general subject matter jurisdiction

(unlimited as to monetary amounts, ability to assert equity claims, residency of parties, place where cause of action arose)

-cases as to which fed. law confers exclusive jurisdiction on fed. courts (bankruptcy, patents, copyrights)

-claims for money damages in tort or K AGAINST state of NY --> NY court of claims

*employees of state and subdivisions (

-matrimonial actions (for adjudication of marital STATUS)

-CPLR Article 78 Proceedings (judicial review of NY state and local government administrative action)

-action for a declaratory judgment

Statute of limitations for medical malpractice

(doctors, dentists, podiatrists, nurses, and hospitals)

2 1/2 years from date of malpractice (discovery of malpractice irrelevant),

UNLESS suing hospital for negligent hiring (which is an ordinary negligence/tort claim so 3 years)

Exceptions to Medical Malpractice S/L

CONTINUOUS TREATMENT RULE

if physician continues to treat patient for the SAME MEDICAL CONDITION, starts after end of treatment

Exception to Medical Malpractice S/L

FOREIGN OBJECT RULE

If physician was responsible for introducing foreign object into the patient's body and then leaves it behind, P gets whichever is longer:

1. 2 1/2 years from operation, or

2. 1 year from date P discovers presence of object/should've discovered w/diligence

Test for what a "foreign object" is

something doctor did not intent to leave behind

NOT FOREIGN OBJECTS:

-chemical substances

-prosthetic device

-fixation device 

(so if there is a problem with any of these devices, period behinds on date of operation [not discovery])

Claims by clients of architects, engineers, accountants, attorneys (members of LEARNED PROFESSIONS) have a period of 3 years for financial loss, whether or not arises out of tort or K

-begins to run when services are completed (regardless of P's awareness of malpractice)

For architect/engineer, period begins from completion of building

for accountant/atty begins from delivery of work product to client

Any person who suffers bodily injury as a result of non-medical professional malpractice has 3 year S/L from date of injury to body

Jobs that DONT count as in the "learned profession" for non-medical professional malpractice

-insurance brokers

-securities analysts

-plumbers

*think advanced degrees

1. P must serve a notice of claim on the architect or engineer at least 90 days before suit

2. P may obtain pre-action discovery from potential D during the 90 day waiting period

3. after suit is commenced, if D moves for SJ, burden will be on P to make an immediate evidentiary showing that there is a "substantial basis" to believe that D's negligence was the proximate cause of the injuries

Personal Injury/Prop damage against subdivision of state (county, city, town, school district, etc.) --> 1 year and 90 days from date of accidnt

+ P must serve notice of claim 90 days after accident

*if P doesn't, action can be dismissed for failure to state cause of action

Negligence action: 3 years from injury

Strict Liability: 3 years from injury

Breach of Warranty: 4 years (sales from UCC) runs when D made its delivery (each D separately)

Indemnity/Contribution claims: 6 year from date of payment of judgment for which contribution is sought

S/L measured in a toxic substance-exposure case

(harmful toxin that has latent or slow-developing

3 year S/L begins to run against manufacturer, distributor, or supplier upon the EARLIER of:

-discovery of injury

-date when injury should have been discovered with reasonable diligence

*does not apply w/ medical malpractice claims

-if D is not in NY when COA accrues, S/L does not begin to run until D comes to NY

-if D is in NY when COA accrues, and D then leaves NY and is continuously absent for 4 months, then toll applies to entire period of absence  (unless P has basis of personal jurisdiction over absent D such that process could be served outside NY)

*P rarely entitled to an absence toll

-infants or insane P's may sue within regular S/L through a competent adult rep. but they also get a toll!

-if P is insane or infant at time COA accrues, tolled until disability ends

-insanity: any mental disorder that causes an overall inability to function in society (P not need have gone through a formal judicial proceeding for the appointment of a guardian)

-IF original S/L was 3 years or more: P gets whichever is longer

1. usual S/L period from date of accrual

2. 3 years from date legal disability ends

-IF original S/L was less than 3 years: statutory period after disability ends

1. w/ infancy toll, a medical malpractice claim must be commenced no later than 10 years from date of accrual

2. Claims of insane Ps become time-barred after 10 years from date of accrual

S/L for wrongful death cause of action

S/L for survival claim

(any COA P herself could have brought if she were still alive)

If P dies before S/L expires, estate representative gets whichever is longer:

-time remaining on applicable S/L running from date of accrual, OR

-1 year from P's death

1. voluntary discontinuance by P

2. lack of personal jurisdiction

3. dismissal based on P's neglect to prosecute, if it consisted of general pattern of delay

4. on the merits

"Borrowing Statute"

What happens when COA arises outside NY but that state's S/L is different from NY?

1. if P was non-resident of NY when out-of-state claim arose:

NY court applies S/L of state where claim arose if it is shorter than NY

2. if P was a NY resident when the out-of-state claim arose:

NY will apply NY S/L

1. good cause (usually P's diligence), or

2. interests of justice justifies extension

Summons = advises D that P is suing D in a particular court

Complaint = P's pleading which specifies the transaction or occurence that is the subject matter of the action and spells out the essential elements of P's cause of action

What is a summons with notice?

When summons is not accompanied by a complaint, must have notice containing:

1. brief statement of the nature of the action

2. specifiy type of relief sought

3. If damages, amount must be specified

IF summons w/o complaint or notice --> defect in personal jurisdiction subject to dismissal for that reason alone if D makes timely motion

-may be served by any non-party who is at least 18

-any day of the week except Sunday or Sat if sabbath observer and P knows

P MUST COMPLY WITH FORMALITIES even if D does get notice somehow

Personal Delivery to Defendant

-service is complete upon process server's tender of summons directly to defendant

-if defendant refuses to accept the delivery, you can leave in his immediate vicinity

Process server may deliver process to person of suitable age and discretion at the D's actual dwelling or actual place of business PLUS mail a copy by regular mail to D at D's actual place of business or last known residence

(EACH D NEEDS HIS OWN COPIES)

NOTE: delivery must be where he actually resides, letter can be to last known

*2 steps must be taken within 20 days of each other

Process server may affix process to the door of defendant's actual dwelling place or actual place of business PLUS mail a copy by regular mail to D at D's actual place of business or last known residence

(must both be within 20 days of each other)

-process server must first exercise due diligence by 1. making an attempt to serve D directly and if that fails 2. try to leave process with a person of suitable age and discretion at the home or place of business

-for both leave and mail and affix and mail service, proof of service must be filed after the 2 service steps have been performed (necessary to make service COMPLETE!)

service complete 10 days after notice is filed

filing of proof of service need not take place within the 120 days after filing that plaintiff must do the 2 service steps

*no requirement to file proof of service if personal delivery made to D

-parent

-guardian

-person w/ legal custody

-if married --> adult spouse with whom infant resides

IF infant is 14 or older have to serve to D and eligible adult

1. any NY resident who is at least 18

2. anyone authorized in other state to serve process by laws of other state

3. any attorney licensed in other jurisdiction

BUT MUST USE NY METHODS!!!

Service on Corporations

METHOD ONE:

Personal delivery to any one of the following corporate representatives:

-any officer

-any director

-designated agent

-managing agent
(MUST BE PERSONAL DELIVERY!)

Service on Corporations

METHOD TWO

Service on the NY Secretary of State

1. domestic corporation or foreign corporation authorized to do business in NY: personally deliver 2 copies to SOS

2. unlicensed foreign corporation: personally deliver 1 copy to SOS plus mail 1 copy by certified mail to corp w/ return receipt requested

Mail process to D by first-class mail, enclosing 2 copies of statutory acknowledgement form, return envelope, postage prepaid to sender

-service effective if D signs and returns one of the forms to P within 30 days

*not available to infants and incapacitated

JUST AN ACKNOWLEDGEMENT OF RECEIPT

D has presence in NY

D does business in NY

D is domiciled in NY

Long Arm Jurisdiction

Non-Resident motorist statute

consent

A domestic corp. (incorporated in NY) OR a foreign corp. that has been authorized (licensed)  to do business in NY is subject to PJ in NY on any claim, no matter where claim arose.

***UNLICENSED foreign corp. is present in NY if it is doing business in NY

TEST FOR DOING BUSINESS

P must show:

-corporations employees or agents in NY engaging in commercial activity for the corporation on a regular, systematic, and ongoing basis

If the corporate D is doing business in NY, service of process may be made by personal delivery to a proper corporate rep anywhere in U.S. or by service on NY SOS

1. mere sales of products in NY

2. mere advertising in NY

3. mere transient presence of corporate officer in NY at time of service on him does not qualify as presence by corporate D in NY or doing business by corporate D in NY

-usually for jurisdiction over foreign corps.

-usually only necessary if cause of action arose outside NY (if inside state- usually long arm applies)

-can be used for individuals and partnerships too

Residence = place where a person lives for a fair amount of time with some degree of permanency

Domicile = one residence at which a person intends to remain indefinitely and is treated by her as the principal home (only 1 domicile)

1. P's claim arises out of "transaction of business by D in NY"

2. P's claim arises from a K that was transacted anywhere by which D agreed to supply goods or services in NY

3. P's claim arises from D's tortious act

4. P's claim arises from D's tortious act outside NY which causes injury in NY

5. P's claim arises from D's ownership, use, or possession of real property that is located in NY

Do D's telephone calls and e-mails count for transacting business in NY?

only if substantial in number and relating to the performance of a significant contract

single e-mail or phone call does not qualify

When P's claim arises from D's tortious act outside NY which causes injury in NY, must have an additional link between D and NY

(one of these 3)

1. D regularly solicits business or engages in any other persistent course of conduct in NY

2. D derives substantial revenue from goods used or consumed, or services rendered, in NY

3. D expects or should reasonably expect the act to have consequences in NY and D derives substantial revenue from interstate or international commerce

(such commerce must purposefully include NY)

1. discuss whether plaintiff can establish jurisdiction under any non-long-arm categories

2. discuss whether the facts of P's case fall within one or more of the long-arm categories

3. briefly discuss whether particular assertion of jurisdiction would satisfy constitutional due process

confers PJ over an accident claim arising from a nondomicilliary motorist's ownership or use of an auto on a NY roadway

1. serve process by personal delivery of 2 copy to SOS plus mailling 2nd copy certified

-also applies to nondomicilliary owner who gave permission to drive in NY (vicarious liability)

To obtain a divorce, separation, or annulment, all that is necessary is that PLAINTIFF spouse is a domicilliary of NY

(no PJ needed)

court has in rem jurisdiction over the marriage

Matrimonial Long Arm Statute

(when spouse seeks monetary support)

-NY was the matrimonial domicile of P and D prior to their separation

-D abandoned P in NY

-D's monetary obligation accrued under an agreement executed in NY

-D's monetary obligation accrued under the laws of NY

Durational Residency Requirements

(part of the merits of a matrimonial action)

P must satisfy 1 of 3:

(if fails, will be dismissed for failure to state COA)

1. BOTH parties are NY residents at the time action is commenced AND grounds for action arose in NY

2. one year residency (either party has been NY resident for a continuous 1 year period immediately prior to action AND either the marriage took place in NY, NY was matrimonial domicile at some point, or grounds for divorce action arose in NY)

3. 2 year residency (either party has been a NY resident for a continuous period of at least 2 years immediately prior to action)

Prop action: county in which prop is located

Other actions: any county in NY in which any 1 of the parties resides at the time the action is commenced (if no one resides in NY --> any county)

serve a demand for change of venue to a proper county designated by D (serve before or with answer)

If P consents: change automatic

If P objects: then D must make motion for change of venue (will be granted if P chose improper and D's is proper)

convenience of material witnesses

impartial trial canot be held in the county where action is commenced

D can respond to summons + complaint by:

serving an answer OR

pre-answer motion to dismiss

1. denials of allegations D wishes to contest (failure to deny any allegation is an implied admission)

2. any relevant affirmative defenses

*in general, affirmative defenses not raised in the answer are waived EXCEPT failure to state a cause of action, lack of subject matter jurisdiction

When D arrests his own cause of action: COUNTERCLAIM

P's response:

How are INTERLOCUTORY papers served?

(including D's answer, all other pleadings, motions, discovery notice)

Ordinary Mail (first class mail)

service is deemed made upon MAILING (not receipt)

PERSONAL DELIVERY: 20 days of delivery

MAIL + ACKNOWLEDGEMENT: 20 days of mailing acknowledgement

ANY OTHER CIRCUMSTANCES: 30 days after service is complete

8 DEFENSES (usually asserted in answer) THAT CAN BE ASSERTED IN A PRE-ANSWER MOTION TO DISMISS:

DOWNFALL

Documentary Evidence (as basis for defense)

Other action pending

Want of Capacity of P

Non-Joinder of necessary party

Failure to state COA

Additional Affirmative Defenses

Lack of Personal Jurisdiction (improper commencement, improper service of process, lack of basis of juris.)

Lack of Subject Matter Jurisdiction

direct to the substantive insufficiency of the complaint on its face -- even if all allegations are deemed to be true, law does not recognize a COA

-plaintiff is entitled to every favorable inference that can be drawn from allegations

Motion should be denied if any basis for relief under subsatntive law

Additional Affirmative Defenses within category A:

SPARERIBS

Statute of Limitations

Payment

Arbitration Award

Release

Estoppel

Res Judicata

Infancy of D

Bankruptcy Discharge

Statute of Frauds

nonjoinder

failure to state cause of action

lack of subject matter jurisdiction

before serving answer, make motion to dismiss that includes lack of PJ

OR

inclue it in answer

1. serve demand for complaint

2. serve a notice of appearance

(requires P to serve complaint within 20 days of D's service)

*if P does not --> D can move to dismiss! unless P shows reasonable excuse for delay and make evidentiary showing of P's COA

(same time limit as responding to summons and complaint - 20, 20, 30)

*when P does serve complaint, D has 20 days to serve answer AND CAN STILL RAISE PJ OBJECTION! asking for complaint does not waive!

YES, if:

1. D made no pre-answer motion to dismiss

2. adds jurisdictional amendment no later than 20 days after answer

-must file motion for leave to amend, can be permitted by court's discretion

Standard: allowed if opponent will suffer no incurable prejudice

Opposing party must show detrimental change of position as a result of the delay (loss of documentary evidence Or key witnesses dead/disappeared) or that proposed amendment has no merit

-used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P

(usually claim for indemnity or contribution)

D does not need to make a motion, may plead TPD at any time after D serves answer to complaint

1. file a summons and third party compalint

2. serve within 120 days of filing, D serves copy of summons and 3rd party complaint on TPD

TPD must serve a TP answer on D, P, and all other parties who have appeared in the action - same time limit as ordinary D

After TPD is joined, P may amend complaint to assert claim directly against (without judicial permission if within 20 days of receiving thrid party answer)

go by date of amendment to see whether S/L met

Exception: P's added claim against TPD will be deemed interposed on the date TPD was impleaded PROVIDED

1. P's claim is based on same transaction/occurence as impleader claim

2. P's claim against D timely at date of impleader

allows one party to shift 100% of responsibilty to another party

can be done by K or implied in law (vicarious liability situations: owner gets indemnified by driver of car, products liability: retailer held liable for defective product entitled to indemnity from manufacturer)

Each tortfeasor can be liable to P for full amount of P's damage without regard to individual's percentage of fault

SOMEWHAT modified by CPLR Article 16:

When a joint tortfeasor is

1. 50% or less at fault, and

2. P has sustained non-$ damages,

then the JT can only be required to pay her own share of P's non $ damages

(pain and suffering, mental anguish, loss of consortium)

Multi state: NO!

NY: Yes (ALWAYS CONTRIBUTION)

if P originally joined tortfeasors as co-Ds, they can assert cross claims against each other

if P omits a tortfeasor, a D can implead the outsider as TPD

Tortfeasor may sue TPD in a separate action

*note: a party cannot assert collateral estoppel (issue preclusion) against a party who has not had her day in court

AND CONTRIBUTION HAS 6 YEAR S/L runs from date of payment of judgment

Comparative Degrees of Fault

(MAJ + NY VIEW!)

Basic rule: amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share (percentage) of the judgment

a party from which contribution is sought cannot be required to pay more than her equitable share

rules of contribution do not change P's right to impose joint and several liabilty on any ONE of the Ds

right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which D may be held liable to P

(D may seek contribution from TPD even if the injured P has no right of recovery against TPD)

Employee can't sue employer because of worker's comp. but employee can sue a third person who is partially at fault for the accident (like manufacturer)

Can the person seek contribution/indemnity from P's employer?

MS: NO!!

NY: YES! if P sustained grave injury

Successive Tort Liability: D is liable to P for all inuries that proximately flow from the accident, including subsequent malpractice BUT D can file contribution claim against those successive tortfeasors

Remember: use contribution S/L (6 years) not medical malpractice (2 1/2)

1. no discharge of liability of non-settling tortfeasors (P's pretrial release of 1 tortfeasor on one claim does not discharge claims against other Ds)

2. law prohibits excess recovery for P, so any judgment for P against a non-settling tortfeasor will have to be reduced to take account of the settlement

*reduced by amount of settlement OR settling tortfeasor's equitable share of the fault

(WHICHEVER IS LARGER)

A party who settles cannot sue or be sued for contribution BUT can be sued, and sue for indemnity

-joint tortfeasor only required to pay her own share of non-$ damages when she is less than 50% at fault

*does NOT apply to wrongful death or property-damage claim

*does NOT apply to tortfeasors who acted with intent or reckless disregard for safety of others, or who released a hazardous substance into environment

*does NOT apply to drivers and owners of motor vehicles other than police and fire vehicles

MOTIONS ON NOTICE

(give adversary an opportunity to be heard in opposition)

What papers are served to other party?

1. notice of motion (specify relief sought + return date)

2. affidavits of fact

3. memorandum of law/legal arguments

at least 8 days

***ALL MOTION PAPERS MUST BE FILED WITH THE COURT NO LATER THAN THE RETURN DATE

preliminary order, signed ex parte by a judge, directing adversary to "show cause" on a date specified by the judge, why the motion should not be granted.

Judge is giving the notice of motion here

1.  means of accelerating the return date where exigent circumstances make usual 8 day period too long

2. judge can grant immediate stay of proceedings or a TRO

3. statute which governs a particular motion may require it

DECIDING ORDER

(court's decision embodied in a written order -- prevailing party serves a copy of order on losing party with notice of entry of the order)

2 effects of service of the copy of the order:

1. service necessary to give effect

2. starts running of 30 day time limit to appeal from order

APPEALS of orders from motions on notice

NY SPECIFIC!

IN NY state court: party can appeal from most interlocutory orders (order tha awards some relief to a party, but does not finally determine all matters in controversey in the action)

PARTY MUST FILE AND SERVE NOTICE OF APPEAL WITHIN 30 DAYS FROM SERVICE OF ORDER OR JUDGMENT

no advance motion is given to adversary (no opportunity to be heard in opposition)

-moving party goes straight to court with motion papers and requests an order granting relief sought

Usually by express statutory authorization (RARE)

NO DIRECT APPEAL!

aggrieved party makes motion on notice to vacate ex parte order

(THEN you can appeal denial of motion to vacate)

Motion for SJ

standard:

after service of answer, any party can move for SJ with respect to any claim or defense asserted in pleadings

BUT limited to 120 days from filing of a note of issue

(note of issue puts case on trial calendar)

*unless moving party shows good cause

affidavits, relevant documents, discovery materials

*affidavits must be submitted by persons with actual knowledge of facots

Opponent produces contrary evidence showing that there is a genuine issue of material fact

D moves for SJ attempting to show absence of any negligence by D. P's evidence in opposition is determined to be so strong by the court that it finds in favor of P

(oopsies!)

1. conversion of motion to dismiss for failure to state a cause of action IF:

a. at least 1 party has submitting factual affidavits in connection w/ motion

b. courts must give notice to parties of conversion to SJ in order to give parties opportunity to submit additional evidence

2. Motion for SJ in lieu of complaint

(serve motion for SJ w/ summonns)

a. action on an instrument for payment of $ (instrument containing D's unconditional promise to pay)

b. action on an out of state judgment (default judgment) to convert foreign states judgement to NY judgment

*both of these actions based on documents that are prima facie valid when supported by affidavit of noncompliance

after filing process w/ court, P must serve on D, with the summons, a notice of motion for SJ w/ supporting documentation and affidavits

-return date NEEDED

Minimum advacne notice:

MUST BE AT LEAST EQUIVALENT FOR TIME LIMIT FOR DEFENDANT'S APPERANCE

20, 20, 30

1. attachment

2. PI

3. Temporary Receivorship

4. order to seize chattel in an action to recover the chattel

5. notice of pendency

 NOTE: each provisional remedy can only be used in certain types of actions

purpose: provide security for enforcement of $ judgment

-P obtains order from ct. and gives it to sheriff who levies upon D's prop in NY (imposes lien)

-gives P a security interest in the prop that is superior to that of any subsequent lien holder

-files order of attachment to county clerk in county where prop is located

any type of tangible or intangible rop

third person who holds Ds prop interest or owes debt to D: a garnishee

constructive seizure: delivers order of attachment to person in NY who is holder personal prop interest (might be D himself

-delivery imposes lien and serves as injunction against transfer (pending outcome of action)

P MUST BE SEEKING MONEY DAMAGES and

1. D is an unlicensed foreign corporation or a non-domiciliary residing outside of NY, or

2. D is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment

How can P obtain order of attachment?

CAN BE MADE ON NOTICE OR EX PARTE

Requirements for motion:

1. affidavits in support must show grounds for attachment AND

probability of success on the merits!!

2. undertaking to indemnify D for any damages or expenses caused by attachment

D is entitled to damages for improper procedure or if D wins case on merits

MOTION TO CONFIRM!

-to confirm the ex parte order

IF EX PARTE, order will be automatically void if P fails to make follow up motion to confirm

-if unlicensed foreign corp --> 10 days

-if D fraudulently moving assets --> 5 days