentally threat of irreprable harm, 2. must show the likelihood of success on the merits of the underling COA, 3. P must post an undertaking to indemnify the D for damages if it is later determined tha th PI should not have been granted. |
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Term
| How does a TRO relate to a preiminary injunction? |
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Definition
| The TRO provides immediate injunctive relief. With the PI remember it must be first served with process, which gives the D 8 days to respond to the Motion on Notice/Motion for PI. That may be too long in certain circumstances. The TRO helps to maintain status quo until the motion for PI is decided on by the Court. |
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Term
| May a TRO be granted ex parte? |
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Definition
| Yes it may if the P proves that providing notice to D would result in significant prejudice. |
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Term
| What is a temporary receiver? |
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Definition
| It is a person who is appointed by the court ot mangae property in the D's possession as a result of a provisionl remedy: temporary receivorship. |
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Term
| When is a temporary recivership available? |
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Definition
The provisional remedy of a temporary receivership is rare. It may be available where P asserts an equity claim in which specific property is the subject matter of the action
AND
There is danger that the D will harm or destroy the value of the property while the action is pending. |
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Term
| When is a temporary receivorship not available? |
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Definition
| When the P is solely seeking pecniary damages. |
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Term
| What does the appointment of a temporary receiver require? |
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Definition
| It requires a Motion on Notice. |
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Term
| When is seizure of chattel available to P as a provisional remedy? |
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Definition
| An action that seels to recover possession of chattel (tangible personal property). |
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Term
| What happens if a Seizure of Chattel is orderd by the Court? |
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Definition
| The Sherrif seizes the chattel and impounds it, meaning tha thte Sherrif will retain custody of the chattel. |
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Term
| Lets say Jen lent her diamond broach to Tamika. Tamika refused to return it, what must Jen show to get an order for Seizure of Chattel? |
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Definition
| Jen must provide the Court with an affidavit showing that she has a likelihood of success on the merits regarding the underlying cause of action. She also must provide the Court with an undertaking to indemnify the D for any injury resulting from a wrongful seizure of chattel. |
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Term
| May a motion for the seizure of chattel be made on notice or ex parte? |
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Definition
| The motion may be made either way, but when made ex parte the P must also show threat of immediate loss of the chattel. If it is granted ex parte the P must then serve the D a motion to confirm the impoundment of the chattel within 5 days from the day of seizure. |
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Term
| When may a Notice of Pendency be used, in what type of action? |
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Definition
| In equity actions that will have a direct impact on the use, title or possession of real property. For example, specific performance or ejectment. In a mortgage foreclosure the filing of a Notice of Pendency is statutorily required. |
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Term
| What ode sthe provisional remedy: Notice of Pendency do? |
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Definition
| The notice of Pendency gives record notice to all potential buyers or mortgegees that ny interest they acquire in the prperty is subordinate to P's interest. |
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Term
| What procedure is involved in a Notice of Pendency? |
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Definition
| P files a Notice of Pendency with the county clerk of the county of New York where the real property is located. Essentially gives P a lien on the property and gives other the record notice of the lien on the prperty to all prospective purchasers/mortgagees. |
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Term
| Does a P who files a Notice of Pendency need court order? Does the P need to provide an undertaking or bond? |
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Definition
| A P does not need to get a court order before filing with the County Clerk, nor does she need to provide an undertaking. |
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Term
| what remedy does a D have if the P imprperly file a Notice of Pendency? |
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Definition
| A motion to cancel the notice of pendency. |
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Term
| How long is a Notice of Pendency last? |
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Definition
| It last for three years and may be extended for another three years provided tha tht eP does not allow the Notice of Pendency to lapse. If the P does allow it to lapse another Notic eof Pendency will be permitted n the same property when it is related to the initial cause of action. this rule, however, does not apply to mortgage foreclosure actions. |
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Term
| How many provisional remmedies do courts generally allow the P to pursue? |
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Definition
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Term
| When discovery is complete and the case is ready for trial how is the case placed on the calendar? |
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Definition
| Either party may file a "note of issue." This tells the Court that the parties are ready for trial. The party that files the "note on issue" must serve it on the other parties involved in the litigation. |
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Term
| How does a party who is entitled to a jury obtain a date on judge's calendar? |
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Definition
| The party who files the note of issue may demand a jury trial in the note of issue. If the filing party does not make a demand for a jury trial, the other parties who did not file a note of issue may submit a demand for a jury to the Court. If the party who makes a note of issue doe snot demand a jury trial: waives it. |
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Term
| Under what circumstances does a party to a cvil trial have the right to a jury trial? |
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Definition
1.An action seeking solely money damages.
2. Replevin
3. A claim to real property
4. Annulment of a marriage
5. In a divorce action re: grounds, but not monetary or child custody/visitation issues. |
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Term
How many jurors are required in a civil action?
Wha tis adequate to reach a verdict? |
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Definition
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Term
| Wha tis the purpose of res judicata? |
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Definition
| The purpose of res judcata is to prevent the same issue being relitigated. |
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Term
| What approach does NY use in terms of res judcata? |
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Definition
| NY uses a transactional approach to claim preclusion, which means tha twhen a claim against a particular D is brought to a final judgment on the merits, all other claims by that P that arise out of the same transaction are barred (issue preclusion). Even if the P has a different issue or a different theory. |
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Term
| When is the transactional approach to employed? |
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Definition
| NY does not apply claim preclusion, in other words it des not apply the transactional approach in domestic cases that involve spousal abuse. Spouse may divorce husband on grounds of cruelty, but does not joinder additional COA regarindg the injury she sustained from the abuse. The COA says this is OK. The injured spuse is entitled to a quck divorce and then subsequently may sue the spouse for tort liability even though the abuse was related to the divorce action and not raised. |
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Term
| Where is issue preclusion used? |
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Definition
| Where litigants can prevent re-litigation of a issue that was decided on in a prior proceeding. The P will need to make a three part showing to have the Court apply issue preclusion. |
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Term
| What is three part showing a P must make in order to use a prior judgment against the same D (issue preclusion)? |
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Definition
1. The issue in the former and current COA are identical.
2. The issue at was formally litigated and decided.
3. the party against whom issue preclusion is being asserted against had a full and fair opportunity to litigate the issue in the intial procedding. |
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Term
| Does issue preclusion apply to civil or ciminal judgments? |
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Definition
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Term
| What is P1 lost to D, in a subsequent action against D, may P1'a loss be used against P2 as issue preclusion? |
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Definition
| No because P2 was not a party to the prior action. He deserves the opportunity to present his case even if they are identical facts and causes of action against the D. |
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Term
| What is a special proceeding? |
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Definition
| A special roceeding is a speedy, streamlined procedure with the objective of obtaining a judgment as a final resolution. |
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Term
| To pursue a remedy vis-a-vis a special proceeding, what must the P have? |
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Definition
| For the P to pursue a remedy via a special proceeding the proceeding must be aloowed by statute. |
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Term
| If a P seeks a remedy via a special proceeding incorrectly will the court convert the special proceeding into an action? |
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Definition
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Term
| In a special proceeding what is the complaintant called? |
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Definition
| a petitioner, not a plaintiff |
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Term
| What must a petitioner do to incept a special proceeding? |
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Definition
| The petitioner files a petition which commences the special proceeding. Then serves the Respondent with the petition and the notice of petition. |
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Term
| What does the notice of petition tell the Respondent to a special proceeding? |
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Definition
| It advises the respondent to serve an answer an to appear on the specified return date for the hearing. |
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Term
| Is the timing for the special proceeding in terms of how much notice the Respondent recievs the same as a Motion on Notice? |
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Definition
| Yes. The Respondent must get 8 days to submit all documents/answer by the hearing/return date. If the Petitioner wants ot expedite or accelerate the 8 day period she can initiate the special proceeding via an Order to Show Cause. |
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Term
|
Definition
| Arbitration is a private procedure tha tis predicated on K, which results in a binding decision by an arbitrator. |
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Term
| Are arbitrators bound by substantive law or the rules of evidence? |
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Definition
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Term
| What guides the Court's analysis when deciding whether an issue is arbitrable? |
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Definition
| What guide's the Court's analysis is the fact that NY's public policy favors arbitration. |
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Term
| What are the 5 threshold issues that may be presented to a Court to avoid arbitration? |
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Definition
1. Did the parties agree to arbitrate? This is a question of K law. There are two req'ts: (1) the agreement to arbitrate must be in writing (no sig. needed) AND (2) the agreement to arbitrate is clear and unequivocal.
2. IS the dispute within the scope of the arbitration clause? Look to the arbitration agreement. Generally broad clauses preclude judcial adjudication of susbtantive issues.
3. Is the arbitration clause valid? The clause will not be valid if the gareement to arbitrate was induced by fraud, durress, or coercion, or if the topic of arbitration is contrary to public policy.
4. Is there an express condition precedent before the arbitration clause is enforceable, and has that condition been met? Self-explanatory.
5. Statute of Limitations: Issues involving S/L are decided by the Court. |
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Term
| What is the doctrine of severability? |
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Definition
| When P tries to avod arbitraion on the basis tha tthe whole K is invalid, the parties must still arbitrate because othe doctrine of severability finds tha thte agreement to arbitrate is somethig that is distinct from the remainder of the K. Even if the K is alleged to be induced by fraud. The only way to avoid arbitration is for the P to argue tha tthe arbitration itself is flawed, not the overall K. |
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Term
| In a pending action, how should a D assert his right to arbitrate under a K? |
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Definition
| The D must make a motion to stay the proceeding or action and to compel the P to arbitrate. |
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Term
| How may a party that agreed to arbitrate commence arbitration? |
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Definition
| P would serve D with a Notice of Intention to Arbitrate. If opponent rejects the intention to arbitrate shoukld incept a special proceeding asserting tha tthe arbitration should be stayed. |
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Term
| Can punitive damages be awarded by an arbitrator? |
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Definition
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Term
| What are the three grounds recognized in NY for judicial review of an arbitral award? |
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Definition
1. Corruption, fraud or misconduct in an arbitration proceeding.
2. When an arbitratoe is shown to not be neutral.
3. IF arbitrator exceeded his power (this is generally a loser unless there is some express instruction regarding the role or authority of the arbitrator in the K). |
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Term
| Article 78 of the CPLR authorizes a special proceeding for... |
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Definition
| judicial review or an action or inaction by a governmental or quasi-governmental body or officer. |
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Term
| There are 4 grounds for Article 78 proceedings: What are they? |
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Definition
| 1. Mandamus to Compel: To compel an act required by law: For ex: require a city clerk to issue a marriage license |
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Term
| Simon the President of Britt Products refused to hod the corporation's annual meeting. Could SH, Jenny, bring an article 78 proceeding alleging mandamus to compel the President to hold the corporations'a annual meeting? |
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Definition
| Yes, SH may bring this an article 78 proceeding on the grounds of mandamus to compel the President to hold the meeting because the corporation and its officers are considered quasi-governmental actors. |
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