New York Practice

Venue

(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 country in NY in which any party resides at the time the action is commenced (if no party resides in NY, plaintiff may choose any county) Improper venue is not a basis for dismissal!

Forum Non Conveniens (LOW: 1 of 37 exams)

A court has discretion, on motion by the defendant, to stay or dismiss a case, on forum non conveniens grounds, in the interests of substantial justice even when the court has jurisdiction to hear the case. When a party seeks dismissal on forum non conveniens grounds, a court will determine if there is a nexus between the action and New York by analyzing the following factors: (1) the plaintiff's choice of forum (there is a presumption that the case should be heard in a NY court if the plaintiff is a NY resident); (2) the location of witnesses and evidence; (3) the burden on the defendant of having to litigate in New York; (4) the possibility of litigating in another forum; (5) the Court's convenience; and (6) any policy considerations.

Conversion of Motion to Dismiss to Summary Judgment (LOW: 1 of 37 exams)

A court may convert a pre-answer motion to dismiss for failure to state a cause of action into a motion for summary judgment if: (1) the parties have submitted factual affidavits AND (2) the parties are given advance notice of the conversion to summary judgment by the court, so that the parties can submit additional evidence.

Arbitration: Judicial Review of Arbitration Awards (Matrimonial Matters) (HIGH: 3 of 37 exams)

A court will allow an arbitrator to hear issues of maintenance and support but will NOT submit child custody and visitation matters to an arbitrator because of the delicate nature of such matters and the need for judicial inquiry into the best interests of the child.

Motion for Judgment as a Matter of Law (LOW: 2 of 37 exams)

A motion for judgment as a matter of law can be brought at the close of the plaintiff's/ prosecution's case or at the close of all evidence presented. A motion for judgment as a matter of law will only be granted if a reasonable jury would not find the defendant liable/guilty.

Motion on Notice & Order to Show Cause

A motion on notice fives the adversary an opportunity, in advance, to be heard in opposition. The motion papers must be served on the opponent at least 8 days before the return date. An order to show cause is an alternative way to make a motion on notice. It is a preliminary order, signed ex parte by the judge, directing the adversar to show cause why the motion should not be granted. The judge may specify a return date for sooner than 8 days, and may grant a stay of the proceedings or a TRO. After the return date, the prevailing party serves a copy of the decidign order on the losing party, with notice of the entry of order. This gives effect to the order and starts the 30-day time limit to appeal. To appeal from an interlocutory order or judgment, a party must file and serve a notice of appeal within 30 days. No appeal can be made from an EX PARTE order. The remedy is to make a motion on notice to vacate the order and, if denied, appeal the denial of the motion to vacate.

Motion to Dismiss for Failure to State a Claim

A motion to dismiss for failure to state a cause of action requires the court to take all of the non-moving party's allegations as true and determine whether there is any basis upon which relief can be granted. If there is any basis for relief under substantive law, the court should deny the motion.

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.

Mediation

A non-binding process in which a neutral mediator attempts to facilitate a settlement by first speaking confidentially to each party separately 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).

Pleadings: Amending a Pleading to Add a Third-Party (LOW: 1 of 37 exams)

A party is entitled one opportunity to amend a pleading as of right. The amendment must be made within 20 days after the defendant serves the answer, and the pleading can be amended to include anything that could have been set forth in the original pleading. Even if not allowed as a matter of right, courts have discretion to allow amendments as long as the other party will not suffer unfair prejudice. A special rule exists if the defendant wishes to amend his or her complaint to add a third-party defendant. A defendant may amend his or her complaint at any time to add a third-party defendant, but the defendant must serve the plaintiff with all papers served on the third-party defendant. For statute of limitations purposes, a plaintiff's added claim against a third party defendant will be deemed to relate back to the date that the third party defendant was impleaded if: (1) the claim is based on the same transaction or occurrence as the impleader claim, AND (2) would have been timely on the date of the impleader.

Motion to Dismiss Standard (HIGH: 12 of 37 exams)

A party may bring a motion to dismiss in order to dismiss one or more causes of action asserted against that party on certain specified grounds. Defendant may make only ONE pre-answer motion to dismiss, but may do so on multiple grounds. Such grounds include: (DOWNFALL) & (SPARE RIBS) Documentary Evidence Other Action Pending (same parties) Want of Capacity of Plaintiff Non-joinder of Necessary Party Failure to State a Cause of Action Additional Affirmative Defenses Lack of Subject Matter Jurisdiction Lack of Personal Jurisdiction, including: (1) improper commencement procedure, (2) improper service of process (3) lack of basis jurisdiction Additional Affirmative Defenses (SPARE RIBS): Statute of Limitations Payment Arbitration Award Release Estoppel Res judicata Infancy of Defendant Bankruptcy Discharge Statute of Frauds

Permanent Injunction (LOW: 2 of 37 exams)

A permanent injunction is an equitable remedy in the form of a court order that requires a party to do, or to refrain from doing, certain acts. A party that fails to comply with an injunction faces criminal or civil penalties. In order for a permanent injunction to be issued, the plaintiff must show: (1) irreparable harm if the injunction is not issued; (2) the unavailability of any adequate remedy at law; (3) the balance of equities is in the plaintiff's favor (including "clean hands" by plaintiff); AND (4) granting the injunction will not contravene a substantial public interest.

Appeal as of Right or by Permission to the Court of Appeals (LOW: 1 of 37 exams)

A ruling from the Appellate Division is appealable as a matter of right (where it is guaranteed review by the New York Court of Appeals) when two Appellate Division Justices dissent. However, if the decision is not appealable as a matter of right, the Court of Appeals may still hear the appeal on certiorari, in which the court decides in its own discretion whether it will choose to hear the matter.

Special Proceedings

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. To commence a special proceeding, Petitioner files a petition. The petition and notice of petition must be served on the Respondent, who must serve and answer and appear on the return date (no sooner than 8 days from service of process). In an Article 78 proceeding, the return date can be no sooner than 20 days from service of process. 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.

Temporary Receivership

A temporary receivership is a person appointed by the court to manage property in defendant's possession. Plaintiff must be asserting an equity claim in which specific property is the subject matter of the action, AND There is a danger that defendant will injure or destroy the value of the property while the action is pending. Plaintiff must make a motion on notice to appoint a temporary receivership.

Arbitration: Judicial Review of Arbitration Awards (Statute of Limitations) (HIGH: 3 of 37 exams)

An arbitrator's wrong decision with respect to the statute of limitations does not exceed his or her powers because arbitrators are not bound by the law. But, a party could potentially avoid the arbitrators ruling on the issue of statute of limitations by presenting the statute of limitations issue to a court within 20 days from the receipt of the notice of intention to arbitrate. However, if a party does not submit the statute of limitations issue to the court prior to the arbitration decision, a court will not review the arbitration award.

Arbitration

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: (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.

Article 78 Proceedings: Procedure

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. The Article 78 proceeding must be brought in the Supreme Court, by filing a Petition and Notice of Petition with the Court Clerk, and serving the same on the respondent. The statute of limitations is 4 months from the government action or determination. Petitioner may seek: (1) declaratory judgment (annul agency termination) (2) Injunctive relief (reinstate civil service employee) (3) Damages, if incidental to relief sought.

Claim Preclusion (Res Judicata) (LOW: 2 of 37 exams)

Claim preclusion (res judicata) bars a party from re-litigating any issue in a case where there has already been a final judgment on the merits by a court of competent jurisdiction. It is only applicable where the two parties are the same in both actions. NY uses the "transactional approach" to claim preclusion (res judicata): 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 arising out of the same transaction or occurrence, even if based on different theories or seeking different remedies. Policy exception: in matrimonial disputes based on domestic abuse, the transactional approach does not apply!

Cases Against the State of New York

Claims for money damages in tort or contract against the State of New York must be brought in the NY Court of Claims. The only defendant that can be sued in the New York Court of claims is the state of New York. Employees and Subdivisions of the state must be sued in the Supreme Court.

Contribution (HIGH: 4 of 37 exams)

Contribution is a theory of recovery when there are joint tortfeasors. A joint tortfeasor will be liable to the plaintiff for 100% of the plaintiff's injuries, but he can seek contribution from another joint tortfeasor if he pays more than his percentage share of liability. The amount that can be recovered in contribution is based on pure comparative fault and a defendant cannot recover from another joint tortfeasor more than that tortfeasor's percentage share of fault. A defendant may seek contribution from a joint tortfeasor even if the injured party has no right of recovery from the joint tortfeasor.

Pleadings: Cross-claims

Cross-claims are asserted in the defendant's answer. A defendant may assert a cross-claim against any other defendant, and it can be based on any claim that the defendant has against the other defendant(s). There is no requirement that cross-claims be related to the plaintiff's complaint!

Pleadings: Response to Summons with Notice

Defendant serves either: (1) a demand for the complaint, or (2) a notice of appearance Plaintiff must serve the complaint within 20 days. If plaintiff fails, defendant may move to dismiss, unless plaintiff shows reasonable excuse for the delay and evidence of merit to plaintiff's cause of action.

Change of Venue

Demand Procedure: If plaintiff chooses an improper venue, defendant serves a demand on plaintiff for change of venue to a proper country. The demand must be served before or with the answer. If plaintiff consents, change is automatic. If plaintiff objects or fails to respond, defendant makes a motion for change of venue, and motion must be granted as of right if plaintiff's venue was improper and defendant's venue is proper. Discretionary Grounds for Change of Venue: (by motion of either party at a reasonable time) (1) Convenience of Material Witnesses (2) Impartial Trial

Statute of Limitations: Actions by Crime Victims

Generally, under the New York CPLR, the statute of limitations for an action against a convicted defendant is 7 years from the date of the CRIME. However, actions by victims of certain specific serious crimes (e.g. violent felonies) must be commenced within 10 years of the date of CONVICTION. (May still be commenced for up to 3 years from the discovery of the defendant's receipt of money or property from any source). Victims of rape related crimes have the LONGER of: (a) 5 years from the date of the crime, OR (b) 5 years from the end of the criminal proceedings (even if trial ended in acquittal).

Statute of Limitations: Death of Potential Defendant

If a potential defendant dies at any time before the statute of limitations expires, 18 months are added to the relevant limitations period (regardless of whether plaintiff needs additional time).

Statute of Limitations: Toll for Absence

If defendant is not in NY when a cause of action accrues, the statute of limitations does not begin to run until defendant comes back to New York. If defendant is in NY when a cause of action accrues and thereafter leaves NY for a continuous period of at least 4 months, the toll applies to the entire period of defendant's absence . EXCEPTION: Absence toll does not apply if plaintiff has a basis for personal jurisdiction such that defendant can be served outside of NY. (This exception usually swallows the rule!)

Expedient (Court Ordered Service)

If the service methods are not practicable, plaintiff may make an ex parte motion to the court for an order allowing an improvised, expedient method - a reasonable alternative appropriate under the circumstances.

Arbitration: Judicial Review of Threshold Issues (HIGH: 3 of 37 exams)

In New York, the policy is to favor arbitration and courts are limited in their ability to review arbitration awards. In a pending action a defendant can make a motion to compel arbitration. If no action is pending, a party serves the opponent with a notice of intent to arbitrate. An objection to an arbitration proceeding must be made within 20 days from the receipt of the notice of intention to arbitrate. The opponent commences a special proceeding for a stay of arbitration. A court only hear the following "threshold" issues presented to the court in an attempt to avoid arbitration: (1) whether there was an enforceable written agreement to arbitrate; (2) the scope of the agreement; (3) validity of the arbitration clause -presumed valid, determined pursuant to the doctrine of severability (unless fraud, duress, coercion, or contrary to public policy in the actual clause); (4) whether the arbitration agreement is subject to an express condition precedent which has not been complied with; and (5) whether the underlying claim is barred by res judicata or the statute of limitations.

Arbitration Clause (LOW: 2 of 37 exams)

In New York, there is a presumption that arbitration clauses are valid. Thus, New York courts will enforce an arbitration clause if it is: (1) freely entered into, (2) the clause is in writing, AND (3) the dispute falls within the scope of the arbitration clause. However, fraud, duress, or coercion may render an arbitration clause to be invalid.

Service of Process: Personal Delivery, Leave and Mail, Nail and Mail (LOW: 1 of 37 exams)

In order for a New York court to have personal jurisdiction over a person, there must be a basis for the jurisdiction AND the individual must be given adequate notice. Notice must meet the New York statutory provisions for service upon a natural person. Under the New York CPLR, service upon a natural person can be accomplished by personally delivering a summons with notice or a summons with a complaint either by: (a) personal delivery, (b) leave and mail, or (c) nail and mail. Process must be served on EACH defendant within 120 days of filing (the court has discretion to extend this based on good cause or in the interest of justice). Personal delivery is made by physically giving the papers to the person being served. Leave and mail requires delivering the papers to a person of suitable age and discretion at the defendant's dwelling or actual place of business and mailing the same to the defendant's actual place of business or last known residence within 20 days. Nail and mail requires affixing the papers to the door of the defendant's actual dwelling or actual place of business and mailing the same to the defendant's actual place of business or last known residence within 20 days. Here, the process server must FIRST exercise due diligence by attempting one of the other two methods. COMPLETION: According to New York case law, personal delivery is complete when the person making service tenders the summons and complaint upon the defendant to be served AND the defendant has actual knowledge that she is being served with a summons and complaint. If a defendant closes her door after a process server informs her that she has been served, service is complete and the server need only leave the papers at the door. BUT, for both Leave and Mail and "Nail and Mail," proof of service (affidavit detailing service) must be filed after the service has been performed. This is necessary for service to be complete (occurs 10 days after proof of service is filed.

Personal Jurisdiction (HIGH: 3 of 37 exams)

In order for a court to have personal jurisdiction over a defendant, the defendant must either: General: (a) be served in New York State, (b) be domiciled in New York State, (c) be a corporation "at home" in New York Specific: (d) be subject to Long-Arm jurisdiction, (e) be subject to the Non-Resident Motorist Statute Consent: (f) forum selection clause (g) corporate license in NY (in question) Under the New York CPLR, New York courts can assert long-arm jurisdiction if: (1) the conduct is placed within the NY long-arm statute, (2) there are minimum contacts, AND (3) the notions of fair play and substantial justice are not offended.

TRO (Temporary Restraining Order)

In order to obtain a temporary restraining order, plaintiff must make a motion for a preliminary injunction by order to show cause, scheduling an early return date. The judge may include the TRO in the order to show cause. If an order to show cause 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.

Preserving the Defense of Lack of Personal Jurisdiction (LOW: 2 of 37 exams)

In order to preserve a defense for lack of personal jurisdiction, the defendant must raise the defense at the first moment they can object, or else the defense is deemed waived. Thus, a defendant's filing of any Pre-Answer Motion to Dismiss waives a lack of personal jurisdiction objection, unless it is preserved by specifically objecting to personal jurisdiction in the Motion to Dismiss. Alternatively, defendant may make no pre-answer motion to dismiss on any ground, and instead raise lack of personal jurisdiction in the answer. Note: if pleading improper service of process in the answer, defendant must also make a motion for summary judgment on that ground no later than 60 days after serving the answer!

Failure to Plead Affirmative Defenses in the Answer (LOW: 1 of 37 exams)

In the Answer, a defendant must assert any and all counterclaims and affirmative defenses he may have, otherwise such counterclaims and affirmative defenses are deemed waived. However, an affirmative pleading of a defense is not required where the plaintiff has notice of the defense. Failure to raise an affirmative defense in a pre-answer motion to dismiss DOES NOT waive the affirmative defense, except for the defense of lack of personal jurisdiction. Three defenses are NEVER waived: (1) Non-joinder of a Necessary Party (2) Failure to State a Cause of Action (3) Lack of Subject Matter Jurisdiction

Motion for Summary Judgment in Lieu of a Complaint

In two types of actions, plaintiff may 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) Action on instrument for payment of money only (i.e. promissory note showing defendant's unconditional promise to pay) (2) Action on out-of-state Judgment - quickly and easily converts out of state judgment to NY judgment.

Indemnification (LOW: 1 of 37 exams)

Indemnification is available in situations of vicarious or products liability, and when it is provided for by contract. A defendant is entitled to indemnification when the defendant is a passive tortfeasor and seeks to assert its claim against an active tortfeasor. A defendant who is entitled to indemnification and has paid the plaintiff is entitled to recover the full amount paid to the plaintiff from the active tortfeasor.

Issue Preclusion (Collateral Estoppel) (HIGH: 3 of 37 exams)

Issue preclusion (collateral estoppel) precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction. Issue preclusion may be invoked if: (1) the issue is identical with the issue decided in the prior action; (2) the issue was actually and conclusively decided in the prior action; AND (3) the party against whom enforcement is sought had a similar motive and opportunity to defend the claim in the first action. A non-party to a prior action may assert issue preclusion if the three part test above is satisfied.

Joint and Several Liability (HIGH: 4 of 37 exams)

Joint tortfeasors are joint and severally liable for the collective injuries a plaintiff sustains from both tortfeasors. Under the New York CPLR, joint tortfeasors are held jointly and severally liable for the entire amount of plaintiff's damages. This means that the plaintiff may recover the full amount from either one of the defendants (but may not receive a double recovery). However, there is a special rule regarding non-economic damages under CPLR Article 16. When a joint tortfeasor is found to be less than 50% liable, he is NOT required to contribute more than his equitable share for non-economic damages. This exception does not apply to intentional tortious acts, environmental hazardous waste defendants, and operators or owners of automobiles (except police or fire vehicles).

Non-Traditional Method: Service by First Class Mail PLUS Acknowledgement

Plaintiff must mail process, enclosuing 2 copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service is effective only if defendant signs and returns one of the acknowledgement forms to plaintiff within 30 days of receipt. Service is complete upon plaintiff's posting of the signed form.

Other Forms of ADR in NY: Mediation, Neutral Evaluation, and Summary Jury Trial

NY Public policy favors ADR. Like arbitration, the other ADR devices are creatures of contract and are enforced in accordance with the terms of the agreement. The court can recommend, but generally cannot require, the parties to agree to ADR. 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).

Statute of Limitations: Borrowing Statute

NY has a borrowing statute, intended to prevent forum shopping by non-resident plaintiffs seeking a longer statute of limitations in NY. If a cause of action arises outside of NY and the other state's statute of limitations is different than New York's: (1) If plaintiff was a non-resident of NY when the out-of-state claim arose, NY will apply the shorter statute of limitations. (2) If plaintiff was a NY resident when the the out-of-state claim arose, NY will apply its own statute of limitations.

Arbitration: Judicial Review of Arbitration Awards (HIGH: 3 of 37 exams)

New York courts may only review an arbitration decision on the following grounds: (1) there was fraud, corruption, or misconduct on the part of the arbitrator; (2) bias of the arbitrator; (3) the arbitrator exceeded his or her powers; and (4) a failure to follow procedural rules set forth in Article 75 of the CPLR. Erroneous decisions of law that do not fall into one of the above grounds are NOT grounds for review.

Service on Corporation

Plaintiff may serve a corporation by: (1) Personal service on a corporate representative: (a) Officer (b) Director (c) Designated Agent (4) Managing Gent (2) Service on the NY Secretary of State (for a domestic corporation or authorized foreign corporation) - plaintiff must deliver 2 copies, one of which will be mailed to the corporation. (3) For an unlicensed corporation, plaintiff must deliver 1 copy to the NY Secretary of State, and mail one copy to the corporation by certified mail, return receipt requested.

Effect of Settlement for Contribution & Indemnification Claims (LOW: 2 of 37 exams)

Plaintiff's pre-trial release of one tortfeasor in partial satisfaction of a claim does not discharge plaintiff's claim against the non-settling tortfeasors. In New York, settlement will not bar an action for indemnification, BUT it will bar an action for contribution. Settlement by one defendant also reduces a co-defendant's liability by the LARGER of: (a) the amount of the settlement, or (b) the percentage of the settling defendant's fault.

Arbitration: Judicial Review of Arbitration Awards (Punitive Damages) (HIGH: 3 of 37 exams)

The New York Court of Appeals has held that an award of punitive damages exceeds an arbitrator's power.

New York Supreme Court

The New York Supreme Court has general subject matter jurisdiction, unlimited as to: (1) monetary amount (2) equity claims (3) residency (4) place where cause of action arose The Supreme Court has EXCLUSIVE subject matter jurisdiction over: (1) matrimonial actions (2) CPLR Article 78 proceedings (3) declaratory judgment actions

Summary Jury Trial ("SJT")

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 empaneled 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.

Durational Residency Requirements

The durational residency requirements are statutory conditions precedent to a matrimonial action to affect the marital STATUS. Plaintiff's complaint must allege satisfaction of one category. (1) If both parties are NY residents at the time the action is commenced AND grounds for the matrimonial action arose in NY, there is no required period of residency. (2) One Year: 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 a prior link to the marriage: (a) Marriage took place in NY, (b) New York was the matrimonial domicile at some point, or (c) grounds for divorce action arose in NY. (3) Two Year: If either party has been a NY resident for a continuous perid of at least 2 yeas immediately prior to the action, the two year residency is sufficient without further connection. If plaintiff fails to allege and prove satisfaction of a residency requirement, he has failed to state a cause of action.

Order of Seizure of a Chattel in an Action to Recover the Chattel (Replevin)

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. Plaintiff must demonstrate probable success on the merits and provide an undertaking for damages if seizure is wrongful. If the motion is made ex parte, plaintiff must also: (1) show threat of immediate loss of the chattel, and (2) if granted, make a motion on notice to confirm the ex parte order within 5 days of seizure.

Non-Resident Motorist Statute

The 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. Service: plaintiff must personally serve one copy on the NY Secretary of State and mail a second copy to defendant's out-of-state residence by certified mail. Applies to nondomiciliary vehicle owners who gave permission to drive in NY!

Preliminary Injunction (HIGH: 9 of 37 exams)

The purpose of a preliminary injunction is to maintain the status quo pending the outcome of an EQUITY action in which plaintiff seeks a permanent injunction or when defendant threatens to harm Plaintiff's interest in the subject matter of the action. In order to obtain a preliminary injunction, the plaintiff must establish: (1) the likelihood of immediate and irreparable harm if the injunction is not issued; (2) the inadequacy of remedies at law; (3) the balance of equities is in the plaintiff's favor (including "clean hands" by plaintiff); AND (4) the probability of success on the merits. Plaintiff must provide undertaking to indemnify defendant from damages if it is later determined that a preliminary injunction should not have been granted.

Article 78 Proceedings: Grounds (LOW: 1 of 37 exams)

The 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.) (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. (Examples: judge grants second trial for "not guilty" defendant, orders lawyers to depose witnesses, etc.) (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.(Examples: revoked liquor license, fired tenured public school teacher, etc.) (Standard: The court must uphold the decision if supported by substantial evidence). (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: fired probationary public employee, denied zoning variance, denied renewal of gun permit, etc.) (Standard: The court must uphold the decision unless arbitrary and capricious).

Matrimonial Jurisdiction

To obtain a divorce, separation, or annulment, all that is necessary is that plaintiff spouse is a domiciliary of NY. The court has in rem jurisdiction over the marriage - personal jurisdiction is not necessary. However, defendant must be served personally! Alternative methods may not be used without court order.

Long Arm Jurisdiction (HIGH: 3 of 37 exams)

Under New York's long-arm statute, a court will have jurisdiction over a defendant if the claim against him arose from: (1) a transaction of business in New York; (2) contracting to provide goods and/or services in New York; (3) the commission of a tortious act in New York, except as to a cause of action for defamation of character arising from the tortious act; (4) the commission of a tortious act outside New York causing injuries in New York, plus either: (a) the defendant regularly solicits business or engages in any other persistent course of conduct in New York, (b) derives substantial revenue from goods used or consumed or services rendered in New York, or (c) expects or should reasonably expect the act to have consequences in New York and derives substantial revenue from interstate or international commerce including NY; OR (5) the ownership, use or possession of real property in New York. Defamation claims are excluded from both of the tortious act categories!

Service Outside of New York

Under the CPLR, the same methods that are used to serve a defendant in NY are used when the defendant is located outside of NY. The CPLR permits service on a defendant outside of New York by: (1) any NY resident at least 18 years old (non-party) (2) an attorney licensed in the jurisdiction where service is made, (3) any person who is authorized to serve process under the laws of the jurisdiction where service is made.

Partial Summary Judgment (HIGH: 3 of 37 exams)

Under the New York CPLR, a court may grant a motion for partial summary judgment, where appropriate, in order to expedite litigation. If liability is conclusively established, the court may award summary judgment on that issue and order a trial or inquest on the sole issue of damages.

Pleadings: Time Limits for Serving an Answer (LOW: 1 of 37 exams)

Under the New York CPLR, a defendant's answer must be served within 20 days if the defendant was served personally in New York. If the defendant was served outside New York or by a method of service other than personal delivery, a defendant's answer must be served within 30 days from the date service was completed. If a pre-answer motion to dismiss is timely filed, the time in which the answer must be served is suspended until the court decides the motion. If the motion to dismiss is denied, the defendant must serve an answer within 10 days.

Motion to Suppress Evidence (LOW: 1 of 37 exams)

Under the New York CPLR, a motion to suppress evidence may be made before or during trial. A failure to make a pre-trial motion to suppress does not waive the right to make a motion to suppress during the trial.

Discovery of Statements Made by Parties in an Action (LOW: 1 of 37 exams)

Under the New York CPLR, a party to a lawsuit is entitled to any recorded statement given by her to the other party in the suit. The attorney work product privilege does not protect such material, and it is a violation not to produce such statements.

Lis Pendens (Notice of Pendency) (LOW: 2 of 37 exams)

Under the New York CPLR, a plaintiff may file a notice of pendency (lis pendens) in any claim where the judgment demanded will affect the title, use or possession of real property in New York State. In a mortgage foreclosure, the filing of a notice of pendency is statutorily required. The notice of pendency puts all potential purchasers and lenders on record notice that the plaintiff has a claim to the property. The notice must be filed in the County where the property is located with a copy of the complaint. A plaintiff can file a notice of pendency without leave of the court and it is effective for three years from the date it was filed and can be extended upon motion (by leave of the court) for an additional three years, if good cause is shown and if a motion is made before the notice of pendency expires. If plaintiff fails 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. If a plaintiff files a notice of pendency prior to commencing a suit, the plaintiff must serve the defendant with the papers to the action within 30 days of filing the notice of pendency. If the plaintiff fails to do so, the defendant can file a motion to cancel the notice of pendency, which must be granted by the court.

Order of Attachment (LOW: 1 of 37 exams)

Under the New York CPLR, an Order of Attachment is a type of provisional remedy. Provisional remedies are designed to protect the plaintiff's interests before trial (that are or may be jeopardized) by granting the plaintiff a security interest in property for the enforcement of a potential judgment. An Order of Attachment allows the plaintiff to impose a lien on the defendant's real or personal property located in NY pending a final judgment. Delivery of the order on the defendant or a garnishee serves as an injunction against transfer of the property pending the outcome of the action. To obtain an Order of Attachment under the CPLR, the plaintiff must: (1) be seeking a money judgment (damages) AND (2) either: (a) the defendant is an unlicensed foreign corporation or non-domiciliary residing outside of NY, or (b) is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment. The plaintiff may obtain an Ex-Parte Order of Attachment, but must make a motion on notice to confirm the order within 10 days after the sheriff levies upon the property, if the ground for the order was that the defendant is an unlicensed foreign corporation or nondomiciliary who resides outside New York. If the Ex-parte Order of Attachment was for based on the ground that defendant is fraudulently moving assets, the plaintiff must make a motion on notice to confirm the order within 5 days after the sheriff levies upon the property. If the plaintiff fails to make this motion to confirm, the order of attachment a becomes automatically void.

Statute of Limitations: Relation Back for Counterclaims (LOW: 1 of 37 exams)

Under the New York CPLR, counterclaims by a defendant relate back to the date the plaintiff(s) commenced the action for statute of limitations purposes.

Statute of Limitations: Termination of Action (LOW: 1 of 37 exams)

Under the New York CPLR, if an action is timely commenced and is dismissed in any other manner than by: (a) a voluntary discontinuance by plaintiff, (b) a failure to obtain personal jurisdiction over the defendant, (c) a dismissal of the complaint for neglect to prosecute the action (general delay), or (d) a final judgment upon the merits, and Statute of limitations has expired or has less than 6 months, the plaintiff may commence a new action upon the same transaction or occurrence within 6 months after the dismissal of the action. However, this rule only applies if the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Statute of Limitations: Discovery Rule for Exposure to Toxic Substances (LOW: 1 of 37 exams)

Under the New York CPLR, normally the statute of limitations for a strict products liability or negligence action is 3 years from the date the injury occurred. However, an exception exists in the case of exposure to toxic substances. Under the Discovery rule, where plaintiff's claim involves personal injury or injury to property caused by the latent effects of exposure to any substance upon or within the body or to property, the 3 year statute of limitations runs from the EARLIER OF: (a) the date of discovery of the injury OR (b) the date which plaintiff should have discovered the injury had he/she exercised reasonable diligence. Exposure means direct or indirect exposure by absorption, contact, ingestion, inhalation, implantation or injection. The Discovery rule DOES NOT apply to medical or dental malpractice actions.

Depositions Prior to Plaintiff's Commencing an Action (LOW: 1 of 37 exams)

Under the New York CPLR, oral depositions before trial typically occur after an action has been commenced. However, in limited circumstances, the court may allow depositions or other discovery before the commencement of an action to: (a) aid in bringing the action, (b) preserve information, or (c) aid in arbitration. If there are particular facts, known only to the party being deposed, which would aid the plaintiff in determining the precise facts to which the cause of action is based, this would fall under the category of "to aid in bringing an action." But, pre-commencement discovery is not allowed where a plaintiff merely seeks to ascertain whether sufficient facts exist to create a cause of action. To conduct a pre-commencement deposition or obtain other pre-commencement discovery, the plaintiff must apply to the court to obtain an order to compel the deposition.

Summary Judgment Standard (HIGH: 18 of 37 exams)

Under the New York CPLR, the court may grant a motion for summary judgment if there is no genuine issue of material fact that remains for trial and the moving party is entitled to judgment as a matter of law. After service of the answer, any party can move for summary judgment with respect to any claim or defense in the pleadings. It must be made no later than 120 days from the filing of the note of issue (may be permitted lateer with good cause). 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 cross-motion for such relief.

Statute of Limitations: Toll for Minors (LOW: 1 of 37 exams)

Under the New York CPLR, the statute of limitations controls the amount of time a plaintiff has to commence an action against a defendant. The statute of limitations is tolled for a plaintiff who is a minor. If the original statute of limitations was 3 years or more, the plaintiff has the longer of: (a) the statutory period measured from accrual OR (b) 3 years from the date of the minor's 18th birthday. If the original statute of limitations was less than 3 years, then the statutory period starts to run from the date of the minor's 18th birthday. (A 10 year maximum applies for medical malpractice!)

Statute of Limitations: Toll for Insanity (Legal Disability)

Under the New York CPLR, the statute of limitations controls the amount of time a plaintiff has to commence an action against a defendant. The statute of limitations is tolled for a plaintiff who is insane at the time the cause of action accrues. Insanity is defined as any mental disorder that causes an overall inability to function in society. To be "insane" plaintiff need not have gone through a formal judicial proceeding for the appointment of a guardian. If the original statute of limitations was 3 years or more, the plaintiff has the longer of: (a) the statutory period measured from accrual OR (b) 3 years from the date the disability ends If the original statute of limitations was less than 3 years, then the statutory period starts to run from the date the disability ends. There is a 10 year maximum! Claims of plaintiffs relying on the toll for insanity are time barred after 10 years from the date of accrual.

Statute of Limitations: Breach of Contract

Under the New York CPLR, the statute of limitations for a breach of contract action is 6 years from the date of the breach. However, the statute of limitations for breach of a UCC contract is 4 years.

Statute of Limitations: Breach of Warranty Claim (LOW: 2 of 37 exams)

Under the New York CPLR, the statute of limitations for a breach of warranty claim is 4 years from the date of delivery of the goods by the particular defendant.

Statute of Limitations: Claim Against a Municipality/Government Body (HIGH: 3 of 37 exams)

Under the New York CPLR, the statute of limitations for a claim against a municipality is 1 year and 90 days from the date the injury occurred. The plaintiff must also show that the notice of claim was filed within 90 days of the occurrence of the incident. However, a court has discretion to allow for a notice of claim to be served later than 90 days after the incident, but the late service can never be extended beyond the statute of limitations period.

Statute of Limitations: Defamation

Under the New York CPLR, the statute of limitations for a defamation action is 1 year. The statute of limitations begins to run when the first defamatory statement is made and is not revived by repeated publications of the same statement unless the repeated publication is intended to reach a different audience.

Statute of Limitations: Medical Malpractice (LOW: 2 of 37 exams)

Under the New York CPLR, the statute of limitations for a medical malpractice action is 2 and 1/2 years from the date the injury occurred. However, there are two exceptions to this rule:(1) the Continuous Treatment Rule and (2) the Foreign Object Rule. Under the ContinuousTreatment rule, if a patient continues to see the same doctor for the same condition, the cause of action will not accrue until the doctor's treatment of the patient for that specific condition has ended. The statute of limitations will then run for 2½ years from the end of the treatment. Under the Foreign Object rule, if a doctor introduces a foreign object into the plaintiff's body, the plaintiff has the longer of: (a) 2½ years from the surgery or procedure OR (b) 1 year from the date the object was discovered or should have been discovered with reasonable diligence.

Statute of Limitations: Negligence (LOW: 2 of 37 exams)

Under the New York CPLR, the statute of limitations for a negligence action is 3 years from the date the injury occurred. It is immaterial when the plaintiff actually discovered that he or she was injured.

Statute of Limitations: Personal Injury or Property Damage

Under the New York CPLR, the statute of limitations for a personal injury or property damage action is 3 years from the date the injury occurred.

Statute of Limitations: Shareholder Derivative Action

Under the New York CPLR, the statute of limitations for a shareholder derivative action, or those by a corporation agains directors. is 6 years.

Statute of Limitations: Strict Products Liability (HIGH: 3 of 37 exams)

Under the New York CPLR, the statute of limitations for a strict products liability action is 3 years from the date the injury occurred.

Statute of Limitations: Survival Claim

Under the New York CPLR, the statute of limitations for a survival action is, whichever is LONGER of: (a) the time remaining on the original statute of limitations, OR (b) 1 year from the date of death.

Statute of Limitations: Wrongful Death

Under the New York CPLR, the statute of limitations for a wrongful death action is 2 years from the date of death. It must also be shown that decedent possessed a timely cause of action at the time of death.

Statute of Limitations: Actions to Recover Real Property

Under the New York CPLR, the statute of limitations for an action to recover real property is 10 years.

Statute of Limitations: Intentional Torts (LOW: 2 of 37 exams)

Under the New York CPLR, the statute of limitations for an intentional torts action is 1 year from the date the injury occurred.

Statute of Limitations: Non-Medical Malpractice (Accountants, Engineers, Architects, Attorneys)

Under the New York CPLR, the statute of limitations for claims for economic injury by clients against members of learned professions is 3 years. The 3 year period applies regardless of tort or breach of contract. The statute of limitations begins to run when the services are completed, regardless of the plaintiff's lack of awareness of the malpractice. For an architect or engineer, the 3-year period begins to run from completion of the building; for accountant or attorney, from delivery of work product to the client. DOES NOT include insurance brokers, securities analyst, plumbers, etc.

Statute of Limitations: Contribution and Indemnification (LOW: 1 of 37 exams)

Under the New York CPLR, the statute of limitations for claims of contribution or indemnification is 6 years from the date of payment.

Court's Power to Compel Witnesses to Testify (LOW: 1 of 37 exams)

Under the New York Judiciary Law, a New York court has the power to issue a subpoena requiring the attendance of a person found in the state to testify in a cause of action pending in that court.

Limitation on Claims for Contribution in Worker's Compensation Cases (HIGH: 3 of 37 exams)

Under the New York Worker's Compensation Law, a third party may not obtain contribution or indemnity from the injured party's employer unless the employee has sustained a grave injury. Grave injury is defined as: (1) death; (2) total and permanent loss of an arm, leg, hand, foot, nose, ear or index finger; (3) loss of multiple fingers or toes; (4) paraplegia or quadriplegia; (5) total and permanent blindness or deafness; (6) severe facial disfigurement; (7) brain damage causing total disability The New York Court of Appeals has strictly construed this definition.

Service on Mentally Incapacitated Person

When defendant is a mentally incapacitated person for whom the court has appointed a guardian, process must be served on the incapacitated person and the guardian.

Service on Infants

When defendant is an infant, the infant is named as defendant on the summons, but process must be served on a: (1) Parent (2) Guardian (3) Legal Custodian, or (4) Adult Spouse with whom the infant resides If infant is over 14, process must also be served on the infant himself.

Right to a Jury Trial

When discovery is completed and the case is ready for trial, either party may file a note of issue, which places the case on the trial court's calendar. The party who files the note of issue can make a demand for a jury trial in the note of issue. Failure to do so waives the right to a jury. The other party can file a separate demand for a jury trial. Failure to do so waives the right to a jury. Parties in a civil action have a right to a trial by jury: (1) actions seeking only money damages (2) replevin (3) any claim to real property (4) annulment of marriage (5) actions for divorce (on the grounds for divorce, but not support or custody) A civil jury consists of 6 jurors, and the verdict may be rendered by a 5/6 vote.

Matrimonial Long-Arm Statute

When plaintiff spouse is a resident of NY, long-arm jurisdiction can be acquired over the defendant spouse for monetary support if: (1) NY was the matrimonial domicile shortly before their separation (2) defendant abandoned plaintiff in NY (3) defendant's monetary obligation accrued under an agreement executed in NY, OR (4) defendant's monetary obligation accrued "under the laws of NY." Defendant must be served personally! Alternative methods may not be used without court order.