Colleen New York Practice

Durational Residency Requirements

even if you have jurisdiction over the marital res, the action may be dismissed on the merits for failure to comply with durational residency requirements

Traditional Methods for Service on a corporation

Personal Delivery on a specified corporate employee Service of NY secretary of state leave and mail is not authorized

Presence in NY

Personal delivery of process to ∆ while physically present in NY is valid even though ∆ is out of NY and his claim has nothing to do with NY

Service on Mentally Incapacitated persons

Persons with a guardian: Process must be on both the guardian and the incapacitated person Persons without a guardian: ∆ can be served in same manner as any other ∆ *Court will appoint a guardian ad litem later

Consent

parties to a K may consent in advance to PJ in a "forum selection clause" a. Such clauses are generally enforceable absence fraud, overreaching or unreasonableness

Natural Persons Traditional Methods

Personal Delivery in NY Leave and Mail Affix and Mail

Intentional Torts to the person

1 year SOL

Action on judgment

20 years SOL

CPLR

Civil Practice Law and Rules govern New York Civil Proceudre

π's claim arises from ∆'s tortious act in NY

(excluding defamation)

Toll for ∆'s absence

1. If ∆ isn't in NY when the cause of action accrues → SOL doesn't begin to run until ∆ comes to NY 2. If ∆ is in NY when cause of action accrues and ∆ leaves NY → if ∆ is absent for at least 4 mo then toll applies to the entire period of absence 3. UNLESS (applies to both 1 &2) → the toll for absence isn't available if π has basis of PJ over the absent ∆ such that process could be validly served out of NY (i.e. b/c of a long arm statute) a. No need for the absence toll if π can get valid PJ over ∆ even though ∆ is outside of NY b. ***Exception usually swallows the rule and π is rarely entitled to an absence toll

π's claim arises from ∆'s ownership, use, or possession of real property in NY

1. Includes a slip-and-fall in ∆'s NY building

Personal injury and property damage claims against municipal ∆

1 year 90 days π must show that she served notice of claim on municipal ∆ within 90 days of accident Court has discretion to allow late service but cannot extend SOL plus any applicable tolling

General Points about long arm statute

1. It covers all types of ∆'s (persons, corporations, partnerships) 2. Acts that give rise to jurisdiction can be performed by the ∆ or her agents/employees (and subject agent to jurisdiction) 3. Serving process → π must use the same method of service on ∆ outside NY as would be used for inside NY

Limitations on Doing Business for foreign corporations

1. Mere sales of a corporation's productions in NY doesn't constitute doing business in NY 2. Mere advertising by a foreign corporation in NY doesn't constitute doing business in NY 3. Mere transient presence of a corporate officer in NY at time of service on him or her doesn't qualify as presence by corporate ∆ in NY or doing business

π's claim arises from a K transacted to supply goods/services to NY

1. Must be economically significant such as an agreement by ∆ to ship a sizeable quantity of merchandize to NY or perform accounting, legal or entertainment services in NY 2. K to pay a debt isn't good enough

Basic Points about methods of process

1. Process may be served by any person who is at least 18 years old provided that that person is not a party to the action (π herself) 2. Process may be served on any day of the week except Sunday or if ∆ is a Saturday-Sabbath observer and π knows it (innocent service on such ∆ isn't a defect) b. Can have service on a holiday if it doesn't fall on a Sunday 3. Actual notice is irrelevant to determine where π has complied with the formalities for proper service of process 4. If suit is against more than 1 ∆ → each ∆ must be served with his own set of process

π's claim arises from a transaction of business by ∆ in NY

1. Single commercial event in NY that must give rise to the cause of action sued upon 2. Can be sufficient to show substantial negotiations in NY 3. In some cases ∆'s phone, electronic and mail transmissions from out of state (if substantial in # and relating to the performance of a significant K) can = transaction of business a. Single telephone call doesn't qualify

Form of Process: Summons and Complaint

1. Summons advises ∆ that π is suing ∆ in a particular court 2. Complaint = pleading which specifies the transaction/occurrence that's the subject matter and spells out the essential elements of the cause of action

Action to recover realty

10 years (same for adverse possession)

Action by crime victim against convicted ∆ for serious crime

10 years SOL Period runs from date of conviction Victim may also sue for damages for up to 3 years from discovery of ∆'s receipt of $$ or property

Wrongful death (Statutory cause of action in favor of decedent's distributees where ∆s tortious conduct caused death - damages limited to economic losses

2 year SOL 2 years runs from date of death except it must ALSO be shown that SOL on decedent's underlying personal injury claim had no expired on date of death If criminal proceeding is brought against ∆ executor gets option and independent 1 year period from termination of criminal proceedings

Medical Malpractice Claims

2.5 years SOL Generally accrues on the date of malpractice except for continuous treatment (runs from end of treatment) and foreign object (one year from discovery if insufficient time under regular rules)

Product Liability Cases

3 theories a π could sue on: negligence, strict liability or breach of warranty- → when a product causes personal injury i. Negligence → 3 years running from the date of π's injury as to all ∆'s in the chain of distribution ii. Strict Liability → 3 years running from the date of π's injury as to all ∆'s in the chain of distribution iii. Breach of warranty → UCC governs these claims *4 year SOL under UCC which begins to run when the particular ∆ against whom the warranty is asserted delivers the product *You could have different results depending on when each ∆ has turned over the product

Professional malpractice other than medical mal practice

3 years SOL

Property damage including conversion and replevin

3 years SOL

Discovery Rule in Cases of Exposure to Toxic Substances

3 years for suit against manufacture, distributor, or supplier of the toxic substances begins to run upon the earlier of: (1) discovery of injury (becomes aware of symptoms) or (2) date when the injury should have become aware with reasonable diligence Toxic substance = any inherently harmful toxin that has latent or slow developing effects Exposure = any sort of assimilation into one's body or property Latent injury = any injury that's not immediately perceptible ***Doesn't apply to claims of medical malpractice → regular 2.5 year SOL applies

Personal Injury or Property Damage Statute of Limitations

3 years from the date of the injury When an infant is injured in utero → no cause of action unless child is born alive and then SOL runs at the date of birth

Article 78 proceedings

4 months SOL

Contracts governed by UCC Article 2

4 years SOL Breach of warranty claim accrues upon the product's delivery

Action by victim of rape-related felony

5 years SOL Period runs from date of crime; and if perp is prosecuted victim gets an extra 5 years from termination of criminal proceeding

Equity action (rescission, reformation, accounting)

6 years SOL

Fraud

6 years SOL π may sue within 6 years of commission of fraud r 2 years discovery (whichever is longer)

Indemnity or contribution

6 years SOL Accrual date = date of payment for which indemnity/contribution is sought

Breach of K other than UCC Statute of Limitations

6 years from the date of breach (regardless of when you learn of the breach)

Action by crime victim against convicted ∆ for any crime

7 years SOL Period runs from date of crime

Expedient Service

Court Invented Service a. If the above methods are not practical → π may make an ex parte motion to the court for an order allowing an improvises expedient method (some reasonable alterative appropriate for the services)

Municipal Tort Liability Not claims against the state

Actions for personal injury or property damage → 1 year and 90 days from date of accident Separate Notice of Claim prerequisite 1. π must serve notice of claim on the potential municipal ∆ no later than 90 days from the date of the accident **Gives potential municipal ∆ advance warning of the suit so they can engage in early investigation and possible settlement **If π files w/o compliance of notice → ∆ can move to dismiss on the grounds of failure to state a cause of action, a defense on merits 2. After serving notice → the π must wait 30 days before commencing the action **Complaint must plead compliance with notice of claim requirement If the 90 day period has expired but the SOL hasn't → π can make motion requesting permission to serve the late notice of claim and court has discretion to grant it if the municipal entity would be prejudiced (where they had actual knowledge)

Statute of Limitations

Affirmative defense based on the passage of time Begins to run → when the cause of action accrues (when the injury first occurs; even if the π is unaware of the injury) ***Not measured from date of discovery To satisfy SOL, must be commenced no later than the last day of the prescribed period of limitations (done on or before the last day of the SOL) Commenced = filing process w/ court To determine SOL (and any other time period in CPLR) exclude the day upon which the injury occurred and begin the next day Last timely day will be the anniversary of the injury If the last day of the SOL falls on a Saturday, Sunday or Public Holiday → π gets until the end of the next business day

Matrimonial Jurisdiction

Basis of jurisdiction to decide marital status: 1. Don't need to have personal jurisdiction over the ∆ spouse 2. All that's necessary is that the π spouse is a domiciliary of NY **The court will then have In rem jurisdiction over the marriage b/c the marital status (marital res) will be located in NY 3. If π spouse is seeking monetary support → must have a basis of personal jurisdiction over ∆ spouse [use long arm] **Apply the Marital Long-Arm statute (π spouse is a resident of NY): i. NY was matrimonial domicile of π and ∆ prior to their separation ii. ∆ abandoned π in NY iii. ∆'s monetary obligation accrued under an agreement executed in NY iv. ∆'s monetary obligation accrued under the laws of NY (no one really knows what this means)

SOL Bodily Injury for Other Prof Malpractice

Bodily injury as a result of non-medical profession malpractice = 3 years running from the date of bodily injury regardless of completion of the work Bodily injury isn't suffered at the date the work is completed but the date the bricks fall

Narrow Exception to Med Mal

Continuous Treatment Rule Foreign object rule

Defamation & long arm statute

Defamation claims are excluded from both of the tortious act categories 1. Need to have another basis of jurisdiction separate from the tortious conduct a. Doing business claim b. Transaction of business

Defendant's Answer

Denials of the allegations ∆ wishes to contest Failure to deny an allegation = implied admission Any relevant affirmative defenses Look to substantive law Generally an affirmative defense not raised in the answer are waived ***Exception = (1) nonjoinder of a necessary party; (2) failure to state a cause of action; (3) lack of subject matter jurisdiction → never waived Any counterclaims ∆ wishes to assert against π [A reply is π's pleading in response to counterclaim] ∆ may also cross-claim against any other ∆ based on any type of claim that ∆ has against other ∆'s ***Parties must serve copies of their pleadings on all other parties who have appeared in the action

Points on Doing business

Doing business → is a form of presence jurisdiction (i.e. general jurisdiction) so there's no requirement that the claim arose / have relationship to NY Satisfaction of the doing business standard is usually only necessary if the cause of action arose outside of NY If it arose within NY, long-arm jurisdiction will probable be available and π won't need t show that the corporation is doing business on a continuous and system basis within NY Doing business can be used to get jurisdiction over sole proprietorships, partnerships, and corporations

Doing Business in NY & Domestic Corporations

Domestic Corporation (inc in NY) or Licensed corporations (a foreign corp authorized to do business in NY) is subject to personal jurisdiction in NY on any claim no matter where in the world it arose

Plaintiff has a legal disability

Either Infancy or Insanity Infants or insane π's may sue w/ regular SOL through a competent adult representative but also have benefit of a toll SOL is tolled under the disability ends (until infant π reaches 18 or insanity clears up) Insanity → mental disorder that causes an over inability to function in society **Π need not have gone through formal judicial proceedings for the appointment of a guardian

π's claim arises from ∆'s tortious act outside of NY which causes injury in NY

Ex: manufacturing defective products in WI that explodes in NY MUST BE AN ADDITIONAL LINK B/W ∆ and NY a. A regularly solicits business or engages in any other persistent course of conduct in NY; or b. ∆ derives substantial revenue from goods used or consumed or services rendered in NY; or c. ∆ expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate and international commerce **Such commerce must purposefully include NY (i.e. include effort to participate in NY market) ****Doesn't have to give rise to the level of doing business **Injury must originate in NY and can't be any lingering effect in NY 2. Doctors are inherently local in nature

SOL Financial Loss for Other prof Malprac

Financial Loss alone - 3years, regardless of K or tort - which stars when the services are rendered Lack of awareness of the malpractice is irrelevant Architect/engineer → 3 years from completion of building Attorney → 3 years from delivery of work product to client Breach of K SOL is irrelevant b/c the CPLR supersedes it with this

Proof of Service

For both leave-and-mail and affix-and-mail service → proof must be filed after the 2 service steps have been performed (AKA AFFIDAVIT OF SERVICE describing the details of service) a. Filing service is a necessary step to make service complete → it's complete 10 days after proof of service is filed b. Filing of proof of service doesn't have to take place within 120 days only the nail & mail or deliver & mail c. Not a jurisdictional defect if π fails to file proof d. Only consequence is that it postpones ∆'s time to respond e. Not required for personal delivery b/c it's complete when it's in his hands

Service on NY Secretary of State

For domestic corporations (those incorporated in NY) or a foreign corporation (incorporated outside of NY) authorized to do business in NY (a licensed corporation) --> Personally deliver 2 copies of process to the office of the NY secretary of state For unlicensed foreign corporates (one not authorized to do business in NY) --> Personally deliver 1 copy of process to the Office of the NY secretary of state plus π herself must mail one copy to the corporation by certified mail return receipt requested

Basis of jurisdiction over ∆'s person

General → doesn't matter where the claim arose i. Presence in NY ii. Doing business in NY iii. Domicile in NY Specific Jurisdiction → claim must be specific to ∆'s NY activity or within terms of the K i. Long-arm Jurisdiction ii. Non-Resident Motorist Statute iii. Consent

Foreign Object Rule exception to SOL

If Dr. was responsible for introducing a foreign object into P's body and leaves it behind → π gets the longer of: (1) 2.5 years from the date of the operation; or (2) 1 year from the date π discovers the presence of the object or should have discovered it with reasonable diligence Foreign object = something Dr. didn't intend to leave behind Doesn't equal = chemical substances, prosthetic device, or a fixation device (pins, staples, braces, pacemakers, etc.). Tumor is not a foreign object → might have a claim for misdiagnosis then normal malp SOL runs

6 Month grace period

If a NY action is timely commenced but dismissed before trial and at the time of dismissal the SOL has expired or has less than 6 months remain → π gets 6 mos from date of dismissal to re-file the same action and serve process on the same ∆ Doesn't apply if: a. If the dismissal is on the merits (res judicata argument) b. π Voluntary discontinue of the suit c. π's neglect to prosecute provided the neglect to prosecute was that which consists of a general pattern to delay [Sometimes gets dismissed for this by 1 failure to appear] d. If dismissal was for lack of personal jurisdiction ***Lack of subject matter jurisdiction is entitled to the 6 month extension (i.e. lack of diversity of citizenship in NY federal ct) ***If defect was to due to the form of summons, improper service of process, long-arm jurisdiction was lacking

Venue in General

If the Supreme Court has jurisdiction → every Supreme Court in the state regardless of the county has power to hear the case Rule of venue regulate the appropriate county in NY for trial Generally - π choses venue and specifies in the summons which court i. Action that judgment affects title or possession to real property → venue is proper in the county where the real property is located ii. All other actions → any county in which 1 of the parties resides in at the time the action is commenced but If none - π may chose any county

Non-Traditional Method --> Service by First Class Mail Plus Acknowledgment

Mail process to ∆ by first-class mail w/ 2 copies of a statutory acknowledgment form plus a return envelop, postage prepaid, addressed to sender Service will only be effective if ∆ signs and returns one of the acknowledgement forms to π within 30 days after ∆ receives the mailed process If ∆ doesn't return the acknowledgment form → service by mail will not be effective a. π must serve process again by 1 of the traditional methods b. A ∆ who refuses service must then pay the expenses of new service may be used regardless of whether ∆ is within or outside of NY Available to all types of ∆s except mentally incapacitated persons w/ a guardian or infants [Must be served by traditional service] If ∆ returns the acknowledgment form merely acknowledges receipt → ∆ can still raise a jurisdictional issue in his motion or answer

Personal Delivery on Corporate employee

Must be to: a. Officer of the corporation b. Director c. Designated agent d. Managing agent → any corporate employee with supervising abilities

Where π choses impropre venue

Not a jurisdiction defect → not a basis for dismissal ∆'s remedy is to serve a demand for change of venue to a proper county designated by ∆ [Demand must be served before or with the answer] If π consents → change is automatic If π objects/fails to respond → ∆ must make a motion for change of venue That motion will be granted as a matter of right → ifπ chose an improper venue & ∆ designated a proper one in his demand

When disability ends for legal disabled π

Original SOL was 3 years or more → π gets whichever is longer of: i. The original SOL period running from the usual date of the accrual (injury) or ii. 3 years from the date the disability ends. Ex: 16 year old has a breach of K in 2010. In 2012 when he's 18 he has until 2015 for the 3 years after disability ended or until 2016 for usual breach of K SOL Original SOL < 3 years → specified SOL period measured from when disability ended Ex: Assault claim (SOL 1 year) when 12 years old, at 18, π has 1 year to assert claim

Outside Limitation for disability

Outer Limit of 10 years a. Infants → med mal claims must be brought no later than 10 years from date of accrual ****The continuous treatment toll is different from infant tolling DON'T ADD TOGETHER, COMPUTER EACH SEPARATELY b. Insane → all claims regardless of cause action are time barred after 10 years when relying on toll

General Subject Matter Jurisdiction

Power to hear any type of claim Supreme Court is a court of general jurisdiction

Leave and Mail

Process server may deliver process to person of suitable age and discretion at ∆'s actual dwelling place or actual place of business AND mail a copy by regular mail to ∆ at his actual place of business or last known residence **The 2 steps must be completed within 20 days of each other and both steps must place within 120 days from filing process **Doesn't matter which step is done first **Ok to mail at 1 location and mail to another Don't have to use certified mail, regular mail is ok Suitable age and discretion ≠ adult but can be a teenager If there's a guard at the door, that makes it the outer boundary of the dwelling

Service outside of NY

Same methods are used to serve ∆ within NY when the ∆ is located out of NY Who may serve process i. Any NY resident who is at least 18 years old ii. Anyone authorized by the laws of process of that state iii. Any attorney licensed by the jurisdiction where process is made

Special rules where building is more than 10 years old

Special procedures apply to personal injury actions against architects and engineers when the action is brought more than 10 years after building was completed 1. π must serve notice on the architect or engineer at least 90 days before filing suit 2. π may obtain pre-action discovery from potential ∆ during the 90-day waiting period; and 3. After suit is commenced, if ∆ moves for SJ → burden is on π to make an immediate evidentiary showing that there's a substantial basis to believe that ∆'s negligence was the proximate cause of injuries and not some intervening cause like a bad up keep

Death of Potential πs & Survival Claim

Survival Claim - any cause of action π herself could have brought if she were still alive i. Not limited to torts ii. Can recover all damages including pain and suffering iii. SOL = if π dies before SOL expires → estate representative gets the longer of (1) the remaining time on the applicable SOL running from date of accrual or (2) 1 year from π's death

Supreme Court

Trial level court Court of original subject matter jurisdiction Unlimited Jurisdiction Regarding: (1) the monetary about of the claim (2) ability to assert equity claims (3) residency of the parties (4) Place where cause of action arose Personal jurisdiction is a separate and additional requirement

Form of Process: Summon and Notice

Where no complaint → must have sufficient notice inscribed on the face of the summons or 1 page attachment (abbreviated complaint) must have: a. A brief statement of the nature of the action b. Specify the type of relief being sought c. If π is seeking damages → amount must be specified unless it's a personal injury or wrongful death action (then neither notice or complaint may specify the amount sought)

Death of a Potential πs & wrongful death

Wrongful death - cause of action is a tort claim for the pecuniary damages of decedent's statutory distributees i. Punitive damages are recoverable ii. Can't get emotional suffering of distributees or decedent's pain and suffering iii. SOL = 2 years from date of death provided that the decedent possessed a timely cause of action at the time of death

Subject Matter Jurisdiction

a court must have competence to hear and adjudicate the type of controversy brought before it

Potential ∆s

a. 18 months are always added to the relevant limitations period if potential ∆ dies AT ANY TIME BEFORE SOL EXPIRES (regardless if π needs extra time)

Affixing and Mailing

a. Affixing = taping or using rubber band on the doorknob b. Process server may affix process to the door of ∆'s actual dwelling place or actual place of business plus mail a copy by regular mail to the ∆ at his actual place or business or his last known residence c. **Can occur in either order but must be done within 20 days of each other and both must be within 120 days of filing process d. Additional Step → process server can only do this if he first exercises due diligence by (1) making an attempt to serve ∆ directly and if fails (2) try to leave process with a person of suitable age and discretion at the home or place of business Due diligence = several attempts on different days of the week and different times of day; must do research

Due Process Test for Long-arm jurisdcition

a. Due process will be satisfied if claim arises out of conduct of ∆ that is so purposefully directed toward NY that the ∆ so reasonably anticipates being sued on that claim in NY court

Long arm jurisdiction

a. Has it's origin in the minimum contacts standard of jurisdiction b. Allows for out-of-state service conferring personal jurisdiction on the basis of certain acts by ∆ that have a sufficient connection with NY provide that π claim arises from those acts 5 categories of long-arm jurisdiction i. π's claim arises from a transaction of business by ∆ in NY ii. π's claim arises from a K transacted to supply goods/services to NY iii. π's claim arises from ∆'s tortious act in NY (excluding defamation) iv. π's claim arises from ∆'s tortious act outside of NY which causes injury in NY (manufacturing defective products in WI that explodes in NY) vi. π's claim arises from ∆'s ownership, use, or possession of real property in NY

Personal delivery in NY

a. Service by personal delivery is complete upon process server's tender of summons directly to ∆ b. If ∆ refuses to accept process → can leave it in ∆'s immediate vicinity `

Agent Specifically designed by ∆ to receive process

a. Written commercial K → expressly specifies an agent upon whom process may be served in dispute arising from a K

Domicile

an individual ∆ who's domiciliary is NY at the time the action was commence can be served w/ process anywhere in the US and this will give π a basis of general jurisdiction a. Can sue on a claim no matter where the claim arose b/c state of his domicile b. Residence = a place where a persons lives for a fair amount of time with some degree of permanency (can have multiple residences) c. Domicile = the one residence at which the person intends to remain indefinitely and is treated by her as the principal home (can only have 1 of these)

Medical Malpractice

applies to doctors, dentists, podiatrists, nurses & hospitals Period = 2.5 years from the date of the malpractice Date that you discover the malpractice is irrelevant Asserting a claim for respondeat superior = same time period as for the doctor Asserting an alternative theory of negligence such as negligent hiring by hospital IS NOT MEDICAL MALPRACTICE it is ordinary negligence → SOL 3 years from the day of injury to the patient

Other Professional Malpractice

claims by clients of architects, engineers, accountants, attorneys (a member of a learned profession) *Usually has a specialized academic degree and license *Doesn't include insurance brokers, securities analysts, plumbers Normally SOL for negligence/breach of K applies

Non-resident motorist statute

confers PJ over an accident claim arising from a nondomiciliary motorist's ownership or use of an auto on a NY roadway Difference b/w this and tortious act under LAS i. Service of process → π personally serve 1 copy on the NY Secretary of State and mail 1 copy to ∆ by certified mail to ∆'s out of state residence ii. Applies to nondomiciliary vehicle owner who gave permission to drive in NY (agency or business relationship isn't required b/w owner and river)

Naked summons

defect in personal jurisdiction which means that the action is subject to dismissal if ∆ makes a timely objection

Commencement of Process

filing process with clerk of the court: 1. Must be accompanied by payment of the fee for purchase on an index number 2. Filing of process is valid commencement provided that process is then served on ∆ within 120 days of filing with the county clerk 3. If π is having trouble serving the ∆ within 120days → π may make a motion to extend time to make service if π can show (1) good cause measured by π's diligence or (2) interest of justice justifies a extension 4. If ∆ wants to challenge it as untimely → ∆ must raise the untimely service by motion to dismiss [Failure to do so waives the defense] 5. If π makes a mistake in the filing procedure → π can make a motion to permit correction of mistake provide ∆ suffers no prejudice, the filling is within the SOL, and the filing fee is paid

Borrowing Statute

if the cause of action arises out of NY, often a choice of law problem is presented if the SOL are different b/w the states If π was a non-resident of NY when the out-of-state claim arose 1. NY will apply the SOL of the state where the claim arose if it's shorter than NY's. 2. NY will apply NY's if the state has a longer SOL than NY If π was a NY resident when the out-of-state claim arose 1. NY will always apply the NY SOL regardless of which is longer or shorter

Other Courts in NY

have limited monetary jurisdictions that varies depending on the court

Serving the answer and any interlocutory papers

i. After π's initial service of process → all other papers are called interlocutory papers 1. Includes answer, other pleadings, motions, discovery notice, etc. 2. All papers must be served on all other parties to the action ii. Served by the ordinary mail on the attorneys for the parties iii. Service of an interlocutory paper by mail is deemed made upon the mailing not receipt iv. Service of mail must be made through a post office in NY

Exception to Supreme Court's general jurisdiction

i. Can't hear cases where federal law confers exclusive jurisdiction on federal courts (like bankruptcy proceedings) ii. Claims for $$ damages in tort or breach of K against the State of NY ***That is to be brought in NY Court of Claims Employees of the state of NY or subdivisions such as counties, cities, towns, school districts can be sued in Supreme Court If you suit involves NY and Nassau County → sue in 2 courts [Court of Claims and Supreme Court] If suit is by Nassau Cty and an employee → 1 suit is permissible in Supreme Court

Time Limits for serving the answer

i. If ∆ was served with process by PERSONAL DELIVERY WITHIN NY → 20 days of delivery to serve answer ii. If ∆ was served with process by FIRST CLASS MAIL + ACKNOWLEDGMENT → ∆ has 20 days of ∆'s mailing of the acknowledgment to serve iii. If ∆ was served w/ process UNDER ANY OTHER CIRCUMSTANCES → within 30 days after service is complete

Supreme Court has exclusive subject matter jurisdiction over...

i. Matrimonial actions = actions that ask the court to adjudicate the status of a marriage) ii. Article 78 proceedings = judicial review of NY state and local government administrative claims iii. Declaratory Judgment action = judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability

Pleading

i. Pleadings are formal written allegations by the parties of their respective claims and defenses

Discretionary grounds for change in venue

i. The convenience of material witnesses 1. Either party by motion may request a change of venue to the county that would be most convenient for witnesses 2. (Usually where the cause of action arose) ii. If there's reason to believe that an impartial trial can't be had in the county where the action is commenced (either party can make a motion to change venue)

∆'s Response to Summons and Complaint

i. ∆ can respond to the summons and complaint by either serving an answer or make a pre-answer motion to dismiss

Continuous Treatment Rule except SOL

if Dr. continues to treat the patient after an operation for the exact same condition that gave rise to the malpractice → π gets 2.5 years from the end of the continuous treatment if suing for the condition that gave rise to the malpractice

Jurisdiction over the particular case

in addition to SMJ, 3 additional jurisdictional elements must be satisfied in order for a court to render a valid judgment proper commencement of the action, proper service of process on the ∆, proper basis of jurisdiction over the person or property involved in the action

Doing Business and unlicensed foreign corporations

must be "DOING BUSINESS" to be present in NY i. Test for Doing Business - π must show that at the time the action is commenced the corporation's employees/agents in NY engaging in commercial activity for the corporation of a regular, systematic and on-going basis ii. If the corporate ∆ is doing business in NY → service of process may be made by personal delivery to a proper corporate representative anywhere in US or by service on NY Secretary of State iv. Most significant factor in determining if a corporate is doing business in NY → if the corp has an office/physical facility with employees coming and going out of it on a regular ongoing and systematic basis

Proper Method of serving process in matrimonial action

personal delivery to ∆ Other methods → need to have court order

Forum Non Conveniens

the non-residency of the parties in NY and lack of relationship of the claim to NY doesn't deprive NY of subject matter jurisdiction 1. Upon motion by ∆, the court may dismiss the cause of action on the grounds of forum non conveniens when the action lacks any substantial nexus to NY 2. Court can't do it sua sponte

What are the durational residency requirements

π must plead satisfaction of any of the residency categories: a. No Wait: Both parties are NY residents at the time the action was commenced and the grounds for the divorce arose out of NY b. 1 year wait: if either party has been a NY resident for at least 1 year prior to the action and i. Marriage took place in NY ii. NY was the matrimonial domicile of the spouses iii. Grounds for divorce arose in NY c. 2 year wait: if either party has been a NY resident for a continuous period of 2 years immediately prior to the action i. No need to show any other connection to NY ***IF π fails to allege 1 of the residency requirements → ∆'s defense is failure to state a course of action & not just lack of jurisdiction 5. Don't apply in an action solely to enforce $$ support obligations --> Only applies to actions seeking to affect the martial status

Service on Infants

∆'s name goes on the summons but process has to be served on any adult that is: 1. Parent 2. Guardian 3. Legal custody 4. If infant is married → adult spouse within whom he resides with If infant is over 14 then it must be served on the eligible adult and the infant Any traditional method may be used

Answer

∆'s pleading in which she admits/denies π's allegations and sets for relevant affirmative defense ∆'s answer consists of 1. Denials of the allegations ∆ wishes to contest *Failure to deny an allegation = implied admission 2. Any relevant affirmative defenses a. Look to substantive law b. Generally an affirmative defense not raised in the answer are waived i. Exception = (1) nonjoinder of a necessary party; (2) failure to state a cause of action; (3) lack of subject matter jurisdiction → never waived 3. Any counterclaims ∆ wishes to assert against π [A reply is π's pleading in response to counterclaim] 4. ∆ may also cross-claim against any other ∆ [Based on any type of claim that ∆ has against other ∆'s] 5. ***Parties must serve copies of their pleadings on all other parties who have appeared in the action