New York Practice

Most commonly tested areas of NY Practice
1. Statute of Limitations
2. Service of Process
3. Personal Jurisdiction
4. Matrimonial Jurisdiction
5. Motion to Dismiss and Summary Judgment
6. Contribution and Third Party Practice
7. Provisional Remedies
8. Arbitration
Topics that will NOT be covered in this lecture, but which occasionally appear on
the multiple choice section of the New York State Bar Exam. Be sure to review
these topics in the large BARBRI outline.
1. Verification of Pleadings
2. Bill of Particulars – must be verified in a negligence action
3. Default Judgment
4. Neglect to Prosecute
5. Discovery — similar to federal rules of civ pro.
6. Appeals
7. Judgments
Subject Matter Jurisdiction: Supreme Court
A court must have subject matter jurisdiction (competence) to hear and adjudicate the type of controversy brought before it. The court in which an action is commenced (trial court) is referred to as a court of original subject matter jurisdiction. If such court has general jurisdiction, it has the power to hear any type of action.
What is the only trial court in NY that has general subject matter jurisdiction?
The Supreme Court – it is the most important trial court. It has supreme jurisdiction. One branch of the S.Ct. in each of the 62 counties of NY. The particular county is just a question of venue.
The Supreme Court’s subject matter jurisdiction is general and therefore unlimited as regards:
(Personal jurisdiction is a separate and additional requirement.)

1) Monetary amount of P’s claim

2) the ability to assert an equity claim
— injunction, specific performance of a K, mortgage foreclosure, accounting, contract rescission, trust

3) residency of the parties

4) place where the cause of action arose

When we say a S.Ct. has jurisdiction
then EVERY S.Ct has jurisdiction regardless of venue
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Assume Michael (of PA) has quit his job as manager of the Office, in Scranton, PA, of Dunder-Mifflin Paper Co., a PA corporation. Michael has gone to work for a different company located in the woods of PA. Dunder-Mifflin claims that Michael has stolen trade secrets, causing $40,000 in damages, and has violated the terms of a restrictive covenant prohibiting him from working for a competitor. Dunder-Mifflin brings an action against Michael in the NY Supreme Court, Albany County, and arranges for Michael to be served with process while he is in NYC having lunch at his favorite pizzeria.
Does the court have subject matter jurisdiction to:
Award such damages?
Injunction Against Michael?
YES! The S.Ct. has unlimited monetary jurisdiction. There is no max. or min. ANY amount of money.
The other civil courts have LIMITED monetary jurisdiction. In other words, they have a cap on the amount of damages they can seek. No caps or minimums in the S.Ct.

Yes! Unlimited Equity Jurisdiction. If you need an equity remedy – 99% of the time it is in the S.Ct.

Does it matter that neither party is a NY resident and that the cause of action has no relation to NY?
NO PROBLEM! For subject matter jurisdiction the S.Ct. can hear ANY type of claim no matter where the cause of action arose (that is what general jurisdiction means). Doesn’t matter where the parties are from because NY has unlimited jurisdiction.
Personal jurisdiction over Michael was obtained by…
service of process on him within the state of NY
Forum Non Conveniens
the non-residency of the parties in NY and the lack of relationship of the claim to New York do not deprive the court of subject matter jurisdiction. But the court has discretion, upon motion, to dismiss on the ground of forum non conveniens when the action lacks any substantial nexus to NY. Any such motion must be made by the Defendant; the court may not dismiss on this ground on its own
Exceptions to Supreme Court’s general jurisdiction:
1. Cases as to which federal law confers exclusive jurisdiction on federal courts, e.g., bankruptcy, patents, copyrights.
2. Claims for money damages in tort or contract against the State of NY. Such claims are brought in the NY Court of Claims
Only court in which the STATE OF NY can be sued for damages for tort or breach of K
The only defendant that can be sued in the Court of Claims is…
the State of New York. Employees of the state and subdivisions of the state (e.g. counties, cities, towns, school districts) must be sued in:
Assume Amy Fisher, while driving on the NY State Thruway, is injured in a collision with a state police car being driven by State Trooper Joey Buttafuoco. In what court could Amy bring an action jointly against the State of NY and Trooper Buttafuoco?
NO COURT! There is no court in which you can bring a joint action. The USUAL rule of procedure allows a P to sue multiple D’s in one action in the same court. SURE! But ONLY if the claims arise out of the SAME TRANSACTION OR OCCURRENCE.

Joey is the actual tortfeasor (he drove the car negligently). His employer the state of Ny can be held vicariously liable through Respondeat Superior. BUT you can’t do it. Here she must bring 2 separate actions.

1) sue the state of NY for vicarious liability in the court of claims
2) Joey is not “the state” but merely an employee of the state.

In what court would Amy sue if the accident took place on a road maintained by Nassau County, NY and Buttafuoco was an officer employed by Nassau County?
Now the proper court in which to sue BOTH defendants would be the S.Ct.

You can sue Nassau County in the S.Ct. because it is a GOVERNMENT SUBDIVISION – counties, cities, towns, school districts, are just subdivisions and not the state itself

The Supreme Court has exclusive subject matter jurisdiction over:
1. Matrimonial Action: action in which the court is asked to adjudicate marital status. (divorce, separation, annulment, declaration of validity of the marriage; Family Court does not have jurisdiction to grant this relief or affect marital status) – can’t get a divorce in Family Ct. (meant for adoptions etc.)

2. CPLR Article 78 proceeding (judicial review of NY state and local government administrative action). Distinguish claims against the State for money damages in tort and contract, which must be brought in the Court of Claims. Must be brought in S.Ct.

3. Declaratory judgment action (judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability. E.g., Michael seeks declaratory judgment that Dunder-Mifflin’s restrictive covenant is unenforceable before Michael begins employment with the competitor).

All other courts in NY besides the S.Ct. have what kind of jurisdiction?
CIVIL — limited monetary jurisdiction, varying from a maximum of $25,000 in the County Courts and the NYC Civil Court to a maximum of $3,000 in the Justice Courts.
With respect to appeals, the highest court in New York is…
The Court of Appeals
The intermediate appellate court is…
The Appellate Division
Statute of Limitations
An affirmative defense based on the passage of time to be raised by the D


When does the SoL begin to run?
when the cause of action accrues: when the injury first occurs we say the cause of action accrues and that is when the SoL begins to run.


(1) In a personal injury or property damage action (3 yrs), the cause of action accrues on the date of the injury;

(2) In a breach of contract action (6 yrs), the cause of action accrues on the date of the breach.

SoL is NOT measured from
the date that the P discovers the injury (even if P is unaware of the injury and unaware of the breach). NY does not use discovery as the date of accrual. This is the general rule. There are some exceptions but not important.
Under the substantive law, when an infant is injured in utero…
the child has no cause of action unless the child is born alive, in which case the S/L begins to
run from date of birth.
To satisfy S/L, the action must be commenced no later than…
the last day of the
prescribed period of limitations.
Commencement consists of
filing process

(process = summons and complaint, or summons with notice). The filing must be made with the clerk of the court on or before the last day of S/L.

exclude the day upon which the triggering event occurs and begin counting the next day.
Assume a car driven by Billy Joel negligently smashes into Mayor Bloomberg’s mansion on June 1, 2012. The last day for timely commencement of Bloomberg’s action against Billy for damages for personal injury and/or property damages would be:
June 1, 2015 – this is technically one year + one day from the accident, but the SOL doesn’t include the day of the injury. The final date to file is the ANNIVERSARY DATE of the accident.

You include weekends and holidays in the count unless it is the last day of the count.

If the last day for performing any procedural act, such as commencing an action or serving a paper, falls on a Saturday, Sunday or public holiday…
plaintiff (hereinafter “π”) gets until the end of the next business day to perform the required act.
When to ignore dates
Pay attention to dates, but if the bar examiners tell you that the action was timely commenced, do not address this issue.
Medical Malpractice covers…
doctors, dentists. podiatrists, nurses and hospitals.
med.mal. SOL
shortened as a matter of public policy to protect the medical profession.

the period is 2.5 years, and the date of accrual (sol begins to run): from the date of the malpractice

Date of Plaintiff’s discovery of malpractice
is generally irrelevant
If it’s a cause of action against a hospital based on negligent hiring…
that claim is considered ordinary negligence and therefore it would be 3 years from the date of injury to the patient
Assume Dr. Evil, a doctor employed by Mercy Hospital, bungles a hemorrhoid operation on Austin on June 1, 2010. Austin does not discover the malpractice until September 1, 2012. The last timely date for commencement of Austin’s action against Dr. Evil would be
December 1, 2012 (2.5 years from date of malpractice).

The date of discovery by patient is irrelevant.

The last timely date for commencement of Austin’s action against Mercy Hospital on a theory of respondent superior (vicarious liability) would be:
December 1, 2012. When a suit is based on vicarious liability for the med.mal. inflicted by one of the hospital employees, you use the same 2.5 year computation running from the date of accrual (the date of the malpractice).
if the action against Mercy Hospital is based on the theory that the hospital
was independently negligent when it hired Dr. Evil because it should have known
that he was incompetent, the last timely date for commencement would be:
June 1, 2013; now we have a SEPARATE alternative theory of liability (tort law) called the TORT OF NEGLIGENT HIRING. They should never have hired someone so incompetent. That is considered ordinary neg. NOT med.mal. and therefore you apply the usual three year statute of limitations. Runs from the date of the Ps injury.
Two Exceptions to Med Mal SoL
narrowly applied to protect the medical profession

1) Continuous Treatment Rule

2) Foreign Object Rule

Continuous Treatment Rule
If a physicial continues to treat the patient after an operation, for the exact same medical condition that gave rise to the malpractice, (2.5 years from the END of the continuous treatment). The reason: we don’t want to interrupt the doctor-patient relationship. Give the benefit to the P in the hopes that he will fix the malpractice (presumably he is in the best position to fix what he did).

Ex: Will this exception apply if Dr. Evil continues to treat Austin for the next two years for ingrown toenails?

NO! the CONTINUOUS TREATMENT must relate to the exact same condition that gave rise to the malpractice. here, the original operation where the Dr. screwed up was hemerhoids.

Foreign Object Rule
If the physician was responsible for introducing a
foreign object into the patient’s body and then leaves it behind, π gets whichever is longer:

either 2.5 yrs from the date of the operation OR 1 yr from the date that the P DISCOVERS the presence of the object or SHOULD have discovered the object with reasonable diligence.

What is a “foreign object?”
something the doctor did not intend to leave behind. WHATEVER! Anything.
Three things that are by statute NOT a foreign object.
1) Chemical substance (e.g., medicine)

2) Prosthetic device (e.g., plastic hip joint)

3) Fixation device: an item that the doctor deliberately placed in the body with the intent that it remain to serve some continuing treatment function, (e.g., internal sutures, pacemaker, prophylactic diaphragm.)

As to all three exclusions, the period runs not from the day of discovery, but
2.5 years from the date of the doctor’s malpractice

(these are not foreign objects by statute so you would need to file a regular med.mal. claim).

Assume that Dr. Evil failed to detect the presence of a tumor in Austin’s body during the operation, and sews him back up with the tumor left behind. Austin discovers the tumor three years later. Will the foreign object exception apply?
NO! the tumor is not a foreign object because Dr. Evil was not responsible for introducing the tumor into the P’s body it was already there! He simply failed to detect the presence of the tumor. His failure to detect a growth or to detect an object already in the body does not CONVERT it into a foreign object.
IF you want to sue for MISDIAGNOSIS saying he should have discovered the tumor…
You have 2.5 years from the failure to discover the tumor (from the date of the operation in WHICH he failed to discover the tumor). Normal med mal case.
OTHER professional malpractice
claims by clients of architects, engineers, accountants, attorneys, i.e., members of a “learned profession.”
“learned profession” does NOT include
insurance broekrs, securities analysts, plumbers etc.
Client’s cause of action for malpractice against a non-medical professional for financial loss has an EXCLUSIVE S/L of…that applies regardless of…
three years…whether the claims are based on tort or breach of K
The SoL beginst o run when the services are completed, regardless of…
Ps lack of awareness of the malpractice (there is no discovery rule)
For architect or engineer the 3 yr period runs from
completion of building
for accountant or attorney the SoL runs from
delivery of work product to client
Any person who suffers BODILY INJURY as a result of a non-medical professional’s malpractice has a 3 yr SoL running from
the date of the bodily injury regardless of the date of completion of the work

(PERSONAL INJURY – a separate rule of accrual)

Assume architect Mike Brady negligently designs a building which is completed in
2006. In 2010, the building collapses. Would the owner’s suit against Brady for
the cost of restoring the building, alleging breach of contract for negligent
performance of the contract, be timely if brought in 2011?
No! this is a client’s cause of action for non-medical professional malpractice. A 3 yr statute of limitations that began to run in 2006. The date of the collapse is irrelevant.

P says the architect BREACHED THE K! shouldn’t that give 6 yrs? NO! the breach of K statute of lims. is inapplicable because the CPLR explicitly states that the 3 yr period for professional malpractice (non-medical) is EXCLUSIVE. The 6 yr period is irrelevant.

Assume an insurance broker, in 2006, failed to procure adequate insurance to
cover the losses caused by a potential collapse of the Brady building. The last
timely date for a breach-of-contract action against the insurance broker is:
2012. That is 6 yrs from the date of the insurance broker’s breach of the K. A broker’s failure is not professional malpractice bc an insurance broker is not considered to be a member of a learned profession.

It’s just not part of the group of professionals that the legislature wants to protect.

If a building that was completed in 1990 collapses in 2012 and causes personal
injuries, what is the last year in which the injured persons may sue the architect?
2015. because now we have BODILY INJURY (broken legs, cracked skulls, etc.)

The injured person can sue the responsible tortfeasor from up to 3 yrs from the date the bodily injury occurs. Suffered upon the impact. Regardless of date of completion of the building.

Special procedures apply to personal injury actions against architects and engineers when action is brought more than 10 years after the building was completed:
(1) π must serve a notice of claim on the architect or engineer at least 90 days before suit;

(2) π may obtain pre-action discovery from the potential Δ during the 90-day waiting period; and

(3) after suit is commenced, if Δ moves for summary judgment, the burden will be on π to make an immediate evidentiary showing that there is a “substantial basis” to believe that Δ’s negligence was the proximate cause of the injuries.

Municipal Tort Liability
Talking about government subdivisions (counties, cities, etc.)
MTL: Statute of Limitations
In an action for personal injury or property damage against a gov. subdivision of the state— e.g., county, city, town, school district, or municipal hospital (hereinafter “municipal defendant”) — the statute of limitations is 1 year and 90 days from the date of the accident and supercedes all potentially relevant tort statutes
Separate “Notice of Claim” prerequisite.
As a condition precedent to a tort action against a municipal defendant, plaintiff must serve a notice of claim on the potential municipal defendant no later than 90 days from the date of the accident. (compare to with architects where you must service notice of claim 90 days from the start of the lawsuit).
Purpose of “notice of claim” prerequisite
Service of the notice of claim is not commencement of the action. The notice of claim simply gives the potential municipal defendant advance warning of the potential lawsuit to enable the municipality to engage in early investigation and possible settlement without the need for litigation. If the plaintiff commences the action without prior timely compliance with the notice of claim prerequisite, the municipal defendant is entitled to have the action dismissed on the ground of FAILURE TO STATE A CAUSE OF ACTION
On September 1, 2012, Forrest Gump sat down on a park bench in the City of Rome, NY, to eat some chocolates. The bench collapsed, causing personal injury to Forrest. What must Forrest do before he may sue the City of Rome for damages based on negligent maintenance?
After service of the notice of claim on the municipal entity…
the plaintiff must wait 30 days and then commence the action against the municipal entity. The complaint must PLEAD COMPLIANCE with the notice of claim requirement. If you do not PLEAD COMPLIANCE then your claim is dismissed! (FAILURE TO STATE A CAUSE OF ACTION)
Assume Forrest serves a notice of claim on the City on October 1, 2012. The City
does not offer a settlement. Forrest now wants to sue the City. What would be
the last timely date for commencement of his action?
Apply the SoL rule. The P has 1 year and 90 days SoL running from the date of the accident.

The accident was Sep.1, 2012. 1 year and 90 days from then is Nov. 30, 2013. It’s a little weird.

If the 90 day period to serve a notice of claim on a municipal entity has expired, but the time remaining on the one year and 90 days statute of limitations has not expired,
the plaintiff may make a motion requesting permission to serve a late notice of claim. The court has discretion to grant the motion if the municipal entity will not be prejudiced, as, for example, where it had actual knowledge of the facts within 90 days of the accident.
Products Liability: When a defective product (A/K/A “widget”) causes personal injuries, the π has three possible causes of action which, as a matter of pleading, can all be asserted in the same complaint. They are…

Strict products liability

Breach of warranty

What is the S/L as to each theory and when does it begin to run?
1) Negligence: 3 years from the date of bodily impact. Applies against ALL Ds in the CHAIN of distribution.

2) Strict Liability: Same as the N rule just 3 years from the date of the injury as against all of the Ds.

3) Breach of warranty (different): governed by the UCC. The UCC has a 4 year SoL governing SALES CONTRACTS and this 4 yr SoL for breach of warranty begins to run when the particular D against whom the warranty claim is asserted made its delivery of the produce. (only against the particular seller)

Assume Manufacturer sold a scooter to Wholesaler in 2005, Wholesaler sold it
to Retailer in 2006, Retailer sold it to Consumer in 2007, and Consumer suffered
personal injuries in 2010 as a result of an alleged defect in the scooter.
Consumer’s negligence and strict products liability claims will expire as against all
Δs after:
2013; in other words 3 years from 2010 (the date of bodily injury to the consumer). So for N and SL claim it’s 3 yrs as against everyone in the chain of distribution
Consumer’s breach of warranty claims expires:

1) manufacturer

2) wholesaler

3) retailer

1) v. Manufacturer: 4 years from 2005 is 2009 (one year before the accident happens) so the claim already is expired. you can file under N or SL, but breach of warranty is expired.

2) v. Wholesaler: 4 yrs from 2006 = 2010. Close call. Probably too late

3) v. Retailer. 4 yrs from 2007 would be 2011.

Indemnity and contribution claims have a SoL of…
6 yrs running from the date of actual payment of the judgment for which indemnity or contribution is sought.
Assume Consumer is injured by a product in 2002. Consumer gets a judgment against Retailer that is paid in full on May 1, 2010. Retailer’s claim for indemnity or contribution against Wholesaler and/or Manufacturer would be timely through:
May 1, 2016. In other words, 6 yrs from the payment of the judgment.
Discovery Rule in Cases of Exposure to Toxic Substances
A “toxic substance” is any inherently harmful toxin that has latent or slow-developing effects, e.g., DES, asbestos, insecticides, HIV-virus, leaking petroleum. “Exposure” is any sort of assimilation into one’s body or property.
A “latent” injury
is any injury that is not immediately perceptible.
Exposure to Toxic Substances SoL?
the three year S/L for suit against the manufacturer, distributor or supplier of the toxic substance begins to run upon the earlier of either:

1) discovery of the injury (when the P becomes aware of the symptoms), or

2) the date that the injury SHOULD have been discovered with reasonable diligence


The toxic-substance discovery rule does not apply to claims of…
medical malpractice.
Assume a doctor injects some medicine into Joe on May 1, 2006. Liver problems, traceable to the medicine, are first discovered by Joe on July 1, 2011, and could not have been reasonably discovered prior to that time. The last timely date for Joe’s action in negligence and/or strict products liability against the manufacturer of the medicine would be:
2014. this is a toxic substance case. 3 yrs from discovery of symptoms. No reason he should have discovered the injury earlier. Has a case against manufacturer or supplier of the medicine!
The last timely date for Joe’s action in medical malpractice against the doctor
would be:
Nov 1, 2008. 2.5 yrs from the doctor’s malpractice. Not a foreign object! It’s excluded from the exception. There’s no indication of continuous medical treatment. Stuck with 2.5 yrs from when meds were improperly injected
What is a “toll”
It means the SoL is not running
Toll for D’s Absence from NY
a. If Δ is not in NY when cause of action accrues, S/L does not begin to run until Δ comes to NY.

Example: In TX, A (of NY) hires B (of TX) to perform a contract in TX. B breaches the contract in TX in 2010. B comes to NY in 2015. SoL is tolled
until 2015. (so P gets 6 yrs from 2015)

b. If Δ is in NY when cause of action accrues (e.g., B in the prior example is in NY but is supposed to be in TX performing the contract), and Δ thereafter leaves NY and is continuously absent for at least 4 months, then toll applies to entire period of absence

Exception to Toll for D’s Absence (both prongs)
Δ is visiting NY from his home state. While here, Δ assaults π and then Δ returns to his home state where he remains. Does the plaintiff get the toll?
π gets no toll based on Δ’s absence because there would be long-arm jurisdiction over Δ (commission of tortious act within NY). There is no need for the absence toll if π can get valid personal jurisdiction over Δ even though Δ is outside NY.

Note: The exception usually swallows the rule and a plaintiff is rarely entitled to an absence toll.

What counts as infancy in NY?
Any person under age of 18
P’s Infancy or Insanity (Legal Disability)
These Ps get protective toll
f π is infant or insane at time cause of action accrues, the S/L is tolled until…
the disability ends, i.e., until infant reaches age of 18 or until insanity clears up.
Insanity Definition
Insanity is defined as any mental disorder that causes an overall inability to function in society. To be “insane,” π need not have gone through a formal judicial proceeding for the appointment of a guardian.
When the disability ends, how long does the P have to sue?
(1) If original S/L was 3 years or more, plaintiff gets whichever is longer:

a) the usual statute of limitations period running from the usual date of accrual. OR

b) three years from the date that the legal disability ends

(2) if original SoL was LESS than 3 years:

P gets the specified statutory period measured from the date that the disability ends

Assume a breach-of-contract claim accrues in 2010 in favor of 16-year-old Harry Potter. When he reaches 18 in 2012, how much time does he have within which to sue?
Until 2016. Look at the usual breach of K rule. Breached in 2010. Add 6 years and it is 2016. That is longer than the 3 years from his 18th birthday. If we use the 3 year rule that would be 2015. In this case the usual rule wins.
What if the breach-of-contract claim accrued in 2004 when Harry was only 10 years old?
In this case Harry would have until 2015. Versus 2010. the 3 yr from end of infancy rule wins this time.
Assume 12-year-old Harry was assaulted by an evil Wizard. When he reaches his 18th birthday, Harry has:
(Assault has a 1-yr SoL). He was assaulted when he was 12. We give him 1 yr from his 18th bday because the assault claim has a 1 yr SoL, and it is less than three years.
Outside limit of 10 yrs of commencement of action in 2 situations:
(1) When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual. Remember the policy in favor of the medical profession.

(2) Claims of insane πs, regardless of nature of cause of action, become time-barred after 10 years from date of accrual, when relying on toll for insanity.

Caveat: In medical malpractice cases, the continuous treatment toll and infancy toll are separate tolls. Do not add the tolls together when computing the statute of limitations. If both tolls are applicable, run each toll separately and determine if the action is timely under either toll. Give P the benefit of whichever one gives him the longer period in which to sue!

Assume 3-year-old infant is injured by medical malpractice on January 10, 2000. Claim against doctor becomes time-barred
January 10, 2010. That is the max time to sue the doctor on these facts because here you have an infant suing for med. mal.
Assume Dr. Seuss commits medical malpractice on three-year-old
Bartholomew on January 10, 2000, and continued to treat him for the same condition until January 10, 2012. Bartholomew’s action is timely up through…
July 10, 2014 (2.5 yrs from end of continuous treatment). Under the infancy toll, the action expired in January 2010. But the continuous treatment toll operates independently to give any eligible patient, including an infant, up to 2½ years from termination of the treatment.
Toll for death
1) Potential plaintiffs

2) Potential defendantsIf potential Δ dies AT ANY TIME before the S/L expires,

Survival claims v. Wrongful death claims
1) Survival claim: is any cause of action π herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include
all damages incurred by π prior to death, e.g., pain and suffering.

2) Wrongful death cause of action: is a tort claim for the pecuniary (economic) damages of decedent’s statutory distributees (e.g., surviving spouse, children). Punitive damages are also recoverable, but not the emotional suffering of the distributees or the decedent’s personal pain and suffering.
The party who sues on behalf of the decedent’s estate as to either type of claim is the executor (if the decedent died with a will) or administrator (if
the decedent died without a will).

Each claim is governed by its own S/L rules but NOTE: The wrongful death action and survival claim are often asserted in one action.

SoL for Wrongful Death
2 yrs from date of death: but it must also be shown that decedent possessed a timely cause of action at the time of death.
SoL for Survival Claim:
If plaintiff dies before the S/L expires, the estate representative gets whichever is longer: the time remaining on the applicable S/L running from the date of accrual, or 1 yr from the plaintiff’s death
Assume auto accident on June 1, 2009, in which Lady Gaga’s negligence caused Papa Razzi’s eventual death on May 1, 2012.

The last date for timely commencement of an action for Papa’s pain and suffering (survival claim):

May 1, 2013. At time of death, Personal injury claim was timely because one month still remained on underlying SoL. one month left before usual 3 yr rule expired. Therefore we give executor 1 yr from date of death for purposes of bringing a survival claim.
The last date for timely commencement of an action for Papa’s
wrongful death is:
this is for pecuniary damages and the date is now May 1, 2014. 2 years from date of death is the rule and applies here since underlying claim was still timely on date of Papa’s death.
If potential Δ dies AT ANY TIME before the S/L expires…
18 months are always added to the relevant limitations period (regardless of whether π needs extra time).

E.g., if Gaga dropped dead 3 weeks after the June 1, 2009 accident, Papa would have until December 1, 2013. the original years plus 18 months. to commence a negligence action against Gaga’s estate.

If a NY action is timely commenced, but is thereafter dismissed before trial, AND
at the time of dismissal the S/L has either expired or has less than 6 months
remaining, π gets…
6 months from date of dismissal to re-file the same action and serve process on same Δ. (6 month grace period)
Assume a father commences a timely action in the name of his deceased child but the father failed to obtain the necessary letters of
administration appointing him representative of the estate. The action is therefore
dismissed due to π’s lack of capacity. At time of dismissal, S/L has expired. What can the father do?
Within 6 months of dismissal, π can cure the capacity defect (obtain proper letters) and sue again.
there are 4 types of prior dismissals as to which the 6-month grace period is
not applicable (4 exceptions):
1) on the merits

2) voluntary discontinuance by the P (maybe you think you will get a better judge and a better deal…)

3) Ps neglect to prosecute IF it consists of a GENERAL PATTERN OF DELAY. you wasted everyone’s time.

But if the dismissal was based on one act of neglect or delay then the P DOES get the benefit of the neglect or delay.

4) if the dismissal was for lack of personal jurisdiction. This one is tricky because the rule requires you to distinguish a rule based on personal jurisdiction (where you dont get the 6 month grace period) and a rule based on subject matter jurisdiction (where you DO get the 6 month grace period)

Assume a timely action is dismissed from a federal district court in NY. If S/L has
expired in the meantime, will π get 6 months to start over again in a NY state
It depends!

a) if the dismissal was due to lack of diversity of citizenship then YES because it is a defect in subject matter jurisdiction

b) If the dismissal was due to a defect in the form of the summons? Or due to improper service of process? Or due to out-of-state service in a case where long-arm jurisdiction was lacking? On those facts NO grace period extension is given to start over again. Each of these is a defect of PERSONAL jurisdiction and you dont get the 6 month grace period if the reason for dismissal was because of a lack of personal jurisdiction.

The Borrowing Statute
If the cause of action arises outside of NY, a choice of law problem (the law where the statute arose or the NY statute) is presented if the S/L of the other state is different from that of NY. The “borrowing statute” is intended to prevent forum-shopping by non-resident π’s seeking a longer S/L in NY.
Assume Letterman (π of CT) has auto collision in FL with Regis (Δ of NY). Assume
FL’s S/L is 2 years.

If Letterman sues Regis in NY, will the court apply the S/L of NY or that of FL?

1) If the P was a NON-RESIDENT of NY when the out of state claim arose, NY will apply the SoL of the state where the claim arose if the other state’s SoL is shorter than that of NY:

So assuming FL has a shorter SoL (2 yrs) compared to NY (3 yrs) we will apply the shorter period to prevent forum shopping by non resident Ps. Remember that rationale to see how you apply the rule.

NY will apply its own SoL if it happens to be shorter than that of the state where the cause of action arose.

2) If P was a NY resident when the out of state claim arose, NY will ALWAYS apply the NY statute of limitations REGARDLESS of whether the NY period is shorter or longer.

If the hypo were flipped and Regis had the claim he could use the NY SoL

Jurisdiction Over the Particular Case
In addition to subject matter jurisdiction, three additional jurisdictional elements must be satisfied in order for a court to render a valid judgment, i.e., one which can be enforced in NY and is entitled to full faith and credit in other states:

1. Proper commencement of the action.
2. Proper service of process on the Δ.
3. Proper basis of jurisdiction over the person or property involved in the action.

Commencement Procedures
QTIP: If the bar examiners say “duly” commenced, do not discuss this issue.

An action is commenced by filing process. (process = summons and notice, or summons and complaint) with the clerk of the court. In a Supreme Court action, the clerk of the court is the County Clerk, not the “Supreme Court Clerk.” The filing must be accompanied by payment of a fee for the PURCHASE
OF AN INDEX NUMBER (pay a filing fee).

“clerk of the court”
county clerk in the COUNTY in which the S.Ct. is located. The S.Ct. clerk is different! You want the county clerk! The S.Ct. clerk just deals with calendar and stuff. Must FILE with the county clerk
Filing must be followed by proper service of process on the Ds. Filing of process is valid commencement (including interposing of claim for S/L purposes), PROVIDED:
process is served on D within 120 days from the filing with the County Clerk.
If π has trouble serving defendant within the 120 day period, the court has the discretion, upon π’s motion, to extend the time to make service if plaintiff can demonstrate either:
1) Good Cause (due diligence) – the statutory term is “good cause.” but it means due diligence


2) the interests of justice justifies the extension

If Δ wants to challenge π’s untimely service of process…
Δ must raise the untimely service by motion to dismiss. If Δ fails to raise the defense of untimely service, it is waived.
Assume π was injured by Δ in an auto accident on March 1, 2006. She files process in an action against Δ on March 1, 2009, and process is served on Δ on June 25, 2009. Has π complied with the statute of limitations?
YES – filing process was done within the 3 years SoL (on the final day) and then process was served within the 120 day service period (also right at the end)
If π makes a mistake in the filing procedure, such as serving process before the filing of such process, or failing to purchase an index number…
the court has discretion, upon π’s motion, to permit correction of the mistake provided Δ suffers no prejudice, the filing occurs within the S/L, and the filing fee is paid.
Form of Process
the initiatory papers that invoke the court’s jurisdiction
Summons and Complaint
The summons advises Δ that π is suing Δ in a particular court. The complaint is π’s pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of π ‘s cause of action;
Summons with Notice
When the summons is not accompanied by a complaint, it must have sufficient “notice” inscribed on the face of the summons or on a one-page attachment. Helps to get action started without having to do a lot of paperwork. You can follow up later with a complaint
What does the notice consist of?
It’s a very abbreviated complaint.

1) give a brief statement of the nature of the action

2) state the type of relief being sought (injunction v. damages v. declaratory judgment)

3) If damages are sought, specify the amount .

EXCEPTION: In a personal injury or wrongful death action, neither the notice nor complaint may specify the amount of damages being sought.

What is the consequence if π commences the action with a “naked” summons, i.e., unaccompanied by either a complaint or notice?
a summons that is unaccompanied by complaint and unaccompanied by notice. That is a defect in personal jurisdiction and therefore subject to dismissal for that reason alone provided the D makes a timely jurisdictional objection.
Age: Process may be served by any person who is at least
18 yrs old, provided the person is not a party to the action. E.g., π’s lawyer or spouse could serve process, but not π herself.
Process serving special tip
QTIP: If bar examiners say Δ was “duly” served, do not discuss this issue.
When: Process Serving
Process may be served on any day of the week except:

(1) Sunday.

(2) If Δ is a Saturday-Sabbath observer, and π knows it, π may not properly serve that particular Δ on Saturday. Innocent service on such Δ is not a defect.

(3) Service may be made on a holiday provided it does not fall on a Sunday. (e.g. Thanksgiving – it’s fair game. Always on a Thursday!)

Actual Notice: Process Serving
irrelevant to a determination of whether π has complied with the formalities for proper service of process. NY COURT OF APPEALS insists upon compliance with formalities.
Assume that Δ has been served with process in an unauthorized manner (e.g., tied with a red ribbon on the steering wheel of Δ’s car) but Δ finds the process anyway. Is it sufficient that Δ has “notice” of the action?
Is it sufficient that D has NOTICE of the action? NO! It is defective service. This is not an authorized way to serve process and is therefore grounds for dismissal. To qualify as valid service the statutory methods must be followed with precision.
Traditional Methods for serving process on D who is a natural person
1) by making personal delivery of process to D; Service by personal delivery is “complete” (complete is a legal term of art) upon process server’s tender of summons directly to Δ. (Δ’s response time is measured from date that
service is complete.)

2) leave and mail: process server may DELIVER process to person of suitable age and discretion at D’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 to the last known residence. Note: the delivery step must be made at a place where D is actually located but the mailing can go to Ds last known residence. If the suit is against more than one D then each D must be served with his own set of process

3) affixing and mailing (nail and mail): this is a less favored method. Try methods 1 and 2 first, and only then is option OK!

4) Expedient Service – “Court Invented Service”

5) Agent Specifically Designated by D to Receive Process: E.g., in written commercial contract, party expressly specifies agent upon whom process may be served in dispute arising from contract. (look out for fact pattern where you want to serve Kobe Bryant – can’t just sue his sports agent – must be an agent identified by K for this purpose).

6) Service on Infants and the Mentally Incapacitate

7) Service outside New York

What if D refuses to accept the delivery of process?
You can leave process in the D’s immediate vicinity. Throw it at his feet if he runs. Put it on his desk, etc.
Assume that Ned Flanders (π) files an action against Homer Simpson, and π sends the process server to Homer’s house, where Homer’s 15-year-old son, Bart, is mowing the front lawn. If the process server
delivers the summons to Bart, who then runs inside and hands it to
Homer, has there been valid service of process?
On those facts, the answer is NO! it is not valid service of process. This is re-delivery by a go-between. When we see personal delivery we mean the process SERVER must directly tender it to the D him or herself. The D on these facts is HOMER not BART and so you dont have personal delivery to D. This action is subject to dismissal provided D timely asserts the defense of lack of proper service.
The 2 step leave and mail process
must be performed within 20 days of each other, and both steps must take place within 120 days of the filing process (doesn’t matter what order – just within the given time period because we want the D to see that they are connected)
Must the mailing be made to the same location at which the delivery was made?
NO you can mail to last known residence and deliver to actual place of business.
Must P use certified mail?
NO! Regular mail is fine!
If you leave and mail, Must the person who can receive and hand off the delivery to the D be of suitable age and discretion be an adult? (assuming you have also mailed a separate set)
NO! they would have said a person over 18 but they didnt say that they said a person of suitable age of discretion. Teenagers qualify. Someone under age of 12.
If leave and mail method is applied ot the hypo involving service on Homer:
It’s okay to leave with Bart. If the P had mailed a copy of process to Homer either to his actual place of business or his last known residence then that would have been sufficient. Just follow up the delivery with a mailing then service would have been good.
Assume Will and Grace (joint tortfeasors) live in a high-rise apartment building. When the process server arrives at the building, she is told by the guard that she may not go up to Will and Grace’s apartment. Would service be valid if one copy of the summons and complaint is left with the guard and a second copy is then mailed to Will and Grace at their
apartment address 10 days later, and within 120 days from the filing of process?

1) the guard is a person of suitable age and discretion

2) delivery or the leaving was made at the actual dwelling place where the joint tortfeasors live. Even though the delivery was made in the apt doorway. The doorway marks the outer bound of the dwelling. If the security guard wont let you up the outer boundary is the place where the guard stops you.

3) mailing done within 20 days,

4) BUT only ONE copy of summons was left and the SECOND copy was mailed. There are TWO Defendants here. EACH DEFENDANT IS ENTITLED TO HIS/HER OWN SET OF PROCESS.

So the P should have left 2 copies with security guard and made 2 separate mailings

affixing and mailing: what is affixing?
taping it or using a rubber band to attach to doorknob.

Nailing gets you sued for property damage

Where must it occur?
Process server may affix process to the door of D’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.
What order must the nail and mail be done?
Affixing and mailing, in either order, must be performed within 20 days of each other, and both steps must be performed within 120 days from filing
process. Mailing need not be made to same location as the affixing.
BEFORE you nail and mail, the process server must…
first exercise due diligence by: (1) making
an attempt to serve Δ 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.

*try to get it in the hands of a live human being because we want to ensure actual notice

due diligence requires
a fact-specific inquiry. Look for several attempts on different days of the week and at different times of the day trying to get process directly in hands of D or at least person of suitable age of discretion
Assume the process server arrives at Δ’s place of business at noon but no one is there. Will service be valid if process is taped to the door and a second copy of process is mailed to Δ at Δ’s last known-residential address?
NO! There is no showing of due diligence. He should have tried to use the other two methods. This was just one attempt in the middle of the day. Probs out to lunch. Try again and again and again and at diff. times of day.
Filing Proof of Service
For both leave-and-mail and affix-and-mail service, proof of service must be filed after the two service steps have been performed.
What is proof of service?
Proof of service is an affidavit by the process server describing the details of service, e.g., date, time, place, description of person served, due diligence if relevant.
The purpose of filing proof of service:
it is a necessary step to make service COMPLETE. (Recall that Δ’s response time runs from the date on which service is complete.)
For both leave-and-mail and affix-and-mail, service is complete:
ten days after proof of service is filed and that is when response time begins to run

Although the two service steps of leave-and-mail and affix-and-mail must occur within 120 days of the date of filing process (the act of commencement), the filing of proof of service need not take place within the 120-day period.
NOTE: There is no requirement that proof of service be filed when service is made by personal delivery to Δ. (Recall that with personal delivery, service is complete upon the delivery to Δ.)

Would it be a jurisdictional defect if P fails to file proof of service?
NO it’s NOT grounds of dismissal
The only consequence of Ps delay in filing proof of service
It postpones Ds time to respond
Expedient Servce – “Court Invented Service”
If the foregoing methods of service are not practicable, π may make an ex parte motion to the court for an order allowing an improvised, expedient method–some reasonable alternative appropriate in the circumstances, e.g., service on Δ’s liability insurer, a family member or business associate, or service via email.
Assume that π has been unable to find a residential address or place of business for Δ. π then publishes, once a week for 4 weeks, a copy of the summons and complaint in a newspaper distributed in the neighborhood in which Δ was last seen. Is service valid?
NO! something is missing. There is NO COURT ORDER here! Service by publication may be the only reasonable method under the circumstances but you are not allowed to improvise without first getting a court order. Improvising without a court order is jurisdictional defect.
Service on Infants: When Δ is an infant, Δ’s name goes on the summons but process must be served on any one of the following adults:
1) A parent

2) A guardian

3) Any person having legal custody

4) If the infant is married an adult spouse with whom the infant resides

If infant D is 14 or over, process must be served on…
an eligible adult AND the infant. TWO SETS OF PROCESS WILL BE NECESSARY

When serving the adult, or the adult-plus-infant, any of the traditional methods mentioned above (a-e) may be used.

When D if a mentally incapacitated person for whom the court has appointed a guardian
process must be served on the guardian AND the incapacitated person. TWO sets of process will be necessary
If D is mentally incompetent but NO judicial proceeding has been brought for the appointment of a guardian…how do you serve process?
D is served in the SAME manner as any other D. Court will later appoint a guardian ad litem (guardian for purpose of the pending litigation) who will look after the interests of this person.
What if we are making service outside the State of NY?
The same methods that are used to serve Δ within NY are used when Δ is located outside NY. (This assumes that there is a basis for out-of-state service.)
Service Outside NY: Who may serve process in the other jurisdiction?
they love to ask this in MBE and has even come up in the essays

1) any NY resident who is at least 18 yrs old

2) anyone authorized to serve process by the laws of the jurisdiction where service is made


3) Any attorney who is licensed in the jurisdiction where service is made

In a NY case, assume Δ, in CA, is served by a 17-year-old process server, who is licensed under CA law, by the affix-and-mail method,
which is not recognized by CA law. Is service valid?

1) the NY methods of service are controlling. This is a NY action so NY allows affix and mail. The CA methods are irrelevant.

2) The 17 yr old process server is okay because CA law allows him to serve process. In NY you must be 18. But in CA if he can get a license to serve process then that is perfectly fine!!

Service on Corporations
Two traditional Methods:

a) Personal delivery

b) Service on the NY Secretary of State

In Service on corporations, Personal Delivery can be made to
any one of the following corporate representative:

1) an officer of the corporation (President, CEO, etc.)
2) A director of the corporation (member of the board)
3) A designated agent
4) A managing agent (any corporate employee who has supervisory responsibility

If there’s a basis of jurisdiction over the corporation, any one of the eligible corporate representatives may be served with process by personal delivery anywhere in the U.S.

Assume π’s process server walks into the headquarters of Dunder-Mifflin Corp., and leaves process with the receptionist, who later hands it to the president of Dunder-Mifflin. A second copy is sent by regular mail to Dunder-Mifflin at its headquarters. Valid service?
NO! You can’t use leave and mail method on a corporate defenant. You must have personal delivery in the hands of one of the people on the list of authorized persons. Receptionist? NOT ON THE LIST!
Service on the NY Secretary of State: domestic corporation or foreign corporation authorized to do business in NY
(1) For a domestic corporation (incorporated in NY), OR a foreign corporation (incorporated outside NY) authorized to do business in NY (A/K/A a licensed corporation): personally deliver two copies of process to the Office of the NY Secretary of State. (Secretary, who is the designated agent as per
certificate of incorporation or certificate of doing business, will mail one copy by certified mail to corporation at the address on file in Secretary’s office. Service of process is complete upon delivery of
process to Secretary of State, regardless of when corporation receives it.)
Service on the NY Secretary of State: For an UNLICENSED foreign corporation
personally deliver ONE COPY of process to the Office of the NY Secretary of State PLUS Plaintiff mails one copy to the corporation by certified mail, return receipt requested.
Non-Traditional Method: Service by First-Class Mail PLUS Acknowledgment
Everything discussed so far was traditional. This is not.

Mail process to Δ by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service will be effective only IF Δ signs and returns one of the acknowledgment forms to π within 30 days after Δ receives the mailed process. Service is complete upon Δ’s posting of the signed form.

What happens if D does not return the acknowledgment form?
Service by mail is not effective if the D doesnt send back the acknowledgment form. Then the P would have to serve process all over again using one of the traditional methods.

Note: if D doesnt cooperate, he gets a small penalty of having to pay for Ps costs of serving process the second time

Does it matter where D is located?
Service by first-class mail plus acknowledgment may be used regardless of whether Δ is within or outside NY. If outside NY there must be a basis of jurisdiction.
To whom is this non-traditional method available?
Service by mail-plus-acknowledgement is available as to all types of Δ s (e.g., natural persons, corporations) EXCEPT infants and mentally incapacitated persons for whom guardians have been appointed. The latter must be served by traditional methods, previously discussed.
Is Δ’s return of the acknowledgment form a concession that the court has jurisdiction?
NO! It is NOT a concession. It is merely an acknowledgment of receipt which means the D could still raise jurisdictional objections by motion or in the answer.
Personal Jurisdiction
enables a judgment for money damages to be enforced in full. Need to get a BASIS of JURISDICTION (there are 6) over the D’s person. That means there must be some kind of territorial connection.
Personal Jurisdiction: General Jurisdiction
does not matter where the claim arose

(first three bases for PJ)

a) Presence in NY

b) Doing Business in NY

c) Domicile in NY

Personal Jurisdiction: Specific Jurisdiction
claim must be specific to D’s NY activity or within terms of contract.

(last three bases of PJ)

d) long-arm jurisdiction

e) non-resident motorist statute

f) consent

Personal Delivery of Process to Δ while Δ is physically present in NY
Assume Δ, a NJ domiciliary runs over π in NJ. One day Δ comes to NY for the first time in her life to visit Grant’s Tomb, and π’s process server tags Δ on the steps of the monument. Valid personal jurisdiction? Yes! physical presence of the D in NY at the time of service is a valid basis of personal jurisdiction (even though the D is outside the state of NY and the P’s claim has nothing to do with NY).
“Doing Business” in NY
(1) A domestic corporation (incorporated in NY) is subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world the claim arose. The same applies to a foreign corporation
(incorporated outside NY) that has become authorized to do business in NY, i.e., the “licensed” corporation can be sued in NY on any claim.

(2) On bar exam, look out for the UNLICENSED FOREIGN CORPORATION. An unlicensed foreign corporation is said to be present in NY if it is “DOING BUSINESS” in NY. Assume Dunder-Mifflin Corp., a PA corporation that is not licensed in any other state, injures π in PA. π could sue Dunder-Mifflin in NY if the corporation is doing business in NY.

P must show that at the time the ation is commenced, the corporation’s employees or agents are 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 representative anywhere in the US or by service on the NY Secretary of State

Three limitations which under the case law DO NOT qualify as doing business in NY
1) mere sales of a corporation’s products in NY does NOT constitute doing business in NY

2) mere advertising by a corporation in NY does NOT constitute business in NY (also called mere solicitation)

3) the mere transient presence of a corporate officer

in NY at time of service on him or her does not qualify as presence by corporate Δ in NY or doing business by corporate Δ in NY.

Most significant factor in determining if a corporation is doing business in New York:
Is there some kind of facility in NY with employees coming and going on a regular basis?
Must π be suing on a claim that arose from the corporation’s NY business?
Doing business is a form of presence jurisdiction (general jurisdiction) which means if the corporation’s activities are regular and systematic then you don’t have to show any relationship between P’s claim and the state of NY — just have to show “doing business”
Assume Ink Inc., a DE corporation that is not licensed in any other state, manufactures printing ink (in DE), which is sold in NY by independent retailers. Ink advertises in the NY media but has no offices in NY. One day, the president of Ink comes to NY to attend a trade show, and π, who was injured by an Ink product in PA, has
process served on the president while she is here. Has personal jurisdiction been acquired over Ink for π’s NY action?
NO! What is missing is CONTINUOUS commercial activity in NY by the D’s employees or agents, coming and going from a physical facility like an office on a REGULAR, SYSTEMATIC, and ONGOING basis. Mere advertising is not enough and mere sales is not enough.
What about the presence of President in NY when she is served?
NOT ENOUGH! the D is the CORPORATION not the individual P. The transient presence of a corporate officer (she is just here for a trade show) is not enough to get jurisdiction over the corporation!

If you are suing the president in an individual capacity then that’s different. But that’s not the Q here.

Satisfaction of the doing business standard is usually only necessary if the cause of action arose outside NY. WHY?
If the cause of action arose within the state, long-arm jurisdiction will probably be available and π won’t need to show that the corporation is doing
business on a continuous and systematic basis within NY.
The doing business basis can probably be used to get jurisdiction over…
individuals and partnerships as well as corporations.
A D who is a domiciliary of NY at the time the action is commenced can be served with process anywhere in the US, and that gives the P the basis of general personal jurisdiction over the D.

The beauty of general jurisdiction is that P can get general jurisdiction over NY domiciliary for ANY claim no matter where in the world it arose

Distinguish Domicile from Residence
RESIDENCE is a place where a person lives for a fair amount of time with some degree of permanency. A person can have multiple residences.

DOMICILE is the one residence at which a person intends to remain indefinitely and is treated by her as the principal home. A person has only one domicile.

Long-Arm Jurisdiction
BASIC CONCEPT: CPLR 302 (NY’s long-arm statute) has its origins in the “minimum contacts” standard of jurisdiction that allows for out-of-state
service conferring personal jurisdiction on the basis of certain acts by Δ that have a sufficient connection with NY, provided π’s claim “ARISES FROM THOSE ACTS” (KNOW THIS LANGUAGE- not the CPLR but the capitalized bit)
The big difference between long-arm jurisdiction and the bases described
thus far is…
that in the case of physical presence, doing business and domicile, it doesn’t matter where the claim arose.
To obtain long-arm jurisdiction, the facts of π’s case must arise out of any one of five
categories of NY-related activity:

Distinguish “doing business” (continuous NY business activity, which confers general personal jurisdiction) from “transaction of business” (a single commercial event in NY that must give rise to the cause of action sued upon).

2) P’s claim arises from a K negotiated anywhere to ship goods or perform services in NY

3) P’s claim arises from D’s TORTIOUS act IN NY

4) P’s claim arises from D’s tortious act OUTSIDE NY which causes injury in NY PLUS there exists an additional link between D and NY

5) Ps claim arises from the Ds OWNERSHIP, USE, or POSSESSION of real property in NY

Assume Pete Rose (of OH) reads an employment ad in the Cincinnati Gazette for a position as casino manager to work (in OH) for Trump Casinos, a NY company. Pete comes to NY for 1 day for an interview with Trump, during which substantial negotiations take place. At the end of the day, Pete signs a contract, and for the next 3 years manages the casino in OH, never again setting foot in NY. Trump sues Pete in NY, alleging breach of the contract, and serves process on Pete in OH.
YES! Trump’s cause of action for breach of K arises from a transaction of business in NY by Pete Rose. During the 1 day he was in NY he transacted business
What result on all of the above facts except that Pete, after negotiating in NY, did not sign the contract until he was back home
in Ohio and mailed the contract to Trump from Ohio?
YES – there is no need to show that D executed a K in NY. In order to constitute a transaction of business in NY – it is sufficient that D actually negotiates in NY provided P’s claim arises from the negotiations in NY.

NOTE: Pete is not doing business in NY and therefore cannot be sued in New York on a claim that has no relation to his NY transaction.

Assume Pete engaged in the transaction with Trump as described above. Thereafter, Selig suffered injuries in a car accident with
Pete in Ohio. Would Selig have NY jurisdiction over Pete for the auto accident claim based on Pete’s transaction of business in NY (thereby allowing Selig to serve process on Pete in Ohio)?
NO – Selig’s claim is about a car accident in Ohio. Pete has a connection to NY from the K but this claim does not arise from the contract (transaction of business in NY).
If the D does not PHYSICALLY set foot in NY but engages in electronic communications can you have a transaction in NY?
In some cases, Δ’s phone, electronic and mail
transmissions from out of state, IF SUBSTANTIAL IN NUMBER and relating to the performance of a SIGNIFICANT contract, can rise to the level of transaction of business in NY. BUT a single telephone call to NY by an out-of-state buyer does not qualify as a sufficient transaction in NY by the buyer.
Δ, In California, called π, a NY attorney, to retain π’s legal services in a copyright dispute pending in California. During
the course of a “two-year representation,” Δ sent “hundreds of documents” to π in NY and discussed the case with π in “dozens of
phone calls, faxes, and email transmissions to NY.” Δ refused to pay for the legal services π rendered. The Court of Appeals held:
Even though Δ never physically came to NY, Δ transacted business with π in NY by “projecting himself into NY,” and π’s claim for nonpayment had a substantial nexus to the transaction.
P’s claim arises from a K negotiated anywhere to ship goods or perform services in NY
The contract for goods or services in NY must be economically significant, such as an agreement by Δ to ship a sizeable quantity of merchandise to NY or to perform accounting, legal or entertainment services in NY.
Assume Buyer in MA makes a telephone call to NY Seller to order some goods. Buyer agrees to send check for the goods upon their delivery. NY Seller ships them to MA
Buyer, who refuses to pay. Does Seller have a basis of long-arm jurisdiction over Buyer for a non-payment action in NY?
1) If those are the only facts, the answer is NO! A one shot boilerplate phone call, mail, fax, or internet transmission from an OUT OF STATE buyer is NOT ENOUGH standing alone to qualify as a TRANSACTION OF BUSINESS IN NY by the buyer. Here we are just discussing a one-shot electronic communication and that is TOO MINIMAL TO BE CONSIDERED A TRANSACTION OF BUSINESS IN NY!

2) the buyer made a promise to pay money in NY. that is not enough either! a promise to pay money is NOT goods or services in NY.

P’s claim arises from D’s TORTIOUS act IN NY
Exs: driving negligently on a NY roadway, making fraudulent statements during a sales negotiation in NY, converting goods while in NY, or assaulting π in NY. P claim arises from D’s TORTIOUS ACTS within the state of NY
The Ps claim arises from Ds TORTIOUS ACT OUTSIDE NY which causes injury in NY “PLUS there exists an additional link between Δ and NY:”
(a) Δ regularly solicits business or engages in any other persistent course of conduct in NY; or
(b) Δ derives substantial revenue from goods used or consumed, or services rendered, in NY; or
c) Δ expects or should reasonably expect the act to have consequences in NY and Δ derives substantial revenue from interstate or international commerce. Such commerce must PURPOSEFULLY INCLUDE NY (not just in the abstract)
The additional linkage requirements apply…
only to the long-arm category of tortious act outside the state that causes injury in NY. Also, the additional commercial linkage does not have to rise to the level of “doing business” in NY.
To constitute “injury in NY” …
the injury must originate here.

E.g., injury to a New Yorker while she is in Hoboken, NJ, followed by suffering in NY hospital will not qualify. For a commercial tort, e.g., fraud, conversion, theft of trade secrets, NY is the situs of injury only if π suffers direct financial effects in NY, e.g., loss of NY customers or NY sales. If π’s sales are lost in some other state, there is no injury in NY even if π is a NY corporation.

Assume that in a transaction in Boston, MA, π of NY buys a car from R, a Boston retail dealer who advertises only in MA and neighboring RI. The car was manufactured by M in VT. M’s cars are sold by independent retailers in all 50 states, including 15% in NY. π’s car blows up in NY. π sues M and R in NY, serving process out of state. Jurisdiction over M? Over R?
M: Is not doing business in NY. The mere sales of a corporation’s product in NY is NOT ENOUGH. Therefore there is no GENERAL JURISDICTION over M. BUT there is LONG-ARM jurisdiction over M. BECAUSE P’s cause of action arises from D’s TORTIOUS ACT outside the state of NY (defective manufacturing in VT) which caused injury in NY! PLUS there is additional NY linkage to M. M is deriving SUBSTANTIAL REVENUE FROM SALES IN NEW YORK! WE know that because 15% of its sales are in NY! That is substantial revenue in NY plus in addition to that it would satisfy the linkage that M is engaged in interstate commerce which intentionally and purposefully includes NY!

R: no long-arm jurisdiction over R. R is in Boston selling automobiles. Advertising in MA and RI (interstate commerce). Should forsee that the car could wind up in NY. Does not satisfy because NONE of R’s commercial activities are PURPOSEFULLY directed toward NY. It must be interstate commerce that is purposefully directed toward NY. There is no additional linkage with respect to R. Not the way the NY statute is interpreted. It would violate due process to assert long arm jurisdiction over R.

In VT, Dr. Δ misdiagnosed π, a New Yorker, and π consequently died in NY based on her failure to seek proper medical treatment here.
π’s estate was not able to assert long-arm jurisdiction under category 4 because Δ was not engaged in “interstate commerce.” A physician’s medical services, even when provided by a well-known specialist who attracts many out-of-state patients, are “inherently local in nature.”
Defamation claims…
are excluded from both of the tortious act categories.
Assume Δ, while making a nationally-syndicated radio broadcast from New Mexico, makes defamatory statements about NY residents. Can jurisdiction be acquired by service on Δ in New Mexico?
NO! Even though this looks like tortious activity and it causes injury in NY – on those facts the P would have to find some basis of jurisdiction OTHER than the 2 long arm categories for tortious acts.

We dont want to chill free speech. It might do so if someone was fearful of talking about NYers out in Arizona, New Mexico, wherever.

What might you look for instead? Maybe the D is DOING business in NY! FOX, ABC, NBC, well they are doing business in NY. OR! If D is doing a TRANSACTION.

Ps claim arises from the Ds OWNERSHIP, USE, or POSSESSION of real property in NY
E.g., Δ of CT owns building in NY and enters into transaction in CT to sell it to π. If Δ backs out of the deal, π would have long-arm jurisdiction over Δ in NY to sue for damages or specific performance.
Δ would also be subject to long arm jurisdiction for a claim arising out of a slip-and-fall at Δ’s NY building.
General points about the long-arm statute:
i) It covers all types of Δs, e.g., corporations, individuals, partnerships;

ii) The acts giving rise to jurisdiction can be performed by Δ herself or by her agent or employee. Also, the agent’s acts in NY will subject the agent herself to jurisdiction.

iii) Even if Δ dies, decedent’s estate representative can be served outside NY.

iv) Serving process: π must use the same methods of service on Δ outside NY as would be used inside NY.

Handling an essay Q on LONG-ARM JURISDICTION:
1) First, discuss whether plaintiff can establish jurisdiction under any non long- arm categories. SHOW THAT GENERAL JURISDICTION IS UNAVAILABLE

2) Second, discuss whether facts of π’s case fall within one or more of the long-arm categories.

3) Third, briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional due process:

Due process will be satisfied if claim arises out of conduct of D that is so purposefully directed toward NY that the D reasonably should anticipate being sued on that claim in a NY court.
Non Resident Motorist Statute
The so-called “non-resident motorist statute” confers personal jurisdiction over an accident claim arising from a nondomiciliary motorist’s ownership
or use of an auto on a NY roadway. Often overlaps with long-arm category of “tortious act in NY” (category 3 above) but has two unique features:

1) Service of Process: π serves process on Δ by personally serving one copy on the NY Secretary of State PLUS mailing second copy to Δ by certified mail to Δ’s out-of-state-residence.

2) Applies to nondomiciliary vehicle owner who gave permission to drive in NY. An agency or business relationship between the owner and driver is not required:

Assume Sarah, of Wasilla, Alaska, loans her car to son Track for a cross-country drive to see the Big Apple, NY. Track is involved in an auto accident while in NY. Plaintiff would have NY jurisdiction over Track based on tortious act in NY (long-arm statute) or the non-resident motorist statute. But, would π have long-arm jurisdiction over Sarah for a claim based on vicarious liability? Could π use the non-resident motorist statute to get jurisdiction over Sarah?
No long arm jurisdiction. She did not commit a tortious act IN NY since she was not driving the car, nor did she act through an agent. Her son is not her agent.


You get jurisdiction over the owner of the car if there was permission. that is enough to get the OWNER of the car under the non-resident motorist statute.

Parties to a K may consent in advance to personal jurisdiction in NY in a “forum selection clause” (such as “any dispute relating to the contract shall be resolved in NY courts”). Such clause is generally enforceable in absence of fraud, overreaching or unreasonableness.
Matrimonial Jurisdiction (and Related Issues)
– this issue is frequently combined with a Domestic Relations Law issue (in essays)
Matr. Juris: Ex: Romeo and Juliet were married in Vegas in 2009. They moved to NY in July 2011. In August 2011, Juliet abandoned Romeo in NY and moved to CA, to live there permanently. Could Romeo obtain proper jurisdiction in NY for an action for divorce if he commenced the action in May 2012 and served process on Juliet in CA?

1) Proper Court?

2) Valid basis of jurisdiction for divorce claim?

1) the Supreme Court (only!) has subject matter jurisdiction for matrimonial action (divorce – marital status claim)

2) BASIS: having a basis of personal jurisdiction over the D is not necessary for a matrimonial action. In any matrimonial action where you seek to affect the marital status – personal jurisdiction is not required. IN REM jurisdiction is sufficient. The court has IN REM jurisdiction over the marriage. Romeo can serve Juliet in C. Personal jurisdiction is not necessary.

To obtain a divorce, separation or annulment, all that is necessary is that plaintiff spouse is a
domiciliary of NY. Romeo’s domicile of NY is sufficient for NY courts to have jurisdiction. They use in rem jurisdiction over the marriage, not personal jurisdiction.
The theory of “in rem”
If the Ps (Romeo) domicile is in NY we say that the marital status is in NY because the marital status follows the spouses. So HIS marriage relationship exists in NY! It is a “res” or a “thing” the marital status and the NY courts have power over this thing, the “Res” or “the marital status,” and that gives the courts the power to affect the marital status.
If Romeo seeks MONETARY support…
he must have a basis of personal jurisdiction over Juliet. What’s available if she cannot be served in NY?
When π-spouse is a resident of NY, long-arm jurisdiction can be acquired over Δ-spouse for monetary support if:

(1) NY was the matrimonial domicile of π and Δ prior to their separation, OR

(2) Δ abandoned π in NY, OR

(3) Δ’s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement), OR

(4) Δ’s monetary obligation accrued “under the laws of NY.” (a catch-all)

The only proper method of serving process in a matrimonial action is…
personal delivery to D. Alternative methods, such as deliver-and-mail, may not be used without judicial permission by means of a court order.
Durational Residency Requirements:
The residency requirements are a part of the substance—the merits—of a matrimonial action, i.e., an action that seeks to affect the marital status
(divorce, separation or annulment). They are not an element of the court’s jurisdiction (subject matter, basis or otherwise). Their purpose is to ensure
that NY has a sufficient interest in the marriage to adjudicate the marital status of the spouses.

NY does not want to be a divorce mill. They want to make sure there is a good reason for the divorce to happen in NY!

Even if Romeo is able to obtain sufficient jurisdiction in NY for a divorce, would the action be subject to dismissal on the merits due to his failure to comply with NY’s “Durational Residency Requirements”?
Has not satisfied any residency requirements
The durational residency requirements are statutory conditions precedent to a matrimonial action, meaning that π’s complaint must allege satisfaction of any 1 of 3 optional durational residency categories:
PAY ATTENTION TO THE DATES IN WHICH THE MATTERS OCCURRED. Remember the Romeo/Juliet hypo. They lived in NY for 1 month. Romeo wanted to bring a divorce action in May 2012. The dates matter for purposes of durational residency requirements.

a) If BOTH PARTIES are NY RESIDENTS at the time the action is commenced AND the GROUNDS for the matrimonial action AROSE IN NY then NO PERIOD OF PRIOR NY RESIDENCY IS REQUIRED

b) One-Year Residency: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action AND NY has any 1 of 3 possible PRIOR LINKS TO THE MARRIAGE:

1) Marriage took place in New York; or
2) New York was the matrimonial domicile of the spouses at some point; or
3) Grounds for divorce action arose in New York.

(tell Romeo he has to wait 2 more months so he can get to 1 yr residency)

c) Two-Year Residency: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action then the two year residency standing alone is sufficient

If π FAILS to allege and prove satisfaction of at least one of the residency
requirements, the proper defense is:
failure to state a CAUSE OF ACTION

NOT lack of jurisdiction. He is domiciled in NY so that gives IN REM JURISDICTION but durational residency requirements is the cause of action – goes to the merits of the case. There is overlap but they are different.

The durational residency requirements do not apply…
in an action solely to enforce monetary support obligations. They apply only in actions seeking to affect the marital status.
Recall that if the Supreme Court has acquired jurisdiction, every Supreme Court in the state, regardless of county, would have power to hear the case. Rules of venue regulate the appropriate county in NY for the trial of a Supreme Court action.
RULES for proper venue
π chooses venue and specifies it in the summons in
accordance with the following rules:

1) In an action in which the judgment would affect title or possession to real property, proper venue is the COUNTY IN NY IN WHICH THE REAL PROPERTY IS LOCATED.

2) In all other actions, proper venue is ANY county in NY in which any ONE of the parties resides at the time the action is commenced.

NOTE: The situs of the cause of action is generally irrelevant to a determination of proper venue.

If P chooses an improper venue…
there is not a jurisdictional defect, and therefore is not a basis for dismissal.
What is the remedy for improper venue?
Δ’s remedy for improper venue is to serve a demand for change of venue to a proper county designated by defendant. The demand must be served before or with the answer.
1) If P consents to the demand for change of venue to proper county designated by D…

2) If plaintiff objects to the demand or fails to respond to it:

1) then the change will be automatic

2) then the D has to make a motion to the court for change of venue. Ds motion must be granted as a matter of right if the P chose an improper venue and the D designated a proper venue in his demand.

1) The convenience of material witnesses. Either party, by motion, may request the court for a change of venue to the county that would be most convenient for witnesses. This will often (but not always) be the county where the cause of action arose;

2) If there is reason to believe that an impartial trial cannot be had in the county where the action is commenced, either party may make a motion to change venue.

Why do we care if D responds to summons and complaint
D wants to avoid default judgment so he can timely respond to summons and complaint
Defendant can respond to the summons and complaint (and thereby avoid
default) by either of two methods:



An Answer is..
A D’s pleading

Where she admits allegations and sets forward affirmative defenses

(1) DENIALS of the allegations D wishes to contest (failure to deny an allegation is an implied assertion, and

(2) Any relevant AFFIRMATIVE DEFENSES (e.g., S/L, lack of jurisdiction, π’s comparative negligence). In general, affirmative defenses not raised in the answer are waived (subject only to Δ’s possible amendment of the pleadings, see below). BUT three affirmative defenses are never waived, and can be raised at any point in the litigation: (i) nonjoinder of a necessary party, (ii) failure to state a
cause of action, and (iii) lack of subject matter jurisdiction.

The two basic pleadings are …
π’s COMPLAINT and Δ’s ANSWER. (Pleadings are the formal written allegations by the parties of their respective claims and defenses.)
If Δ wishes to assert her own cause of action against π, she may do so in
the answer by means of a…
The REPLY is…
π’s pleading in response to a counterclaim. The reply consists of denials and affirmative defenses. If there is no counterclaim, π cannot serve a reply without court permission.
In a multi-Δ case, Δ may assert any CROSS-CLAIM against any other Δ.
Cross-claims are asserted in Δ’s answer, and they can be based on any type of claim that Δ has against other Δs.
Assume π sues A and B for personal injury damages. Could A and B cross-claim against each other for claims based on breach of contract?
In NY there is NO requirement that the cross-claim be related to Ps complaint. VERY BROAD RULE!
To whom must a party serve copies of their pleadings?
Parties must serve copies of their pleadings on all other parties who have appeared in the action. Everyone is entitled to be served with everyone’s papers even if the papers don’t involve them.
How the Answer and Other Interlocutory Papers Are Served
After π’s initial service of process (recall the detailed rules on service covered earlier), all other litigation papers are called INTERLOCUTORY PAPERS. These include the Δ’s ANSWER, all other pleadings, motions, discovery notices, etc. If
an interlocutory paper is served on one party, it MUST be served on all other parties to the action.
How are interlocutory papers served?
By REGULAR first-class mail. You can also serve by personal delivery, but not required.
Service of an interlocutory paper by mail is deemed made upon…
the mailing, not receipt. THE MAILBOX RULE.
Service by mail must be made through…
a post office or official depository under the
exclusive care and custody of the United States Postal Service within NY.
Time limits for serving the answer
if you miss the deadline the D will be in default

(first and third rules are most important)

1) if D was served with process by PERSONAL DELIVERY WITHIN NY, the D must serve the answer within 20 DAYS OF THE DELIVERY.

2) If the D was served with process by first class mail plus acknowledgment it is merely a notification of D’s receipt of process. It’s not a pleading. Therefore, D must serve an answer within 20 days of the D’s mailing of the acknowledgment

3) If D was served with process UNDER ANY OTHER CIRCUMSTANCES: D must server the answer within 30 days after service is complete

Assume Δ was served with process by personal delivery in OH on
March 1, 2011. What’s the last timely date for Δ’s service of the answer?

1) method of service other than delivery in NY. So look at rule 3. Must service within 30 days after service is complete. We know that! Service is complete upon delivery! Since that delivery occurred on March 1, then 30 days from March 1 is March 31. The rule of computation: Count from the NEXT day. Therefore, the D will be timely if she DROPS the answer into the MAILBOX on March 31 because service is deemed made upon the mailing.

If March 31 is a Sat. Sund. or a public holiday, then you get until the next business day to mail your answer

If bar examiners say Δ “timely responded”…
do not discuss this issue
Motion to Dismiss
CPLR 3211 (dont need to memorize the CPLR number but it’s one of the most important regs. of all!)
Affirmative defenses are usually asserted in Δ’s answer. But CPLR 3211 singles out 8 such defenses (or groups of defenses) that Δ may assert in a pre-answer motion to dismiss. These 8 affirmative defenses are
summarized in the following mnemonic “DOWNFALL”:
1) D: Documentary evidence as the basis for a defense such as a mortgage, deed or contract. A legally operative document. The TERMS of this agreement provide my defense

2) O: Other action pending. Another action is already pending between the same parties on the same cause of action. makes this action redundant and is grounds for dismissal.

3) W: Want of capacity of the P to sue. e.g., π is an infant suing without a proper representative, or π as
beneficiary is suing on behalf of a trust (only the trustee has capacity).

4) N: Non-joinder of a necessary party. e.g. co-makers of a promissory note, joint property owners.

5) F: Failure to state a cause of action (this is a big one and it WILL be on the exam!). The bar examiners love this category because it allows them to mix a procedure question in with substantive law. This motion is directed to the substantive insufficiency of the complaint on its face, i.e., even if all of the allegations are deemed to be true, the substantive law does not recognize a cause of

6) A: Additional affirmative defenses

7) L: Lack of personal jurisdiction

a) improper commencement
b) improper service of process
c) lack of basis jurisdiction

8) L: Lack of subject matter jurisdiction

The standards used by courts in deciding a motion for Failure to state a claim as an affirmative defense
1) In responding to the motion the P is entitled to every favorable inference that can be drawn from the allegations of the complaint

2) motion should be denied if there is ANY basis for relief under the substantive law. P gets benefit of doubt no matter how sloppy the complaint.

QTIP: Remember to discuss the elements of the underlying cause of action.

1) S: Statute of limitations

2) P: Payment; D is saying I PAID that debt! Don’t sue me for it!

3) A: Arbitration award – this was already dealt with!

4) R: Release. Sure I committed negligence but I said sorry and you released me!

5) E: Estoppel as in Collateral Estoppel.

6) R: Res Judicata

7) I: Infancy of the D; child actor welches on K and claims as a defense you can’t enforce bc Im an infant

8) B: bankruptcy discharge

9) S: statute of frauds

Procedural aspects of pre-answer motion to dismiss:
(1) The motion is made BEFORE service of the answer. (On or before the last day of prescribed time limit for service of the answer.)

(2) Making the motion extends Δ’s time to answer. If the motion is denied, Δ must then serve the answer within 10 days.

If Δ has one or more of the defenses listed in CPLR 3211, must Δ raise the defense(s) by pre-answer motion?
NO! Making a 3211 motion is the D’s OPTION! The D is not required to raise ANY of the DOWNFALL defenses by a pre-answer motion. The D may save them all up and put them into the answer as affirmative defenses.

The D is permitted only ONE pre-answer motion to dismiss but the D may make the motion on MULTIPLE grounds on MULTIPLE defenses in the same motion.

WAIVER: Assume Δ makes a pre-answer motion on only one of the 3211 grounds and loses the motion. To what extent may Δ thereafter raise the other 3211 objections in the answer, i.e., what is the rule
on potential waiver of 3211 defenses?
Motion to dismiss on any ground listed in 3211 does NOT preclude raising any of the other 3211 grounds in the answer EXCEPT lack of personal jurisdiction.
Recall the general rule that affirmative defenses not raised in the answer are waived. EXCEPTION: 3 defenses are never waived, and they can be raised at any point in the litigation:
1) non-joinder of a necessary party
2) failure to state a cause of action
3) lack of subject matter jurisdiction
Assume Δ makes a pre-answer motion to dismiss on the ground of release, and the motion is denied. When Δ serves the answer,
could he properly assert, as an affirmative defense:

Statute of frauds?

YES: SOF was not waived by pre-answer motion to dismiss
Nonjoinder of a necessary party?
YES! that defense is NEVER waived. Even if D had failed to raise nonjoinder he doesnt think about it until the day the trial begins.
Improper service of process?
NO! He waived this type of PJ defense by filing the pre answer motion on one ground and not raising the PJ defense at that time. THIS WILL BE ON THE BAR EXAM.
How does a D preserve personal jurisdiction defenses?
1) BEFORE SERVING ANSWER – make a 3211 motion to dismiss that includes lack of personal jurisdiction.


2) make NO 3211 motion on ANY ground. and instead! include lack of personal jurisdiction as an affirmative defense in the answer

WARNING: Although pleading improper service of process as a defense in the answer is a proper way to assert that particular jurisdictional defect, the objection of improper service will nevertheless be waived if…
defendant does not make a follow-up motion for summary judgment on that ground no later than 60 days after serving the answer. If you don’t do this then it’s gone!

NOTE that the 60-day follow-up rule does not apply to the defense that court lacks a basis of personal jurisdiction. It’s ONLY for improper service of process. This happens ALL the time in the real world.

Improper service of process is often a worthless defense. It really has no substance to it. That’s the kind of issue that the legislature wants us to get resolved early bc most of the time it is meritless, boiler-plate language.

Additional waiver hypo: Assume Δ makes a pre-answer motion to dismiss on the ground of lack of personal jurisdiction and loses. His subsequently-served answer contains only denials and the affirmative defense of the S/L. Could Δ thereafter properly move to dismiss on the ground of:

1) Release?

2) Failure to state a cause of action?

1) NO! that affirmative defense has been WAIVED! Don’t forget the general rule on pleadings! Defenses NOT raised in the answer are waived. So on those facts the D’s only remedy would be to AMEND the answer.

2) No waiver because failure to state a cause of action is one of the three defenses that is never waived even if it is not in the answer.

Response to summons with notice
D’s goals: (1) avoid default, and (2) force π to serve the complaint. How to accomplish:

1) D must serve demand for the complaint

2) notice of appearance

*They both serve the same function/purpose: avoid default and force P to serve complaint

Δ’s time limit for serving either a demand for the complaint or a notice of appearance is the same as the response time for responding to a summons and complaint:
1) 20 days if the D was served by personal delivery in NY

2) 20 days from the acknowledgment if the D was served by first class mail

3) in all other circumstances it is 30 days after service is complete

If π timely serves the complaint..
Δ has 20 days from such service to either:

1) serve the answer


2) Make a pre-answer motion to dismiss

If π fails to meet the 20-day time limit to serve the complaint, Δ may move to dismiss the action based on π’s noncompliance. When defending against such motion, what must π do to avoid dismissal?
P must do two things:

1) show a reasonable excuse for the delay and

2) make an evidentiary showing of merit to the Ps cause of action (an affidavit of merit)

what is an affidavit?
a written statement under oath by P or by witnesses who have personal knowledge of the facts
After π serves the complaint, may Δ still object to the court’s personal jurisdiction?
YES! because NO WAIVER of jurisdictional objections occurs. That means the D can still raise lack of personal jurisdiction as a DEFENSE in the ANSWER OR include it in a pre-answer motion to dismiss. Serving the demand for complaint or notice of appearance only forces the P to begin his suit with a complaint. Then we get to the D’s turn, where he can raise any defenses in the usual order.
When you are making an Amendment as a matter right
the party can put anything in the pleading that could have been in the original
Each party is entitled to amend her pleading once as a matter of right, i.e., without
the need to obtain judicial permission. When making an amendment as of right, the party can put anything into the pleading that could have been in the original. The one amendment as of right can be made by either party during the following time frame:
Within 20 days after D serves the answer
May Δ raise an omitted personal jurisdiction objection by means of an amendment of right to the answer?
Yes IF:
1) the D made no pre-answer motion to dismiss

2) if the D adds the jurisdictional amendment to the answer within 20 days after serving the original answer

When the period for the amendment as of right has expired, or the party has already used up her amendment as of right, a motion for leave to amend is required. The decision to permit an amendment on a motion lies in the court’s discretion. The standard applied by courts on a motion for leave to amend:
The amendment will be allowed if the opponent will suffer no incurable prejudice. That is a liberal policy that creates a presumtion of amending the pleading
In opposing a motion to amend and demonstrating prejudice, a party must show:
A detrimental change of position as a result of the delay

Examples of prejudice: loss of documentary evidence, death or disappearance of a key witness

Third party Practice ( OR impleader)
Impleader is a procedural device used by Δ to join another party alleged to be liable in whole or in part to Δ for damages that Δmay have to pay π. The usual claim in these circumstances is for indemnity or contribution, both of which involve claims by Δ for reimbursement arising out of the same transaction or occurrence as π’s cause of action. Rather than forcing Δ to wait until after she has paid a judgment to π, impleader enables Δ to join the other party as a third-party Δ (TPD).
In relation to TPD, Δ is referred to as a third-party π.

NOTE: Impleader is a permissible hypothetical cause of action because what the D is effectively saying is “if I am liable to P then you (3dp D) will have to reimburse me”

Mechanics of Impleader
D does not need a court order, i.e., no need to make a motion. Δ may implead TPD at any time after Δ serves the answer to the complaint.
Steps for joining 3dp D
1) FILE: D files a summons and third party complaint

2) SERVE: Within 120 days of the filing the D serves a copy of the summons and third party complaint on the 3dp D

NOTE: Plaintiff is also entitled to a copy of all papers served on TPD. These are the same steps that P has to take with respect for D. Same jurisdiction requirements and service requirements must be met for TPD as for D.

After being served the 3dp D must…
serve a third-party answer on Δ, π and all other parties who have appeared in the action.

TPD’s time limit for answering is the same that
would apply to an ordinary Δ, i.e., 20 or 30 days depending on where and how TPD was served with process.

π v. TPD.

After TPD is joined, π may…

amend her complaint to assert a claim directly against TPD, thereby making TPD an additional Δ in π’s action. (π can make this amendment without the need to obtain judicial permission if she does so within 20 days after π was served with the thirdparty answer. If π waits beyond 20 days, π must make motion to get court’s permission for such amendment.)
How should the S/L be applied with
respect to π’s newly added claim against TPD?

Ask: Has your time expired?


For S/L purposes, π’s added claim against TPD will be deemed interposed on the date TPD was impleaded (when Δ filed the impleader papers) PROVIDED:

1) π’s claim against TPD is based on the SAME transaction or occurrence as the impleader claim.


2) the P’s claim against 3dp D would have been timely on the date of the impleader

Thus, regardless of when π actually asserts his related claim against TPD, the amendment will RELATE BACK FOR S/L PURPOSES TO THE DATE THAT Δ IMPLEADED TPD. and that is a BIG BENEFIT for the P

Assume cars driven by Ari, Drama and Turtle collided at a film festival on June 1, 2009. Ari sues Drama for his injuries on April 1, 2012, and Drama impleads Turtle for contribution on May 1, 2012. On August 1, 2012, Ari seeks permission to amend his complaint to assert a claim for his injuries against Turtle. Is Ari’s claim against Turtle time-barred?

1) The impleader is within 3 years of the accident!

2) Amendment is made MORE than 3 years from date of the accident

NOT TIME BARRED. Relates BACK to the date Turtle was impleaded. That date was May 1, 2012 which was w/n three years of the accident.

Rationale: There is no prejudice to this TPD, who received formal notice, within 3 years of the event, of a possible claim by π. The impleader claim, in effect, gives notice of π’s related claim, and TPD’s timely defensive efforts against the impleader claim will indirectly prepare TPD to defend against π’s claim. He should have been ON NOTICE that he might be sued by the P and if he is defending the claim for contribution he is producing the same evidence that would protect him against the Ps claim

This allows one party to shift 100% of the responsibility to another party.
Indemnity By Contract:
E.g., in construction contract, subcontractor may agree to indemnify general contractor for any losses that contractor has to pay as a result of subcontractor’s inadequate performance in the construction project.
Implied-in-law indemnity:
a. Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.

b. Vicarious liability situations: E.g., in New York, owner of car is vicariously liable for damages caused by negligent driving of any person to whom
owner has given permission to drive the car. Owner who pays victim as result of vicarious liability is entitled to indemnity from driver.

Contribution involves a sharing of the loss–apportionment–among multiple tortfeasors who
are all actual participants in the tort. The purpose of contribution is to mitigate the harshness of the law of joint and several tort liability.

EACH tortfeasor can be held liability to P for the full amount of Ps damages without regard for the individual fault of the Ds. Same as MBE.

While coming home from the Jersey Shore, three drivers — Vinny, Pauly and
Snooki – negligently collide on Staten Island, NY, negligently injuring Mike. As a
result, Mike sues all three drivers for personal injury. The jury finds that all of the Δs were at fault and awards Mike a judgment of $100,000. Could Mike compel Vinny to pay the entire amount of the judgment?
NOTE: The rule of Joint and Several Liability is somewhat modified by CPLR Article 16. See Section “E” below.

Yes! Because of the rule of joint and several liability. No matter how small Vinny’s percentage of fault might be, Vinny is JOINTLY and SEVERALLY liable to P for the FULL AMOUNT of the judgment.

Relationship of contribution to a judgment for joint and several liability:
The $100,000 judgment will be entered against each Δ. π is entitled to collect only a maximum of $100,000, but he may seek to collect it from any one of the Δs. The potential inequity to a joint and several tortfeasor who is held liable and pays π
the full amount of π’s damages is cured by the right of contribution, which enables Δ to seek partial reimbursement from the other tortfeasors. E.g., if Mike collects the entire $100,000 judgment from Vinny, Vinny could seek contribution from Pauly and Snooki.
Is an intentional tortfeasor entitled to seek contribution?

1) MBE Rule:

2) NY Rule:

1) NO – contribution is not available when liability is based on intentional wrongdoing

2) YES – contribution allowed in all tort cases including intentional torts

Ways to Assert Claims for Contribution (also applicable to indemnity):
a. If π originally joined the tortfeasors as co-Δs, they can assert
cross-claims against each other.
b. If π omits a tortfeasor, a Δ can implead the outsider as TPD.
c. Tortfeasor may sue TPD in a separate action. Here res judicata and collateral estoppel will not apply against a TPD
Assume Mike sues Vinny alone and gets a judgment for $100,000. During the course of the trial, it was established that Pauly’s conduct also contributed to Mike’s injuries. If Vinny timely sues Pauly in a separate
action for contribution, would Pauly be bound by the findings of fact in the prior action of Mike v. Vinny?
NO you can seek contribution in a separate action but all the things established in the first action are not binding on the other tortfeasor in action number 2 BECAUSE a party cannot assert collateral estoppel (issue preclusion) on a party who has not had her day in court. Pauly nees a chance to defend himself in court
Contribute Statute of Limitations
Contribution has a six-year statute of limitations that runs from the date of payment of the judgment for which contribution is sought (also applicable to indemnity).
Equal Shares Formula of Contribution
MINORITY VIEW! the contribution shares are always equal in amount.
Assume Mike sues all three drivers, and the jury finds the following percentages of fault: Vinny 45%, Pauly 35% and Snooki 20%. If Vinny pays the full amount of a $100,000 judgment and seeks contribution from Pauly and Snooki in a jurisdiction that uses an equal shares formula, to what amount would Vinny be entitled from each of the other tortfeasors?
$33,333. And that is because individual percentages are irrelevant in an equal shares jurisdiction. On the MBE if they want you to apply equal shares formula they will TELL YOU SO!

The general rule of the multistate is the same NY

Comparative Degrees of Fault
a) The general rule of the multistate is the same NY. The 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.

b. A party from whom contribution is sought cannot be required to pay more than her equitable share.

c. The rules of contribution do not change π ‘s right to impose joint and several liability on any one of the defendants.

In Mike’s action against all three drivers, continue to assume the same percentages of fault as immediately above (Vinny 45%, Pauly 35%, Snooki 20%). If Vinny pays the entire $100,000 judgment and seeks contribution in a jurisdiction that uses a formula based on pure comparative degrees of fault (e.g. NY), then Vinny is entitled to…
35K from Pauly and 20K from Snooki because they are liable for contribution in accordance with individual percentage of fault. That is the formula to use in NY.
After paying the full amount of the judgment, Vinny seeks contribution from
Pauly, but learns that he is insolvent. Can Vinny require Snooki to pay not only Snooki’s own contribution share but also that of Pauly?
NO – snooki cannot be held liable for more than her own 20%. The party who pays the entire judgment bears the risk of the other tortfeasors’ insolvency. Can’t be required to give more than equitable share.
Assume that Vinny and Pauly are insolvent. Can Mike require Snooki to pay the full amount of the judgment?
YES! Snooki is not protected from 100% liability. P still has a right to compel 100% payment from any of the three Ds. None of these rules on contribution change the Ps rights. P can collect the entire judgment from any of the three of them. Contribution affects only the reimbursement rights of the Ds. It does not change the Ps rights.
Substantive Law Rule for Contribution
The general rule is that a right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which Δ may be held liable to π. Thus, Δ may seek contribution from TPD even if the injured π has
no right of recovery against TPD.
π, a building owner, installed a fire alarm system manufactured by A. π also entered into a written contract with B for fire monitoring services. The contract with B limited B’s liability to gross negligence (no liability to π for ordinary negligence). In a fire at π’s building, the alarm system failed, and B negligently reported it too late to avoid catastrophic damages. π sues A in products liability, and A impleads B for contribution based on B’s negligence. Even though B is not liable to π because of the exculpatory clause in the monitoring contract, can B be held liable to A in contribution?
YES B’s negligence aggravated the damages for which A could be held liable to P and that is enough to sustain A’s claim for contribution against B.

Even though B cannot be held liable to P because of exculpaory clause, that dos not immunize B from liability for contribution.

To minimize contribution and indemnity liability of employers.
If an employee is injured on the job, she cannot sue her employer, regardless of fault on the part of the employer, because of the Workers’ Compensation Law. (The trade-off is that employees are entitled to recover fixed compensation amounts from the employer’s insurer on a no-fault basis.) However, the employee can sue a third person who is partially at fault for the accident, e.g., the manufacturer of a product that the employee was using at the workplace when she was injured. In these circumstances may the third person seek contribution or indemnity from π ‘s employer?

1) MBE

2) NY

1) MBE: NO! the third person has no right of contribution or indemnity from the Ps employer

2) NY: A COMPROMISE rule. The third person generally has no right of contribution or indemnity from the P’s employer UNLESS the P (the injured employee) sustained a GRAVE injury.

Grave injury” is statutorily defined as:
1) death;
2) TOTAL loss of an arm, leg, hand, foot, nose, ear or index finger;
3) TOTAL loss of MULTIPLE fingers or toes;
4) paraplegia or quadriplegia;
5) severe facial disfigurement;
6) TOTAL deafness or blindness; or
7) brain damage causing total disability
Rationale for Strict construction of grave-injury categories
The Court of Appeals applies strict construction to the grave-injury categories in order to advance the statutory policy of minimizing employers’ liability
for contribution and indemnity. Thus, the following injuries have been held as not qualifying as grave injury:

1) loss of a thumb,
2) loss of the tips of three fingers (you didn’t lose the whole finger),
3) blindness in one eye. (Recall that the grave injury rule does not limit π employee’s ability to sue a third person responsible for non-grave injuries.
4) The grave injury rule applies
only to the third person’s claim for contribution or indemnity against π’s employer.)

Assume Mike was employed by a t-shirt store and was on the job when the accident
with Vinny occurred. Mike suffered two broken legs, a broken arm and several
puncture wounds. Mike sues only Vinny. (Mike cannot sue his own employer, the
t-shirt store, because of the workers’ compensation law.) Vinny impleads the t-shirt store for contribution. If the store moves to dismiss the contribution claim, what result?
MOTION to dismiss is granted. There is no right of contribution by Vinny against P’s employer here. Mike’s injury was not a “grave injury” His legs were broken and so were his arm but no total loss of any limb
Assume that immediately after Mike’s accident with Vinny, which took place on
June 1, 2009, Mike was taken to a hospital where Dr. House, in the course of
treating Mike for his injuries, made matters worse by tearing Mike’s muscles. Mike
sues Vinny alone in February 2012, and Vinny impleads Dr. House for contribution
in August 2012.

1) Is there a substantive law basis for a contribution claim by Vinny against Dr. House?

Under the law of “successive tort liability,” Vinny is liable to Mike for all injuries that proximately flow from the accident, including the subsequent malpractice inflicted by Dr. House, the successive tortfeasor. Since Dr. House’s conduct aggravated the damages for which Vinny can be liable, there is a substantive-law basis for a contribution claim by Vinny against Dr. House.
But should the court grant Dr. House’s motion to dismiss the contribution claim
based on expiration of the S/L?
NO! He was impleaded more than 2.5 years after his malpractice. Look at the claim asserted against HOUSE! It is not medical malpractice! Vinny’s claim against House is for CONTRIBUTION! A contribution claim has a SoL of 6 years beginning from date of payment of judgment for which contribution is sought. ON THESE FACTS Vinny has not paid a judgment yet, the 6 yr SoL has not even BEGUN to run because he has not paid a judgment yet.
Rules for Settlements in Cases involving Multiple Tortfeasors

(we wont be asked this on the MBE only NY)

1) No discharge of liability of non-settling tortfeasors: If P decides to settle with one tortfeasor, that doesnt affect the others.

2) The law prohibits excess recovery for π, so any judgment for π against a non-settling tortfeasor will have to be reduced to take account of the settlement. (using the reduction formula)

Assume Mike sues Pauly and Snooki, who cross-claim against each other for contribution. Before trial, Mike settles with Pauly for $30,000. Does this extinguish Mike’s claim against Snooki?
NO! If you settle with one tortfeasor for PARTIAL satisfaction you dont discharge liability for non-settling tortfeasor so the P can still go after the others for the unpaid balance of the claim
The Reduction Formula
Any judgment for π against a non-settling tortfeasor must be reduced by EITHER:

(1) the amount of the settlement, OR
(2) the settling tortfeasor’s equitable share of the fault,


Assume that, following Mike’s $30,000 settlement with Pauly, the case against Snooki goes to trial. The jury finds in Mike’s favor, assessing damages at $100,000 and apportioning fault at 10% for Pauly and 90% for Snooki. What is the proper judgment to be entered by Mike against Snooki?
The 100K judgment must be reduced by Pauly’s 30K settlement. She only has to pay 70K.
What if Pauly (the settling party) was found to have been 40% at fault?
Now it will be reduced by 40K. So Snooki the non-settling tortfeasor gets the benefit of whichever is larger. 40K is the larger amount so you remove it off the judgment.

**THAT’S THE RISK OF SETTLEMENT FOR P (who might get short-changed)

Effect of settlement on contribution claims:
A party who settles cannot sue or be sued for contribution. (This rule is intended to encourage settlement because the settling party is assured that
he cannot thereafter be sued for contribution. But the settling party also forfeits his own contribution rights.)
In the Mike v. Pauly accident case, continue to assume Pauly settled for $30,000, but at trial, the jury found him to be only 10% at fault. Could Pauly seek contribution from Snooki?
NO! Pauly feels like he lost out since he could have only had to pay 10K but this doesn’t matter. When he chose to settle he lost the ability to sue for contribution but also protected himself from being sued for contribution if had been found more at fault.
Effect of settlement on indemnity claims:
A party who settles can sue, and be sued, for indemnity
Assume the car being driven by Pauly was owned by Jenni. Mike sues Jenni alone, asserting Jenni’s vicarious liability for Pauly’s driving. Jenni settles with Mike for $60,000. Would a claim by Jenni against Pauly for $60,000 reimbursement be barred?
NO – Jenni’s suit against Pauly is for indemnity because she was held vicariously liability – her settlement does not cut off her ability to sue Pauly for indemnity.

[[distinguish carefully between contribution and indemnity]]

CPLR Article 16: Rule of joint and several tort liability
NY RULE that modifies the law of joint and several tort liability in NY as follows:

RULE: (Subject to certain exclusions) in a personal injury claim:

When a joint tortfeasor is:

1) 50% or less at fault; AND
2) P has sustained non-economic damages

The joint tortfeasor can only be required to pay her own share of the P’s non-economic damages. (D continues to be 100% responsible for economic damages)


Any Δ found liable for 51% or more of the total liability for a personal injury claim is jointly and severally liable for the entire judgment, both economic and non-economic damages.

what is non-economic damage?
consist of 1) pain and suffering, 2) mental anguish, and 3) loss of consortium. Economic damages consist of out-of-pocket monetary losses, including lost income and medical expenses.
Article 16 does not apply to…
a wrongful-death claim or property-damage claim because the damages in such cases, under NY law, are limited solely to economic losses.
To the extent Article 16 applies, it reduces π’s rights against Δ under the traditional law of joint and several liability. To what extent?
To the extent a particular Δ is liable to π only for his own percentage of fault, his need for contribution from other tortfeasors is eliminated.
Assume π is injured by a product that exploded inside her house. The product was manufactured by A, and it contained a component part made by B. π sues both A and B for $100,000 for pain and suffering, $50,000 for medical expenses, and $50,000 for property damage to her house. The jury returns an itemized verdict, which awards all of the above damages, finding A 60% at fault and B 40% at fault.
With respect to the $50,000 award for property damage, what is the proper judgment to be entered:

1) Against A

2) Against B

1) 50K

2) 50K

P can’t collect twice but can collect the whole thing from either one.

With respect to the $50,000 award for medical expenses, what is the proper
judgment to be entered:
Against A: 50K

Against B: 50K

medical expenses = economic damages. So Art. 16 doesnt apply to limit liability of 50% or less tortfeasor

With respect to the $100,000 award for pain and suffering, what is the proper
judgment to be entered:
NOW Article 16 applies.

Against A: A was 60% at fault and it is for non-economic damages SO A gets no benefit from Article 16. Liable for 100K

Against B: 40K maximum with respect to pain and suffering. %fault = 40%, below the 50% threshhold. That is the type of D that gets the benefit of Article 16.

EXCLUSIONS from Article 16
The following tortfeasors are subject to full joint and several liability for all damages:

a. Tortfeasors who acted with intent or reckless disregard for the safety of others.

b. Tortfeasors who released a hazardous substance into the environment.

c. Drivers and owners of motor vehicles other than police and fire vehicles.

Tortfeasors who acted with intent or reckless disregard for the safety of others.
In a case involving multiple tortfeasors, where some of the tortfeasors have acted intentionally and some have acted negligently, only the intentional tortfeasors are subject to full joint and several liability.

Example: π is assaulted by an intruder inside the main entrance of π’s apartment building. The intruder (intentional tortfeasor) gets no benefit from
Article 16. The landlord, who was merely negligent in failing to provide adequate security, is eligible for the benefits of Article 16.

Assume that on the way to the NYC premiere of his newest movie, actor Vincent Chase was injured in a 2-car accident involving some of the members of his entourage: Ari was negligently driving a car defectively manufactured by HBO Motors. Turtle, a passenger in Ari’s car, was negligently distracting Ari. The other vehicle was an NYC police car negligently driven by Officer Monk who was clearing off a speck of dust from his rear-view mirror. Which of the tortfeasors are potentially eligible for the reduced-judgment benefits of Article 16?
Ari: NOT eligible for Article 16. Driver or owner of vehicle. P can assert 100% responsibility on Ari!

HBO Motors: The manufacturer of the car is not the driver or owner so the manufacturer DOES get the benefit of Article 16

Turtle: He was a passenger in the car. Not the driver or owner. DOES get the benefit of Article 16.

Officer Monk: He is a driver of an automobile, but it’s a POLICE VEHICLE and cop cars DO get the benefit of Article 16

An application for an order of the court (a request for some type of preliminary or incidental relief in a pending action) (e.g., motion to dismiss, for change of venue, to amend pleadings, etc.).

Example: Plaintiff serves a motion to obtain an order requiring defendant to comply with a discovery request.

Motion on Notice
A motion on notice gives the adversary an opportunity to be heard in opposition
Motion on Notice: What papers are served on the other party
1) A notice of motion – summary of what the motion will be and specify return date (always required)

2) Affidavit(s) of FACTS – written statements under oath setting forth the facts as to why the motion should be granted (always required)

3) Memorandum of LAW – setting forth the legal arguments (optional – depends on how complicated motion is)

When is the Motion of Notice Made?
It is important because there is a time limit! It is MADE when the papers are SERVED on the other party!
The “return date” A/K/A “hearing date” of the motion.
day upon which the motion papers are presented to the court
Most common way of serving motion
BY MAIL – made when the motion papers are put in the MAILBOX!
How much advance notice must be given to the opponent?
The moving party must serve the motion papers on the party at least 8 days before the return date
All motion papers, those of the moving party as well as the opposing papers, must
be filed…
with the court no later than the return date. The court begins the decisionmaking process on the return date and then issues an order either granting or
denying the motion.
Order to Show Cause
A sub-division of the Motion on Notice:

This is an alternative way to make a motion on notice. The order to show cause is a preliminary order, signed ex parte by a judge, directing the adversary to “show cause,” on a date specified by the judge, why the motion should not be granted. The judge, rather than the party, is giving the notice of motion.

Why would a party make a motion by order to show cause instead of by notice of motion?
There are 3 possible reasons for moving by order to show cause rather than the
ordinary notice of motion:

1) it is a means of accelerating the return date, which is appealing where exigent circumstances make the usual 8-day advance notice too long to wait for judicial assistance. In signing the order to show cause, the judge can specify a return date that is sooner than the 8-day minimum that would
otherwise apply.

2) Judge can grant immediate stay of the proceedings or a temporary restraining order (“TRO”).

3) The statute which governs the particular motion may require it.

Procedure for making a motion by order to show cause
The moving party drafts the order to show cause and submits it directly to a judge, ex parte, along with the supporting affidavits for the underlying motion. The judge will set the return date in the order and will specify the method of service on the adversary (usually personal delivery).

E.g., a proposed order to show cause is signed by the judge on May 1, 2012, and it states, “Let Δ show cause on May 5, 2012 why an order should not be granted requiring Δ to produce documents x, y and z.” After the order to show cause is signed, the order and the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.`

The Deciding Order
After the return date of a motion on notice, the court’s decision must be embodied in a written ORDER signed by the court and entered with the clerk. The prevailing party (whether it be the moving party or the opponent) serves a copy of the order on the losing party with notice of entry of the order. Even if the court provides the parties with the order, the prevailing party must serve the order as described above.
What are two effects of service of the copy of the order?
1) Serving of the order is NECESSARY to give effect to the order

2) Service of the order starts the running of a 30 day time limit to appeal from the order

In New York State courts, a party can appeal from most interlocutory orders. An interlocutory order is an order that awards some relief to a party, but does not finally determine all matters in controversy in the action (e.g., order upholding jurisdiction, amending the complaint, or changing venue). An action is concluded with a final judgment.
To appeal from an interlocutory order or judgment a party must:
file and serve a notice of appeal within 30 days from service of the order or judgment, with notice of entry.

The losing party is not REQUIRED to take an interlocutory appeal. The losing party can WAIT until there is a final judgment and then appeal everything within 30 days of the final judgment.

Ex Parte Motion
This is a motion in which no advance notice is given to the adversary i.e., without giving any opportunity to be heard in opposition. The moving party goes straight to the court with the motion papers and requests an order granting the relief sought.
Circumstances in which motion may be made ex parte:
RARE! Making a motion without giving the other side a chance to be heard? SOUNDS contrary to due process! Not permitted unless there is EXPRESS STATUTORY AUTHORIZATION. The presumption is that the notice must be made on notice.
Example of ex parte motion discussed previously
Ps request for additional time to serve process, expedient service of process or court ordered service of process
Remedy for opponent who is aggrieved by the ex parte order:
The aggrieved party makes a MOTION ON NOTICE to vacate the ex parte order. Then if the motion to vacate is denied then the aggrieved party can appeal the denial of the motion to vacate.
Purpose of Motion for Summary Judgment
The purpose of this motion: to enable a party to show, before trial, that even though the
pleadings may be sufficient on their face: there is no genuine issue of material fact requiring a trial. The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to judgment as a matter of law.

QTIP: Remember to discuss the elements of the underlying cause of action. Examiners like to mix in substance with procedure. So it is a popular topic on the exam.

Timing for Motion for SJ
You can make a motion for SJ only after service of the answer, any party – π or Δ – can move for summary judgment with respect to any claim or defense asserted in the pleadings.
Assume Brady slipped and fell outside Manning’s sporting goods store. Brady sues Manning for negligence. Immediately after serving process, may Brady properly move for summary judgment on the issue of Manning’s liability? May Manning immediately move for summary judgment on the ground that the accident was entirely Brady’s fault?
NO – the general rule is that neither party can move for SJ prior to service of Ds answer.
The outside time limit for making a summary judgment motion:
No later than 120 days from the filing of a note of issue.
Exception to time limit:
Motion may be permitted after expiration of 120 days from filing of note of issue if moving party shows “good cause” (procedural excuse, such as law office failure or delayed service of discovery documents until after the filing of the note of issue may constitute “good cause”; the strength of the motion on the merits does not qualify as good cause).
Now assume in the Brady v. Manning case that Manning serves an answer containing denials of the allegations of negligence and also asserting the affirmative defenses of statute of limitations, lack of jurisdiction and comparative negligence.

Manning could now move for summary judgment on the following grounds:

ANY OR ALL of the defenses OR Manning could move for SJ on the lack of substance to Brady’s claim of negligence. he could say these claims are frivolous.

Likewise, Brady could move for summary judgm. on his cause of action. Manny’s conduct was SO negligent that I am entitled to judgment as a matter of law.

Brady can say that none of the affirmative defenses have any merit.

Evidence for SJ Motion: Moving party has the burden of showing that there are no material issues of fact requiring a trial, and that she is entitled to judgment as a matter of law. How is this burden satisfied?
Must submit evidence in the form of

1) affidavits OR
2) relevant documents OR
3) discovery materials such as deposition transcripts or answers to interrogatories

Affidavits must be submitted by:
persons who have ACTUAL KNOWLEDGE of the facts

Such as the parties themselves, OR witnesses (bystanders, OR expert witnesses

Ex: Manning moves for SJ and attny issues an affidavit. That affidavit is worthless. The attny has no actual knowledge of facts (unless he really does but 99.9% of time he wont)

How does the opponent defeat a motion for SJ?
By producing and presenting CONTRARY evidence showing that a triable issue of fact DOES exist. Using same sources of evidence.

The opponent cannot simply rely on the pleadings in order to show there is a fact issue. Because pleadings are not evidence. They are just paper allegations. There is no evidentiary backup to the pleadings. Let’s say that the D Manning moves for SJ with the affidavit of an engineer. Brady’s attorney puts in an affidavit. That’s a fact issue! Can’t just use the pleadings! There must be evidence!

Searching the Record in a Motion for SJ
A motion for summary judgment “searches the record,” meaning that the court reviews all of the evidence in the record, regardless of which side submitted it. If the court concludes that the opponent, rather than the moving party, is entitled to
summary judgment on an issue addressed by the parties, the court may grant summary judgment to the opponent even if the opponent did not make a crossmotion for such relief.
Boomerang Effect
Δ moves for summary judgment attempting to show
the absence of any negligence by Δ. π ‘s evidence in opposition, which seeks merely to show an issue of fact as to Δ’s negligence, is determined by the court to
be so strong that it justifies summary judgment for π.
Effect of Denial of Summary Judgment
Triable issues of fact EXIST and that means the case goes back on the calendar and proceeds to trial in the normal course of events
If the only remaining issue of fact concerns the amount of damages…
the court can grant the P summary judgment on the issue of liability (PARTIAL summary judgment). We can enter summary judgment on the issue of liability. For example: say that the D Manning is negligent as a matter of law. The court can grant an immediate trial on the issue of damages.
Pre-Answer Motions for Summary Judgment
In two situations, summary judgment is permitted prior to service of the answer:

1) Conversion of Motion to Dismiss for Failure to State a Cause of Action

2) Motion for Summary Judgment in Lieu of a Complaint

Conversion of Motion to Dismiss for Failure to State a Cause of Action
Δ’s pre-answer motion to dismiss for failure to state a cause of action can be CONVERTED BY THE COURT into summary judgment, thereby allowing for decision on the basis of evidence rather than on the face of the pleadings.

Prerequisites for this conversion:

1) at least one of the parties has submitted factual affidavits in connection with the motion to dismiss

2) the court must give notice to the parties that the court is making this conversion into SJ – the purpose of the notice is to give parties an opportunity to submit additional evidence

Motion for Summary Judgment in Lieu of a Complaint
In two types of actions, π may, if she wishes, move for summary judgment at the same time she serves process by accompanying the summons with motion papers for summary judgment; in these instances, the motion for summary judgment is served “in lieu of the complaint”:

1) an action on an instrument for the payment of money only. These are for legally operative instruments where D has made an unconditional promise to pay money. Consider promissory notes. (NOTE: a mere written K suing for breach of an ordinary written K does NOT qualify for this expedited treatment)

2) when you are suing on an out of state judgment. Assume P sued D in FL and got a judgment for money damages. P finds out that D has assets in NY and P then brings the FL judgment to NY and sues on that judgment to convert it to a NY judgment and then seize the assets.

Rationale: Both of these actions are based on documents that are prima facie valid when supported by an affidavit of noncompliance.

Procedure for Motion for Summary Judgment in Lieu of a Complaint
After filing process with the court, π must serve on Δ, with the summons, a notice of motion for summary judgment with supporting documentation and affidavits. This is a motion and, therefore, a return date is needed.
What is the minimum advance notice for the return date in these circumstances?
The advance notice must at least be equivalent to the time limit for defendant’s appearance in the action.

i) if D was served by personal delivery of the papers in New York: he has 20 days to respond with his answer so the advance notice is 20 days also

ii) If D was served with the papers via any other method: the advance notice is 30 days

Provisional Remedies: Overview
Lawsuits can take time to resolve, and π’s rights may be jeopardized while the matter is pending. Provisional remedies provide a measure of security to π for the ultimate enforcement of a potential judgment.
There are 5 provisional remedies:
(1) Attachment
(2) Preliminary Injunction
(3) Temporary Receivership
(4) Order to Seize Chattel in an action to recover the chattel (replevin)
(5) Notice of Pendency (lis pendens)

KNOW THE TYPES OF ACTIONS IN WHICH THE PARTICULAR REMEDY IS AVAILABLE – what are the grounds for getting a provisional remedy

Each provisional remedy can only be used in certain types of actions. The bar examiners place emphasis on this issue.

Court order is required:
ALL the provisional remedies EXCEPT the notice of pendency (lis pendens)
Attachment of Provisional Remedies
1. The main purpose of an attachment is to provide security for the enforcement of a money judgment.

2. Concept: π obtains an order of attachment from the court and gives it to a NY sheriff who levies upon Δ’s property in NY. The levy imposes a lien on the property pending the outcome of the action. This gives π a security interest in the property that is superior to that of any subsequent lien holder.

What can you levy upon?
ANY TYPE OF PROPERTY if it’s located in NY
Method of Sheriff’s levy on real property:
He FILES the order of attachment with the county clerk of the COUNTY where the real property is located. It must be a county located in NY!
What type of personal property qualifies for a levy
tangible personal property OR intangible property such as a debt owed to the D. like a bank account
What do we call the third person who owes a debt to D or has possession of D’s property
we call that person a garnishee. The bank is the garnishee of the D (one of the best examples) – someone holding possession of the D’s car at a warehouse maybe
How does the sheriff make a levy on PERSONAL property
CONSTRUCTIVE seizure. The Sheriff delivers the order of attachment to the person in NY who is holding the D’s personal property interest. It might be the D herself (it’s her car in her garage) so you just serve on the D. OR it could be a garnishee. This delivery of order of attachment by sheriff automatically imposes a lean on personal property. It also has an injunctive effect. The person who is served with the order of attachment by the sheriff is not allowed to transfer that property pending the outcome of the action.
Types of Actions in Which Attachment May Be Used
π must be seeking money damages (OK to join other claims seeking equitable relief) AND:

(1) Δ is an unlicensed foreign corporation or a non-domiciliary residing outside
of NY (someone with no NY roots); OR

(2) Δ is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment. – does not have to be an outsider – it can be your neighbor – just anyone who is trying to sneak outsides out of NY


procedure for order of attachment
a. π must make a motion for an order of attachment.

b. What are the requirements of the motion?

1) affidavits in support of the motion must show one or the other of those two grounds for attachment PLUS you have to seek money damages

2) affidavits must show a probability of success on the merits of Ps underlying cause of action (these orders of attachment are not free for the asking!)

3) provide an undertaking (a bond). the purpose of the undertaking is to indemnify the D for any damages or expenses caused by the attachment.

The defendant is entitled to damages if:
1) the attachment was made by improper procedure OR

2) D wins the case on the merits

Either way he gets damages.

The motion can be made on NOTICE or EX Parte. (πs prefer ex parte to avoid alerting Δ.)
BUT, if π opts to make the motion ex parte, additional requirements must be met in order to satisfy due process:
Due process requires the D must have an opportunity for a PROMPT hearing after the levy on his property.
If P files an ex parte motion: After the sheriff levies on defendant’s property, plaintiff must make a follow-up motion:
a motion on notice to confer the ex parte order. This must be done promptly and so the motion to confirm must be made by order to show cause so there will be an accelerated return date.
When an order of attachment is obtained ex parte, the ex parte order will become automatically void if…
π fails to make a follow-up motion to confirm within the proper number of days after the levy on Δ’s property.
Two separate time limits apply for the making of the motion to confirm, depending
on the grounds for the attachment:
(1) If Δ is an unlicensed foreign corporation or a non-domiciliary residing outside of NY (attachment category #1), the motion to confirm must be served on Δ no later than 10 days after the levy

(2) If Δ is fraudulently moving assets (attachment category #2), the motion must be served on D no later than 5 days after the levy

Assume Carmela commenced an action against Tony on 2 causes of action:

1. to recover damages for fraud allegedly committed by Tony when he induced Carmela to sell Tony all of Carmela’s stock in a real estate corporation;

2. alternatively, to rescind the transaction and reacquire her stock in the corporation.

Tony, who lives in NY, has threatened to sell all of the stock in the corporation to Silvio, who lives in NJ, and to flee NY unless Carmela
immediately discontinues the action.

Do sufficient grounds exist for an order of attachment and levy on Tony’s NY bank account?

At least ONE of Carmela’s claims is for money damages. It is okay that there is an equity claim (2) because there is a claim for money damages (1). The second ground for attachment applies as D has demonstrated an INTENT to remove assets from NY for the purpose of FRUSTRATING the enforcement of Ps judgment. It doesn’t matter that Tony happens to live here. Does not matter.
Assume Carmela’s action also names Paulie as a co-defendant, alleging Paulie’s joint participation in the fraud. Paulie lives in NJ.

Assume John, who lives in NY, is indebted to Paulie. Do sufficient grounds exist for an
order of attachment and levy with respect to Paulie?

YES! Carmela’s action includes a claim for money damages. AND with respect to Paulie we satisfy the first category for attachment. D Paulie is a NONDOMICILIARY who resides outside the state of NY.

We know Paulie has assets in NY since John owes a debt of Paulie’s. John is a garnishee who holds one of Paulie’s property interests.

Preliminary Injunction
A preliminary injunction is used to maintain the status quo while an equity action is pending.
Types of actions in which preliminary injunction may be used:
An EQUITY action in which π’s complaint seeks EITHER:

1) a permanent injunction OR
2) if D threatens to harm Ps interest in the subject matter of the action

In the Carmela-Tony HYPO (suit seeking rescission based on Tony’s fraud and
threatened transfer of stock to Silvio), does Carmela have sufficient grounds for a
preliminary injunction restraining Tony from selling the stock?
YES her second claim is for rescission. She wants to get back all that stock that she sold. The stock is the subject matter of the action and Tony is threatening to harm that subject matter by selling the stock – by transferring it to Silvio.
What if the action seeks SOLELY money damages?
An action that seeks SOLELY MONEY DAMAGES WILL NOT SUPPORT A PRELIMINARY INJUNCTION. E.g., π sues Δ for nonpayment of a $80,000 debt. Prior to judgment, π cannot enjoin Δ from transferring assets or spending money. π’s only possible remedy in a purely money action is attachment.
Procedure for Prelim. Inj.
The motion for a preliminary injunction must be made ON NOTICE. The motion papers can be served with, or after, the summons. Requirements for the motion:

1) Ps affidavits must show the grounds for equitable relief including a threat of irreparable injury

2) P must show a probability of success on the merits of the underlying cause of action

3) P must provide an undertaking to indemnify the D for damages if it is later determined that a preliminary injunction should not have been granted.

Temporary Restraining Order (TRO)
In the above hypo, assume Tony threatens to sell the stock tomorrow. To make a motion for a preliminary injunction, Carmela must commence an action alleging her equity claim. The earliest she can make the motion for preliminary injunction is with the service of process. Also, recall that this motion must be made on notice and that the usual minimum advance notice is 8 days before return date. BUT the stock will be sold TOMORROW!? there’s a time gap there. Maybe you can speed things up with an order to show cause but only by a day or two.

She needs immediate injunctive relief.

A case involving a threat of IMMEDIATE injury? the P can ask the court to grant a TRO ex parte, and the purpose of the TRO is to maintain the status quo for the brief period while the motion for preliminary injunction is being litigated
How does a party obtain a TRO?
Make the motion for a preliminary injunction by order to show cause (you go to court and ask a judge to sign an order to show cause). This order does two thing: 1) schedule an early return date for the preliminary injunction motion, and 2) in the order, the judge can include the TRO. Then you serve the order to show cause with the TRO on D.
If an OTSC with a TRO is served on the defendant…
she will be immediately enjoined by the TRO pending resolution of the motion for a preliminary injunction
Any ex parte application for a TRO must contain…
an affidavit demonstrating that there will be “significant prejudice” to the party seeking the TRO if notice is provided to the adversary.
In Sum what must be done when filing a preliminary injunction?
(1) π commences an action seeking equitable relief.
(2) π moves (by order to show cause) for a preliminary injunction to maintain status quo until overall action is resolved.
(3) In the order to show cause, π requests TRO to obtain immediate injunctive relief to maintain status quo until the motion for the preliminary injunction is decided.
Temporary Receivership: What is a temporary receiver?
A person appointed by the court to manage property in the D’s possession. The receiver takes over management of the D’s property.
Type of action in which temporary receiver is available:
π must be asserting an equity claim in which specific property is the subject matter of the action, AND

There is a danger that Δ will injure or destroy the value of the property while the action is pending.

NOTE: If an action seeks solely money damages, a temporary receivership is not available.

The appointment of a temporary receiver requires the making of a motion on notice.

Recall Carmela’s action against Tony to rescind the sale of her corporate stock to
Tony and to reacquire her stock in the corporation. If Tony threatens to squander
the corporation’s assets while the action is pending, does Carmela have sufficient
grounds for a temporary receivership over the management of the corporation?
YES this is an equity claim. It is rescission of the stock transaction. An equity claim in which specific property (the corporate stock) is the subject matter of the action. There is a danger that D will harm the value of that stock (sell and squander the corporation’s assets – direct harm to the property and grounds for receivership).
Seizure of a Chattel
There is only ONE TYPE OF ACTION (an action that seeks to recover possession of a chattel)

chattel: tangible personal property

action: to recover possession

Ex: neighbor ran off with laptop or car

An action in replevin: an action to recover chattel

The function of the order of seizure is…
to ensure enforcement of a judgment awarding possession of the chattel to π.

The sheriff, who seizes the chattel, will retain custody of the chattel (“impoundment”). Otherwise, if the chattel is lost or destroyed while the action is pending, the judgment will be limited to the monetary value of the chattel.

Procedure: What are the requirements for the motion for an order of seizure
1) Ps affidavits must show that P will PROBABLY succeed on the merits of the underlying cause of action

2) P must provide an undertaking to indemnify the D for damages for a wrongful seizure

The motion can be made on notice OR ex parte. What are the requirements for an ex parte motion?
1) P must show a threat of IMMEDIATE loss of a chattel

2) if the ex parte order of seizure is granted, P must make a FOLLOW UP motion on notice to confirm the ex parte order NO LATER than 5 days after the seizure

Notice of Pendency
In an equity action in which the judgment will have a DIRECT EFFECT on real property,

the filing of a notice of pendency gives record notice to any potential buyers or mortgagees that any interest they acquire in the property will be subordinate to that of the π.

Type of action in which notice of pendency may be used:
An equity action in which the judgment will have a direct effect on title, possession or use of real property, e.g., specific performance, ejectment.

*****In a mortgage foreclosure, the filing of a notice of pendency is statutorily required.

In other types it is just optional.

Procedure for filing notice of pendency
π files a notice of pendency with the County Clerk of the county in NY in which the real property is located. This is what gives record notice of the pendency of π’s action. NO judicial supervision in advance. Makes it easy for the P. P is also NOT REQUIRED to file a bond.
What remedy does the D have if notice is improperly filed?
D must make a MOTION TO CANCEL the notice of pendency
Recall Carmela’s action against Tony to reacquire her stock in the real estate
corporation. Assume that the corporation’s only asset is a parcel of real property in
Westchester County. Does Carmela have sufficient grounds for filing a notice of
NO! Carmela’s action is NOT one in which the judgment will have a direct effect on title to real property. The judgment here would only have a direct effect on the transfer of the stock. The real property is an ASSET of the corporation. You might think that this elevates form over substance. That is exactly what the legislature wants! Bc it is so easy for P to mess up Ds property, the circumstances in which you can file it are very narrow.
Duration of the notice of pendency; motion for extension
A notice of pendency is effective for three years after filing. π can move for a three-year extension of a notice of pendency, but must make the motion for
extension prior to the expiration of the original three-year period.
Two consequences flow from π’s failure to obtain an extension prior to expiration of the original three-year period:
(1) The notice of pendency becomes void and
has no further effect, AND

(2) π cannot obtain another notice of pendency on the same property for the same cause of action.

EXCEPTION: In a mortgage foreclosure action, the court may grant a motion for a new notice of pendency even though the original notice expired without renewal.

Note: If π shows grounds for more than one provisional remedy, the court has discretion to require π to elect between those remedies to which she would otherwise be entitled.

When discovery is completed and the case is ready for trial, how is the matter placed on the trial court’s calendar?
By filing a NOTE OF ISSUE – the piece of paper that is filed to tell the court that the case is ready for trial. Either party can file the note of issue which tells the court the case is ready for trial. The party who files must serve copies on all the other parties.
How does a party who is entitled to a jury obtain it?
the party filing for note of issue can demand a jury trial IN the note of issue
If the party who files note of issue makes no jury demand….
then that party waives the right to a jury
if the non-filing party wants a jury trial and no jury demand is made in the note of issue…
the other party can file separate demand for a jury and if he does not do so then he TOO will waive a jury!
When does a party in a civil action have a RIGHT TO TRIAL BY JURY?
1) an action seeking SOLELY money damages

2) a replevin action (the action to recover possession of a chattel)

3) a claim to REAL property

4) Annulment of a marriage

5) in a divorce action, either party can demand a jury on the issue of the GROUNDS for a divorce

So if you are suing for divorce based on adultery

NO JURY with respect to Monetary Support or Child Custody in a divorce case. ONLY the grounds for the divorce.

A civil jury consists of…
6 jurors and the verdict does not need to be unanimous. 5 out of 6 is enough for a verdict in a civil action.
Res Judicata (Claim Preclusion)
purpose: avoidance and prevention of re-litigation of the same claim
NY uses what type of approach to Res Judicata?
the modern “transactional approach”
Transactional approach
When a claim against a particular defendant has been brought to a final judgment on the merits, all other claims by the plaintiff against that defendant are barred if the other claims arise out of the same transaction or occurrence as the P’s original claim
Alfred was employed by Batman for 2 years without being paid. Alfred sues for breach of contract, but loses on the ground that the contract is unenforceable due to the statute of frauds. Can Alfred thereafter bring a second action against Batman for quantum meruit (the value of the services rendered)?
NO! Alfred’s second action (for QM) would be barred because the original breach of K claim and the QM claim arise out of the same transaction so you can’t relitigate under a diff. theory or name
Policy exception to transactional approach in matrimonial disputes based on domestic abuse
Transactional approach does not apply in domestic abuse situations.
a) S-1 v. S-2 for divorce based on cruel and unusual treatment, including assaultive conduct. Judgment for divorce granted.


b) S-1 v. S-2 for personal injuries arising out of the assaults that occurred during the marriage.

Is the second lawsuit barred by claim preclusion / res judicata?

NO! S-2 will say it’s all part of the abusive treatment. You should have asked for personal injury there. You asked for child support and maintenance! SORRY D! We allow spouse 1 to bring follow up even though it arises out of same transaction.

Policy reason: we want to let a spouse get out from the abusive relationship and get all the matrimonial stuff quickly without bogging it down with personal injury claims which are time-consuming.

Collateral Estoppel (Issue Preclusion)
Issue preclusion avoids (and prevents) the need for re-litigation of specific fact issues that were decided in a prior proceeding upon a 3-part showing:

1) the issue in the former proceeding and the current proceeding must be identical

2) the issue was ACTUALLY litigated and decided in the former proceeding

3) the party against whom issue preclusion is asserted had a full and fair opportunity to litigate that issue in the former proceeding

Larry and Curly, passengers in a car driven by Mo, were both seriously injured in a collision allegedly caused by Mo. Larry sues Mo for negligence, seeking substantial damages, and wins. In Curly’s separate action against Mo, would Larry’s judgment against Mo provide a basis for summary judgment in Curly’s favor on the issue of Mo’s negligence, i.e., can Curly use issue preclusion against Mo?
YES on these facts.
Curly can get SJ on the subsequent action for Mo’s negligence

1) It’s the same issue in both cases (identity of issue)

2) the issue of Mo’s negligence was ACTUALLY litigated and decided in the first action

3) Mo who was the D in the first action had a FULL and FAIR opportunity to litigate the issue of his N

NOTE: we would still litigate some issues like Curly’s specific damages and any issues of Curly’s comparative fault

Change the facts to assume that Larry lost the first action, based on a specific finding that Mo was not negligent. In Curly’s subsequent action, would Mo be entitled to a summary judgment of dismissal? In other words, could Mo invoke issue preclusion against Curly?
NO! Issue preclusion cannot be used against someone who was not a party in the prior action. Curly was not a party in the prior action – that was Larry’s case. Curly has not had his own FULL and FAIR opportunity to litigate the issue of Mo’s negligence. Due process entitles a party to his own day in court and Curly has not had that yet. You can use the finding against Mo but not Curly.
Special Proceedings: Overview
A special proceeding is a speedy, streamlined procedure, akin to motion practice, the purpose of which is to obtain a judgment as a final resolution of a dispute.

E.g., probate of a will; election disputes; summary proceeding by a landlord for eviction; dissolution of a corporation; habeas corpus; enforcement of an arbitration agreement; CPLR Article 78 proceeding.

Pursuit of a remedy by means of a special proceeding requires…
specific statutory authorization.
If A erroneously sues B for negligence by way of a special proceeding, would B be entitled to dismissal of the proceeding?
No! this is not a grounds for a dismissal. When a mistake is made in the form of a proceeding the court has the authority to CONVERT the special proceeding into an action, and Vice-Versa.
Procedure for Special Proceedings: commencement
To commence a special proceeding, the PETITIONER (the party with the grievance) files a PETITION. The petition is analogous to the complaint. The filing of the petition constitutes the commencement of the special proceeding.
Procedure for Special Proceedings: Serving Process
Next, the petition and notice of petition must be served on the RESPONDENT (the person from whom relief is sought.) How is such service to be made?

This is to be done by using the same methods as those used to serve process in an action because you must acquire jurisdiction over the respondent

Procedure for Special Proceedings: Return Date
The return date can be no sooner than 8 days from the service of process
If, on April 1, Simon files a petition to dissolve a corporation in which he and Garfunkel are the sole shareholders, and then serves a notice of petition and copy of the petition on Garfunkel that same day, could Simon properly specify April 6 as the return date?
NO! You must give at least 8 days advance notice. If you were to serve notice of petition on April 1, the earliest return date would be April 9

EXCEPTION: ARTICLE 78 PROCEEDING – return date can be NO SOONER than 20 days from service of process because it’s a GOVERNMENT respondent

If the petitioner needs an accelerated return date…
True for ALL proceedings including Article 78.

You initiate the special proceeding with an order to show cause.

How are affidavits used?
Affidavits are usually served in support of, and in opposition to, the petition. All pleadings and affidavits are submitted to the court on the return date for decision by the court. The dispute is decided in the same manner as summary judgment.
Arbitration is a private procedure, based on contract, for the binding resolution of disputes.

Two parties may agree to submit any existing or future dispute to arbitration, e.g., arbitration clauses are common in commercial contracts.

Two major characteristics of arbitration
(1) Arbitrators are not bound by the substantive law or the rules of evidence. They may do justice as they see fit.

(2) The scope of judicial review is extremely narrow.

**This explains why when a party enters and a dispute arises one of the parties tries to get out of it so you need a judicial hearing as to whether the clause is enforceable

Judicial Gatekeeping: Arbitration
When one of the parties to an arbitration agreement resists arbitration in an effort to resolve the case by a conventional judicial proceeding, the courts may be called upon to decide certain “threshold issues” as to whether the arbitration should proceed. If the threshold issues are resolved in favor of the particular arbitration, the court’s involvement ends, and the merits of the dispute are for the arbitrator to decide.
Public Policy of NY: Abritration
FAVORS arbitration. The courts are guided by this principle when deciding whether particular disputes are arbitrable.
5 threshold issues can be presented to the court in an effort to avoid arbitration:
1) did the parties agree to arbitrate? K LAW!

a) the agreement must be in writing – does not need to be signed
b) the agreement must be clear, express, and unequivocal
c) the right to arbitrate need not be mutual — sufficient to enforce if only one party has the right to demand arbitration

2) Is the dispute within the scope of the arbitration clause?

Ex of broad clause: “All disputes or claims arising out of or in connection with this contract shall be resolved by arbitration”

When such a phrase is used, there are few issues that the court could decide. The arbitrator will decide everything. The parties could draft such that the arbitrator has only a narrow scope. You can say you only will allow arbitration of damages in the K.

3) is the arbitration clause valid? It is presumptively valid. It is invalid and therefore unenforceable only if the clause was induced by fraud, duress, or coercion OR if arbitration of the particular matter is barred by public policy and that would be rare.
(doctrine of severability)

4) Is there an express condition precedent to arbitration, and has it been complied

5) Statute of Limitations

Doctrine of Severability
Validity of an arbitration clause is determined separately from the validity of an overall K in which the clause appears
Is there an express condition precedent to arbitration, and has it been complied with?
Construction industry in a construction contract. Dispute must be first submitted to an architect. That would be a condition precedent to an arbitration. This is an express condition precedent. We want the court to decide that issue as a threshold matter.
Statute of Limitations
The court will decide
Assume Leno sues Letterman for damages for fraud and breach of a written contract in
which they agreed to share their jokes. Letterman moves for an order to stay the action and compel arbitration on the ground that the agreement between them contained an arbitration clause requiring that any dispute arising from the contract must be submitted to arbitration. Leno asserts that the agreement to arbitrate is unenforceable because the overall contract was induced by fraud.
Leno’s argument must be rejected. WHY? We apply the doctrine of severability. If the arbitration clause itself is valid – then the contractual duty to arbitrate is enforceable separate and apart from the remainder of the K. That means that Leno’s challenge to the K as a whole will be determined by the arbitrator. We let the arbitrator decide if the K is induced by fraud.
How to bring threshold issues to the court
1) in pending action. if the issue of arbitration arises in a pending action, the D makes a motion to compel arbitration and for a stay of the proceeding of the civil action. (then you litigate the five threshold issues)

2) If no action is yet pending, the proponent of arbitration typically seeks to invoke arbitration by serving the opponent with a “notice of intention to arbitrate.” (Service of the notice must be made in the same manner as a summons or by certified mail.) The opponent may then commence a special proceeding for a stay of arbitration. In this special proceeding for the stay the arbitration opponent can raise any of the 5 threshold issues. The opponent must act quickly to get the stay because there is a short time limit to commence the special proceeding to stay the arbitration. You must commence within 20 days of receipt of the notice of intention to arbitrate. OTHERWISE the opponent waives the objections to arbitrate.

***we want to make it easy to arbitrate

Judicial Review of Arbitration Awards
Basically, only 3 grounds provide a basis for vacating an arbitration award:

1) corruption, fraud, or misconduct of the arbitration proceeding

2) bias of an arbitrator who was chosen to be neutral

3) arbitrator has exceeded his powers – an arbitrator usually has unlimited power unless the parties have agreed otherwise. That’s pretty much unlimited power unless parties have agreed otherwise.

Under NY arbitration law, an arbitrator does not have the power to award…
PUNITIVE damages
Other Forms of ADR in NY: Mediation, Neutral Evaluation, and Summary Jury Trial
There is NO CASE LAW and it’s not governed by statute.
General points about the other forms of ADR:
1) Like arbitration, the other ADR devices are creatures of contract and are enforced in accordance with the terms of the agreement.

2) NY public policy favors ADR

3) The court can recommend, but generally cannot require, the parties to agree to

4) Two major differences from arbitration:
(1) unlike arbitration, which usually produces a binding resolution of a dispute, the three additional ADR devices are usually non-binding (unless the parties agree otherwise), because their purpose is to help the parties reach a voluntary settlement; (2) there are no specific statutory rules governing the mechanics of enforcing the other ADR agreements (compare the above rules governing judicial gatekeeping on arbitration agreements).

A non-binding process in which a neutral mediator attempts to facilitate a settlement by speaking confidentially to each party and then jointly with both
parties present. The mediator encourages the parties to consider practical concerns as well as the merits of each side’s position. The mediation agreement
may specify (but is not required to do so) that if no settlement is reached, the mediator’s confidential conversations shall not be disclosed in litigation. If the
parties include a provision for confidentiality, they may also agree on the standard for waiver of such confidentiality (e.g., if both sides consent).
Neutral Evaluation
A non-binding process in which a neutral expert in the subject matter at issue receives a condensed presentation about the merits from each side, evaluates the presentations and predicts how a court would decide the dispute. The neutral expert’s prediction is intended to help the parties reach a voluntary settlement.
Where do mediators and neutral evaluators come from?
For both Mediation and Neutral Evaluation, the parties themselves choose the facilitator from either the private sector or from rosters maintained in most courthouses.
Summary Jury Trial
The SJT requires an agreement that includes the participation of the court. The SJT is a condensed version of a real trial in which a real judge presides and a real jury is empanelled to hear the case and render a verdict.

Typically, the SJT is limited to one day; each side is limited to 2 or 3 hours for its presentations; the technical rules of evidence are relaxed; witnesses may be called and cross-examined; and narrative summaries of potential evidence may be introduced by the attorneys.

After the jury verdict is rendered, the parties may question the jurors about their thought processes. The parties must agree in advance whether the jury’s verdict will be binding or non-binding; but in practice most litigants choose the non-binding format and use the SJT solely for the purpose of assisting in reaching a voluntary settlement.

Article 78 Proceedings
Article 78 of the CPLR authorizes a special proceeding for judicial review of action (or inaction) by state and local governmental or quasi-governmental officers or bodies of any kind. The respondent is usually a local government entity or officer. For mandamus purposes, a corporation traditionally qualifies as a quasi-government entity because a corporation’s privilege of existence comes from the state.
Right to relief in an Article 78 Proceeding
depends upon a showing that the petitioner’s case would have been subject to review under one of the 4 common law “prerogative writs.” Thus, there are 4 grounds for an Article 78 proceeding:

1. MANDAMUS TO COMPEL: To compel the performance of an act required by law―an act as to which no discretion is involved. Examples: election official refuses to issue absentee ballot; city clerk refuses to issue a marriage license. Then there is no discretion! If you meet the criteria you are entitled to it!

2) PROHIBITION: A proceeding to stop a judicial officer from exercising power that exceeds the officer’s lawful jurisdiction. The excess must be “gross” in nature.

3) CERTIORARI: A proceeding to challenge the results of a “trial-type” hearing conducted by an administrative agency. A “trial-type” hearing is one in which testimony was taken under oath with a right of cross-examination. Persons with a vested property or quasi-property right, such as license-holders or tenured civil service employees, are entitled to a trial-type hearing prior to divestiture or discharge. After the agency’s final determination of a trial-type hearing, the form of judicial review is called certiorari.


(1) A liquor store owner challenges the State Liquor Authority’s revocation of his license to sell alcoholic beverages.

(2) A tenured public school teacher challenges the school board’s decision to discharge him.

4) MANDAMUS TO REVIEW: A proceeding to review any type of administrative action not covered by categories 1-3. Most often, mandamus to review is used to challenge an agency determination that was made without a trial-type hearing, as, for example, where vested rights are not at stake.

Examples: (1) A probationary public employee was discharged from her position. (2) A homeowner applied for a zoning variance that was denied by the local zoning board. (3) Rambo applied for renewal of his gun permit, which was denied. (Agencies may determine such matters by investigation without a trial-type hearing because no vested rights are at stake.)

Assume that the president of a corporation of which S is a shareholder has refused to convene an annual meeting of shareholders. Could S bring a mandamus proceeding against the president and/or the corporation?
YES! A corporation is a quasi-government body or officer for MANDAMUS purposes. Corporation gets its right to exist from the state

Examples of “gross excess” of the exercise of jurisdiction:

(1) In a criminal matter, Δ gets a verdict of “not guilty” by the jury, but the judge grants the prosecutor’s request to commence a second trial against the same Δ for the same crime. Such violation of double jeopardy would provide the basis for a prohibition proceeding against the judge.

(2) A judge orders the opposing lawyers in a case to take depositions of witnesses that neither party wishes to depose.

Assume that a plaintiff asserts long-arm jurisdiction over Madonna for acts that
occurred mostly in England. The trial judge denies Madonna’s motion to dismiss
for lack of a basis of personal jurisdiction. Is a prohibition proceeding Madonna’s
proper remedy to challenge the court’s action?
NO! Prohibition is reserved for a judge’s GROSS excess of jurisdiction. For routine judicial error, like making a mistake on how long-arm statute works, the remedy is appeal within the same action in which the error occurred.
The standard for the court’s review of the results of an agency’s trial-type hearing:
the court must uphold the results if the agency’s determination was supported by SUBSTANTIAL evidence.
Standard for court’s review of an agency’s non-trial type hearing:
the court must uphold the agency’s determination unless it was arbitrary or capricious
Court in which an Article 78 proceeding may be brought:
Supreme Court is the only court that can entertain an Article 78 proceeding EVEN IF the respondent is the state or state agency

Distinguish from where we said the proper court for money damages against the state for tort or breach of K – go to court of claims

Statute of Limitations in Article 78
4 months – if you dont act quickly you wont get administrative review of the judicial action
Assume Tony Soprano receives final notice on April 1, 2012, that his bid for a sanitation contract for the City of Syracuse has been rejected. What is the last timely date for commencement of a judicial proceeding to challenge the rejection?
August 1, 2012: 4 month!!! Time begins to run from when the agency action becomes final and binding
Return Date for Article 78
The papers in an Article 78 proceeding must be served twenty days before the return date.
Type of relief that may be sought in an Article 78 proceeding:
1) Declaratory relief – declaration to annul an agency’s determination on an environmental impact review

2) Injunctive relief – reinstatement of discharged civil service employee

3) Damages – IF the damages are incidental to the declaratory or injunctive relief

Ex: in seeking reinstatement of civil service employee s/he gets incidental damages for backpay

Officer Monk, a long-term state police officer, was discharged for obsessive behavior following a hearing by the state police disciplinary committee. Monk claims his discharge lacked merit and seeks your advice on how to obtain reinstatement to his job, together with back pay for the weeks he has been out of work.
Tell client his remedy is to bring an Art. 78 proceeding in the S.Ct. no later than 4 months from the FINAL ORDER OF DISCHARGE.

This proceeding is in the nature of CERTIORARI because this would be review of a trial-type proceeding because the state police had a disciplinary hearing and that is a trial-type proceeding.

The standard of review will be whether the agency determination was supported by substantial evidence. Burden of showing agency determination was supported by substantial evidence. If you win you get damages for back pay. Damages incidental to main relief that we are seeking. This is “reinstatement.”

Even though respondent is the state, when seeking Article 78 relief, including incidental damages, you get relief from S.Ct. not the court of claims like you would normally do.