NYLE 2

Motion for relief from judgment or order

· Any party may move to vacate a judgment or order upon the grounds set forth in CPLR 5015, which are excusable default, newly discovered evidence, fraud, misrepresentation or other misconduct of an adverse party , lack of jx to render the judgment or order, and eversal, modification or vacatur of a prior judgment or order upon which the current judgment or order is based o An application to vacate a default judgment on the ground of excusable default requires an excuse for the default and an affidavit of merits demonstrating a meritorious dfense, and tehre is a one year time limitation for the making of the motion, running from te time of service of a copy of the judgment or order with written notice of entry or if the mocing party entered the judgment or order, from the date of entry o Motions to vacate on other grounds must be made within a reasonable time o A court may vacate a judgment or order upon such erms as may be just, empowering the court to direct restitution or impose conditions when it vacates a judgment or order

motion to dismiss 2

· A defense based upon one of several enumerated grounds in CPLR 3211e is waived if not raised by a pre-answer motion or as a defense in the answer o These grounds include: documentary evidence, lack of legal capacity to sue, another action pending or defenses such as collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, release, res judicata, statute of limitations or statute of frauds · An objection based upon lack of subject matter jx , failure to state a cause of action, or failure to join a necessary party may be raised at any time by motion or in a subsequent pleading o These objections may be raised even if a pre answer motion was served and the defense was not included and even if an answer was served without raising the defense · An objection that the initial pleading was not properly served is waived if, having raised such an objection. In the responsibe pleading, the objecting party does not move for judgment on such ground within 60 days after serving the pleading, unless the court extends the time upon the ground of undue hardship · Upon the hearing of the motion, either party may submit affidavits and other documentary evidence, and the court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised on the motion o Also, a motion to dismiss may be treated by the court, after adequate notice to the parties, as one for summary judgment, even if it is a pre-answer motion · On a motion to dismiss pursuant to CPLR 3211, the court affords the pleading a liberal construction, accepts all facts as alleged in the pleading to be true, accords the plaintiff the benefit of every possible favorable inference, and determines only whether the facts as alleged fir within any cognizable legal theory o The foregoing standards are especially relevant to a motion based on documentary evidence, a listed defense, or failure to state a cause of action but are also relevant to a motion based on any of the other grounds to the extent applicable

limitations of time

statute of limitations •an action must be commenced within the limitations period specified in art 2 unless a different time is prescribed by law or a shorter or longer time is prescribed by written agreement. a court cannot extend the time limited by law for the commencement of an action •under NY's borrowing sstatute, if a nonresident plaintiffs claim accrued outside of NY, the claim must be timely under both the law of NY and that of the place of accrual -an out of state of claim taht accrues in favor of a NY resident will be governed by the NY statute of limitations regardless of whether the other states statute of limitations is shorter than that of NY •the plaintiff must interpose the claim within the applicable statute of limitations -the time within which an action must be commenced, except as oterwise expressly prescribed . is computed from the time the cause of action accrued to the time the claim is interposed -in all courts except town and village jutice courts, a claim is deemed interposed when the initiatory papers are filed with the clerk

Depositions upon written questions

· A deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state Interrogatories · Any paty in an action may serve upon any other party written interrogatories, subject to three limitations: (1) interrogatories cannot be used if a bill of particulars is demanded of the same party; (2) in an action seeking damages for personal injury, property damage or wrongful death of court if a deposition is conducted of the same party; and (3) interrogatories are limited to 25 in number, including subparts, unless the court orders otherwise o Special rules apply in matrimonial actions Demands for addresses · A party may serve on any other party a written notice demanding a verified statement setting forth the post office address and residence of the party , of any specified officer or member of the party and of any person who formerly possessed and assigned a cause of action or defense which is being asserted in the action

Arbitration 2

· A party initiates arbitration by serving upon the other party a demand for arbitration or notice of intention to arbitrate or by applying to the court for an order compelling arbitration o The notice of intention to arbitrate or demand to arbitrate must specify the agreement pursuant to which arbitration is sought, the name and address of the party serving the notice, and state that unless the party served applies to stay the arbitration within 20 days after such service, the party will be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting a limitations bar o The notice or demand must be served in the same manner as a summons or by registered or certified mail, return receipt requested · An application to stay arbitration must be made by the party served with a demand for arbitration or notice of intention to arbitrate within 20 days after service of the notice or demand or is precluded o Notice of the application to stay must also be served in the same manner as the notice of intent to arbitrate o Any provision in an arbitration agreement or arbitration rules that waives the right to apply for a stay of arbitration is void · A party wishing to resist arbitration may apply to stay the arbitration upon any of the three enumerated grounds o If the party has been served with a demand for arbitration or notice of intent to arbitrate compliant with CPLR 7503c, the opposing party must timely move for a stay raising the said grounds or they are waived o A limitations defense, however, may still beasserted before the arbitrator, who has the discretion whether or not to apply the bar o If the limitations defense is decided by the arbitrator, it cannot be later asserted as a basis to vacate or modify an award o If the demand by the arbitrator, it cannot be later asserted as a basis to vatate or modify an award o If the demand for arbitration fails to comply with the formalities of CPLR 7503c and the aggrieved party did not particulate in the arbitration, the said grounds are not waived and can still be raised in a motion to vacate an award

Motion for summary judgment

· A party may move for summary judgment in any action. The earliest time for the making of a motion for summary judgment is the joinder of issue (service of defendants answer) and the latest time is 120 days following the filing the note of issue o A court may, in a particular action or by a general rule, set an earlier date but not earlier than 30 days after the filing of a note of issue o A court can set aside the time restriction and allow a late summary judgment motion if good cause is shown o Good cause requires a showing of good cause for the delay in making the motion. That delay is nonprejudicial and the motion Is meritorious is not good cause that will permit a late filed motion to be heard

Arbitration

· Arbitration is a procedure for resolving a dispute by referring the dispute to an impartial arbitrator (or panel of arbitrator) chosen by the parties to hear evidence and arguments from each side and then decide the outcome o Arbitration is less formal than a trial and is generally, by agreement of the parties, either binding or nonbinding · Written agreemets to submit a controversy to arbitration are enforceable and will be enforced by the courts without regard to th merits of the underlying claim o A party seeking to resist arbitration may do so only upon three grounds: (1) that no valid agreement was made to arbitrate the issue in question; (2) that a condition precedent in the agreement has not been complied with; or (3) that the claim Is barred by the statute of limitations o In the absence of one of the above enumerated defenses toa rbitration, the court shall direct the parties to arbitrate o Courts are expressly prohibited under CPLR 7501 from determining whether a claim sought to be arbitrated in tenable, or otherwise passing upon the merits of the dispute

Default judgment

· Whe a defendant fails to appear, plead or proceed ot trial of an action reached and called for trual, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment o If the plaintiff fails to take proceedings to obtain a default judgment within one year after the default , the court shall dismiss the complaint as abandoned, upon its own initiative or on motion by the defendant, unless sufficient cause is shown why the complaint should not be dismissed o Such a motion by the defendant does not constitute an appearance in the action · A defendant may be relieved from a default judgment upon such terms as may be just, upon the ground of excusable default, if such motion is made within one year afer service of a copy of the judgment or order with written notice of its entry upon defendant, or if the defendant has entered the judgment, within one year after such entry · Reasonable excuse for delay or default for either a motion to extend the time to appear or plead or a motion to be relieved from a default judgment may be based on a delay or default resulting from law office failure

statute of limitations 5

•CPLR 214-a requires that medical, dental or podiatric malpractice actions be commenced within two years and six months of the alleged act, omission or failure -if there is continuous treatment for the same illness, injury or ocondition that gave rise to the alleged act or omission, the statute is tolled until the date of the last treatment z8if the action is based upon discovery of a foreign object left in the patients body (excluding devices placed i in the patient for ongoing treatment), the commencement period is tolled until the earlier of one year of (i) the date of discovery or (ii) the date of discovery of facts which would reasonably lead to discovery •if the action is based upon the failyre to disagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within ttwo years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission an dknows or reasonably should hhave known that such alleged negligent act or omission has caused injury (but no later than seven years from the act or omission ) or (ii) the date of the last treatment where there is continuous treatment

statute of limitations 6

•CPLR 215 sets forth the types of actions to be commenced within one year, including -an action to recover damages for intentional torts, suc as assault and defamation; and -an action upon an arbitration award •unless a sorter time is provided in te law authorizing th eproceeding, a special proceeding under art 78 must be commenced within four months after the determination to be reviewed becomes final and binding or after the respondents refusal, upon demand, to perform its duty •most wrongful death actions must be commenced within two years after the decedents date of death

partnerships and unincorporated associations

-two or more persons conducting business as a partnership may sue or be sued in the partnership name. Actions may be brought by or against the president or treasurer of an unincorporated association on behalf of the association

mediation

•mediation is a form of alternative dispute resolution used to resolve disputes between 1 or more parties -a third party neutral mediator does not decide the case but assists the parties to reach a mutually acceptable agreement -mediation may be inappropriate if one party is unwilling to compromise or has a significant advantage in power or control over the party, such as if the parties have a history of abuse -the process is private and confidential. mediation is less formal than a trial, allows the parties to communicate freely and participate fully in the proces, and is les expensive than litigation

venue and forum non conveniens

A. proper venue for various types of actions •the place of trial is the county in whcih either the plaintiff or defendant resides at the time of commencement of the action, the county in which a subtantial part of the events or omission giving rise to the claim occurred, or if neither party resides in the state, any county designated by the plaintiff -a corp or limited liability company is a resident of the county in which its principal office -a partnership is deemed a resident of the county in which it has its principal office as well as the county where the partner suing or being sued actually resides -if a written agreement made befoe before the action is commenced fixed a different place of trial the agreement will be enforced •the place of trial of all actions aagainst municipal defendants is the county in which ssuch municipal defendant is located -however, for actions against the city of new york it is the county within the city in which the cause of action arose, or if it arose outside of the city, in the county of NY •the place of trial of any action in which judgment would affect title to real property is the county where the real property is situated

Notice to admit

· A party may timely serve upon any other party a written request for admission by the latter of the genuineness of any papers or docs, or the correctness or fairness of representation of any photos, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry o A party may not seek an admission of something that is an ultimate issue in the dispute, such as negligence or other fault o A notice to admit which goes to the heart to the matter at issue is improper · Each of the matters of which an admission is requested shall be deemed admitted unless the party to whom the request is direct timely serves upon the paty requesting the admission a sworn statement either denying specifically the matters of which an admission is requested; setting forth in detail the reasons why he cannot truthfully either admit or deny those matters; or setting forth a claim that the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation , or that the matters constitute a trade secret or that such party would be privileged or disqualified from testifying as a witness concerning them o If the party from whom an admission is requested does not admit, that party may be held liable the reasonable expenses incurred in proving such matter of fact, including reasonable attorneys fees

Special proceedings

· A special proceeding is sued to establish a right or enforce an obligation in certain civil matters in an eexpidited fashion o Statutory authorization must exist for the use of a special proceeding o The most common special proceedings are proceedings against a body or officer, a summary proceeding to reover possession of real property, and the first application arising out of an arbitrable controversy · The party who initiates a special proceeding is called the petitioner and the adversary, if any, is the respondent. Leave of court is required to join an other parties · The pleadings are a petition, an answer (if there is an adverse party as is usual), and a reply. o A reply is required if the answer contains a counterclaim denominated as such, and unlike in an action a reply is permitted to respond to any new matter in the answer. o Any additional pleadings require leave of court · The commencement of a special proceeding requires the filing (except in town and village justice courts ) of a petition, which must be served on the respondent with a notice of petition o Service must be made in the same manner as a summons in an action o The notice of petition serves to notify the respondent pf the time and place of the return date on the petition o In addition to specifying the return date, the notice of petition must identify the affidavits, if any, that are being submitted in support of the petition

arbitration 3

· A special proceeding is used to bring before the court the first application arising out of an arbitrable controversy which is not made by motion in a related pending action · The provisional remedies of attachment and preliminary injunction are available in connection with a pending arbitration, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief · The arbitrator must be sworn before hearing a dispute, and the parties are entitled to be heard, to present evidence and to cross examine witnesses o Arbitrators are not bound by the rules of evidence that apply in judicial proceedings o Each party has a non-waivable right to be represented by counsel throughout the arbitration proceeding · An arbitration award is not enforceable as a judgment unless an application to confirm an award is made within one year after delivery of the award to the moving party o An application to vacate or modify an award must be made witin 90 days after delivery of the award to the moving party · If the parties have agreed that the arbitration is to be nonbonding so that the decision of the arbitrator is to be advisory only, the arbitration may still be compelled, but any award may not be properly confirmed against a party who rejects it

Discovery and inspection of docs or property

· After commencement of an action, a party may serve a notice on any other party or a subpoena duces tecum on any other person: (a) to produce and permit the party seeking discovery, or someone acting on their behalf, to inspect, copy ,test or photograph any designated docs or any things which are in the possession, custody or control of the party or person served; or (b) to permit entry upon designated land or other property in the possession, custody or control of the party or person served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designate object or operation thereon Physical and mental examinations · After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a paty, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control

Proceeding against body or officer 2

· An art 78 proceeding is a special proceeding and is governed by the procedures of CPLR art 4 except as otherwise may be provided in art 78 · An art 78 proceeding must be commenced in supreme court. It is commenced by filing a petition with the clerk of the court of the county in which the proceeding is commenced o The statute of limitations for an art 78 proceeding is four months after the determination to be reviewed becomes final and binding upon the petitioner, or after the respondents refusal, upon demand, to perform its duty, unless a shorter time is provided in the law authorizing the proceeding · Unless the court has granted an order to show cause specifying the ytime and manner of service, the notice of petition together with the petition and supporting affidavits must be served on any adverse party at least 20 days before the petition is to be heard, the answer with any supporting affidavits must be served at least 5 days before such time, and any reply with any supporting affidavits must be served at least 1 day before such time · The petition and answer in an art 78 proceeding must be verified. The petition may be accompanied by affidavits or other written proof o The answer must state the facts showing the grounds for the respondents action of which the petitioner complains o A certified transcript of the record of proceedings being challenged by the petitioner must be filed with the answer o Affidavits or other written proof may be submitted as evidentiary support for the respondents position o A reply must be served in response to any counterclaim designated as such and to any other new matter raised in the answer, and also if the accuracy of any record of proceeding annexed to the answer is disputed

Proceeding against body or officer

· Art 78 governs the procedure for judicial eview of matters that were recognized at common law under the common law wits of cert, mandamus, and prohibition o Art 78 is the vehicle for judicial review of most administrative actions in NY o The determination sought to be reviewed must be final, and the petitioner must exhaust their administrative remedies before seeking judicial relief · Body or officer is defined as including every court, tribunal, board, corp, officer, or other person, or aggregation of persons, whose action may be affected by an art 78 proceeding o In most, but not all, cases this means governmental officers and agencies o For example, an art 78 proceeding in the nature of mandamus is the proper remedy to compel the management of a private corp to comply with the corps bylaws regarding corporate governance · CPLR 7803 contains a list of issues that may be raised in an art 78 proceeding: o Whether a body or officer has failed to perform a duty enjoined by law; o Whether a body or officer has proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; o Whether a determination was made in violation of lawful procedure, was affect by an error of law or was arbitrary and capricious or an abuse of discretion; or o Whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, suppored by substantial evidence

Methods of obtaining disclosure

· Disclosure may be obtained by stipulation or on notice without leave of court unless otherwise provided by the CPLR or court rule o For example, leave of court is required for disclosure before an action is commenced to aid in bringing an action, to preserve info or to aidin arbitration, for a deposition of a party before that partys time to serve a responsibe pleading has expired, and for disclosure during or after trial · Disclosure may be obtained by one or more of the following devices: o Depositions upon oral question o Depoisitions upon written questions o Interrogatories o Demands for address o Discovery and inspection of doc sor property o Physical and mental exams o Notice to admit

Want of prosecution

· If a party unreasonably neglects to proceed generally in an actino or otherwise delays in the prosecution thereof, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the partys pleading, provided: o Issue has been joined in the action; o One year has elapsed since the joinder of issue or six months have elapsed since the issuance of the preliminary court conference order where such an order has been issued whichever is later; o The court or party seeking such erlief, as the case may be, has properly served a written demand to which the party against whom such elief is sought has not timely responded

Motion for summary judgment in lieu of complaint

· If an action is based upin an instrument for the payment of money only or upon any judgement, the plaintiff may serve with the summons, in lieu of a complaint, a notice of motion for summary judgment with appropriate supporting papers o The summons shall require the defendant to subnit answering papers on the motion within the time provided in the notice of motion o The minimum time such motion shall be noticed to be heard shall be as provided by CPLR 320a for making an appearance in an action, depending upon the method of service o If the plaintiff sets the hearing dat of the motion later than that minimum time, the plaintiff may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days prior to such hearing date o If the motion is denied , the moving and answering papers will be deemed a compliant and answer, respectively, unless the court orders otherwise

New action following termination

· If an action is timely commenced and terminated in any other manner than by a final judgment on the merits, a voluntary discontinuance, neglect to prosecute, or a failure to obtain personal jurisdiction over the defendant, and the statute of limitations has or is about to expire, the plaintiff may nonetheless commence a new action upon the same transaction or occurrence within six months after the termination of the prior action, provided service upon the defendant is affected within such six month period o Application of such six month period is not needed if the statute of limitations has not run when the new action is commenced

Depositions upon oral question

· If the parties have not agreed by stipulation, the party desiring to take the deposition of any person shall give each other party 20 days notice of the time and place of taking the deposition o A party noticed to be examined may serve notice of at least 10 days for the examination of any other party, such examination to follow at the same time and place o Unless stipulated by the parties or altered by the court for court for good cause shown, there are limitations on the number of depositions taken by a party and the duration of each deposition

disclosure 2

· Immune from disclosure are privileged matter (absolute immunity), work product of an attorney (absolute immunity), and material prepared for litigation (conditional immunity- only upon a sowing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent by other means) · Upon request each party must identify each person whom the party expects to call as an expert witness at trial and disclose in reasonable detail the subject matter on which each expert is expectd to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for eac experts opinion o The experts report need not be disclosed nor may a deposition of the expert be taken in the absence of a court order issued upon a showing of special circumstances and subject to such restrictions and provisions as the court deems appropriate o However, a party without court prrder may depose a person authorized to practice medicine, dentistry, or podiatry who is that partys treating or retained expert , in which case the other party is entitled to full disclosure regarding that expert · Special rules apply to experts in a medical, dental or podiatric malpractice actions · Any party may obtain a copy of the partys own statement which , for example, may be in the possession of another aprty or an insurer · A party may obtain discovery of the existence and contents of any insurance agreement under which an insurance carrier may be liable to satisfy part or all of a judgment which may be entered in the acion or to indemnify or reimburse for payments made to satisfy the judgment o Info concerning the insurance agreement is not admissile in evidence at trial even if it is obtained by disclosure

arbitration 4

· Judicial review of arbitration awards is extremely limited, and an award will not be vacated for an arbitrators errors of law and fact governs the grounds for mocing to vcacate or modify an arbitration award o Where te aggrieved party participated in the arbitration or was served wit a notice of intention to arbitrate and was prejudiced by the aprticular impropriety, there are four narrow grounds for vacating an arbitration award (misconduct in procuring he award, bias of the arbitrator, excess of power by the arbitrator, and procedural dfects) o If the party did not participate in the arbitration , or was not served wit a notice of intention to arbitrate, or was served with a notice which did not comply with CPLR 7503c, the grounds for vacatur include all of those mentioned above and the added grounds of non-arbitrability, noncompliance with the arbitration agreement and the statute of limitations o There are three grounds for modification of an award pursuant to CPLR 7511c: (1) miscalculation of figures or mistake in the description of persons, things or property; (2) determination of matters not within the submission to arbitrate; and (3) imperfection in matters of form not affecting the merits o Upon vacating an award, the court may order a rehearing

Proceeding against body or officer 3

· Objections in point of law may be raised either in the answer or in a motion to dismiss made within the time allowed for tha answer · Pursuant to CPLR 7804g on the return dae of the petition for an art 78 proceeidng brought on the ground that an agencys determination, made as a result of a hearing held at which evidence was taken, was not supported by substantial evidence, the court will first dispose of any objection that could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue o If the determination of any such objection does not terminate the proceeding, the court will order the proceeding transferred to the appellate division for resolution · On the return date of the petition for an art 78 proceeding brought on any other ground, the court will dispose of the case as it would a motion for summary judgment o If the pleadings, affidavits and other written proof submitted by the parties raise no triable issue of fact, the court will decide the case on the papers and grant judgment as a matter of law for the prevailing party o If a triable issue of fact is raised , the court shall try it forthwith

Disclosure

· The general scope of the right to disclosure extends to all matter that is material and necessary in the prosecution or defense of an action, regardless of the burden of proof o Such disclosure is obtainable from any party, including an officer, director, member, agent, or employee of a party · Disclosure is obtainable from a nonparty who Is about to depart from the tate, who is outside the state, who resides more than 100 miles from the palce of trial, who is too sick or infirm to attend trial, or who is the treating doctor or trial expert of the party demanding disclosure o Otherwise, disclosure from a nonaparty must be upon notice to the opposing party stating te circumstances or reasons such disclosure is sought or required o This notice requirement is in addition to the requiement that a nonparty from whom discovery is ought be served with a subpoena · A subpoena requires the attendance of a nonparty witness to give testimony, and a subpoena duces tecum requires a nonpartys production of documents o Subpoenas may be issued by, among others, the clerk of a court , a judge where there is no clerk, and the attorney of record of any party to an action, a special proceeding, an administrative proceeding, or an arbitration o This is in contrast with the federal practice of requiring the clerk to issue the subpoena . this is in contrast with the federal practice of requiring the clerk to issue the subpoena o Persons and entities outside of NY are not subject to the subpoena power of a NY court o However, testimony and documents may be obtained from an out of state witness or document custodian if the witness or custodian is willing to cooperate. If the witness or custodian is not willing to cooperate , testimony and documents still may be obtained through eiter a commission or letters rogatory, or by use of the procedures of the uniform interstate deposition and discovery act, as embodied in CPLR 3119, in any of the many other states which have adopted that act

motion for summary judgment 2

· The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law o CPLR 3212b requires that the moving party attach a complete set of the pleadings and submit affidavits made by one wit knowledge of the facs, and all other available evidentiary proof in admissible form, showing that there is no defense to the cause of action or that the caue of action or defense as no merit o The movant must also attach to the notice of motion a sort and concise statement, formatted in numbered paragraphs stating separately which material facts are not in genuine issue o The party opposing summary judgment mut inclyde a response to each statement of the moving party with correspondingly numbered paragraphs, and if necessary, additional numbered paragraphs, separately and concisely stating material facts for which there is a genuine issue to be tried o Conclusory assertions or assertions and allegations made by any party based solely upon info and belief are insufficient to obtain summary judgment o An attorneys affidavit as to the facts is insufficient if not based on personal knowledge · Summary judgment will be granted if upon all the papers and proof submitted judgment is warranted for one side or the other as a matter of law o Summary judgment will be denied if any party shows facts sufficient to require a trial of any issue of fact o If it appears that the only triable issues of fact relate to the amount or extent of damages, or if the motion is based on any of the grounds permitted for a motion to dismiss, the court may, when appropriate for the expeditious disposition of the controvesey, order an immediate trial of such issues of fact · The court may search the record and, if it appears that any party other than the moving party is entitled to summary judgment on an issue raised in the moving partys motion, the court may grant such judgment without the necessity of a cross motion or notice to the parties

disclosure 4

· The scope of discovery may include all info from social media websites, such as ffacebook, that is material and necessary, irrespective of any privacy settigs utilized on the account o Requests for social media data should be tailored to the nature of the controversy at issue and limited in time as appropriate to the specific circumstances of the case · CPLR 3103a permits any party or nonparty from whom discovery is sought to move for a protective order denying, limiting, conditioning or regularing the use of any disclosure device to prevent unreasonable annoyance, expenses, harassment, disadvantage, or other prejudice

Special proceedings 2

· The time required for service. Of the pleadings is akin to those for the service of motion papers o The petition and notice of petition must be served at least 8 days before the date when the proceeding is to be heard o The answer and any supporting affidavits must then be served at lest 2 days before the date when the proceeding is to be heard o Any reply with any suppoting affidavits must be served when te proceeding is to be heard o But the answer must be served at least 7 days before the date when the proceeding is to be heard if the petition and notice of petition is served at least 12 days before the date when the proceeding is to be eard and so demandsm, in which case any reply must be served at least 1 day before the date when the proceeding is to be heard · As an alternative to a notice of petition, CPLR 403d allows the use of an order to show cause · The respondent may raise an objection in point of law- a defense that can produce a summary dismissal of the proceeding-either in the answer or in a motion to dismiss made within the time allowed for answer · Pretrial disclosure is generally not available without leave of court, except for a notice ot admit undet CPLR 3123

disclosure 3

· Written accident reports prepared in the regular course of business operations or practices of any person, firm, cop, association or other public or private entity must be disclosed, unless prepared by a police or peace officer for a criminal invstigation or prosecution and disclosure would interfere with a criminal invstigation or prosecution · A party must amend or supplement a response previously given to a request for disclosure promptly upon the partys thereafter obtaining info that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete and the circumstances are such that a failure to amend or supplement the response would be materially misleading · A party may obtain full disclosure of any films , photos, videos or audio, including transcripts or memos thereof, involving another party. o Disclosure under this section covers all portions of such material, including outtakes, rather than only those portions a party intends to use · Although the CPLR does not specifically address the discovery of electronically stored info, e-discovery is. Generally permissible and the material and necessary requirement contained in CPLR 3101 applies to ESI o Both te rules of commercial division of the supreme court and NY's uniform rules for the trial courts specifically contemplate discover of ESI in an action and contain a list of relevant factors in determining the method and scope of electronic discovery o These factors include identifying the potential types of ESI and the relevant time frame, the manner in which ESI is maintained and whether it is reasonably accessible, implementing a preservation plan for relevant ESI, the scope and form of production, the identification of privileged or confidential ESI, and the anticipated cost and burden of data recovery and the proposed allocation of such cost o Some courts and bar associations have also provided working guidelines for discovery of ESI

counterclaims and cross claims

· a counterclaim is the cause of action asserted by a defendant against a plaintiff. It need not arise out of the transaction or occurrence of which the plaintiffs claim arises nor otherwise be related to the plaintiffs claim o it can be any cause of action the defendant has against the plaintiff, legal or equitable. In contrast to federal practice, every counterclaim in New York is permissive even if it's subject matter relates to the plaintiffs claim o however defendants who wait to assert a related claim in a separate action should be cautioned that facts found in the first action could result in a successful res judicata defense against their claim in the second action · a cross claim is a cause of action by one defendant against another period in contrast with federal practice, across claim may be asserted for any cause of action at all whether or not related to the plaintiffs claim

Appearances and pleadings

· a defendant appears in an action by serving an answer, making a motion that has the effect of extending the time to answer, or serving a notice of appearance o if the defendant was served by personal delivery within the state of New York, the time to appear is no later than 20 days from the delivery o in most other cases, including service outside the state and service under CPLR 308(2) - (5) , the time to appear is not later than 30 days after service is complete · if the complaint is not served with the summons, that is, when the action was commenced by the filing of a summons with a notice, defendant may within the time the defendant would otherwise be required to appear serve a written demand for the complaint o the plaintiff must then serve the complaint within 20 days after service of the demand. Service of the demand extends defendant's time to appear until 20 days after service of the complaint · an appearance by the defendant confers jurisdiction over the defendants person unless an objection to jurisdiction is raised in a motion or answer in accordance with CPLR 3211a(8) or the defendant makes a limited appearance in an action based on quasi in rem or in rem jurisdiction · any party may appear in an action pro say or through an attorney except that a corporation or LLC generally must appear through an attorney unless defending a claim in a small claims part

motion practice

· a motion requires notice of motion specifying the time and place the motion, the papers on which it is based, the relief sought, and the ground upon which the movant believes itself entitled to the relief o the court may grant an order to show cause to be served in lieu of a notice of motion when there is a genuine urgency, like an application for provisional relief, if a state is required, or when a statute mandates use of an order to show cause o in order to show cause is a judicial order, obtained ex parte, that specifies the date and place of the hearing and the manner of its service o in order to show cause against a state body or officers must be served not only upon the defendant or respondent state body or officers but also upon the attorney general · the time and place of the hearing of the motion can be set only after the movant has filed a request for judicial intervention and a judge has been assigned to the action o when preparing a notice of motion it is important to check the rules of the individual court and judge regarding the times and places for hearing motions · if a motion pertains to disclosure or a bill of particulars it must contain an affirmation that prior to making the motion, council has conferred with opposing parties council in a good faith effort to resolve the issues raised on the motion

Necessary and proper parties

· a necessary party is a person who ought to be a party if complete relief is to be accorded between persons who are parties to the action or who might be inequitably affected by a judgment in the action o when a person who should join as a plaintiff refuses to do so that person may be a defendant period necessary parties must be joined in the action if they are subject to the jurisdiction of the court o if they are not subject to and do not consent to the jurisdiction of the court, the court when justice requires may allow the action to proceed without them · the permissive joinder of claims by multiple plaintiffs as well as the joinder of multiple defendants by a plaintiff is permitted if the claims: arise out of the same transaction, occurrence or series of transactions or occurrences; And have in common any question of law or fact · non joinder of a necessary party may be a ground for dismissal but misjoinder of a party (the inclusion of a person who is neither an unnecessary nor permitted party) is not o a court may either drop a mis joined party from the action or sever the claims so that a separate action may proceed against the misjoined party · parties may be added at any stage in the action by leave of court or stipulation of all parties who have appeared or one time without leave of court within 20 days after service of the summons or within the time period for responding to the summons, or within 20 days after service of a pleading responding to it

statute of limitations 2

•if there are severl defendants and tey are united in interest, commencement as to one will preserve the action as against the others -under the united in interest doctrine, the assertion of a claim against an additional defednant after experation of the statute of limitations will relate back to the commencement date of a timely action against a co-defendant united in interest with the new defendant under the following circumstances: --the claims agianst the parties arose out of the same conduct, transaction or occurrence; and --the new defendant reasonably should have known that the plaintiff made a mistake in failing to timely identifiy the proper parties; and --the new defendant and the party originally sued have such a unity of interest that, by reason of their relationship, the new defendant can be charged with such notice of the action that they will not be prejudiced in defendanting te case

times for service of motion papers

· a notice of motion must be served at least eight days before the date when the motion is to be heard o answering affidavits must then be served at least two days before the date when the motion is to be heard. But answering affidavits and any notice of cross motion with supporting papers, if any, must be served at least seven days before the date when the motion is to be heard if the notice of motion is served at least 16 days before the date when the motion is to be heard and so demands, in which case any reply or responding affidavits must be served at least one day before the date when the motion is to be heard · as noted above if service is made by mail, five days are added to the prescribed time periods if the mailing is done in New York, and six days is added if done outside the state o for example service of a notice of motion by mail must be mailed in New York at least 13 days (8+5) before the date when the motion is to be heard, or at least 21 days (16+5) before the date when the motion is to be heard if the moving party wants to demand service of answering affidavits and any notice of cross motion at least seven days before the date when the motion is to be heard o and if those answering affidavits are served by mail, they must be mailed at least 12 days (7+5) before the date that motion is to be heard · these additional times apply to all papers served in an action or proceeding, not just motion papers, and are intended to give the party responding to service by mail the full amount of the time provided for the response but not to extend a time period applied to the party serving by mail o for example, a defendant who serves by mail and answer raising a defense of improper service does not receive an extension of the 60 day. Within which the defendant must move to dismiss based on that defense

notice of pendency

· a notice of pendency may be filed in an action in which the judgment demanded would affect the title to or the possession, use or enjoyment of, real property except a summary proceeding brought to recover the possession of real property o it prevents a potential transferree or mortgagee of the property from acquiring the status of innocent purchaser for value while the action is pending by placing a cloud on the marketability of the defendants title for the duration of a lawsuit · on or after commencement of an action, the notice of pendency is filed in the office of the clerk of the county where the property is located without notice to the defendant or leave of court, without an undertaking, and before or after service of process; However once filed, the summons if not already served must be served on the defendant within 30 days · a notice of pendency is effective for three years from the date of filing and may be extended by court order for good cause shown

responsive pleadings

· a party in responding to a claim either by an answer or a reply to a counterclaim must either deny allegations known or believed to be untrue and/ or specify allegations of which a party lacks knowledge or information sufficient to form a belief o any allegation not so addressed is deemed admitted unless it is contained in a pleading for which no responsive pleading is required, for example a cross claim that does not demand an answer o in a response pleading a party must plead any matter which, if not pleaded, would be likely to take the adverse party by surprise or would raise facts or issues not appearing on the face of a prior pleading · the statute contains a list of affirmative defenses that must be so pleaded, including collateral estoppel, release, res judicata, statute of frauds, and statute of limitations o these affirmative defenses along with some of the others listed are also included in the list of defenses set forth in CPLR 3211e that are waived if not raised in the answer or a pre answer motion to dismiss o this list is not all inclusive and there are other affirmative defenses which, if likely to take the plaintiff by surprise or raise facts or issues not appearing on the face of a prior pleading, must be pleaded including culpable conduct claimed in diminution of damages · service of an answer or reply must be made within 20 days after service of the pleading to which it responds except that the time to answer a complaint is 30 days after service is complete when the summons and complaint were served by a means other than personal delivery within the state

motion to dismiss

· a party may move for a judgment dismissing one or moree causes of action asserted against the party o there are 11 grounds listed in CPLR 3211a on which a party may move to dismiss a complaint or cause of action o a party may also move for a judgment dismissing a defense on the ground that the defense is not tated or has no merit o upon the hearing of the motion, either party may submit supporting affidavit and other evidence, or the court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised · CPLR 3211e permits a motion to dismiss a cause of action under CPLR 3211a to be made before service of the responsive pleading is required o Thus, if the defendant has 20 days to answer the complaint and wishes to make a pre-answer motion to dismiss the complaint under CPLR 3211a, the defendant must make the motion within that time o Only one pre-answer motion to dismiss may be made · Service of a notice of motion to dismiss a cause of action before a responsive pleading is due extends the time to serve a responsive pleading until 10 days after ervice of notice of entry of the order determining such motion · If the defendant makes a per-answer motion to dismiss, the defendant may raise any of the 3211a grounds to dismiss available to the defendant o However, if the defendant makes a pre-answer motion and fails to include a defense based upon lack of personal jurisdiction or lack of jz where service was made under CPLR 314 (service outside of NY in certain in rem actions such as matrimonial actions) or 315 (service by publication in such in rem actions) , those defenses are waived

statute of limitations 4

•CPLR 211 outlines claims that are subject to a 20 year limitation period, including claims to enforce a money judgment •CPLR 212 outlines claims that are subject to a 10 year limitation period, including adverse possession claims •CPLR 213 setss forth the types of actions to be commenced within 6 years, including: -an action for breach of contract, express or implied, wit some stated exceptions, including he four year statute of limitations for contracts of salw of personal property under the UCC -an action based upon fraud (the greater of six years from the time the fraud was perpetrated or two years from the time the fraud was discovered or could with reaosonable diligence have been discovered); and -an action for which no limitation is specifically prescribed by law CPLR 214 deineates the types of actions to be commenced witin three years, including: -an action to recover damages for personal injury; -an action to recover damages for injury to property; and -an action to recover damages tfor malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort

preliminary injunction, temporary restraining order

· a preliminary injunction is a court order that seeks to safeguard rights asserted by the plaintiff in a pending action or special proceeding to preserve the status quo until the case can be fully adjudicated on the merits. Preliminary injunctive relief may be granted upon 2 grounds: o the defendant threatens to harm plaintiffs rights and the subject of the action and such harm could render the judgment ineffectual o the plaintiff seeks a judgment restraining the defendant from injurious conduct that would also injure the plaintiff if committed during the course of the action · a preliminary injunction is not available in an action seeking solely money damages · the procedure for getting a preliminary injunction is a motion and appending action which must be made on notice to the defendant period the notice of motion may be served with a summons or at any time thereafter before a final judgment · supporting affidavits and other evidence must show that the underlying action falls within one of the grounds for a preliminary injunction specified in CPLR 6301 o in addition to the foregoing specified statutory requirements, courts also require a showing of the likelihood of success on the merits of the action, the threat of irreparable injury, and a balance of equities and plaintiffs favor · before getting a preliminary injunction, the plaintiff must submit an undertaking in an amount set by the court so that if it is finally determined that the plaintiff was not entitled to such relief, the plaintiff will pay the defendant all damages and costs which versus stained by reason of the injunction

preliminary injunction, temporary restraining order 2

· a temporary restraining order provides immediate injunctive relief while the court determines a motion for preliminary injunction o in most actions and proceedings the plaintiff must give the opposing party notice of the application for a temporary restraining order with a copy of any supporting papers sufficiently in advance to permit the opposing party to contest the application unless the court excuses notice based upon the plaintiffs showing significant prejudice if notice is given or good faith effort to provide notice o to obtain a temporary restraining order a plaintiff must demonstrate that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing on the motion for a preliminary injunction can be held. An undertaking is discretionary with the court

verification of pleadings

· a verification is a statement by a party under oath that a pleading is true to the knowledge or belief of the person making the statement, who, if the party is an individual, is the individual or if the party is a corporate or governmental entity, is an appropriate representative of the party o under certain circumstances, including when the party is a foreign corporation or when the party is not in the county where the attorney has their office, the verification may be made by the attorney · with some exceptions pleadings need not be verified but if a pleading is verified, each subsequent pleading must be verified unless the matter to be verified is privileged o if a counterclaim or cross claim in an answer is separately verified it is given the same effect as if it were a separate pleading so that any pleading responding to it must be verified · initial pleadings which require verification include a complaint and a matrimonial action, a petition and an article 78 proceeding, and a petition and a summary proceeding to recover possession of real property

amended and supplemental proceedings

· amendments to a pleading may be made once without leave of court within 20 days after its service or anytime before the time to respond expires or within 20 days after service of a pleading responding to it o thereafter a party may amend A pleading or may supplement it by setting forth additional or subsequent transactions or occurrences only by leave of court or stipulation of the parties o if an answer or reply is required to the pleading being amended or supplemented, that answer or reply must be served within 20 days after service of the pleading to which it responds

Attachment

· attachment is a form of seizure of a defendant's property by the sheriff who holds the property for potential satisfaction of a judgment in plaintiffs favor, helping secure the enforcement of a money judgment o attachment is available only in an action in whole or in part for money judgment and only upon motion demonstrating one of the grounds in Cpl. R 6201. The most common grounds are: § the defendant is a non domiciliary residing without the state or is a foreign corporation not qualified to do business in the state; § the defendant resides or is domiciled in the state and cannot be personally served despite diligent efforts to do so; Or § the defendant, with intent to defraud their creditors or frustrate the enforcement of a judgment that might be rendered in plaintiffs favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts · any debt or property against which a money judgment may be enforced is subject to attachment · a motion for an order of attachment may be made with or without notice, before or after service of a summons and at any time prior to judgment o if an order of attachment is granted without notice, the plaintiff must move on notice to the defendant for an order confirming the order of attachment o the motion must be made within 10 days after levy by the sheriff if the ground for attachment is that defendant is a non domiciliary residing without the state or is a foreign corporation not qualified to do business in the state, and within five days if any other ground applies

service of papers on attorneys

· if a party has an attorney all papers including motion papers and pleadings other than the summons and complaint shall be served by a person who is not a party and is at least 18 years old on the party's attorney o and if a defendant is known to have an attorney the defendant may authorize service of the summons and complaint on the defendants attorney o papers may be served on an attorney by: § personal delivery § mail, in which case service is complete upon mailing and five days is added to any period of time measured from service of the paper so served if the mailing is done in New York, and six days is added if done outside the state § delivery of the paper to the attorneys office § transmitting the paper bye facsimile transmission, Provided that a telephone number is provided by the attorney for that purpose, in which case service is complete upon the sender receiving a signal that the transmission was received and mailing a copy of the paper to the attorney § dispatching the paper by overnight delivery service in which case service is complete upon dispatch and one business day is added to any period of time measured from service of the paper so served; Or § electronic means to the extent permitted or required by a court rule

third party practice

· impleader or third party practice is the procedure whereby A defendant is permitted to proceed against a person not a party, who is or may be liable to the defendant for all or part of the plaintiffs claim against the defendant, by bringing that person into the lawsuit so that the original claim and the related claim against the added person may be decided in a single suit o the original party defendant is called the third party plaintiff and the impleaded party is called the third party defendant. A party may commence a third party action after service of their answer · the third party summons and complaint must be filed with the clerk of the court and served together with all prior pleadings on the third party defendant within 120 days of such filing o a copy of the third party complaint must also be served on the original plaintiffs attorney and on any other party who has appeared in the action · thereafter the third party defendant must serve an answer on the third party plaintiff and on any other party who has appeared in the action. The answer may contain any defenses the third party defendant has against the original plaintiffs claims or the third party plaintiffs claims o the third party defendants answer may also assert any counterclaims or cross claims the third party defendant has against any other party to the action · within 20 days after service of the answer to the third party complaint on the plaintiffs attorney the plaintiff may amend their complaint without leave of court to assert against the third party defendant any claim plaintiff has against such party

bill of particulars 2

· in a personal injury action, the items that may be demanded have been codified and include the date, time and location of the occurrence; A statement of the acts or omissions constituting the claimed negligence; A statement of injury sustained; And the amounts claimed as special damages for medical expenses and lost wages o in a personal injury action a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time up to 30 days prior to trial o no new cause of action may be alleged or new injury claimed and the other party may seek discovery regarding the supplemental information · if a pleading is verified any bill of particulars in respect to it must also be verified. In a negligence case the bill of particulars must be verified whether or not the pleading is verified

change or withdrawal of attorney

· once a party appears in an action through an attorney, the attorney of record may be changed with the clients consent by filing a consent to change attorneys signed by the retiring attorney and signed and acknowledged by the party o notice of the change of attorney must be given to the attorneys for all parties o an attorney of record may also withdraw from representation or be changed without the client's consent by court order upon motion on notice to the client, to the attorneys of record for all other parties to the action, and to any unrepresented parties

types of pleadings

· the basic pleadings in an action are a complaint and an answer, which may include a counterclaim against a plaintiff and a cross claim against a defendant o a defendants pleading against any other person not already a party is a third party complaint. Other pleadings are a reply to a counterclaim labeled as such, and answer to any third party complaint, and an answer to a cross claim that contains a demand for an answer o if none the answer is demanded the cross claim is deemed denied. No other pleadings are permitted without court order

joinder of claims, consolidation

· the plaintiff in a complaint or the defendant in an answer setting forth a counterclaim or crossclaim may join as many claims as the plaintiff or the defendant may have against an adverse party o in considering whether to join claims, council should be aware that joinder of a claim for legal relief with a transactionally related claim for equitable relief automatically waives the right to jury trial with respect to the legal claim o on the other hand, failure to join two such transactionally related claims could result in the second claim being barred by res judicata (claim preclusin) · when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial or consolidation of the actions and may make such other orders as may tend to avoid unnecessary costs or delay · where an action is pending in the Supreme Court, the Supreme Court may upon motion remove to itself an action pending in another court and consolidate the actions or try them together o where an action is pending in the county court, the county court may upon motion remove to itself in action pending in a city, municipal, district or justice court in the county and consolidate the actions or try them together

Attachment 2

· the plaintiff making a motion for an order of attachment or for an order confirming an order of attachment granted without notice, must show through affidavits and other evidence the existence of A cause of action, a probability of success on the merits, the existence of one or more grounds for attachment and that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff o the plaintiff must also provide an undertaking in an amount set by the court. The plaintiff must file the order of attachment and the papers upon which it was based, including the summons and complaint, within 10 days of granting the order · in the event the order of attachment is granted before a summons is served on the defendant the summons must be served within sixty days after the order is granted, subject to an extension upon application to the court upon good cause shown

bill of particulars

· the purpose of a bill of particulars is to amplify the pleadings, not to obtain evidence, and is available between parties in an action · the procedure to secure a bill of particulars is to serve a written demand on the party from whom the particulars are sought. Within 30 days of service of the demand the party on whom the demand is made must serve a bill of particulars responding to each item of the demand, either by complying with the demand or by objecting to it with a statement specifying the objection with reasonable particularity o the assertion of an objection to one or more of the items will not relieve a party from the obligation to respond in full to the items of the demand to which no objection is made · a party may amend a bill of particulars once without leave of court before a note of issue is filed o if a party fails to timely respond or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or if the failure is willful, seek appropriate relief including an order that the issues to which the information is relevant shall be deemed resolved, or an order prohibiting the disobedient party from supporting or opposing designated claims or defenses or from producing an evidence designated things or items of testimony, or an order striking out a pleading or parts of a pleading o if a court determines that a demand for particulars, or any part thereof, is improper or unduly burdensome, it may vacate or modify the demand or make such order as is just

change of venue

•a court upon motion may change venue upon the grounds that venue was improperly placed, an impartial trial cannot be had in the proper countym, or if the convenience of material witnesses and the ends of justice will be propoted by the change -in order to move for a change of venue upon the ground that vneue was improperly placed, the defendant must first, before or with its answer, serve a written a demand for the change, and if the plaintiff does not agree to tee change, make the motion within 15 days of service the demand -a motion upon any other ground must be made within a reaosnable time after commencement of the action forum non conveniens •a court is permitted, even though it has jx, to decline to entertain the action after examining all the relevant factors of private inconvenience and public interest, including wether the chosen forum is significantly inconvenient for the trial of the action and wheter a more appropriate forum is available -note that, NY, unlike federal courts, does not necessarily require an alternative forum as a precondition to a forum non conveniens dismissal -in NY, the court may stay orr dismiss the action, in its entirety or in part, upon any conditions that may be just -such conditions may include, for example, waiver of defednanses such as lack of jurisdiction or statute of limitations -if the alternate venue is another NY court, the court may not transfer case, unlike federal procedure which permits such a transfer

statute of limitations 3

•a defense or counterclaim i interposed when a pleading containing it is served, and it is not barred if it wass not barred at the time thae claims asserted in the complaint were interposed -if the defense or counterclaim arose from transactions or occurrences upon which a claim in th e complaints depends, the defense or counterclaim is not barred to the extent of the demand in the complaint, even if time barred at the time the claims asserted in the complaint were interposed •a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed provided the original pleading gave notic of the transactions or occurrences sought to be proved pursuant to the amended pleading •except in medical malpractice actions, if a limitations period is measured from discovery of the wrong, the action must be commenced within the laer of of: (1) the stated limitations period from the wrong itself; or (2) two years from either the discovery of the wrong or, if sooner, when the wrong could with reasonable diligence have been discovered •the precise limitations periods for various types of actions are generally contained in CPLR art 2. common limitations periods are set fort here; however, this list is not exuhaustive

number of jurors and verdicts

•a jury in a civil case must consist of six persons. a verdict must be rendered by not less than 5/6 of the jurrors constituting a jury peremptory challenges, challenges for cause, and alternative jurors •pursuant to CPLR art 41, each party has a right to interpose both peremptory challenges and challenges for cauese -a peremptory challenge is an objection to a prospective juror for which no reaon need be assigned. peremptory challengs are limited in number and cannot be used to exclude a juror for discriminatory reasons •a challenge for cause, which may be made as often as necessary, is an objection tat a prospective juror or alternative juror is unable to be impartial for a particular reason -lawyers may stipulate to excuse a juror challenged for cause or the challenged is decided by the court -CPLR 4110 enumerates the following grounds for challenge, which are not exhaustive: --that a juror is in theemploy of a party to the action --if a party to the action is a corp, tha the juror is a shareholder or a stockholder therein; -in an action for damages to person or property, that the juror is a shareholder, stockolder, directo, officer, or employee, or in any manner interested in any insurance company issuing policies for protection against liability for damages for injury to persons or property; and --that a juror is related within the sixth degree by consanguinity or affinity t a party

claims against municipalities

•an action against any political subdivision of the state , any instrumentality or agency of the state or a political subdivision, any public autority, or any public benefit corporation that is entitled to receive a notice of claim as a condition precedent for the commencement of an action to recover damages for personal injury or property damage, other than for wrongful death, must be commenced witin one year and 90 days after the cause of action accrues •unles a notice of claim has been served in accordance with gen municipal law 50-e, an action may not be mainained against any political subdivision of the state, any instrumentality or agency of the state or a political subdivision, any public authority, or any public benefit corp that is entitled to receive a notice of claim as a condition precedent for te commencement of an action to recover damages alleged to hav ebeen sustained by reason of the negligence or wrongful act of the defendant -the notice of claim must be served within 90 days after the claim arises or, in thecase of wrongful death, 90 days from th appointment of a representative of decedents estate -the notice of claim must be in writing , sworn to by or on behalf of the claimant, and shall set fort: --the name and address of the claimant and their attorney, if any; --the nature of the claim; --the time when, place where and manner in which the claim arose; and --the items of damage or injuries claimed to have been sustained

instructions to jury, objection

•any party may file written requests that the court instuct the jury on the law as set forth in the requests. -no party may assign as error on appeal the courts giving or failing to give an instruction unless he objects thereto before the jury retires to consider its verdict

demand and waiver of trial by jury

•generally speaking, trial by jury is available in actions at law and not available in actions involving claims in quity -CPLR 4101(1) provides that unless a jury trial is waived issues of fact shall be tried by a jury in: --an action for a sum of money only; --an action of ejectment, for abatment of and damages for a nuisance, or to quiet title to real property pursuant to real property actions and proceedings law arrt 15; or --any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury •any party may demand a trial by jury by serving upon all other parties and filing a note of issue containing a demand for trial by jury -any party srved wit a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within 15 days after service of the note of issue -if no party demands a trial by jury, the right to trial by jury is deemed waived by all parties subject to the courts power to relieve a party from the effect of noncompliance bbased on the absence of undu eprejudice to the other party

other forms of ADR

•neutral evaluation, collaborative law, summary jury trials, etc •in neutrla evaluation, the parties present their case to an evaluator, who is often an expert i the subject matter in dispute. the evaluator gives an opinion of the strengths and weaknesses of each partys evidence and arguments and offers an opinion of the likely outcome in court •collaborative law is a legal process enabling married couples who have decided to divorce a way to do so in a cost effecient manner without going to court, while retaining the professional guidance of their own attorneys -the couples bind themselves to the process and disqualify their respective lawyers in the event either party decides to go to the court •summary jury trials permit adversaries to present their cae in an abbreviated form to a mock jury which reaches a verdict that is advisory only, unlless the parties agree to make it binding -a summary jury trial gives litigants a preview of a potential verdict should the case go to trial •NY courts are implementing a system wide program of ADR. parties in a broad range of civil cases will be referred to mediation or some other form of ADR at the onset of the case -the court system will introduce and expend court sponsored mediation progams, particularly early mediation through automatic presumptive referrals in identified types of civil disputes, with local protocols, guidelines and best practices to be developed in each jx to facilitate the process -practitioners should check applicable court rules regarding ADR

claims against municipalities 2

•the court, in its discretion, may extend the time to serve a notice of claim, but the extension shall no texceed the statute of limitations for commencing the action against the municipality or other public corp, i.e. one year and 90 days after the happening of the event or, in the cae of wrongful death, within two years of the death of the decedent -in determining whether to extend the time to serve a notice of claim, the court must consider whether the municipality or its insurance carrier had actual knowledge of the facts constituting the claim within 00 days of the event, and all other relevant factors, including whether the claimant was an infant or incapacitated, whether the claimant justifiably relied upon settlement representations of a representative of the municipality, and whether the delay in serving the notice of claim substantially prejudice the municipality in maintaining its defense on the merits -the statutory factors are a non-exhaustive list of factors the court should weigh

number of jurors and verdicts 2

•the fact that a juror is a resident or taxpayer of a city, village, town or county which is a party to the action is not a ground for challenge •at the time of jury selection, one or more alternative jurors are chosen t participate in the trial to the same extent as a regular juror and to serve until the submission of the case to the jury -when the case is submitted, the court may retain the alternate jurors to ensure the availability if a regular juror becomes unable to perform the duties of a juror or may dismiss the alternate jurors

request for judicial intervention, trials

•the first time any one of the parties to an action or proceeding seeks any relief from a court, whether by bringing a motion, filing a notice of issue or otherwise, the party must file a request for judicial intervention and in most cases pay the required fee in oder for the case to be assigned to a judge -only one request for judicial intervention is filed in an action note of issue and certificate of readiness •in order to proceed to a trial in a civil action, a paty must file a note of issue and certificate of readiness with the clerk of the court, pay the required fee, and serve the docs on all the parties -by filing a note of issue, the aprty is represeenting to the court that discovery is complete and the case is ready for trial

tolling 2

•under NY's child victims act, the statute of limitations and any notice of claim requirements for civil actions related to a sexual offense (as defined in the penal law) committed against a child are lifted until aug 13, 2021 and such actions graned trial prefernece -for a civil action whose statute of limitations has not expired, the action may be commenced against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of said conduct on or before the plaintiff reaches the age of 55 •if. a plaintiff dies before the expiration of the limitations period, their executor or adminisrator has the greater of that limittation period or one year from the death in which to sue -if a potential defendant dies before an action is commenced against the defendant, 18 months are added to the limitations period, thereby extending the time during which the action may be commenced agianst the defendants estate

tolling

•when a cause of action accrues against a defendant and the defendant is absent from the state, the limitations period is tolled until the defendant returns -if the defendant leaves the state after a cause of action accrues and remains out of sstate continuously for four months or more, the period of absence is not part of the limitations period -however, the absence of the defendant will not suspend the running of the statute of limitations (1) if there is a designated agent that may be served in NY, (2) the defendant is a foreign corp with an officer or other person in NY on whom service may be made, or (3) jx over the defendant can be obtained witout personal delivery of the summons to the defendant within NY -for example, absence from the state will not toll the statute of limitatoins for an action against a nonresident subject to long-arm jx who may be served without the state •infancy and insantiy are disabilities which may toll the applicable statute of limitayions -under CPLR 208a, if hthe applicable statute of limitations is less than three years, the statute of limitations does not run during the entire period of disability -if the applicable period is three years or longer, a plaintiff will have at least three years to sue from the time the disability ceases -CPLR 208 applies only wen the plaintiff is under such disability at the time the cause of action accrues -the max toll period in the case of insanity is ten years, as it is for an infants cause of action for medical dental or podiatric malpractice -in other cases involving an infant , there is no ten year maximum limit