Term
What are the three Basis of Personal Jurisdiction |
|
Definition
Personam, in rem, & Quasi in Rem |
|
|
Term
What are the minimums for a case? |
|
Definition
Basis, Proper Notice, and SMJ |
|
|
Term
What applies as In personam |
|
Definition
Presence in NY, Doing Business in NY, Domiciliary, consent, Long arm |
|
|
Term
What days can't process be served? |
|
Definition
Sunday and if you KNOW that the person celebrates Sat Sabbath |
|
|
Term
|
Definition
To claim fraud, the fraud must be the sole reason for being in NY(total fraudulent enticement to enter the state) |
|
|
Term
Immunity Doctrine for in personam jurisdiction |
|
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). |
|
|
Term
Implied consent for Basis of Jurisdiction |
|
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. |
|
|
Term
Presence Doctrine and Partnerships |
|
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. |
|
|
Term
Presence Doctrine and Association |
|
Definition
If President or Treasurer is served in NY, that gives presence jurisdiction over association |
|
|
Term
Presence Doctrine for Corps. |
|
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 |
|
|
Term
Presence Doctrine Foreign Non NY Reg Corps. |
|
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. |
|
|
Term
Serving Domiciliary on NY |
|
Definition
Can serve a NY Domiciliary in FL. |
|
|
Term
|
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. |
|
|
Term
|
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 |
|
|
Term
|
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. |
|
|
Term
|
Definition
Long arm statute for work performed in NY state or for k to supply goods or products in state. |
|
|
Term
|
Definition
Long arm statute for committing tortious acts within the state except defamation. |
|
|
Term
|
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. |
|
|
Term
Traditional Notions of fair play and substantial justice |
|
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 |
|
|
Term
|
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. |
|
|
Term
Basis for Jurisdiction waiver |
|
Definition
Failure to challenge basis means you waive it. Can challenge basis anytime before case is decided. |
|
|
Term
|
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. |
|
|
Term
|
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 |
|
|
Term
|
Definition
Action is commmenced by filing process |
|
|
Term
|
Definition
Filing an action requires purchasing an index number. |
|
|
Term
After filing summons and complaint, when must P serve D? |
|
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. |
|
|
Term
|
Definition
Different type of commencement papers called a petition which creates a notice of petition. |
|
|
Term
|
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. |
|
|
Term
|
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 |
|
|
Term
|
Definition
Allows a summons to be amended at any time upon motion if a substantial right of the D will not be prejudiced. |
|
|
Term
Tamburo v. P&C Food Markets |
|
Definition
Failure to name the court or county on the summons is a jurisdictional defect |
|
|
Term
|
Definition
Service of summons without notice is a jurisdictional defect-cannot be amended. |
|
|
Term
Mistakes in names of parties in notice. |
|
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. |
|
|
Term
|
Definition
Used when adding additional D. Motion must be made/judicial permission. Supplemental summons goes to county clerk and on D. |
|
|
Term
|
Definition
Anyone 18 or older, not including parties. |
|
|
Term
|
Definition
Use NY methods. But the server can comply with out of state regs for who can serve it. |
|
|
Term
|
Definition
Methods of Service 1. Personal delivery 2. Deliver and mail 3. Delivery to an agent 4. Nail and Mail |
|
|
Term
|
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 |
|
|
Term
|
Definition
allows D to vacate a default judgment once h receives actual notice to defend on the merits. |
|
|
Term
|
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. |
|
|
Term
What are the three ways you can serve a corporation? |
|
Definition
1. Personal service on authorized person 2. BCL 306 3. BCL 307 |
|
|
Term
Personal Service on an authorized person for Corporation. |
|
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. |
|
|
Term
|
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 |
|
|
Term
|
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. |
|
|
Term
Flick Case(service of foreign business) |
|
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. |
|
|
Term
|
Definition
|
|
Term
|
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. |
|
|
Term
Service of children under 14 |
|
Definition
Serve only adult: parent, custodian, spouse of parent, guardian, or any other person residing with child |
|
|
Term
Service of Infants over 14 |
|
Definition
|
|
Term
Service of incapacitated person |
|
Definition
must serve the incapacitated person and the guardian. CAN get court order to serve just the guardian b/c violent, institutionalized, etc. |
|
|
Term
|
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. |
|
|
Term
|
Definition
service by mail requirements |
|
|
Term
|
Definition
1. Serving notice of appearance 2. serving an answer 3. making a motion which has the effect of extending answering time |
|
|
Term
Motions considered appearance |
|
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]) |
|
|
Term
When serving summons with notice instead of complaint, a D will respond w/? |
|
Definition
serving notice of appearance and demand for a complaint, although that is an appearance, does not waive jurisdictional attacks. |
|
|
Term
When there is service by mail, D sends the acknowledgement, but that is not an appearance.... now what? |
|
Definition
D has 20 days after mailing acknowledgement to serve an answer or make a motion extending time for answer. |
|
|
Term
Is there special appearance concept in NY? |
|
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 |
|
|
Term
Does an amended complaint revive the ability to object on jurisdictional grounds? |
|
Definition
|
|
Term
How far can you go in responding to a complaint where there are jurisdictional questions? |
|
Definition
You can object to merits and lack of jurisdiction at the same time. |
|
|
Term
Can you raise a counterclaim in your answer when jurisdictional questions are still present? |
|
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. |
|
|
Term
|
Definition
Demand for complaint after being served a summons with notice. |
|
|
Term
|
Definition
Summons w/o complaint can be served. 320 allows you to demand the complaint. |
|
|
Term
Service of complaint must be made within how many days of demand for complaint?
When summons is served without complaint. |
|
Definition
20 days after demand, complaint must be served. |
|
|
Term
If no demand for complaint is made, the complaint shall be served within |
|
Definition
20 days after service of the notice of appearance |
|
|
Term
Does Filing notice of appearance or demanding a complaint limiti jurisdictional issues |
|
Definition
No. You can still raise jurisdictional issues. |
|
|
Term
If P fails to to timely serve complaint after summons(w/o complaint), Can D motion to Dismiss? |
|
Definition
Yes. HOwever, dismissal is done w/o prejudice. |
|
|
Term
Limited appearance. If D appears based solely on quasi-in rem, are there an restrictions? |
|
Definition
Yes. D's appearance is limited to the value of the attached property |
|
|
Term
Is there a limited appearance for In Rem jurisdiction? |
|
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. |
|
|
Term
Is asking for an extension of time to answer an informal appearance |
|
Definition
No. It is not a waiver of jurisdictional defense. |
|
|
Term
Venue is a component of Jurisdiction |
|
Definition
|
|
Term
Venue is regulated by what article |
|
Definition
|
|
Term
|
Definition
Place of trial shall be where the parties resided at the time the action commenced. |
|
|
Term
Consumer Credit Transactions Venue |
|
Definition
Venue is based on the location of the D. Where the D resides. |
|
|
Term
|
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. |
|
|
Term
Venue: P picks the wrong county. |
|
Definition
Too bad, Stay in that county unless D timely objects. Court cannot raise venue sua sponte. |
|
|
Term
|
Definition
Parties can contract to venue before trial. |
|
|
Term
Changing Venue: Venue not proper |
|
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. |
|
|
Term
Changing Venue: What are the 3 ground for changing venue? |
|
Definition
1. Venue not proper 2. Impartial Trial 3. Convenience of witness |
|
|
Term
Changing Venue: Impartial Trial |
|
Definition
Either party can make a motion to move based on this. Court has discretion whether or not to grant. No presumptive right. |
|
|
Term
Changing Venue: Convenience of Witness |
|
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. |
|
|
Term
statute of limitations: breach of K, Negligence, Defamation |
|
Definition
|
|
Term
When does SOL begin Accruing? Which CPLR |
|
Definition
CPLR 203(a) Accrual of the cause of action |
|
|
Term
SOLS Enforcement of a judgment Contract Fraud Negligence Intentional Torts defamation recovery of real property No legislation |
|
Definition
EoJ=20 K= 6 Fraud = 6 or 2 yrs after discovery Negligence = 3 Int. Tort = 3 Def = 1 Recovery = 10 No legislation = 6 |
|
|
Term
|
Definition
3 years
Medical Malpractice = 2.5 years. |
|
|
Term
Continuous Treatment Exception |
|
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. |
|
|
Term
|
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 |
|
|
Term
Equitable Estoppel in SOL |
|
Definition
need affirmative misrepresentation by D Justifiable reliance upon the D Resulting in the Delay of the commencement of the suit |
|
|
Term
|
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. |
|
|
Term
Products Liability:SOL Strict Products? Negligent Design Manufacturing? Breach of implied warranty of merchantability? |
|
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 |
|
|
Term
|
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. |
|
|
Term
Contractual Manipulation of SOL: Can Lengthen/shorten? |
|
Definition
May shorten by written agreement not less than one year ONLY AFTER COA arises. Reasonable amount of time. |
|
|
Term
CPLR 203(f) Interposing a claim for SOL Purposes |
|
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. |
|
|
Term
|
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. |
|
|
Term
|
Definition
Joint obligors under K Joint owners of property Co-signors of a promissory note Vicarious liability; employee/er |
|
|
Term
Relation Rule Back to new Co-D |
|
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. |
|
|
Term
|
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. |
|
|
Term
Toll for infancy or insanity... |
|
Definition
SOL is 3 years after the time the disability ends or however much time is still remaining on the accrual, whichever is longer |
|
|
Term
Death of Claimant. /What happens after claimant is dead? |
|
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. |
|
|
Term
What is a Survival Claim? |
|
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. |
|
|
Term
What is a Wrongful Death claim? |
|
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. |
|
|
Term
SOL for Wrongful Death Action |
|
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. |
|
|
Term
|
Definition
6 YearSOL where no other SOL is prescribed by law |
|
|
Term
|
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. |
|
|
Term
|
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. |
|
|
Term
SOL if claim arises outside of NY |
|
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 |
|
|
Term
Statutory Conditions Precedent |
|
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 |
|
|
Term
|
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 |
|
|
Term
Permissive joinder of parties |
|
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 |
|
|
Term
|
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 |
|
|
Term
Joinder of Parties: D hits P w/ car. P gets taken to hospital. Doc fucks up. Can P sue both D and Doc |
|
Definition
Yes, same series of transactions. Successive tortfeasors. Common question of law since both D's could be held liable. |
|
|
Term
|
Definition
Joinder of Claims. Once parties are joined under 1002, 601 kicks in and P can bring multiple claims against D's |
|
|
Term
|
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. |
|
|
Term
|
Definition
Must have common Q of law or fact |
|
|
Term
|
Definition
Dismiss for failure to join a necessary party.
Is party necessary? Can he be summoned? If not, can CT proceed w/o party |
|
|
Term
Can a tort action be dismissed for failure to join Necessary parties? |
|
Definition
|
|
Term
Offensive Interpleader CPLR 1006 |
|
Definition
Party against whom conflicting claims have been asserted. Interplead the claims to have them both bound by Res Judicata |
|
|
Term
|
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 |
|
|
Term
CPLR 1201 CPLR 1202 CPLR 1203 |
|
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 |
|
|
Term
|
Definition
Impleader - D brings in 3rd party. |
|
|
Term
|
Definition
Impleader - D brings in 3rd party. |
|
|
Term
|
Definition
A claim for 100% reimbursement |
|
|
Term
|
Definition
Not seeking 100%. Equitable share of damages. |
|
|
Term
|
Definition
Contribution to Joint and Several Liable D's |
|
|
Term
|
Definition
RIght of persons entitled to damages. Nothing can screw with P's right to damages. |
|
|
Term
|
Definition
Are only responsible for subsequent damages |
|
|
Term
|
Definition
are responsible for original damages and successive damages, therefore original tortfeasors entitled to contribution for the successive damages. |
|
|
Term
Workers Comp and Contribution |
|
Definition
You can only get contribution from an employer who provided worker's comp if there was a grave injury |
|
|
Term
Settling with One tortfeasor |
|
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 |
|
|
Term
|
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 |
|
|
Term
|
Definition
pain and suffering, loss of consortium |
|
|
Term
|
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. |
|
|
Term
|
Definition
The complaint is to be liberally construed and defects will be ignored if a substantive right is not prejudiced. |
|
|
Term
|
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). |
|
|
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 |
|
|
Term
|
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. |
|
|
Term
|
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. |
|
|
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 |
|
|
Term
|
Definition
Allows costs or sanctions. Mandatory in tort with frivilous nature. |
|
|
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 |
|
|
Term
|
Definition
CPLR 3018(b) must raise all affirmative defenses in pleadings.
Plaintiff forgot to raise his affirmative D to a counterclaim |
|
|
Term
Counterclaims Rule of NY is... |
|
Definition
Permissive, not mandatory for counterclaims |
|
|
Term
|
Definition
Mandatory to reply to a counterclaim or suffer a default judgment on the counterclaim. |
|
|
Term
|
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 |
|
|
Term
|
Definition
If a party verifies a pleading, then all later pleadings have to be verified. |
|
|
Term
Mandatory verified pleadings |
|
Definition
Domestic Law All eviction proceedings A defense not involving the merits(lack of PJ) |
|
|
Term
|
Definition
Demand for Bill of Particulars |
|
|
Term
|
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 |
|
|
Term
|
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 |
|
|
Term
|
Definition
Additional 5 days for interlocutory papers served via mail.
Overnight mail is only 1 extra day. |
|
|