NEW YORK PRACTICE I.

INTRODUCTION Most Commonly Tested Areas: Statute of limitations, service of process, personal jurisdiction, matrimonial jurisdiction, motion to dismiss and summary judgment, contribution and third party reliance, provisional remedies, arbitration Other Topics o Verification of Pleadings Generally, verification of pleadings is optional Exceptions: 1) Complaints: Actions against co-obligors; actions for goods or services rendered; article 78 proceedings; statutory requirement for suit 2) Answers: If the complaint to which it responds is verified, response to common law fraud or fraudulent conveyances, promissory notes, dilatory defense is asserted -Bill of particulars, Negligence bills of particulars must be verified BUT pleadings of infants need not be verified o Bill of Particulars Purpose: If party believes that the adversarys pleading is deficient Litigation paper in which plaintiff, upon demand, is required to amplify the allegations of the complaint (only on issues in which the pleader has the burder of proof) If the party fails to timely serve a bill or fails to comply fully with the demand, party can move to compel compliance; but if failure was willful, may get an order of preclusion o Default Judgment If the defendant fails to appear, to plead, or to proceed with trial when the action is reached and called for trail, P may seek a default judgment Procedure Make application to the court for judgment by default within one year of the default If P fails to apply, permits judgment dismissal by court (1) sua sponte) or (2) upon defendants motion Relief from Default Judgment Motion must be made to the court that rendered the judgment or within one year after judgment or order Requires showing of (1) reasonable excuse for the delay (newly discovered evidence, fraud or misrepresentation, lack of jurisdiction, prior judgment, law office failure and (2) a meritorious claim or defense If Defendant was not personally served, may move to open the default IF (1) less than 1 year has elapsed since the time defendant learned of judgment, (2) less than 5 years from time judgment was entered, (3) defendant did not have personal notice of the action in time to defend, (4) meritorious defense = defendant can get restitution o Neglect to Prosecute

Action may be dismissed if the plaintiff unreasonably neglects to proceed generally or otherwise delays prosecution of his claim, OR unreasonably fails to serve and file a notice of issue May dismiss upon courts own initiative or upon motion of adverse party (apply within 1 year of default to the court) See above for relief from default o Discovery Any relevant document or physical evidence may be examined on request served on any party Party may photocopy, test, and photograh the subject matter o Appeals Appeal within 30 days after the appellant is served with a copy of the judgment, no extension unless provided by statute Extension only if: 1) an alternative method of appeal is available after initial appeal is dismissed or denied; 2) the attorney for aggrieved party becomes disabled; 3) potential appellant dies or there is a transfer of his interest Appeal as of Right from any final or interlocutory judgment or any order of the supreme or county court; court of appeals hears constitutionality of federal or NY statute o Judgments II. SUBJECT MATTER JURISDICTION A. Supreme Court A court must have subject matter jurisdiction (competence) to hear and adjudicate the type of controversy brought before it Court of Original Subject Matter Jurisdiction: The court in which an action is commenced (trial court) If court has general jurisdiction, it has the power to hear any type of action The Supreme Court is the only trial court in NY that has general subject matter jurisdiction o One branch in each of the 62 NY counties o Particular Counties are a question of venue, BUT when one Supreme Court has jurisdiction, they all have it o The Supreme Court has unlimited monetary jurisdiction (no maximums or minimums); COMPARE, other courts have caps o The Supreme Court- only court in NY with full equity jurisdiction (Like injunctions, specific performance) For Subject Matter Jurisdiction, Supreme Court can hear any type of action, regardless of where parties are from or where claim arose (Remember, not true for Personal Jurisdiction) o Note: Court has discretion, upon motion by defendant court cannot dismiss alone, to dismiss on the ground of forum non conveniens when the action lacks any substantial nexus to NY B. Exceptions to Supreme Courts General Jurisdiction 1) Cases as to which Federal Law confers exclusive jurisdiction on federal courts (bankruptcy, patents, and copyrights, etc) 2) Claims for $ damages in tort or K against the State of NY o Claims against State of NY must be brought in NY Court of Claims o The only defendant in the Court of Claims is the State of NY

Generally, a plaintiff can sue multiple defendants in one court if it arises out of the same transaction (vicarious liability/respondeat superior) Plaintiff will have to bring two separate action: for instance, sue State of NY in Court of Claims, and State Employee in Supreme Court o Proper Venue for Government subdivisions: counties, cities, towns, school districts (municipal defendants) is Supreme Court Suit against County and County Police Officer can be filed jointly in Supreme Court C. The Supreme Court Has Exclusive Subject Matter Jurisdiction Over 1) Matrimonial Actions o Actions in which the court is asked to adjudicate marital status (divorce, separation, annulment, declaration of validity of marriage) o Contrast, Family Court- children (domestic abuse, adoption) 2) CPLR Article 78 Proceeding (e.g., judicial review of administrative agency action) 3) Declaratory Judgment Action a judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could lead to liability o Ex: Declaratory Judgment that a restrictive covenant, a non-compete, is unenforceable before X begins employment in violation D. All Other Courts All other courts of Civil Jurisdiction in NY are characterized by limited monetary Jurisdiction o County Courts/ NYC Civil Court: Maximum of $25,000 County Courts: Actions respecting real property located within the county o Justice Courts: $3000 Supreme Court (Trial Court) >> Appellate Division >> Court of Appeals

III. STATUTE OF LIMITATIONS (SoL) Period

20 Years

Important Claims
(1) Action of Judgment (2) Adverse Possession Against CoTenant

Comments

10 Years

(1) Action to Recover Reality

(1) Same Period as Adverse Possession (2) Period runs from date of conviction victim may also sue for damages up to 3 years from the discovery of Ds receipt of money or property from any source 1) Accrual on Date of Breach regardless of Ps lack of knowledge 2) Accrual on date of payment for which indemnity or contribution is sought 3) P may sue within 6 years of commission of fraud, or 2 years of discovery (actual or imputed)

(2) Action by Crime Victim Against Convicted

6 Years

1) Non-UCC Contracts

2) Indemnity & Contribution

3) Fraud

whichever is longer 4) Equity Actions (Rescission, Reformation, Accounting) UCC Contracts 1) Personal Injury based on negligence and strict products liability

4 Years 3 Years

Breach of warranty claim accrues upon tender of delivery 1) Personal injury and property damage claims accrue on date original injury occurs (No discovery rule applies except in case of toxic torts)

2) Property Damage (Including Replevin and conversion) 3) Professional Malpractice (other than medical malpractice) Medical, Dental, and Podiatric Malpractice

2.5 Years

2 Years

Wrongful Death (Statutory cause of action in favor of decedents distributees where Ds tortuous conduct caused death; damages limited solely to distributees economic losses

Cause of action generally accrues on the date of malpractice (exception for continuous treatment, period runs from end of treatment) & foreign objects (one year from discovery if insufficient under regular 2.5 years) Two years runs from the date of death, except it must also be shown that the statute of limitation on decedents underlying personal injury claim had not expired on the date of death If criminal proceeding is brought against D, executor gets optional and independent 1 year period from termination of criminal proceedings (regardless of acquittal)

1 Year

4 months

Intentional torts to the person (assault, battery, false imprisonment, defamation) Article 78 Proceedings

A. General Concepts Definition: An affirmative defense, based on the passage of time, to be raised by the defendant o Generally, the SoL begins to run when the cause of action accrues (when the injury first occurs), NOT upon discovery of harmthis is true even if the plaintiff is unaware of the injury or breach Personal Injury/Property Damage: 3 Years, Date of Injury Breach of Contract: 6 Years, Date of Breach o Under substantive law, when an infant is injured in utero, the child has no cause of action unless the child is born alive SoL begins at DOB

Satisfaction of SoL: Commenced no later than the last day of the prescribed limitations period o Commencement: Filing Process (summons and complaint OR summons with notice) o Filing must be made with the clerk of the court on or before the last day of the SoL Compute SoL: Exclude the day upon which the triggering event occurs and begin counting the next day (brings you to the anniversary day) o Ex: Car Accident on June 1, 2010. The last day for timely commencement of action is June 1, 2013 If the last day within SoL falls on a Saturday, Sunday, or public holiday, plaintiff gets until the end of the next business day to perform the required act B. Medical Malpractice Applies to doctors, dentists, podiatrists, nurses, and hospitals o SoL = 2.5 years o Date of Accrual: Date of the Malpractice (discovery of malpractice irrelevant) o Vicarious Liability/Respondeat Superior: Same SoL and same method of calculation as used against the employee Note: Pay close attention to the actions being filed. E.g. Suit against doctor for medical malpractice, and lawsuit against hospital for negligent hiring (in instances like this, the SoLs are not to be added together; rather they run concurrently) 2 Exceptions (SoL runs from the date of the malpractice, not discovery) o Continuous Treatment Rule: Plaintiff gets 2.5 years from the end of the continuous treatment if the continuous treatment is the one that gave rise to the malpractice o Foreign Object Rule: If a doctor was responsible for introducing a foreign object into patients body and leaving it behind, the patient gets longer of either: A) 2.5 years from the date of the operation; OR B) 1 year from the date plaintiff discovers presence of object or reasonable should have discovered the object with reasonable diligence Foreign Object: Something the doctor did not intend to leave behind, like temporary surgical clamps, sponges, scalpels Foreign Objects do NOT include: chemical substances (medicine); prosthetic devices (plastic hip joint); and fixation devices (an item that the doctor deliberately placed in the body with the intent that it remain to serve some continuing treatment function (internal sutures, pacemaker, prophylactic diaphragm) C. Other Professional Malpractice Learned professionals: architects, engineers, accountants, attorneys; NOT: insurance brokers, securities analysts, plumbers, etc. Clients cause of action for malpractice against a non-medical professional for FINANCIAL LOSS has an exclusive (whether tort or K) SoL of 3 Years (therefore the typical 6-year SOL for Breach of K is inapplicable) o Runs from termination of particular services: Date of the clients injury, even if the client is unaware of the harm Architects: completion of building Lawyer/Accountant: Delivery of work product to client o Subject to Doctrine of Continuous Representation: Similar to continuous treatment doctrine applied to doctors

Ex: IF a building was completed in 1990, collapses in 2010 and causes personal injury, last year in which the injured person may sue is 2013 (when personal injury is involved, the injured person can sue responsible tortfeasor up to 3 years from the date of the bodily injury) ... SEE BELOW Special Procedure for Personal Injury Actions Against Architects and Engineers: o When action is brought more than 10 years after the building was completed: (1) Plaintiff must serve a notice of claim on the architect or engineer at least 90 days before suit (2) Plaintiff may obtain pre-action discovery from the potential defendant during the 90-day waiting period (3) After suit is commenced, if Defendant moves for summary judgment, the burden will be on Plaintiff to make an immediate evidentiary showing that there is a substantial basis to believe that Defendants negligence was proximate cause of injuries D. Municipal Tort Liability Statute of Limitations: For personal injury or property damage against a government subdivision, SoL= 1 year plus 90 days from the date of accident Separate Notice of Claim Prerequisite o 1) As a condition precedent to tort action, Plaintiff must serve a notice of claim on the potential muni defendant NO later than 90 days from the date of accident (this is NOT commencement of action) This gives potential defendant advance warning of the potential lawsuit to enable municipality to engage in early investigation and possible settlement without need for litigation If Plaintiff commences action without prior timely compliance with notice of claim prerequisite, the muni defendant can dismiss on ground of failure to state cause of action o 2) After service of Notice of Claim on Muni Entity, the plaintiff must commence an action against the entity, and the complaint must plead compliance with the notice of claim requirement o Note: If the 90 day period has expired, but time remains on the one year and 90 day SoL, plaintiff may make a motion to serve late notice of claim Court can grant motion if municipality wont be prejudiced, for example, where it had actual knowledge of facts within 90 days of accident E. Products Liability Three Possible Causes of Action which, as a matter of pleading, can all be asserted in the same complaint o 1) Negligence: 3 Year SoL/ runs from date of injury/ applies against all defendants in chain of distribution o 2) Strict Products Liability: 3 Year SoL/ Runs from Date of Injury/ against all defendants o 3) Breach of Warranty (UCC): 4 Year SoL/ Runs when particular defendant against whom warranty was asserted made its delivery of the product (when breach of warranty occurs) Indemnity and Contribution (On Exam, look for a products liability fact pattern) o SoL: 6 years/ Running from date of actual payment of the judgment by named defendant for which indemnity or contribution by other potential tortfeasors is sought Discovery Rule in Cases of Exposure to Toxic Substances o Definitions: Toxic Substance (any inherently harmful toxin that has latent or slowdeveloping effects); Exposure (any sort of assimilation into ones body or property); DES, asbestos, insecticides, HIV-Virus, Leaking Petroleum

o 3 Year SoL o Runs upon the earlier of a) the discovery of the injury OR b) the date the injury should have been discovered with reasonable diligence o Does not apply to dispensation of medicine, that is medical malpractice F. Tolls and Extensions Tolls for Defendants Absence from State of New York o If defendant is NOT in NY when cause of action accrues, S/L does not begin to run until Defendant comes to NY Example: In TX, A (of NY) hires B (of TX) to perform a K in TX. B breaches the K in TX in 2010. B comes to NY in 2015. SoL is tolled until 2015 o If defendant IS in NY when cause of action accrues, but defendant thereafter leaves the state and is continuously absent for at least 4 months, then toll applies to entire period of absence, UNLESS Unless plaintiff has valid basis of personal jurisdiction such that process could be validly served on Defendant outside NY (like Long-Arm Statute) --- NOTE: EXCEPTION USUALLY SWALLOWS RULE AND PLAINTIFF IS RARELY ENTITLED TO ABSENCE TOLL Example: Defendant is visiting NY from home state, and while there, he assaults plaintiff. Defendant returns to his home where he remains. Plaintiff gets no toll based on defendants absence because there would be a long-arm jurisdiction over defendant (commission of tortuous act within NY) Plaintiffs Infancy or Insanity (Legal Disability) o Infants (under 18) or insane plaintiffs may sue within regular SoL through a competent adult representative, BUT they also get benefit of a toll If plaintiff is an infant or insane at the time cause of action accrues, the S/L is tolled until the disability ends Until infant reaches 18 years old Insanity clears up; Insanity = Any mental disorder that causes overall inability to function in society, no need for formal judicial proceeding for appointment o Disability ENDS, how long does Plaintiff have to sue 1) If original SoL was 3+ years, plaintiff gets the longer of: a) 3 years from end of disability; OR b) The time remaining on the statutory period as measured from the original date of accrual Example: Breach of K (SoL=6 years) accrues in favor of 16 year old Harry Potter. When he reaches 18, he will have until he is 22 (3 years (a) is less than the 4 years (6 (18-16))) 2) If original SoL was <3 years: When the disability ends, the plaintiff will get the statutory date measured from when the disability ends Example: 12 year old Harry was assaulted by Voldemort. When he reaches 18, he will have 1 year (assault has a 1 year SoL) o Outside limit of 10 years for Commencement of action in 2 situations INFANCY: When relying on the toll for infancy, a claim for medical malpractice must be commenced NO LATER THAN 10 years from date of accrual

Example: A 3-year-old infant is injured by med mal on 1/1/2010. Claim against doctor becomes time barred Jan. 10, 2010 INSANE: Regardless of nature of cause of action, claims of insane are time barred after 10 years from date of accrual, when relying on toll for insanity CAVEAT: In medical malpractice, the continuous treatment toll and infancy toll are separate tolls. Do NOT add tolls together when computer SoL. If both tolls are applicable, run each separately and determine if the action is timely under either toll Example: Assume Doctor commits medmal on 3 year old Jordan on 1/1/00, and continued to treat him for the same condition until 1/10/12. Bartholomews action is timely up thru 7/1/14. Under the infancy toll, the action expired in 1/10. But the continuous treatment toll operates independently to give any eligible patient, including an infant, up to 2/5 years from termination of treatment Tolls for Death o Potential Plaintiffs: Distinguish survival claim from wrongful death claim (may be asserted in the same action) Survival Claim: Cause of action plaintiff herself could have brought if she were still alive; not limited to torts, and recoverable damages include all damages incurred by plaintiff prior to death, like pain and suffering Wrongful Death: Cause of action in tort for pecuniary (economic) damages of decedents statutory distributes (e.g., surviving spouse, children); punitive damages are also recoverable but not emotional suffering of the distributes or the decedents personal pain and suffering; brought by executor o SoL: 1) Survival Claim: If plaintiff dies before S/L expires, the estate representative gets the time remaining on the S/L or 1 year from plaintiffs death to commence a survival action, whichever is longer Example: Auto accident on 6/1/08, in which Lady Gaga negligently caused Papa Razzis death on 5/1/11. The last date of an action for Papas pain and suffering: May 1, 2012, one year extension from death 2) Wrongful Death: 2 years from the date of death; but it must also be shown that decedent possessed a timely cause of action at the time of death Example: Same facts as above. 5/1/13 Interest accrues on wrongful death awards at 9% interest per annum from date of death o Potential Defendants: If potential defendant dies AT ANY TIME before SoL expires, 18 months are always added to relevant limitations period (regardless of whether plaintiff needs extra time); action against estate EXTENSION: 6- Month Grace Period o If a NY action is timely commenced, but is thereafter dismissed before trial, AND at the time of dismissal, the SoL has either expired or has less than 6 months remaining, plaintiff gets 6 months from date of dismissal to re-file the same action and serve process on same defendant Example: Father commences a timely action in name of his deceased child, but father failed to obtain necessary letter of administration appointing him representative of the estate. Action dismissed for lack of capacity, and S/L has

expired. Within 6 months of dismissal, plaintiff can cure capacity defect and sue again. o 4 Types of Prior Dismissals to which 6-Month Grade Period does NOT apply 1) Dismissal on the merits 2) Voluntary Discontinuance by Plaintiff 3) Based on plaintiffs neglect to prosecute, consisting of a general pattern of delay 4) If its a dismissal based on lack of personal jurisdiction (Improper service, bad summons, out of state with no long-arm) Dismissal because of subject matter jurisdiction (diversity citizenship) still entitles plaintiff to 6-month G. The Borrowing Statute Purpose: To prevent forum shopping by non-residents looking for a longer SoL If Cause of Action arises out of NY, choice of law issue if SoLs are different: o For non-resident P, when out of state claim arose: If SoL is shorter than that of NY, NY will apply SoL where claim arose If SoL is longer than that of NY, NY will apply its own SoL o For resident P, when out of state claim arose: NY will always apply NY SoL regardless of whether NY SoL was longer or shorter than the place where the claim arose

IV. JURISDICTION OVER THE PARTICULAR CASE A. Overview In addition to SMJ, 3 additional jurisdictional elements must be satisfied in order for a court to render a valid judgment (one which can be enforced in NY and entitled to full faith and credit) o 1) Proper commencement of the action o 2) Proper service of process on the defendant o 3) Proper basis of jurisdiction over the person or property involved in the action B. Commencement Procedures FIRST, Action is commenced by Filing Process with the County Clerk (clerk of the court) o Process means either 1) Summons and Notice or 2) Summons and Complaint o Filing must be accompanied by payment of a fee for the PURCHASE OF AN INDEX NUMBER SECOND, service of process on the Defendants Filing of process is valid commencement, provided process is thereafter served on defendant within 120 days from the filing with the County Clerk o If plaintiff has trouble serving defendant within 120 day period, the court has the discretion, upon plaintiffs motion, to extend the time to make service IF PLAINTIFF CAN SHOW EITHER to warrant extension: Good Cause (diligence) Interests of Justice (subjective opinion of the judge) o If Defendant wants to challenge plaintiffs untimely service of process, defendant must preserve defense and make motion. If defendant fails to raise, it is waived Note: If plaintiff makes a mistake in the filing procedure, such as service process before the filing of such process, or failing to purchase an index number, court has discretion, upon plaintiffs motion, to permit correction of the mistake; PROVIDED THAT defendant suffers no prejudice, filing occurs within the SoL, and the filing fee is paid C. Form of Process Summons and Complaint

o Summons: Advises defendant that plaintiff is suing Defendant in a particular court o Complaint: Plaintiffs pleading, specifying the transaction or occurrence that is subject matter of the action and spells out the essential elements of plaintiffs cause of action Summons with Notice o Summons: See Above o Notice: Summons must have sufficient notice inscribed on the face of the summons OR a one-page attachment; CONSISTING OF: 1) a brief statement of nature of the action (This is a breach of K action) 2) Type of Relief being sought (injunction, declaratory judgment, etc) 3) If plaintiff is seeking damages, specify amount of damages being sought EXCEPT, In a personal injury or wrongful death action, neither the notice nor the complaint may specify amount of damages sought (Tort Reform) If plaintiff commences action with a naked summons/ naked complaint or notice, i.e., unaccompanied by either a complaint or notice, that is a defect in personal jurisdiction; an action subject to dismissal for that reason alone (provided defendant made timely objection) D. Methods of Serving Process (Was Defendant Duly Served?) Basic Points: o Process may be served by any person who is at least 18 years old, provided the person is not party to the action (plaintiff cant but lawyer/spouse can) o Process may be served on any day of the week except: Sunday If defendant is a Saturday-Sabbath observer, and plaintiff knows it, plaintiff may not properly serve that particular defendant on Saturday. Innocent service is NOT a defect Holidays OK so long as they dont fall on a Sunday o Actual Notice is irrelevant to a determination of whether there has been proper service of process/ To be valid, statutory methods MUST be followed Natural Persons- Traditional Methods o 1) Personal Delivery to Defendant: Complete when Process Server tenders summons directly to defendant (Defendants response time begins to run from date service is complete) If defendant refuses to accept delivery of process, process can be left in immediate vicinity Note: Delivery to someone, like Defendants son, who in turn delivers to Defendant is NOT Personal Delivery (subject to dismissal) o 2) Leave and Mail: Process Server may deliver process to person of suitable age and discretion at Defendants actual dwelling place or actual place of business PLUS mail a copy by regular mail to Defendant at Defendants actual place of business or his last known residence Note: Two step process must be performed within 20 days of each other, and both steps must take place within 120 days from filing process Does NOT matter which step occurs first so long as they occur within 20 days of each other Mailing to and delivery at do NOT need to be same location Certified Mail not necessary Person of Suitable Age and Discretion: Teenager and above If suit is against more than 1 person, each must be served with own set of process

o o

REVIEW: Four Step Process- (1) Guard is of suitable age/discretion (2) Delivery at actual dwelling, Lobby of apartment building enough; (3) Mailing took place within 20 days, (4) Copies for all named defendants 3) Affixing and Mailing (Nail and Mail): No nails, rubber bands/tape Process serve may AFFIX process to the door of Defendants actual dwelling place or actual place of business PLUS mail a copy by regular mail to Defendant at Defendants actual place of business or last known residence Affixing and mailing must be performed within 20 days of each other, and 120 days from filing process NOTE: Process server must first exercise due diligence by (1) making an attempt to serve defendant directly OR (2) to leave process with a person of suitable age at the home or place of business 1 Attempt is not enough; requires several attempts on different days of the week at different times of day Note on Filing Proof of Service/ Affadavit of Service For Leave and Mail and Affix and Mail, Proof of Service must be filed after the two service steps have been performed Proof of Service: Affadavit by Process Server describing the details of the service, e.g., date, time, place, description of person served, due diligence if relevant Purpose: Necessary step to complete Service (recall Defendants response obligations do not begin until service is complete) Completion 10 days after proof of service is filed NOT a jurisdictional defect to fail to file proof of service; the only consequence is postponing defendants time to respond; does NOT need to take place within 120 day period 4) Expedient Service Court Invented Service: If other methods are impractical Plaintiff may make an ex parte motion to the court for an order allowing an improvised expedient method; requires court order Test: A reasonable alternative appropriate in the circumstances (to insurer, family member or business associate, email) 5) Agent Specifically Designated by Defendant to Receive Process (party expressly specifies agent upon whom process may be served) 6) Service on Infants and Mentally Incapacitated: Service on: Parent, Guardian, Any person having legal custody, OR if the infant is married, upon an adult spouse with whom an infant resides If Infant is 14 or older, service on eligible adult (above) AND the infant If Mental for Whom Court has appointed a guardian, process must be served on the guardian AND the incapacitated person; If NO guardian, serve incapitated person as any other defendant and court will later appoint a guardian ad litem 7) Service Outside NY (BAR LOVESSSSSSS THIS) Same methods used to serve Defendant within NY are used when located outside New York Who May Serve? Any NY Resident 18 or older Anyone authorized to serve process by laws of jurisdiction where service is made Any attorney licensed in jurisdiction where service is made

Example: In a NY Case assume Defendant, 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? YES: New York methods are controlling, so affix and mail okay, and 17 year old server of process is permissible Service on Corporations Two Traditional Methods o 1) Personal Delivery: any one of the following corporate representatives anywhere in the US: 1) Officer of the corporation 2) Director 3) Designated Agent 4) Managing Agent (Corporate Employee with supervisory Role) o 2) Service on the NY Secretary of State For a domestic corporation (incorporated in NY), OR a foreign corporation (incorporated outside NY) authorized to do business in NY: Personally deliver TWO COPIES OF PROCESS to NY Secretary of State (Secretary, designated agent as per certificate of incorporation, will mail one copy by certified mail to corporate at the address on file in Secretarys office.) Service of Process is complete upon delivery of process by Secretary regardless of when corporation receives it For an unlicensed foreign corporation, personally deliver 1 copy to the NY Secretary of State PLUS plaintiff mails one copy to the corporation by certified mail, return receipt requested o **Leave and Mail Method NOT valid for service on Corporations Non Traditional Methods: Service by First-Class Mail PLUS Acknowledgment o Mail process to Defendant by First-class mail, enclosing (1) two copies of Statutory Acknowledgment Form, (2) Return Envelope, (3) Postage Prepaid, (4) Addressed to Sender o Service is effective ONLY if Defendant signs and returns one of the acknowledgment forms to Plaintiff within 30 days AFTER defendant receives the mailed process If defendant does not return the acknowledgement form, Service is NOT effective, so use traditional methodBUT defendant must pay plaintiffs 2nd service of process expenses Service is Complete upon Defendants posting of the signed form o Service by First-Class Mail Plus Acknowledgment may be used regardless of whether defendant is within or outside NY o Available to all types of defendants EXCEPT infants/mentally incapacitated persons for whom guardians have been appointed (only traditional for these) o If Defendant returns acknowledgment form, this is NOT a concession that the court has jurisdiction E. Basis of Jurisdiction over Defendants Person Personal Jurisdiction enables a judgment for money damages to be enforced in full o General Jurisdiction (Does NOT matter where claim arose) Defendants Presence in NY SCOTUS said good old fashion physical presence in NY is a valid basis for personal jurisdiction, aka Gotcha Jurisdiction Does NOT matter if the defendant is from NJ or the claim arises out of NY

Doing business in NY A domestic corporation is subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world the claim arose A foreign corporation that has become authorized to do business in NY, ie the licensed corporation On BAR: Watch out for Unlicensed Foreign Corporation Present in NY if doing business there TEST: Are the corporations employees or agents in NY engaging in commercial activity for the corporation on a regular, systematic, and ongoing basis? FACTORS TO CONSIDER: Offices or other physical facilities with employees coming and going on a continuing basis Transient presence of corporate officer in NY does not make corporation present, EVEN if the officer is served with process in NY (no gotcha jurisdiction) Mere sales of corporations products in NY not doing business Mere advertising does not constitute business NOT NECESSARY that the claim arose from corporations NY business = doing business is a form of presence so it is a form of general personal jurisdiction Note: Satisfaction of doing business is usually only necessary if the cause of action arose outside NY. If the cause of action arose within the state, longarm jurisdiction will probably be available, so no need for doing business Service of Process made ANYWHERE; Doing business gives plaintiff basis of personal jurisdiction Likely can get individuals and partnerships in addition to corporations Domicile in NY A defendant domiciliary of NY can be served with process anywhere in US; Sue in NY for any claim at all regardless of where the claims occurred Distinguish between Domicile and Residence Residence: Place where a person lives for a fair amount of time with some degree of permanency (can have multiple residences) Domiciles: One residence at which a person intends to remain indefinitely and is treated by her as the principal home (can only have one) o Specific Jurisdiction (Claim specifically related to defendants NY Activity or within terms of K) Long Arm Jurisdiction Different from General Jurisdiction: With physical presence, doing business and domicile, it does not matter where the claim arose Basic Concept: CPLR 302 (NYs Long Arm Statute); allows for out-of-state service conferring personal jurisdiction on the basis of certain acts by Defendant that have sufficient connection with NY, provided plaintiffs claim must arise from out of one of five categories of NY-related activity 1) Plaintiffs Claim Arises from a Transaction by Defendant in NY:

 A one day negotiation that leads to a K signing in NY, and workers employment K is for a job in OH is enough for service in OH and personal jurisdiction in NY (note how this is different from doing business standard for general jurisdiction) Same facts as above, except worker did not sign: Still jurisdiction no need for execution of the K, it is sufficient provided the employment K arised out of the negotiations Worker, as employee in OH, injured another in a car accident. NY does not have personal jurisdiction because the claim does not arise out of Employees transaction of business in NY Court of Appeals Case: In some cases, Defendants 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 (projecting himself into NY through multiple electronic communications there was a substantial nexus to the transaction) 2) Plaintiffs Claims Arise from a Contract in which a Defendant Agreed to Supply Goods or Services in NY Contract Must be economically significantly Hypo Repeatedly on Bar Exam: Assume Buyer in MA makes a telephone call to NY Seller to order some goods upon their delivery. NY Seller ships them to MA buyer, who refuses to pay. Does seller have basis for long-arm jurisdiction over Buyer for non-payment action in NY? ANSWER NO! A one shot boiler plate telephone/mail/fax/internet order from an out of state buyer is not enough to qualify as transaction of business in NY/ A promise to pay $$ in New York is not goods or services; Court of Appeals says too minimal 3) Plaintiffs Claims Arise from Defendants Tortious Act (Exclude Defamation): driving negligently on NY roadway, making fraudulent statements during a sales negotiation in NY, converting goods while in NY, or assaulting Plaintiff in NY 4) Plaintiffs Claims Arise from Defendants (a) Tortious Act Outside New York Which Causes Injury In New York (ex: good made in Wisc. That explodes in NY) Injury in NY means injury must originate in NY For a commercial tort: fraud, conversion, trade secrets, NY is the situs of injury only if plaintiff suffers direct financial effects in NY (loss of customers/sales) (b) PLUS there exists an additional link between Defendant and NY (i) D regularly solicits business or engages in persistent course of conduct in NY; or

 (ii) D derives substantial revenue from goods used or consumed, or services rendered in NY; OR (iii) D expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate (MUST also include NY) or international commerce HYPO: Transaction in Boston, NY plaintiff buys a car from R, a retail dealer who advertises only in MA and RI. Car was manufactured by VT company M, whose cars are sold by independent retailers in all 50 states, including 15% in NY. Plaintiffs car blows up. Plaintiff sues M and R in NY, serving process out of state. M: Not doing business in NY, mere sales are not enough, BUT Long Arm Statute The COA arises from tortuous act out of state which caused in jury in NY PLUS (ii) 15% = substantial revenue; could also use (iii) R: NO! Though R is engaging in interstate commerce, none of Rs interstate business efforts are purposely directed toward NY (due process requires) Rule: A physicians medical services, even when provided by a well-known speciailist who attracts out of state patients, are inherently local in nature NO DEFAMATION: must find another basis for personal jurisdiction; Policy reason NY is media capital) 5) Plaintiffs Claim Arises from Ownership, Use or Possession of Real Property Located in NY: CT Def who owns building in NY backs out of sale; slips and falls in CT Defs Building General Points About Long Arm Statute 1) Covers all types of defendants: corporations, individuals, partnerships 2) Acts can be performed by Defendant herself or agent/employee; also subject agent/employee to jurisdiction 3) Even if Defendant dies, decedents estate representative can be served outside NY (Steps into shoes of) 4) Service Process: Plaintiff must use the same methods of service on Defendant outside NY as would be used inside NY (CA 17 Process Server Hypo earlier in outline) ESSAY EXAM ORGANIZATIONS FOR LONG ARM FIRST, DISCUSS BRIEFLY WHETHER PLAINTIFF CAN ESTABLISH JURISDICTION UNDER ANY NON-LONGARM CATEGORIES SECOND, DISCUSS WHETHER FACTS OF PLAINTIFFS CASE FALL WITHIN ONE OR MORE OF THE LONG-ARM CATEGORIES THIRD, BRIEFLY DISCUSS WHETHER THE PARTICULAR ASSERTION WOULD SATISFY CONSTITUTIONAL DUE PROCESS

Due Process Test: DP will be satisfied if claim arises out of conduct of D that is so purposefully directed toward NY that the defendant should reasonably anticipate being sued on that claim in NY Court Non-Resident (Non-Domiciliary) Motorist Statute Confers Personal Jurisdiction over an accident claim arising from a nondomiciliary motorists ownership or use of an auto on a NY roadway/ Can overlap with tortuous act in NY, but has two unique features 1) Service of Process: Plaintiff serves process on Defendant by personally serving one copy to NY Sec. of State and mailing second copy to defendant by certified mail 2) Applies to Vehicle Owner who Gave Permission to Drive In NY: While the Long Arm Statute could get the driver of the car, this specifically allows for jurisdiction over the cars owner if the car was being driven with the owners permission Consent: Parties to a K may consent in advance to personal jurisdiction in NY in a forum selection clause); enforceable in absence of fraud, overreaching, and unreasonableness F. Matrimonial Jurisdiction Proper court for Matrimonial Action is Supreme Court Having a valid basis of Personal Jurisdiction is NOT necessary for matrimonial action o To obtain a divorce, separation, or annulment, all that is necessary is that plaintiff spouse is a domiciliary of NY o The court has in rem jurisdiction over the marriage (In Rem: If plaintiff is domiciled in NY, the marital status is in NY), so plaintiff spouse can serve defendant spouse in another state If plaintiff spouse (NY) seeks monetary support, he must have a basis of personal jurisdiction over Juliet if she cannot be served in NY (no presence or domicile) o Matrimonial Long-Arm Statute: When Plaintiff spouse is a resident of NY, Long Arm Jurisdiction can be acquired over Defendant-spouse for monetary support, IF: 1) NY was the matrimonial domicile of Plaintiff and Defendant prior to separation, OR 2) Defendant abandoned plaintiff in NY, OR 3) Defendants Monetary Obligation accrued under an agreement executed in NY (e.g. separation agreement); OR Defendants monetary obligation accrued under the laws of NY Only proper process serving methods: PERSONAL Delivery; to use alternative methods like deliver-and-mail requires judicial permission in a court order Durational Residency Requirements: o Part of Substance (The merits) and NOT a part of the jurisdiction (subject matter, basis, or otherwise). Purpose is to ensure NY has sufficient marital interest to adjudicate o Statutory Conditions Precedent to a Matrimonial Action: Plaintiffs complain must allege satisfaction of any 1 of 3 durational requirements 1) 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 requirement

2) 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 a) Marriage took place in NY b) New York was the matrimonial domicile of the spouse at some point c) Grounds for Divorce Action Arose in NY 3) Two Year Residency: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 years immediately prior to action o Without Durational Residency Requirement, Proper Defense is Failure to state a Cause of Action (not a lack of jurisdiction, but a defect in the merits) o Note: Durational Requirements do NOT apply in an action solely to enforce monetary support obligation; Only in actions seeking to affect marital status V. VENUE A. Venue If the Supreme Court has acquired jurisdiction, every Supreme Court in the state, regardless of county, would have the power to hear the case, though rules of Venue regulate which is the appropriate county Situs of cause of action is generally irrelevant to determine proper venue Rules for Proper Venue: Plaintiff choose venue and specifies it in the summons in accordance to following rules; o 1) In an action in which the judgment would affect title or POSSESSION OF REAL PROPERTY, proper venue is the County in New York in which the real property is located o 2) In all OTHER ACTIONS: Proper venue is any county in NY in which any one party resides at the time action is commenced If neither party resides in NY, plaintiff may choose any county in New York B. Improper Venue Is Not Jurisdicitional Defect, and Therefore Not a Basis for Dismissal Defendants Remedy for Improper Venue (DEMAND PROCEDURE) o 1) Serve a Demand for Change of Venue to Proper County Designated by Defendant Demand must be served before or with the answer o 2) If Plaintiff consents to Demand, then change of venue to the defendants designated city will be automatic o 3) HOWEVER, if plaintiff objects to the demand or fails to respond, then Defendant will have to make a motion for change of venue Defendants motion must be granted as a matter of right if the Plaintiff chose an improper venue and Defendant selected proper venue in his demand C. Discretionary Grounds for Change of Venue The convenience of a material witness o Either party, by motion, may request change of venue for the convenience of a witness; often where the cause of action arose If there is reason to believe trial will be partial in county where action is commenced, either party may make motion VI. DEFENDANTS RESPONSE A. Response to Summons and Complaint Overview o Defendant can respond to summons and complaint by either:

1) Serve an Answer, a pleading which Defendant admits/denies plaintiffs allegations and sets forth affirmative defenses 2) Make a Pre-Answer Motion to Dismiss The Answer and Other Pleadings o Answer consists of: 1) DENIALS OF ALLEGATIONS Defendant wishes to contest (failure to deny an allegation is an implied admission), and 2) Any AFFIRMATIVE DEFENSES (SoL, Lack of Jurisdiction, Comparative Negligence); If not raised in the answers, Ads are waived (subject only to Defendants possible amendment of the pleading) 3) COUNTERCLAIM: If Defendant wishes assert own cause of action 4) CROSS CLAIMS: Based on ANY TYPE OF CLAIM that Defendant has against other Defendants Example: P sues A and B for personal Injury. A can cross claim B for breach of K o The REPLY is Plaintiffs pleading in response to counterclaim Consists of denials and affirmative defenses Without counterclaim, NO reply without court permission o Parties must serve copies of their pleadings on all other parties who have appeared in the action in multi-party litigation How the Answer and Other Interlocutory Papers are Served o Included: Answer, all other pleadings, motions, discovery notices, etc. o Service: By regular first class mail to ATTORNEYS/ Note Personal Delivery is Not necessary Service of an interlocutory paper by mail is deemed made upon the mailing NOT the 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 the State of New York Time Limits for Serving the Answer o If Defendant was served with process by PERSONAL DELIVERY WITHIN NY STATE: Answer must be delivered within 20 Days o If Defendant was served with process by FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, defendants return of acknowledgment is merely notification of Defendants receipt of process. Therefore, Defendants answer within 20 days of defendants mailing the acknowledgment o IF Defendant was served with process UNDER ANY OTHER CIRCUMSTNACES (personal delivery out of state, affix and mail, delivery and mail), defendant must serve within 30 days after service is complete GROUNDS FOR MOTION TO DISMISS (CPLR 3211) o D.O.W.N.F.A.L.L. DOCUMENTARY EVIDENCE as the basis for defense (legally operative documents mortgage, deed or K that disproves claim) OTHER ACTION PENDING between the same parties on the same cause of action (avoid redundancy) Want of Capacity of Plaintiff Lack of Capacity, like infant is suing without proper representative Non-Joinder of Necessary Party (co-makers of a promissory note)

Failure to State Cause of Action This motion is directed to the substantive insufficiency of the complaint on its face; even if the allegations are true, the substantive law does not recognize a cause of action. Standards used by court in deciding this motion: 1) Plaintiff is entitled every favorable inference drawn from complaint allegations 2) The motion should be denied if there is any basis for relief under substantive law BAR EXAM: Remember the discuss the elements of the underlying cause of action (To dismiss As claim, the court must take all allegations of the Claim as true and determine that ___ has stated no cause of action upon which relief may be granted.) Additional Affirmative (SPARERIBS) Lack of Personal Jurisdiction 1) Improper Commencement Procedure (File with Wrong Clerk) 2) Improper Service of Process 3) Lack of Basis Jurisdiction Lack of Subject Matter Jurisdiction o S.P.A.R.E.R.I.B.S. Statute of Limitations Payment Already Paid Debt Arbitral Award Already Decided in Arbitration Release Estoppel (Collateral Estoppel) Res Judicata (Claim Preclusion) Infancy of Defendant Bankruptcy Discharge Statute of Frauds (Oral Ks) o Procedural Aspects of Pre-Answer Motion to Dismiss The motion to dismiss is made BEFORE service of the answer (on or before the last day of the prescribed time limit for service of the answer) Making the Motion extends Defendants Time to ANSWER. If the motion is denied, Defendant must serve the answer within 10 days Defendant is permitted to make only ONE pre-answer motion, but may do so on multiple grounds Defendant is NOT required to raise his defenses in the motion, you may save them for the Answer Rules on Waiver A motion to dismiss on any 3211 ground does NOT preclude raising any other ground in the Answer EXCEPT lack of personal jurisdiction If Defendant does not Raise AD in Answer, the AD is waived with the only remedy being Amendment THREE DEFENSES ARE NEVER WAIVED Non-joinder of a necessary party Failure to state cause of Action Lack of SMJ

SUMMARY 1) Before serving an answer, make 3211 motion to dismiss for lack of personal jurisdiction OR2) Make no 3211 Motion on Any Ground and instead include lack of personal jurisdiction as an affirmative defense in the answer NOTE: 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 within 60 days after serving the answer This is only for improper service, not basis jurisdiction B. Responses to Summons with Notice No complaint was served so how can you answer? o Defendants Goals: avoid default, and Force Plaintiff to SERVE the Complaint 1) Serve demand for complaint; OR 2) Serve Notice of Appearance Time Limit for Demand/Notice of Appearance o 1) 20 Days (Personal Delivery in NY) o 2) 20 Days from Acknowledgment (Served by 1st Class Mail) o 3) 30 Days After Service is Complete (All other circumstances) Service of a Demand for Complaint and/or a notice of appearance both have the effect of requiring Plaintiff to serve the complaint within 20 days of Defendants service o If Plaintiff Timely serves, Defendant has 20 days from such service to either serve the answer or serve the pre-answer motion to dismiss o If Plaintiff FAILS to meet the 20 day limit to serve, Defendant may move to dismiss based on Plaintiffs Noncompliance To Avoid dismissal: Plaintiff must show 1) a reasonable excuse for delay AND 2) make an evidentiary showing of merit, by submitting an affadavit of merit o After Plaintiff serves the complaint, defendant STILL may object to personal jurisdiction (demand for complaint or notice to appear does not waive PJ can still raise it in preanswer M2D or Answer C. Amendments of Pleadings Each party is entitled to amend her pleading once as a matter of right within 20 days after service of Defendants answer (without the need for judicial permission) to include anything that could have been in the original pleading Defendant may raise an omitted Personal Jurisdiction objection by means of an AMENDMENT OF RIGHT provided that: o Defendant made no pre-answer motion to dismiss (because he would have waived the PJ defense there) o Defendant adds jurisdictional amendment to the answer within 20 days after serving the original answer If the 20 day period has expired, OR the party has already used up its amendment as of right, a MOTION FOR LEAVE TO AMEND o Standard: Amendment is allowed if the opponent will suffer no incurable prejudice Prejudice: A detrimental change of position as a result of the delay Examples: Loss of Evidence, death of key witness o A party opposing a motion to amend can also demonstrate that the proposed amendment has no merit (cause of action does not lie under substantive law)

VII. THIRD PARTY PRACTICE, CONTRIBUTION, & INDEMNIFICATION A. Impleader Impleader: A procedural device used by defendant to join another party alleged to be liable in whole or in part to Defendant for damages that Defendant may have to pay Plaintiff o Usually for Indemnity or Contribution Reimbursement arising out of the same transaction or occurrence as Plaintiffs cause of action o Enables Defendant to join the other party as third-party defendant, and Defendant becomes Third-Party Plaintiff Mechanics: o Defendant does not need a court order (no motion) o Impleader at any time after defendant serves the answer to the complaint o STEPS: 1) FILE: Defendant files Summons and 3rd Party Complaint 2) SERVE: Within 120 days of the filing, Defendant serves a copy of the summons and 3rd Party Complaint on the Third Party Defendant (must have basis of jurisdiction for Third Party Defendant) NOTE: Plaintiff and all other parties to action is also entitled to a copy of all papers served on TPD o TIME FOR ANSWER: 20 (personal delivery/first class) -30 Days (all other) depending on where and how TPD was served with process o After TPD is joined, Plaintiff may amend her complaint to assert a claim directly against TPD Within 20 days, no need for Judicial Permission After 20 days, Judicial Permission to join TPD as defendant to action WHAT ABOUT S/L then? RELATION BACK DOCTRINE: For S/L Purposes, Plaintiffs cliam against a TPD will be deemed interposed on the date TPD was impleaded, provided that 1) The same transaction or occurrence as the impleader claim 2) Defendants claim against TPD would have been timely on the date of the impleader NOTE: There is no prejudice to the TPD, who received notice, within S/L, of a possible claim by Plaintiff (the impleader serves as notice) B. Indemnity This allows one party to shift 100% of the responsibility to another party o 1) By K: In a construction contract, subcontractor may agree to indemnify general contractor for any losses that contractor has to pay as a result of subcontractors inadequate performance o 2) Implied in Law Indemnity (COMMON ON THE BAR) Products Liability: Retailer held liable for selling defective product is entitled to indemnity from manufacturer Vicarious Liability Situations: Owner of car who pays victim as result of vicarious liability is entitled to indemnity from driver C. Contribution Contribution involves sharing of loss among multiple tortfeasors who are all ACTUAL participants in the tort (to mitigate harshness of Joint and Several Liability)

o J/S Liability: One of the tortfeasors could be compelled to pay the entire judgment against all the tortfeasors Multistate prohibits contribution when liability is based on intentional wrongdoing (only negligence), while NY permits contribution in all Tort To Assert Claims for Contribution/Indemnity: o 1) If Plaintiff originally joined the tortfeasors as co-Defendants, they can assert crossclaims against each other o 2) If Plaintiff omits a tortfeasor, a defendant can implead the outsider as TPD o 3) Tortfeasor may sue TPD in separate action This is MOST inefficient and uncertain: No finds of fact and percentage of fault in action 1 are binding on the tortfeasors in Issue 2 A party cannot assert collateral estoppel (issue preclusion) against a party who has not had her day in court Equal Shares Formula of Contribution (MINORITY VIEW): The contribution shares are always equal in amount (regardless of percentage of fault) Comparative Degrees of Fault o Multistate/NY Formula: The amount of contribution to which a tortfeasor is entitled is Total less his actual percentage of fault o A party from whom contribution is sought cannot be required to pay more than her equitable share (even if the other contributing party is insolvent) o The rules of contribution do not change plaintiffs right to impose joint and several liability on any one of the defendants (even if all other tortfeasors are insolvent) Substantive Law Rule for Contribution o Right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which defendant may be held liable to plaintiff o Defendant may seek contribution from TPD even if injured plaintiff has no right of recovery against TPD HYPO: Plaintiff a building owner, installed a fire alarm manufactured by A. P entered into a written K with B for fire monitoring services. K limited Bs liability to gross negligence thru an exculpatory clause. Fire that B negligently responded to too late. Plaintiff sues A for products liability and A impleads B for contribution based on Bs negligence. Answer: B can be impleaded because Bs negligence aggravated the damages for which A can be held liable to the plaintiff; clause does NOT preclude contribution liability o LIMITATION ON CONTRIBUTION (AND INDEMNITY) IN Workers Comp: To minimize contribution and indemnity liability of employers Because of Workers Comp Law, an employee injured on the job cannot sue employer; rather tradeoff is employees get fixe comp from employer insurance Though Third Party can sue a third party who is partially at fault or accident, e.g., a manufacturer of a product that the employe was using, the third party is barred from seeking contribution or indemnity from the Plaintiffs Employer, UNLESS plaintiff, the injured employee, sustained a grave injury Grave Injury: death, total loss of arm, leg, hand, foot, nose, ear or index finger, total loss of multiple fingers and toes, paraplegia or quadriplegia, severe facial disfigurement, deafness or blindess, or brain damage causing total disability Court of Appeals applies strict construction to grave injury categories

Whereas in NY there is a grave injuries distinction, on the multistate, the 3rd party NEVER has a right of contribution o Contribution in Cases Involving Successive Tortfeasors Even if you are outside the S/L for the underlying tort, look who is asserting the claim against the successive tortfeasor; if it is the defendant, the defendant has a SIX YEAR S/L for contribution that runs from the date of payment of judgment for which contribution is sought D. Settlements in Cases Involving Multiple Tortfeasors (NY Rules) A plaintiffs pretrial release in partial satisfaction of claim does NOT discharge claim against the other tortfeasors (A v. B/C/D, settles with B, A still has claims against C/D) The law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have to be reduced to take account of the settlement o The Reduction Formula: Any judgment for Plaintiff against a non-settling tortfeasor must be reduced by EITHER: (1) The amount of the settlement; OR (2) The settling tortfeasors equitable share of the fault, WHICHEVER is larger Effect of Settlement on Contribution Claims: A party who settles cannot sue or be sued for contribution, even if the amount settled for is greater or less than the actual percentage of fault Effect of Settlement on Indemnity Claims: A party who settles can sue, and be sued, for Indemnity o Hypo: Js car being driven by Pauly. Mike sues J alone, asserting Js vicarious liability for Ps driving. J settles with M. J can file a claim for indemnity against P. E. CPLR 16 Subject to certain exclusions in a personal injury claim: When a joint tortfeasor is: o 1) 50% or less at fault AND o 2) Plaintiff has sustained non-economic damages, THEN The joint tortfeasor can only be required to pay her own share of the plaintiffs NON-ECONOMIC DAMAGES Non-economic: 1) pain and suffering; 2) mental anguish; 3) loss of consortium Therefore, any defendant found 51% or more liable, he will be jointly and severally Article 16 does not apply to wrongful death, medical expenses, property damage; it applies to personal injury EXCLUSIONS from Article 16 o Tortfeasors are subject to full and several liability for all damages if they acted with intent and reckless disregard for the safety of the others There could be a case, intruder who assaults (intent) vs. landlord who negligently failed to provide security, where some acted intentionally (no 16) and others acted negligently (yes 16) Releasing hazardous substance into the environment o DRIVERS and OWNERS of MOTOR VEHICLES OTHER THAN POLICE and FIRE VEHICLES If you are the driver or owner of a vehicle, even if negligent tort, you will be eligible for full J/S Liability, UNLESS You are driving a police car or fire truck

VIII. MOTION PROCEDURE

Motion: An application for an order of the court (a request for some type of preliminary or incidental relief); motions to dismiss, to change venue, for leave to amend, to comply with a discovery request A. Motions on Notice What papers are served on the other party? (first two are mandatory, third optional) o 1) Notice of Motion: paper advising adversary of nature of motion, specifying the return date o 2) Affadavit of Facts: Shows courts why motion should be granted o 3) Memorandum of Law (Optional): Setting forth satisfaction of legal requirements Motions are made when the motion papers are served on the other party o If the motions are sent by mail, motion is made when the papers are dropped in the mailbox (mailbox rule) Return Date: The day upon which the motion papers are presented to the court; also known as the hearing date Advance Notice: The moving party must serve the motions papers on the opponent at least 8 days before the return date All motion papers, those of the moving party AND the opponent, must be fild with the court no later than the return date. The court begins the decision making process on the return date B. Order to Show Cause A preliminary order, alternative way to make a Motion on Notice o 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 o The judge giving notice of motion, rather than the party Three Reasons for Moving by Order to Show Cause o 1) Accelerating the Return Date = exigent circumstances make the usual 8-day advance notice too long to wait for judicial assistance; judge can specify an earlier return date than the 8 day minimum o 2) Temporary Restraining Order/Immediate Stay o 3) Statute Requires you to make an order to show cause Procedure o 1) Moving Party drafts the Order to Show Cause and Underlying Affadavits and submits it directly to judge o 2) Judge will set return date in the order and specify method of service on adversary (usually personal delivery) o 3) After OTSC is signed, the order and underlying motion papers are served on opponent o 4) Opponent then has to submit opposition papers on the return date C. The Deciding Order Following Return Date, Courts Decision must be embodied in WRITTEN ORDER signed by the court o Order must be entered with the Court Clerk, and it will specify that it was entered on a certain date The prevailing party (whether moving or not) serves a copy of order on the losing party with notice of entry on the order o Even if the court provides a copy of the order, the prevailing party still must serve copies Two Effects of Service of the Copy of the Order o 1) Service of the Order is necessary to give effect to the order o 2) Service of the order starts running of a 30-day time limit to appeal from the order

Appeals of Orders from Motions on Notice o A party can appeal from most interlocutory orders (interlocutory an order that awards some relief but does not finally determine all matters in controversy in that action) o To appeal, party must file AND SERVE a notice of appeal within 30 days from service of the order or judgment, with notice of entry Not required to appeal within 30 days, the losing party can wait until after the action has concluded (this is the federal law) D. Ex Parte Motion A motion in which no advance notice is given to the adversary; moving party goes straight to court with the motion papers and requests and order granting the relief sought Circumstances for Ex Parte Motion are rare and are only permitted with express statutory authorization expedient service of process, request for extension of time to serve process; other provisional remedies Remedies for Aggrieved Party: o No appeal Remedy o Make a motion on notice to vacate the ex-parte order, and if this is denied, THEN the aggrieved party can appeal the denial

IX. MOTION FOR SUMMARY JUDGMENT A. Purpose/Procedure Even if the pleadings may be sufficient on their face, there is NO genuine issue of fact that requires a trial; reasonable persons cannot differ, so she is entitled to judgment as a matter of law BAR TIP: When discussing a summary judgment motion, make sure to discuss the elements of the underlying cause of action (whether they are met) Parties generally cannot move for summary judgment prior to SERVICE of DEFENDANTS ANSWER (First time you can make summary judgment) The latest point for summary judgment: 120 days form the filing of the note of issue (device that places the case on the courts calendar) o Exception: Motion may be permitted after expiration of the 120 days from filing the note of issue IF MOVING PARTY SHOWS GOOD CAUSE (procedural excuse, the merit of the motion itself does not qualify) SCOPE OF SUMMARY JUDGMENT o Defendant can move on any or all of the defenses raised in the answer OR can move on the grounds that Plaintiffs claims are based upon o Plaintiff can do the same, just the opposite Evidentiary Showing o Moving party and opponents must submit evidence: affadavits, relevant documents and deposition materials Affadavits must be submitted by persons with actual knowledge of the facts (parties themselves or eye witnesses Opponents cannot simply rely on pleadings o If opponent cannot establish with affadvait that he is not yet able, through no fault of his own, to produce opposing evidence, the court can either deny the motion or grant a continuance to permit additional evidence be obtains BURDEN: o Moving party must produce PROOF that establishes she is entitled to judgment as a matter of law; REASONABLE MINDS COULD NOT DIFFER o Opponent: Presenting contrary envidence showing that a triable issue of fact does exist

Searching the record: MSJ searches the record, meaning the court reviews all of the evidence in the record, regardless of which side submitted it, and if the court condlues that the opponent, rather than the moving party is entitled to summary judgment on an issue addressed by the parties, the court may grant SJ to the opponent EVEN IF the opponent to did not make a cross-motion for such relief (boomerang effect) If Summary Judgment is granted as to the merits, and the only remaining issue of fact concerns damages, court can grant partial summary judgment and grant trial on issue of damages B. Pre-Answer Motions for Summary Judgment (TWO TYPES) 1) Conversion of Motion to Dismiss: Defendants pre-answer motion to dismiss for failure to state a claim can be CONVERTED BY THE COURT into SJ, allowing for decision on basis of evidence o Prerequisites: 1) At least 1 of the parties has submitted factual affadavits in connection with M2D 2) Court must give notice to parties for conversion to SJ, so the parties have the opportunity to submit additional evidence 2) Motion for Summary Judgment in Lieu of Complaint (Policy Based on docs that are prima facie valid when supported by affadavits of noncompliance) o Moving for summary judgment at the same time she serves process, process PLUS motion papers for SJ o Two Types of Actions 1) Action on an instrument that contains defendants unconditional promise for payment of money only (e.g. promissory note) 2) An action to sue on an out-of-state judgment o Procedure 1) File Process with the Court 2) Plaintiff must serve on Defendant, with the summons, a notice of motion for Summary Judgment with supporting Documentation and Affadavits Motion must specify return date 3) Advance notice must be equivalent to the time limit for defendants appearance in the Action Personal Delivery: 20 days Other: 30 Days after service is COMPLETE

X. PROVISIONAL REMEDIES A. Overview Provisional remedies provide security to the plaintiff for the ultimate enforcement of the potential judgment FIVE REMEDIES o 1) Attachment o 2) Preliminary Injunction o 3) Temporary Receivership o 4) Order to Seize Chattel In Replevin Action (Recover Chattel) o 5) Notice of Pendency (Lis Pendens) Court order always required for provisional remedies, EXCEPT Notice of Pendency If Plaintiff can show grounds for more than one provisional remedy, the court has discretion to require plaintiff to elect between those remedies to which she would otherwise be entitled C. Attachment

Purpose: Provides security for the enforcement of a money judgment; you dont want to give the money to plaintiff right away, but puts money in place just in case Types of Property: Attachment to tangible property (car, boat) OR intangible property like a debt owed to the defendant (bank account) o Third Party Who Holds Defendants Property, e.g. a Bank or creditor, is called a Garnishee TYPES OF ACTIONS: PLAINTIFF MUST BE SEEKING MONEY DAMAGES!! (OK to join other claims seeking equitable relief), AND o 1) Defendant is an unlicensed foreign corporation; OR o 2) Defendant is a non-domiciliary residing outside NY; OR o 3) Defendant is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a Judgment Intent to frustrate the action is enough Procedure o MOTION (1) Plaintiff submits affidavits showing that Attachment applies in this case; (2) Plaintiff must show probability of success on the merits of underlying cause of action; (3) Must provide an undertaking to indemnify defendant for any damages or expenses caused by the attachment (bonds) Defendant is entitled to damages IF: 1) It turns out attachment is made by improper procedure; 2) defendant wins on the merits (2) Motion can be made on notice or ex parte (most common because you dont want to tip off opponent) DUE PROCESS REQUIREMENTS IF EX PARTE Defendant have the opportunity for a prompt hearing after levy, prompt opportunity to contest o Plaintiff obtains order of attachment from the court o Sheriff Levies upon Defendants property, which imposes a lien on the property pending outcome (a freeze on the property) Sheriff files order of attachment with the County Court of the County in NY which the real property is located Sheriff delivers the order of attachment to the person in NY who is holding the persons personal property interest (could be defendant or garnishee) Delivery imposes the lien and serves as an injunction on transfer pending outcome o After Sheriff levies, Plaintiff must make follow up motion on notice to confirm the exparte order (MUST BE MADE BY ORDER TO SHOW CAUSE FOR EXPEDITED RETURN DATE, as due process requires) TIME LIMITS within motion to confirm If Defendant is unlicensed foreign corporation or non-domiciliaryno later than 10 days after levy If defendant is fraudulently moving assetsno later than 5 days after the levy o In all, Plaintiff gains a security interest in the property that is superior to subsequent lien holders D. Preliminary Injunction A preliminary injunction Maintain status quo while an equity action is pending SCOPE: An EQUITY ACTION (e.g. rescission) in which Plaintifffs complaint seeks EITHER: o 1) A permanent injunction; OR

o 2) A showing Defendant threatens to harm plaintiffs interest in subject matter of the action NOTE: An action that seeks solely money damages will NOT support a preliminary injunction o E.g.: Plaintiff sues defendant for nonpayment of an 80k debt. Prior to judgment plaintiff CANNOT ENJOIN Defendant from transferring assets or spending money; Plaintiffs only possible remedy in purely money action is attachment PROCEDURE: Requirements for Motiono (1) Plantiffs affidavits must show grounds for equitable remedy including THREAT OF irreparable INJURY o (2) Probability of success on the merits of underlying COA o (3) Plaintiff must provide an undertaking ot indemnify defendant for damages IF later determine that the preliminary injunction should not have been granted TEMPORARY RESTRAINING ORDER o In a case involving a threat of immediate injury, a party may ask the Court to grant a TRO ex parte with purpose to maintain the status quo until motion for preliminary injunction is decided (it fills the time gap) ANY ex parte application for a TRO must contain an affidavit demonstrating there will be significant prejudice to the party seeking TRO if notice is provided to the adversary o Party obtains a TRO by making a motion for preliminary injunction by Order to Show Cause (which remember schedules an early return date) for preliminary injunction motion o Within the Order, the Judge can include a TRO If the OTSC with a TRO is served on the defendant, she will be immediately enjoined pending resolution of the motion for preliminary injunction (satisfying due process) RECAP: o (1) Plaintiff commences an action seeking equitable relief o (2) Plaintiff moves (by order to show cause) for a preliminary injunction to maintain status quo until overall action is resolved o In order to show cause, plaintiff requests TRO to obtain immediate injunctive relief pending the outcome for preliminary injunction motion E. Temporary Receivership Temporary Receiver: person appointed by Court to manage property in defendants possession Scope: o 1) Plaintiff must be asserting an equity claim in which specific property is subject matter of the action AND o 2) There is a danger that defendant will injure or destroy property value while the action is pending o NOTE: IF THE ACTION IS SEEKING SOLELY MONEY DAMAGES, TEMPORARY RECEIVERSHIP IS NOT AVAILABLE Example: Cs action against T to rescind sale of her corporate stock to T. If T threatens to squander the corporations assets while the action is pending, C has sufficient grounds for a receiver equity claim (rescission), seeking her stock which is the subject matter of the suit, and there is a danger that defendant will sell or squander Procedure: o The appointment of temporary receiver requires the making of a motion on Notice F. Seizure of a Chattel (Piece of Personal Property)

Available for REPLEVIN: an action that seeks to recover chattel (laptops, cars, horses, pieces of personal property) Function: To ensure enforcement of a judgment awarding possession of the chattel to Plaintiff Procedure o Motion made on Notice or Ex Parte. If EX PARTE, 1) Must show threat of immediate loss of chattel 2) If the court grants ex parte order of seizure, plaintiff must make follow Motion on Notice within 5 days of seizure to confirm ex-parte order o Requirements of the Motion Plaintiffs affidavits show a probability of success on the merits of the underlying claim; AND Plaintiff must make an undertaking/bond to indemnify defendant for wrongful seizure o The Sheriff, who seizes the chattel, is lost or destroyed while action is pneidng, the judgment will be limited to MONETARY value of the chattel G. Notice of Pendency (Lis Pendens) Available FOR: Equity Action (rescission, specific performance, ejecment) in which judgment will have a DIRECT EFFECT on title, possession, or use of real property o In a mortgage foreclosure, the filing of a notice of pendency is statutorily required Effect: The filing of 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 Plaintiff Procedure: o Plaintiff files a notice of pendency with the County Clerk of the County in NY in which the real property is located (GIVES RECORD OF PENDENCY OF PLAINTIFFS ACTION) Does NOT require a court order: ONLY provisional remedy without a court order NO need to file a bond Remedy for Opponent: If Notice is filed improperly, defendant can motion to cancel the notice of pendency o Notice of Pendency is canceled if the plaintiff fails to serve the summons and complaint within 30 days after the notice of pendency is granted Duration of Notice of Pendency: o Effective 3 years after filing o Plaintiff can move for a 3-year extension of a notice of pendency, but MUST make the motion for extension prior to the expiration of the original three year period o IF Plaintiff fails to obtain an extension prior to expiration: A) The notice of pendency becomes void and has no further effect AND B) Plaintiff cannot obtain another notice of pendency on the same property for the same cause of action EXCEPTIn a mortgage foreclosure action, the court may grant a motion for a new notice of pendency even with expiration

XI. TRIAL PROCEDURES AND RES JUDICATA Note of Issue: Either party may file a note of issue which tells the court, the case is ready for trial, AND file and service of copies to all other parties o To obtain a jury trail: FILING PARTY: party should make a demand for a jury trial in the note of issue; no demand constitutes waiver

OTHER PARTY: Other party can file their own separate demand for jury; otherwise waiver Right to Trial By Jury o 1) Action seeking solely money damages o 2) Replevin o 3) Claim to Real Property o 4) Annulment of the Marriage o 5) In a divorce action, the right to jury trial on the issue of GROUNDS for divorce (not money support or child custody) Civil Jury consists of 6, and verdicts require 5/6 vote Res Judicata and Collateral Estoppel o Res Judicata (Claim Preclusion): To avoid and prevent relitigation of the same claim NY uses the transactional approach to Claim Preclusion: 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 Even if the other claims are based on different theories or seek different remedies POLICY EXCEPTION: Matrimonial Disputes Based on Domestic Abuse Transaction Approach does not apply E.g., separate divorce and personal injury tort action against spouses, even if it evolves from the same transaction Dont want to bog down divorce with a personal injury claim because it will slow things down to much o Collateral Estoppel (Issue Preclusion): Avoid and prevent the need for re-litigation of specific fact issues, decided in the prior proceeding upon a 3 part showing 1) Issue in former and current proceeding is identical 2) Issue actually litigated and decided in former proceeding 3) ************Party against whom issue preclusion is asserted had a full and fair opportunity to litigate in the former proceeding (Due Process, day in court is satisfied Defendant to an action with two separate plaintiffs in separate actions but same transaction will be collaterally estopped That separate plaintiff to the second action wont be estopped

XII. SPECIAL PROCEEDINGS Overview o A speedy, streamlined procedure, akin to motion practice, to obtain a judgment as a final resolution of a dispute E.g., probate of a will, election disputes, summary proceedings by a landlord for eviction, dissolution of corporation, enforcement of an arbitration agreement, CPLR Article 78 Proceeding Requires SPECIFIC statutory authorization o If a party mistakenly sues by way of a special proceeding, the court has the authority to convert the special proceeding into an action; and vice versa Procedure

o 1) To commence a special proceeding, the Petitioner files the petion, and the act of the filing is commencement o 2) Next, the petition and notice of petition must be served on the RESPONDENT (person from whom relief is sought) by using same methods used to serve process in an action (personal delivery, deliver and mail, nail and mail, first class) o 3) The notice of petition advices the respondent to serve an answer and to appear on the specified return date for the hearing Return date can be no sooner than 8 days from the service of process, EXCEPT With article 78 Proceedings, the return date can be no sooner than 20 days (special rule to protect the govt) If the petitioner needs an accelerated retrun date, the petition can expedite by initiating an order to show cause o 4) 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 Dispute is decided like Summary judgment: on affadavits and pleading XIII. ARBITRATION AND OTHER FORMS OF ADR Overview of Arbitration o A private procedure, based on K, for the binding resolution of disputes o Two parties may agree to submit any existing or future dispute to arbitration, through arbitration clauses o Arbitrators are NOT bound by the substantive law or the rules of evidence and the scope of judicial review is very narrow Judicial Gatekeeping o If one party resists arbitration, the courts may be called to decide certain threshold issues as to whether the arbitration should proceed Public Policy of NY FAVORS Arbitration: The courts are guided by this principle when deciding whether particular disputes are arbitrable Threshold Issues Presented to Court to Avoid Arbirtation o 1) Did the parties agree to Arbitrate? Must be in writing, though not signed Must be clear, express, and unequivocal o 2) Is it a dispute within the scope of the arbitration clause? Typically very broad, so the court will likely decide on S/L and conditions precedent (e.g., did the architect look before you commenced this action) o 3) Is the arbitration clause valid? Presumption of Validity; the only time it is invalid is if the arbitration clause was induced by fraud or duress or coercion or if it involves a matter contrary to public policy o 4) Is there an express condition precedent to arbitration, and has it been complied with? o 5) Statute of Limitations TO BRING THE THRESHOLD ISSUES TO COURT o Pending Action: D should make motion to stay action and compel plaintiff to arbitration o Before Pending Action, if proponent of arbitration serves a notice of intention to arbitrate on opponent, if opponent want to avoid arbitration, burden on opponent to commence a special proceeding to stay arbitration, during which eh can raise any of the 5 threshold issues

TIME LIMIT: 120 days of receipt of notice of intention to arb Plaintiff cannot argue that the arbitration clause was unenforceable if he argues that the whole contract was procured by fraud or duress. WHY? Because of the Doctrine of Severability o The validity of the arbitration clause is determined separately from the validity of the Kin which the arbitration clasue appears o If the arbitration clause itself is valid, the arbitral duty is enforceable separate and apart o Validity is determined by the arbitrators Judicial Review of Arbitral Awards o 1) Corruption, fraud, or misconduct in the proceeding o 2) Bias of arbitrator chosen to be neutral o 3) Arbitrator exceeded his powers (almost always a loser; only parties can narrowly circumscribe arbitrators powers) OTHER FORMS OF ADR o General Points Creatures of K and are enforced in accordance with the terms of the agreemenet NY Public Policy favors ADR Courts can recommend but generally cannot require the parties to agree to ADR Two major differences from Arbitration Usually non-binding (unless the parties agree otherwise) because their purpose is to help parties reach a voluntary settlement No specific statutory rules governing mechanics of enforcing other ADR agreements o Mediation Non binding process, neutral mediator to facilitate a settlement by speaking confidentially to each party and joint with both parties present Encourages both parties to consider practical concerns, merits of each side Mediation Agreement may require confidentiality whether or not agreement is reached; may include waiver of confidentiality o Neutral Evaluation Non-binding process, neutral expert in the subject matter at issue receives a condensed presentation about the merits of each side, evaluates the presentations and predicts how a court would decide the dispute Intended to help reach a voluntary settlement Parties themselves choose the facilitator from either the private sector or courts maintain rosters o Summary Jury Trial Requires an agreement that includes the participation of the court 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 Usually limited to one day with 2 to 3 hours for each party to present Technical evidence rules are relaxed and narrative summaries by lawyers may be introduced After jury verdict, laywers may question jurors about their thought processes Parties agree in advance whether jurys verdict is or is not bidning; most commonly unbinding

XIV. ARTICLE 78 PROCEEDINGS

Article 78 authorizes a special proceeding for judicial review of action or inaction by governmental or quasi-governmental offers or bodies of any kind Right to Relief: Annulment of Agency Decision, injunctive reinstatement o DAMAGES ARE RECOVERABLE IF incidental to the main relief being sought Right to Relief depends upon a showing that petitioners case would have been subject to review under one of the 4 Common Law Prerogative Writs: o 1) Mandamus To Compel: To compel performance of an act required by law, an act as to which no discretion is involved, e.g, an election official refuses to issue absentee baollot, city clerk refuses to issue a marriage license, a CORPORATION a quasi goernmetanl body or officer o 2) PROHIBITION: A proceeding to stop a judicial officer from exercising power that exceeds the officers lawful jurisdiction; must be GROSS in nature Remedy for routine judicial error = appeal o 3) CERTIORARI: A proceeding to challenge the results of a trial type hearing conducted by an administrative agency Trial Type Thing One in which testimony was taken under oath with a right to Cross Examine Persons with vested property or quasi property right are entitled to a trial type hearing prior to divestitute After the agencys final determination, the form of judicial review is cert Court must uphold if agencys determination is supported by substantial evidence Example: Tenured police officer challenges departments discharge decision; Doctor challenges revocation of his license to practice o 4) Mandamus to Review: A proceeding to review any type of administrative action NOT covered by 1-3; most commonly used to challenge agency determinations that were made without a trial type hearing Standard: Uphold unless arbitrary and capricious Example: A homeowner applied and was denied a zoning variance; denied a gun permit Procedure o ONLY brought in Supreme Court Even if brought against the State, remember that the Supreme Court has exclusive jurisdiction over Article 78 Claims Court of Claims only handle torts and contract claims o 4 Month S/L o Papers in an Article 78 proceeding must be served 20 days before the return date