New York Practice CPLR and Acts OVERVIEW .............................................................................................................................. 6 Subject Matter Jurisdiction (Chapters 1 and 2) ............................................................................................................ 6 THE COURTS: ........................................................................................................................................................ 6 Court of Appeals HIGHEST CT. .................................................................................................................... 6 Appellate Division – 4 judicial departments (INTERMEDIATE APPELLATE CT.) ........................................ 7 Appellate Term of Supreme Court – .................................................................................................................... 7 Court of Claims .................................................................................................................................................... 7 County Courts – every county outside NYC has one, both civil and criminal jurisdiction ................................. 7 NYC Criminal Ct. ................................................................................................................................................ 8 NYC Civil Ct. ....................................................................................................................................................... 8 District Courts of Nassau and Suffolk .................................................................................................................. 8 Other courts: ......................................................................................................................................................... 8 TRANSFERRING BTW COURTS ......................................................................................................................... 8 CPLR 325(a) – Action brought in the wrong crt. ................................................................................................. 8 CPLR 325(b) – TRANSFER UP .......................................................................................................................... 8 CPLR 325(c) – TRANSFER DOWN – hypo: $20 million claim in supreme court and later realize it’s worth $20K ..................................................................................................................................................................... 9 CPLR 325(d) – TRANSFER DOWN W/O CONSENT ...................................................................................... 9 FORUM NON CONVENIENS ............................................................................................................................... 9 CPLR 327 ............................................................................................................................................................. 9 FNC Factors: ...................................................................................................................................................... 10 CONDITIONS PRECEDENT TO SUIT ............................................................................................................... 10 Notice of an Insurer ............................................................................................................................................ 10 Municipalities ..................................................................................................................................................... 10 NOTICE OF CLAIM: ........................................................................................................................................ 10 Statute of Limitations (Chapter 3): ............................................................................................................................. 11 Overview: ............................................................................................................................................................... 11 Applicable Periods ................................................................................................................................................. 11 Other statutory periods: ...................................................................................................................................... 12 Equity Actions .................................................................................................................................................... 12 Multiple Theories ............................................................................................................................................... 13 Altering the Period ................................................................................................................................................. 13 CPLR 201 Shorten Statutory period–................................................................................................................. 13 Agreement to Lengthen ...................................................................................................................................... 13 Accrual ................................................................................................................................................................... 13 Personal injury on negligence ............................................................................................................................ 13 Defamation ......................................................................................................................................................... 14 Continued Trespass ............................................................................................................................................ 14 Breach of Warranty ............................................................................................................................................ 14 Strict Products Liability Theory: ........................................................................................................................ 15 Med. Mal. ........................................................................................................................................................... 15 Foreign Object Cases ......................................................................................................................................... 15 Discovery Accruals ............................................................................................................................................ 16 Wrongful Death .................................................................................................................................................. 16 INTERPOSITION – when does clock stop running on s.o.l.’s? ............................................................................ 17 Unity of interest .................................................................................................................................................. 17 Counterclaims – CPLR 203(d) ........................................................................................................................... 17 Cross-claims - CPLR 203(D) ............................................................................................................................. 18 Claim in Amended Pleading .............................................................................................................................. 18 ADDING A NEW PARTY! ............................................................................................................................... 18 1 Extensions and Tolls .......................................................................................................................................... 19 Termination of Prior Action – CPLR 205(a) ......................................................................................................... 20 D’s absence – CPLR 207 ................................................................................................................................... 21 Disabilities as Tolls (CPLR 208)– ONLY APPLIES TO P’s DISABILITIES not Δs ...................................... 21 Tolling for Death (CPLR 210) ........................................................................................................................... 22 Estopping D from Pleading Limitation .............................................................................................................. 23 Borrowing statute: foreign claim brought in NY ct. .......................................................................................... 23 Personal Jurisdiction (Chapter 4) ............................................................................................................................... 24 Introduction: ........................................................................................................................................................... 24 The Summons:........................................................................................................................................................ 24 Issuance of Summons; Accompanying Papers: ..................................................................................................... 24 Commencement of Action; When and by Whom Summons Served ..................................................................... 25 The Filing System for Commencing Actions ..................................................................................................... 26 Altering Papers After Filing But Before Service ............................................................................................... 26 Strict Construction for Filing Requirements ...................................................................................................... 26 Who is the “Clerk”? The Mendon Ponds Problem ............................................................................................ 26 ¶’s Lawyer Accountable for Process Server’s Acts ........................................................................................... 27 Contrasting the Former CPLR 306(b) ................................................................................................................ 27 Amendment of Summons ....................................................................................................................................... 27 Amendment of Summons to Change Parties; Supplemental Summons ................................................................ 27 Without Leave .................................................................................................................................................... 27 By Stipulation of Parties .................................................................................................................................... 27 In the Absence of Stipulation and if time has expired ....................................................................................... 27 Supplemental Summons ..................................................................................................................................... 28 Methods of Service................................................................................................................................................. 28 Redelivery .......................................................................................................................................................... 28 Enticement into Jurisdiction ............................................................................................................................... 28 Immunity from Service ...................................................................................................................................... 29 Whom to Serve in Behalf of Various Δ’s............................................................................................................... 29 Infants ................................................................................................................................................................. 29 Incompetents – CPLR 309(b) and (c) ................................................................................................................ 29 Partnerships ........................................................................................................................................................ 29 Service on a Corporation .................................................................................................................................... 30 “Sewer Service”; The Amendment of CPLR 308 .............................................................................................. 30 Delivery and Mail Service – CPLR 308(2)… .................................................................................................... 30 Service on an Agent under 308(3) ...................................................................................................................... 31 Affix and Mail Service – 308(4) (“nail and mail”) ................................................................................................ 31 Court-ordered service – 308(5) .............................................................................................................................. 31 Service in Matrimonial Actions ............................................................................................................................. 32 Getting to the Courthouse ...................................................................................................................................... 32 General Filing Requirements: ............................................................................................................................ 32 Individual Assignment System (IAS) .................................................................................................................... 33 Getting a Judge Assigned: Request for Judicial Intervention (RJI) ....................................................................... 33 Note of Issue ....................................................................................................................................................... 33 Form of Request for Judicial Intervention ............................................................................................................. 33 Jurisdictional Basis ................................................................................................................................................. 33 General Jurisdiction............................................................................................................................................ 34 Corporate “Presence” Doctrine .......................................................................................................................... 34 Specific Jurisdiction ........................................................................................................................................... 35 Transacts Any Business ..................................................................................................................................... 35 Contracts Anywhere ........................................................................................................................................... 35 CPLR 302(a)(2) – Tortious Act Within the State .............................................................................................. 36 2 CPLR 302(a)(3) – Act Without/Injury Within NY ............................................................................................ 36 CPLR 302(a)(4) – Real Property ........................................................................................................................ 36 Longarm Jurisdiction for Family Support and Other Relief Under CPLR 302(b)............................................. 37 Restricted Appearance Under CPLR 302(c) ...................................................................................................... 37 Jurisdiction vs. the Merits .................................................................................................................................. 37 Non-resident Motorist Statute ............................................................................................................................ 37 Jurisdiction by written Agreement ..................................................................................................................... 37 Service Outside NY ............................................................................................................................................ 38 Vacating Defaults ................................................................................................................................................... 38 Appearance (Chapter 5) ............................................................................................................................................. 38 Informal appearance ........................................................................................................................................... 39 Adding Claims in Various Appearance Situations ................................................................................................. 39 Representation by an Attorney ............................................................................................................................... 39 Appearance by Purported Attorney: ................................................................................................................... 39 Change of Attorney: ........................................................................................................................................... 39 Venue (Chapters 6) CPLR 503 is the general venue statute. ..................................................................................... 40 Venue, Generally .................................................................................................................................................... 40 Agreement to Fix Venue CPLR 501 ...................................................................................................................... 40 Venue in Transitory (“Residence”) Actions CPLR 503 ......................................................................................... 40 Venue for corporations and other private Creatures… .......................................................................................... 41 Venue for Gov’t Entities CPLR 504 ...................................................................................................................... 41 Venue in Local Actions .......................................................................................................................................... 41 Special Venue Requirements in Consumer Credit Cases CPLR 503(f) ................................................................. 41 Change of Venue CPLR 511(b) ............................................................................................................................. 41 Change of Venue from Improper to Proper County; “DEMAND” PROCEDURE ........................................... 41 Discretionary Grounds for Change of Venue CPLR 510 ................................................................................... 42 Effecting the Change of Venue .............................................................................................................................. 42 Parties (Chapter 7) ...................................................................................................................................................... 43 Joinder of Claims and Actions ............................................................................................................................... 43 Severance: CPLR 603 ........................................................................................................................................ 43 Consolidation: CPLR 602(a) .............................................................................................................................. 43 Bifurcated trial .................................................................................................................................................... 44 Necessary (“indispensable”) Joinder of Parties (CPLR 1001(a)) .......................................................................... 44 CPLR 1001(b) allows the case to continue w/o a necessary party. .................................................................... 44 Permissive Joinder of Parties (CPLR 1002) ........................................................................................................... 45 Exception – Consumer Credit Transactions (CPLR 601(b)) - check ................................................................. 46 Joinder in the Alternative (CPLR 1002(b) ............................................................................................................. 46 Proper Parties ..................................................................................................................................................... 46 Real Party in Interest…..CPLR 1004 ................................................................................................................. 46 Procedure for Joinder (CPLR 1003) ....................................................................................................................... 47 Misjoinder .......................................................................................................................................................... 47 Class Actions ...................................................................................................................................................... 47 Interpleader ............................................................................................................................................................. 47 Initiation ............................................................................................................................................................. 48 Jurisdiction problem ........................................................................................................................................... 48 Federal interpleader ............................................................................................................................................ 48 Impleader (“Claim Over”) ...................................................................................................................................... 48 No ct. leave is necessary .................................................................................................................................... 49 Laches applies .................................................................................................................................................... 49 Contribution…skipped. .......................................................................................................................................... 49 Intervention ............................................................................................................................................................ 49 Papers (Chapter 8) ...................................................................................................................................................... 50 3 Service of Papers (other than CPLR 308) .............................................................................................................. 50 Deemed served when dropped in the letter box. ................................................................................................ 50 Pleadings (Chapter 9) ................................................................................................................................................. 50 Lack of Notice .................................................................................................................................................... 51 Liberalized pleading in NY…draftsmanship is secondary................................................................................. 51 Form: CPLR 3014 ................................................................................................................................................. 51 Jury v. Judge ........................................................................................................................................................... 52 CPLR 3015 and 3016 – Particularized pleading requirements .............................................................................. 52 Defamation (including libel and slander) – ........................................................................................................ 52 Fraud – CPLR 3016(b) ....................................................................................................................................... 52 Separation or Divorce ......................................................................................................................................... 52 Judgment ............................................................................................................................................................ 52 Other points of pleading ..................................................................................................................................... 52 CPLR 3017 – Demand for relief (“wherefore” clause) .......................................................................................... 52 2 ways to respond to a complaint: (1) answer, (2) motion to dismiss. ................................................................... 53 THE ANSWER .................................................................................................................................................. 53 3 OPTIONS IN ANSWER ................................................................................................................................. 53 Verification of Pleadings CPLR 3020 .................................................................................................................... 53 Amendment of Pleadings (CPLR 3025)…(similar to amending summons). ......................................................... 54 Amendment as of Course ................................................................................................................................... 54 Amendment by Leave - CPLR 3025(b) ................................................................................................................. 54 Bill of Particulars ................................................................................................................................................... 55 PROCEDURE: CPLR 3042 ................................................................................................................................... 55 Amending and Supplementing the Bill: ............................................................................................................. 55 Remedies in Connection w/ Bill of Particulars: ................................................................................................. 55 Penalties against the Seeker: .............................................................................................................................. 56 Variances ............................................................................................................................................................ 56 Motion Practice (Chapter 10) ..................................................................................................................................... 56 Accelerated Judgment (Chapter 11) ........................................................................................................................... 56 Motion to Dismiss CPLR (3211) ........................................................................................................................... 56 Dismissal Grounds: CPLR 3211(a) ........................................................................................................................ 57 11 grounds upon which to move to dismiss complaint ...................................................................................... 57 Plus four others................................................................................................................................................... 58 Motion to Dismiss Defense .................................................................................................................................... 58 Treating CPLR 3211 Motion as Summary Judgment ........................................................................................ 58 Immediate Trial of Fact Issue Under CPLR 3211: ............................................................................................ 58 Time for 3211 Motion ............................................................................................................................................ 58 Single Motion Rule: ........................................................................................................................................... 59 Option to Plead Instead of Move; Waiver: ............................................................................................................. 59 Leave to Replead - CPLR 3211.............................................................................................................................. 59 Res Judicata Effect of CPLR 3211 Disposition: ................................................................................................ 60 Motion Under CPLR 3211 Extends Time to Respond:...................................................................................... 60 TWO OPTIONS: motion to dismiss (see above) and motion for summary judgment. ......................................... 60 Summary Judgment (CPLR 3212) ..................................................................................................................... 60 Time to Move for Summary Judgment: ............................................................................................................. 60 Proof on Sumary Judgment Motion ................................................................................................................... 61 Searching the Record: CPLR 3212(b) ................................................................................................................ 61 Partial Summary Judgment ................................................................................................................................ 61 Res Judicata Effect of Summary Judgment Motion ........................................................................................... 61 Summary Judgment In Lieu of Complaint – CPLR 3213 .................................................................................. 61 Money Instrument as Basis for CPLR 3213 Motion .......................................................................................... 62 Judgment as Basis for CPLR 3213 Motion ........................................................................................................ 62 4 Provisional Remedies (Chapter 12) ............................................................................................................................ 62 Preliminary injunction ............................................................................................................................................ 62 Temporary Restraining Order (TRO) ................................................................................................................. 63 Disclosure (Chapter 13)…discovery. ......................................................................................................................... 63 Disclosure; Introduction: ........................................................................................................................................ 63 Disclosure Criteria; CPLR 3101(a): ....................................................................................................................... 63 Disclosure from a Party ...................................................................................................................................... 63 Disclosure from a Non-Party.............................................................................................................................. 63 What is discoverable in NY state ct?...................................................................................................................... 63 What is not subject to discovery? ........................................................................................................................... 63 Privileged Material…CPLR 3101(b): ................................................................................................................ 63 Attorney’s Work Product…CPLR 3101(c) ........................................................................................................ 63 Materials Prepared for Litigation…CPLR 3101(d)(2): ...................................................................................... 64 Four basic forms: .................................................................................................................................................... 64 Depositions ......................................................................................................................................................... 64 Interrogatories .................................................................................................................................................... 64 Document Request/Demand for Inspection of copying CPLR 3120 ................................................................. 64 Requests for Admission (“notice to admit”) – CPLR 3123 - admit X (certain fact). ............................................ 64 “Relevance” std. in NY – ................................................................................................................................... 65 REMEDIES ............................................................................................................................................................ 65 5 CPLR and Acts OVERVIEW a. Only time CPLR does not govern is where there’s another Act that governs and there’s a conflict with the CPLR, otherwise, it governs every court in NY. b. Uniform Court Acts – Act 2 of each act sets forth the juris. of the ct. (what kind of cases it can hear) NYCCCA – civil cts. only in NYC (5 boroughs (Richmond, Kings, Queens, Bronx, NY counties)), all other counties have a county court (CPLR). Unif. Dist. Ct. Act – only applies to district cts…only exist in Nassau and Suffolk. Unif. City Ct. Act – city cts. around the state Unif. Justice Act – village and town cts. c. CPLR 100 – either statutes (“§”) or rules (“R”) in CPLR, distinction not real though b/c effectively only legislature can change anyway. d. CPLR 103 – does away with actions at law vs. equity one form of action…but, there are equitable defenses to suits “in equity” e. Action vs. Special Proceeding – Action is by motion for some sort of interlocutory relief, special proceeding is like a motion but it is an action in itself…ex. art. 78 proceeding, proceeding to get fax # and email of unknown timeshare buyer saying he is a bank (“order to show cause”), or whether case is subject to mandatory arbitration. f. CPLR 104 – “Shall be liberally construed,” intent of provision should govern effecting the purpose behind the CPLR, supposed to be a means to an end and not an end in itself…in practice, sometimes it is. g. CPLR 2004 – with certain exceptions (s.o.l.’s), where there are limits, the judge can discretionarily increase time in the interests of justice…lawyer’s “get out of jail free card” once or twice during the case…adversary asks for it? Say “yes.” Subject Matter Jurisdiction (Chapters 1 and 2) Authority of the ct. to hear the case, outer limits of ct.’s authority; conferred in NY by (a) Ct. Acts, or (b) Constitution of NY…parties cannot agree to waive, can be raised at any stage (even for 1st time on appeal). Courts of limited jurisdiction (NYC Civil Ct., NYC Crim. Ct., $$$ limits) vs. general jurisdiction (Supreme Court). (questions 1 and 2 on exam) Supreme Court is only court with general jurisdiction…can hear any case. Does much of what other lower cts. can do as well (so might transfer (see below)). Statewide service for Supreme Court. a. Exception: federal statute preempts ct. from hearing a type of case. b. Exception: suits against state ct. of claims. THE COURTS Court of Appeals HIGHEST CT. 7 Justices, appointed for 14 yrs. Questions of Law ONLY. Exception: death penalty case (can review facts and even issue new findings b/c app. div. is bypassed) Exception: when App. Div. reverses trial ct. finding different facts than trial ct. that erred Advisory opinions – no case or controversy – important questions of state law w/ no binding precedent; legislature can ask for it, so can U.S. Supreme Court, other state’s highest court, and federal appeals ct. federal cts. cannot issue advisory opinions. 6 Appellate Division – 4 judicial departments (INTERMEDIATE APPELLATE CT.) Decisions are binding on the Supreme Courts within the department a. 1st Dept. – NY County and Bronx County. b. 2nd Dept. – Richmond (S.I.), Kings, Queens, Suffolk, Nassau, Westchester, Putnam, etc. Can review issues of law and fact Original jurisdiction for a. Admission of attorneys or supervision. b. Where the decision of only questions of law c. Art. 78 proceedings: where prohibition or mandamus against supreme court justices Hears appeals from: a. Supreme Court b. County Courts c. Family Courts d. Surrogate’s court e. Court of Claims f. And appellate terms of the supreme court Appellate Term of Supreme Court – Court of Claims Only in 1st and 2nd Dept.’s Hear appeals from (1) NYC Civil Ct., (2) NYC Criminal Ct., and (3) NYC District Courts Appeals from appellate term then go to App. Div. Claims against the state, state agencies or unit of the state (some unclear if agencies such as PANY/NJ)…Supreme Court can’t hear. Statewide Ct., service of process statewide. Appeals go to App. Div. of Dept. it sits in (ex. Albany Ct. of Claims 3rd Dept. App. Div. Hypo: injured in rented boat in state park, want to sue manufacturer and state and person who hit you…bring where? Two separate lawsuits!!!: state in ct. of claims and all the rest in Supreme Court…judicial efficiency does not exist. Might get inconsistent verdicts (state says it was other D’s fault, other D’s say it was the state…and neither is there to rebut) and contribution problems. Hypo: you want to sue state and employee of the state two separate cts. again. ***when state is D in ct. of claims, it cannot implead a potential indemnitor or contributor…hypo: state sues Gugig in Supreme Ct., Gugig cannot counter-claim!!! – must bring separate claim in ct. of claims. County Courts – every county outside NYC has one, both civil and criminal jurisdiction Appeals go to App. Div. Exception: Nassau & Suffolk are part of the 2nd Dept. & to Appellate Term Money actions up to $25K, but counter-claims unlimited in amount. a. NO AGGREGATION permitted in county courts (unlike NYC Civil Court). Hypo: 4 K actions for $10K/each cannot be brought together. Piece of real property in the county – can hear all actions pertaining no matter the value. 7 NYC Criminal Ct. NYC Civil Ct. Replevin (personal prop.) if in county and worth less than $25K. Summary proceedings regardless of value (ex. dispossess tenant even if owes $1 million in rent). Incompetency proceedings of residents of the county. NO EQUITABLE POWERS (no injunctions). Exists only in 5 NYC boroughs MISDEMEANORS ONLY…felonies in supreme ct. Appeals to Appellate Term. One in each of 5 counties. Civil jurisdiction. Appeals to Appellate Term. NO EQUITABLE POWERS (no injunctions). Service of process valid only within NYC. Money actions up to $25K, but counter-claims unlimited in amount. a. Aggregation is permitted: Hypo: 4K’s each worth $10K, can sue in NYC Civil Ct. on all claims at once. Real property actions of less than $25K value (different than county ct.). Replevin (personal prop.) if in county and worth less than $25K. District Courts of Nassau and Suffolk Other courts: Money actions up to $15K, process limited to county Family cts. – one in each county. Towns and village cts. – up to $3K for claims. TRANSFERRING BTW COURTS CPLR 325(a) – Action brought in the wrong crt. Make motion Supr Crt to transfer (Supreme Ct. b/c lower ct. likely does not have jurisdiction to decide) ex. P brings case in Supreme Ct., D makes motion to Supreme Ct. to transfer to lower ct. or other ct. (family ct. maybe). CPLR 325(b) – TRANSFER UP Motion to next highest court with jurisdiction (where transfer is sought!)…that ct. has jurisdiction to transfer the case to itself. Difference from 325(a) is that under 325(a) it was brought in the wrong ct. to begin with, whereas, 325(b) it was the right court to begin with but now seeking more recovery.Hypo: $20K action in NYC Civil Ct., realize later it’s worth more ($100K) motion to Supreme Court to transfer up. Hypo #2: Suffolk County Dist. Ct. has a $15K limit but Suffolk County County Ct. has a $25K limit…bringing an action for $12.5K in Dist. Ct., find out it’s worth $20K motion to county court, it has jurisdiction to transfer. 8 CPLR 325(c) – TRANSFER DOWN – hypo: $20 million claim in supreme court and later realize it’s worth $20K Motion to Supreme Court (motion to ct. where transfer is pending!). If D asserted counter-claim, must obtain consent to remove to lower court. D has to have been within the personal jurisdiction of the lower court had the action been brought there. a. ex. $20 million case in NYC Supreme Court (statewide service), served D in Rockland County, can’t transfer down to NYC civil ct. when you realize it’s worth $20K even w/ consent b/c service not effective to transfer down (NYC civil ct. – city-wide service only). In reality, judge recommends 325(c) transfer down to P. P might not want to but if don’t, judge will deny a “general preference” (goes to the bottom of the calendar). P’s only recourse is to appeal denial of general preference but it is an extremely high standard. CPLR 325(d) – TRANSFER DOWN W/O CONSENT i. If it appears to supreme court justice that it could have been brought in civil court, then it will be transferred down. If this happens, civil ct. monetary limit doesn’t matter. a. Distinction from 325(c) voluntary transfer is that you’d have to reduce your demand to $25K to transfer, where, here, the judge can order transfer w/o reducing demand. b. ex. $100K claim, supreme court sends it down, monetary limit of lower ct. is increased to $100K. Again, Civil ct. needs to have juris. to start with (ex. Rockland D service not subject to 325(d)). Also, no equitable jurisdiction (if that’s what you’re seeking). FORUM NON CONVENIENS CPLR 327 i. ii. iii. iv. Court has personal and subject matter jurisdiction but D wants case heard in another forum (not venue!, D wants another state/system). The Forum non conveniens is designed to keep out of the NY courts cases in which SMJ and PJ technically exist but in which there are no significant contacts warranting the NY system’s scarce resources. Ex: Plaintiff gets injured in a hotel chain in Jamaica where it advertises in NY to create PJ. You have a tort claim, SMJ in SC, PJ in theory b/c it advertises to NY residents. The scene, boat, witnesses are all in Jamaica and we argue there is no PJ, and even if there is PJ, we would argue that this would prejudice the ∆ and FNC should apply. Here, you would have to go to Jamaica to bring this cause of action. If both ¶ and ∆ are residents in NY, then more unlikely that a dismissal on FNC would apply. Whether or not to grant a FNC dismissal is entirely up to the court’s discretion and the court should review all of the parties’ interests in the court system. Does the state of NY have resources, location of evidence, burden to ∆, for ex. we are really talking about ∆’s inability to make their case but also you don’t want to defend a case in NY b/c they are pro-plaintiffs and give exorbitant awards, choice of law rules, location of accident, is there an available forum elsewhere, if the alternative forum is in the U.S. that will always be available, if foreign then we will look if the court has PJ over ∆ and whether the alternative forum can enforce a remedy/judgment. 9 FNC Factors: Location of witnesses or evidence, choice of law rules, prejudice to D/burden to D (hardship to have to defend in NY), burden on court (why take up NY ct.’s valuable time if alternative forum?), availability of an “adequate alternative forum,” contractual agreement to NY as a forum. Always assume other state cts. are adequate…foreign country? is the cause of action available? personal juris. over D there? can it provide a real remedy (way to enforce the judgment)?…If inadequate, no dismissal, don’t want D to escape liability. One specific circumstance, NY courts won’t apply forum non conveniens…327(b) – any commercial action worth at least $1 million where (1) NY forum was agreed upon, and (2) NY substantive law agreed upon to apply, FNC will not apply…NY is a commercial center and want a body of law…Ego! a. 327(b) deals with contracts that choose NY as the forum. converse: less than $1 million, not automatic grant of forum non conveniens…look at factors. b. NY if the world’s financial center and it wants to be known as such and the NY judges are rather sophisticated and they understand how to adjudicate big $$$ causes of action and they want other states to look at their law to see how to interpret their own law. It is in NY’s interest to adjudicate big claims b/c it continues to be a big financial leader. IN NY, you don’t request a jury until the end of pre-trial proceedings in a Note of Issue. If case is dismissed with conditions on defendant’s agreement to accept service in alternative forum. ∆ waives the right. General, SC can hear any type of case except claims against state or municipal government or where Congress has conferred exclusive jurisdiction - RESULTS IN DISMISSAL! CONDITIONS PRECEDENT TO SUIT (Sometimes you just can’t sue) Notice of an Insurer Can not bring suit unless you have brought this notice before hand. Notice must be brought as soon as practicable. Most common type involves insurance policies. Ex. most insurance policies require notification of insurer as “soon as practicable” after occurrence, might absolve insurer if not done.Insurance company can deny to cover claim if late notice. Nine months is too late. Municipalities Another condition precedent to suit is when you sue a municipality. Gen. Municipal Law 50-e – P filing tort claim against municipality must submit notice of claim within 90 days after claim! If you blow the deadline, you blow the case. hypo: p comes to you on the 89th day, what do you do? File notice of claim b/c you can’t file lawsuit w/o it. If you don’t want to take suit, then you must inform client that they must file within 90 days or atty can get sued. NOTICE OF CLAIM: Informs of nature of claim (when, where, how) and injuries sustained by P. If notice of claim does not have these facts then it may be found void from its inception. Either by registered mail (effective upon posting) or personal delivery…regular mail (effective upon receipt). Serve on same person in town that you would serve w/ process (look to town rules). 10 Improper service of notice of claim can be waived if P agrees to deposition by municipality, or, returned to P within 30 days w/ 10 days allowed to cure defect. If notice of claim describes claim wrong, it is a nullity. Ct. discretion to extend notice period on motion to s.o.l.’s time (up to 1 yr., 90 days),…but, don’t count on it, need valid reason). This is very rare. §10 of Ct. of Claims Act – 90 days notice on state as well. Statute of Limitations (Chapter 3) Time after which a plaintiff loses the right to bring a claim for remedy. It extinguishes time for remedy but it does not extinguish the claim. Of course, these are the same. Overview: Bars remedy for claims not brought in time, almost all fall within Art. 2 of CPLR. It is an affirmative defense to be pleaded and proven by D! If it is a condition precedent type of suit, complaint must state you complied with condition precedent (P’s burden to prove, substantive part of the P’s action). Why have SOL? availability of witnesses and evidence, expectations of D to “not have to look over his shoulder” (repose) CPLR 2004 does not apply to s.o.l.’s judges may not extend s.o.l.’s for any reason! (CPLR 201). As an atty, always protect yourself and if you are not taking case, let the party know in writing that they have a certain amount of time in which to file a suit. Or else get sued. Why is it important that the cause of action not be extinguished but just the remedy be extinguished? Must a ¶ allege that they were within the SOL? No, we leave it to the ∆. What does it mean that there is an affirmative defense? Defendant carries burden of SOL as an affirmative defense and must be proved by ∆. A notice of claim is a condition precedent and ¶’s burden. In theory, if the Sol distinguished the claim, then it would be a condition precedent and plaintiff would have burden to show compliance so SOL does not distinguish claim. Applicable Periods Don’t assume that the SOL has not changed; always double check cause you don’t want to get sued; go online and check on westlaw/lexis to assure that the deadline has not passed. CPLR 211 – 20 Year Period (LONGEST) for action on an already rendered judgment (enforcing a judgment) after 20 years, irrebutable presumption judgment is satisfied (absolute bar to suit). This abolishes the right and not just the remedy; it is the only rule that abolishes the right. CPLR 212 – 10 Year Period – possession of real property (adverse possession) CPLR 213 – 6 Year Period: Contract Claim (express or implied)…NOT FOR THE SALE OF GOODS a. Installment K – new 6 yrs. starts for each payment for installments. Indemnification or contribution…runs after judgment has been paid! Sale of realty or services (ex. breach of warranty in lease). Fraud…(discovery rule applies (see below)) Catch-all period – for any cause of action with no s.o.l.’s provided a. Including: many equity actions not identified (accounting, injunction, reformation). UCC-governed sales – Ks FOR THE SALE OF GOODS: 4 Year Period (CPLR defers to §2-725) (ex. breach of warranty claims); Rubber bands are goods. 11 CPLR 214 – 3 Year Period: Unintentional Torts (Negligence, Strict Prod. Liability, Personal Injury, Professional malpractice-not medical) Federal Civil Rights Action (§1983) Property Damage (negligence, conversion, and replevin) Malpractice for non-medical professionals (attorneys, accountants) professional malpractice Medical Malpractice – 2 ½ Year Period – medical, dental, or podiatric: only for doctors, dentists or podiatrists not nurses, optometrists, chiropractors! For medical misconduct!!! (treatment related ONLY when the suit is for something else such as negligent hiring & supervision(nurse)) a. For example, if you slip and fall in doctor’s office or the hospital fails to supply proper personnel or emergency room rules, then it is 3 Years under CPLR 214. Wrongful Death – 2 years from the moment of death (see “accruals” below for more detail) Starts running from the time of death. CPLR 215 – 1 Year Period : Intentional Torts (Assault, Defamation, right of privacy, Battery, Intentional infliction of emotional distress) – shorter than unintentional tort b/c you know it right away. Defamation is 1 year whether or not the ¶ knows about the publication; it still runs from the time it is first published. Confirmation of an Arbitration Award. Other statutory periods: Equity Actions CPLR 78 Proceedings – 4 months Divorce – 5 years Tort claim against municipality (§50-e) – 1 year and 90 days…from date of injury (not from notice of claim) Fall under CPLR 213(1) there is no specific rule so we go to default period – 6 Year Period Injunction – must show (a) irreparable harm, (b) likelihood of success, and (c) inadequate at law. Where relief is at discretion of court (injunction, specific performance, rescission of a K), the doctrine of laches applies an equitable defense! A court will apply this doctrine where a defendant has acted in reliance to a plaintiff’s inaction. Here, we have a K, a. D must show (1) P was guilty of undue delay, and (2) delay has been prejudicial to D (reliance, some action taken by D). b. Why? P sat on his rights too long. Injunction has 6 Year s.o.l. but requires “irreparable harm,” how irreparable is it really if you wait a # of years? c. It is independent of the 6 year s.o.l.’s period…ct. can dismiss even if s.o.l.’s has not run!!! 12 Multiple Theories Should interpose all in the same action. The SOL applies to each claim. Hypo: warranty claim is 4 yrs. and prod. liability is 3 years…throw in warranty b/c there’s no harm in doing so. Each of the above have separate statute of limitations and you should be mindful of each one. If you happen to wait 3 ½ years, you still have warranty claim. There is also an advantage to D here since negligence and product liability claims are barred, no punitive damages, no emotional distress, medical expenses will be available and no pain and suffering, so only reasonable for warranty damages. All professional malpractice, except medical, no matter the theory under which you sue is three years. a. For example, if you go to an attorney, you have claims of negligence, malpractice and due care which is a K, however, it is still three years. b. It does not matter if it is breach of contract or a tort claim, it still gets 3 yrs. Altering the Period CPLR 201 Shorten Statutory period– Agreement to Lengthen Parties can shorten by K (must be agreed upon) the s.o.l.’s but ct. has to be satisfied it is reasonable (depends on the facts of the case, ex. who the parties are, negotiations?). UCC – can shorten but not to less than 1 Year. Valid only if made after CoA accrues and in writing and signed Applies only to K actions In tort, no agreement to lengthen the statutory period is enforceable. a. In theory, does not apply to torts, but D can agree not to raise statute of limitations as a defense for a certain period of time and it is waived (for example, this allows parties to negotiate in hopes of settlement). Accrual When s.o.l.’s period starts to run. SOL begins when the cause of action accrues. Personal injury on negligence Begins to run at moment of injury. hypo: hire a carpenter to build a ramp…3 ½ years later it breaks and hurts the owner…what causes of action are available? both negligence (becomes a viable cause of action at the time of injury) and breach of K (6 years to bring for non-goods, most likely this is a service). Discovery Rule (CPLR 214-c) for personal injury and property damage cases based on “exposure to a foreign substance” (ex. asbestos) a. Must commence within 3 yrs. of discovering the injury or 3 yrs. of when reasonable diligence should have discovered the injury. b. There is no outer time limit. c. CPLR 214-c(4) If you don’t know cause, within 5 years of discovery of injury, you can bring suit within 1 yr. of discovering cause (max. 4 yrs. plus 1 yr. to bring, ex. discover after 4.5 years, only have .5 yr. to bring suit), when you determine the cause b/c you can’t allege cause in good faith so long as it is within one year from when you learn the cause so long as it is within 5 years of the discovery of the injury. 13 i. The burden on the ¶ is heavy; the ¶ must show that the scientific information from which to draw conclusions about cause was not available w/i the 5 yr. period and the state of technical and scientific knowledge that the statute is referring to is the general knowledge of the scientific community, not the particular ¶’s own actual knowledge. d. Does not apply to med. mal…won’t apply if doctor exposes you to a chemical. Defamation Continued Trespass Breach of Warranty (Slander and libel) 1 year from publishing or republishing. Does not matter if the ¶ knew about it or not. Redistribution of already published stock does not start time running again! Date of first publication even if only limited quantities were initially published. If you publish and are republishing (re-printing) then you start a new SOL. No discovery rule, applies whether you know about it or not. 3 years from when P first learns of it for money damages, no barrier to injunctions. A breach of warranty claim in connection w/ a product accrues upon “tender of delivery” – roughly speaking, from the day of sale – and not when the wrong is discovered or an injury occurs. This poses problems when a warranty has been given for a period longer than the 4 yrs applicable to warranty claim under UCC §2-725. Even though the warranty is longer, the accrual still begins at the time of the sale. The way to avoid this is to follow the advice of the UCC and see to it that in the sales contract itself the warranty “explicitly extends to future performance”. If this is done, “the cause of action accrues when the breach is or should have been discovered.” If an explicit warranty extending to future performance is not used, the 4 yr UCC warranty will run from the sale itself even in personal injury cases. Each Δ along the line of manufacture and distribution is entitled to a separate accrual date based on its own sale of the product and can’t be kept exposed to a warranty suit indefinitely merely b/c (i.e.) a retailer or intermediate jobber has kept a manufacturer’s product on its shelves or in its stock room for an inordinate time before selling it. a. Hypo: manu. sells to nat’l distributor who 10 yrs. later sells goods to retailer who you buy from…who do you have a breach of warranty claim against? ONLY the retailer. Breach of warranty accrues for nat’l distributor when it received goods from manufacturer…BUT, indemnification runs from when judgment is paid so retailer has 6 years to go after nat’l distributor. i. Indemnification – nat’l distributor has to pay b/c it wasn’t the retailer’s fault, so nat’l distributor will have to pay whatever judgment against the retailer. ii. Even though there is no cause of action b/w ¶ and the nat’l distributor and indemnification does not start running until the judgment is paid, the ¶ can implead nat’l distributor for the purpose o judicial efficiency. 1. Why have another lawsuit when you can just bring them in now. b. Hypo: manu. Sells to nat’l distr. 1 mo., then nat’l dist. To reg. Dist. On 2nd mo., then reg. Dist. On 3rd mo., and reg. Dist. On 4th mo. to client. The SOL 14 begins to accrue for manufacturer on the 1st month, it begins to accrue for regional dis. On 3rd mon, etc. Here, the retailer will seek indemnification from manufacturer. Strict Products Liability Theory: Med. Mal. Foreign Object Cases Offers the injured person an equivalent prospect of recovery but w/ the benefit of tort limitations’ rules (3 yrs., w/ accrual at injury). Lawyers should always remember that warranty itself may in some instances offer a limitations’ advantage: when the injury occurs close in time to the sale, i.e., the 4 yrs. measured from the sale are likely to give the ¶ a longer time than the 3 yrs. measured from the injury. Exception: when K extends to future performance and if this is done, the breach of warranty accrues when the breach should have been discovered (ex. car warranty states that it is for 7 years). Runs from “the act, omission or failure complained of or last treatment, where there is continuous treatment for the same illness Basic Rule: time starts from the wrong itself, whether the ¶ is aware of wrongdoing or not. Continuous Treatment Theory: Postpones the start of the statute of limitations until treatment in respect of the particular ailment is concluded. For SAME ailment, must be continuing efforts to treat. NOT: (1) keeping an eye on a breast tumor – not continuous treatment of a particular condition, or (2) when continuing treatment is at a different hospital. a. Works as a toll until treatment is completed. b. ***Continuous treatment has been extended to legal malpractice as well…“continuous representation” (3 yrs. from last representing) If the treatment has in effect been concluded, however, and a further examination is undertaken at the ¶’s request “for the sole purpose of ascertaining the patient’s condition,” the examination does not qualify as continuous treatment so as to start the period anew. a. The same is true even if it is the dr. who initiates the new contact, as long as the prior course of treatment had been terminated. Termination of treatment is deemed to occur not upon the patient’s last actual visit to the dr., but upon the last scheduled one, if it is later. Misdiagnosis: a patient unaware of a misdiagnosis gets no postponed accrual b/c here the policy of continuous treatment is not implicated. Hospital: doesn’t apply against a hospital when the later treatment was at a different hospital, even though both hospitals have the same owner. Labs: inapplicable to a lab that misdiagnoses cancer by misreading tissue slides. Discovery Rule – one year to bring the action from the time of discovery or reasonably should have known…<OR> 2.5 years from wrong act, whichever is later. a. The 1 yr. period is an alternative, the action still being timely if brought w/i 2 ½ yrs. after the wrongful act regardless of when the injury was discovered. Exclusions: Any chemical compound, fixation device or prosthetic aid or device, i.e. anything intentionally left in the patient’s body as part of the medical procedure. a. A suture inserted into the wrong organ during surgery has been held a “fixation device”, not a foreign object. Does not apply to misdiagnosis cases (i.e. failure to find another doctor’s objects). 15 Discovery Accruals Wrongful Death (FIND OUT WHAT ELSE THIS TWO YEAR PERIOD APPLIES TO? JUST FRAUD?) 2 Years from discovery, or facts that did or “should have with reasonable diligence put the P on notice that a cause of action exists, or from original time of wrong, whichever is longer. a. hypo: 7 years after life insurance policy issued, interest rates dropped so promised dividends which were covering premiums previously did not cover the premium any longer…should have known with reasonable diligence from the moment of K b/c you should have read the K. b. hypo: find out injury 2.5 years later, get 2 more years. If you found out injury after 6 months, you still get the standard 3 years. The result is that in each of these discovery cases, there are actually 2 measurements: a. The stated period running from the wrong itself, and b. The 2 yr. period running from its discovery. **The ¶ can use whichever is longer. Exceptions to CPLR 203(g): a. The 4 yr. warranty period of UCC §2-725, which has a discovery accrual in certain instances (it is not cut back to 2 yrs.) b. The foreign object claim in medical malpractice cases, which is preempted by CPLR 214-a. i. (1 yr. from discovery, 2 ½ yrs. from act). c. The 3 yr. period applicable in exposure cases, for which a discovery rule was enacted in 1986. d. Ex. Fraud – get 6 yrs. from wrong or 2 years from the discovery of it. Breach of Warranty of Authority: The claim a victim has against one who falsely represents his capacity to act as agent for another. a. This is a category of contract and has a 6 yr. period, which would be reduced to 2 under CPLR 203(g) insofar as measured from discovery. 2 years from moment of death ONLY if D would have been liable to decedent had he not died. a. On day of death, did P have a claim?…CONDITION PRECEDENT There are thus 2 statute of limitations to be investigated in a death case. a. 2 yr. period measured from death – the claim in any event must be brought w/i that time. b. The period applicable to whatever the decedent’s underlying cause of action is (3 yrs for negligence, 4 yrs for breach of warranty, 1 yr for assault, etc.) **On the day of death the relevant statute of limitations for the underlying personal injury claim must still be alive! ex. car accident and you die from it 3.5 years later w/o having brought a claim…NO wrongful death claim! On the day you died, you had no claim because personal injury was barred by 3 year limitation. a. if claim settled prior to death, no cause of action at death, therefore, no wrongful death action. Settlement: a. The pre-death settlement of the underlying claim, however, or the pre-death satisfaction of a judgment recovered on it, destroys the necessary condition precedent and bars the death claim. b. Acceptance of the settlement bars any wrongful death claim that might otherwise accrue to the client’s dependents. 16 CPLR 214-c specifically refers only to personal injury and property damage cases, which might lead to the hasty assumption that the discovery rule of CPLR 214-c doesn’t apply in wrongful death cases. a. It does apply, but its application requires no explicit reference. b. Its relevance is in measuring whether the decedent had a valid personal injury claim on the date of death. c. The incidents of CPLR 214-c about postponed accrual based on discovery of injury and discovery of cause are applicable in that measure. INTERPOSITION – when does clock stop running on s.o.l.’s? Unity of interest P must interpose the claim within the applicable period. Lower cts. (NYC cts., dist., village, and city) – the service of summons marks the interposition of the claim (commencement of service). a. See also notes on Provisional Remedies and Delivery to Sheriff or Clerk. Supreme and county courts – upon filing (receipt) of the initiatory papers (summons and complaint/notice) or in a special proceeding a notice of petition and petition…service must then be within the time specified afterwards (when two service acts are necessary, both must take place within period). a.Summons and complaint, or the summons along w/ a brief notice of what the claim is about. b. In a special proceeding, the paper that must be filed to mark commencement is the petition. If time is running out, the ¶ may seek an ex parte order from a judge directing that the filing take place w/i 5 days after the judge signs the order. a. The mere signing of such an order marks the moment of commencement. When 2 acts of service are necessary, as w/ affix and mail requirements of CPLR 308(4), both steps must be accomplished w/i the applicable period. Several D’s “united in interest,” commencement as to one in any of the methods listed above in any ct. will preserve the action against the others even though they still need to be served before the ct. gets jurisdiction of them. To qualify as united under this rule, D’s interest must be without “mutual hostility!” (ex. not joint tortfeasors, suing employee and employer can serve one and it would be okay for unity of interest). In Supreme court, so long as you file in time and list other D, you’re fine. Unity of interest more applicable in lower courts when you serve one and not the other. Counterclaims – CPLR 203(d) Appears in the answer but has the advantage of being interposed as of the moment in the claim in the complaint was interposed…it is an advantage to D. a. a.k.a. deemed filed on same day as complaint for s.o.l.’s purposes. b. so long as D’s claim arises from the same transaction or occurrence as P’s claim, it may be interposed regardless of timeliness, BUT it will only neutralize or set off P’s claim (“equitable recoupment”…D will not be allowed to take an affirmative judgment if the counterclaim would otherwise be untimely. i. Hypo: Doctor treats patient, 4 years after continuous treatment, doctor sues patient for fees (okay, b/c 6 yrs. for K action), patient wants to sue doctor…too late! (only 2.5 years for med. mal. action)…BUT, can bring as a set-off of K action…..equitable recoupment! 17 c. If the counterclaim is untimely even if measured by the moment of the main action’s commencement, all is not lost. i. If Δ’s claim arises from the same transaction of occurrence as ¶’s claim, it may be interposed regardless of timeliness, but only to neutralize or set off ¶’s claim. ii. Δ will not be allowed to take an affirmative judgment against ¶ for any balance that might be due in Δ’s favor. iii. This is the doctrine of equitable recoupment. (VERY IMPORTANT) Cross-claims - CPLR 203(D) Applies to cross-claims as well (claims btw D’s)…relates back to original commencement of the action. a. X-claim is when there are multiple Δs and they sue each other. b. If X-claim is asserted in a timely fashion, the x-claim will relate back to the original date. i. Most x-claims are for indemnification or contribution. ii. There should be no statute of limitation problems in this case b/c it dates from the date of payment which did not occur yet. D impleads X who claims against D, the 3rd party D’s claim against X relates back to the interposition of the one against who it is claiming, which relates back to P’s interposition so long as same “t or o.” So, D’s claim against X will be okay so long as D’s counter-claim against P was within s.o.l.’s. Claim in Amended Pleading NOTICE IS THE CRITICAL FACTOR IN RELATION BACK (CPLR 203(f)) AGAINST EXISTING PARTIES a. A claim in an amended pleading will be deemed to relate back to the time of the claim in the original pleading was interposed as long as the original one gives notice of the transaction or occurrence out of which the claim in the amended pleading arises. i. If such notice is not given by the original pleading, then the new claim is measured by the timeliness of service of the amended pleading that contains it (date the amended pleading was served on the Δ)…ex. car accident and later find out that D defrauded you, if fraud claim is barred can’t bring because no relation back because not same transaction or occurrence. ii. If amendment requires leave of the court, which requires a motion, it has been held that the claim can be deemed interposed as of the service of the motion papers containing the proposed amendment instead of the later time when the motion is granted. iii. Applies the same to a counter-claim in an amended answer. ADDING A NEW PARTY! …..service will relate back to the original filing if: a. 3 elements!!!: (Brock Test) i. The same event underlies the claims… ii. There is such a unity of interest b/w A and B that service on A amounts to notice to B, thus warning to prepare his case (ex. P sues employee, employer paying for defense (actual knowledge), will relate back b/c of notice). 1. There can’t be a conflict b/w these 2…..their legal interest has to be united. 18 iii. B knew or should have known that the action would be brought against him, but for the excusable mistake of the plaintiff in identifying the party. b. As long as the motion is made while the statute of limitations is still alive against the party sought to be added, the lapse of time b/w the making of the motion and its granting (assuming it’s granted) has been held a tolling period, i.e., a period during which the running of the statute of limitations has been suspended. i. This enables the ¶ to timely serve the Δ w/ the required supplemental summons and amended complaint after the motion is granted, even though, w/o the toll, the statute of limitations would by then have expired. Extensions and Tolls JUDGE CANNOT EXTEND S.O.L.’S (CPLR 201) …but tolls can… Tolls can either (1) suspend the running, (2) start it all over again as of a given moment, or (3) create an alternative period. General rule: In the absence of any indication to the contrary, the tolling provisions apply in both actions and special proceedings. (2) Ex. of starting all over again – written and signed acknowledgement of debt or other obligation starts the s.o.l. running anew. a. K claims only….no torts b. Whatever form the writing takes, it must imply a promise to pay and it should contain nothing inconsistent w/ an intention on the part of the debtor to pay it. c. ex. I owe you but you me X dollars, no implied promise to pay)…also, part payment on a debt starts the period running anew on the balance. Joint debtors…each one is herself, payment by one does not start anew for the other. d. An actual payment made by Δ under circumstances establishing that it is intended as a part payment towards a larger debt starts the period running anew on the balance. i. This is true even if the original s.o.l. has run out. e. In the case of joint debtors, it is each one for her and payment by one does not renew the period as to the other. The same is true b/w principal and surety. f. Mutual Account: One in which 2 parties have agreed to a course of dealings in which each periodically furnishes something to the other, each keeping a running a/c of credits and debits in the expectation that the party in whose favor a balance exists will send the other a bill from time to time. i. This kind of a/c is governed by CPLR 206(d), and, if it is found to exist, only the last entry need be alive (under the statute of limitations) to preserve the whole balance. (1) Stayed actions under 204(a) – if commencement of an action is stayed by ct. order or statute, the period of the stay is not part of the applicable period. a. ex. period of ct. determining arbitratability. b. ex. fed. law permits a fresh 30 days when s.o.l.’s expires on a claim while suit is stayed during fed. bankruptcy and a state may offer more than that…NY rule is that the s.o.l.’s is tolled during the whole stay! 19 Termination of Prior Action – CPLR 205(a) WILL BE ON EXAM If an action is brought w/i the applicable period and is terminated not on the merits but on a basis that keeps the claim alive and enables a later suit to be brought on it, CPLR 205(a) gives the ¶ 6 months from that termination in which to sue anew even though the original statute of limitations has now expired. a. The 2nd must arise out of the same transaction or occurrence as the 1st. b. In order for the 2nd action to be timely, it must be shown that the claim would have been timely had it been interposed in the 1st action. nd 2 action must be same “transaction or occurrence” and show that the original complaint was timely filed. 4 Exceptions to the 6 months rule of CPLR 205(a). The 6 months is not given if the prior action was terminated by a. Voluntary discontinuance b. Lack of personal jurisdiction over D – pers. juris. or defect in service i. ex. 2.5 years from personal injury, D files motion for lack of personal jurisdiction and failure to serve…won’t get 6 months if dismissed on this. 1. P lesson: serve right away before 3 years run because if dismissed you don’t get 205(a) OR move to strike defenses to get rid of defenses early! 2. D strategy: assert in an answer and wait to file motion, if granted right before 3 years it will be hard to effectively re-file case if dismissed in time. ii. HYPO: what if the ¶ when commencing the action, pays the filing fee by a check that then bounces? 1. No 1st action was commenced at all and there’s therefore nothing for the CPLR 205(a) 6 months to attach to for a 2nd action. iii. A dismissal for want of subject matter jurisdiction does not get the 6 months. 1. THIS WILL BE ON THE EXAM! c. Dismissal for neglect to prosecute d. Final judgment on the merits The prior action must have been brought in a court in NY. a. That includes a federal ct., but it has been held that the 6 months extension period will not append to an action brought in either a state or federal court outside NY. CPLR 205(a) applies to the re-commencement of a special proceeding as well as an action. 20 D’s absence – CPLR 207 If D is outside NY when claim accrues, s.o.l.’s does not start to run until she comes back. If she is in NY when it accrues but leaves afterwards, she must remain out for at least 4 months in order for her absence to be a toll, in which event the whole of the absence (not just the excess beyond 4 months) is a tolling period. CPLR 207 Exceptions: If the Δ is subject to the jurisdiction of NY courts w/o being personally served in the state, the toll for absence does not apply. a. So, when a basis of jurisdiction exists, such as under CPLR 301 or 302, on which service outside NY is authorized by CPLR 313, the toll of CPLR 207 does not apply, and this means that CPLR 207 and its absence toll does not apply in most cases. b. i.e. if Δ subject to long arm jurisdiction, the absence toll does not apply. If unknown to the ¶, the Δ is residing in the state under an alias, the period of such residence is also one in which the statute of limitations is suspended under CPLR 207. Disabilities as Tolls (CPLR 208)– ONLY APPLIES TO P’s DISABILITIES not Δs 1. Infancy and insanity are disabilities resulting in tolls under CPLR 208. a. Infancy: the infant is entitled to a toll for the period of infancy w/o regard to whether a lawyer has been properly retained for the infant or the parents have themselves acted on behalf of the infant by (e.g.) serving a timely notice of claim on a municipal Δ. i. The infancy ground can, except in an action for medical malpractice, where the 10 yr cut off does apply even to infants. b. Insanity: i. Insanity resulting from the very injury involved in the action does invoke the toll, even though the insanity does not appear until later. ii. The insanity need not have been formally adjudicated at accrual time. iii. The insanity ground cannot result in an extension beyond 10 yrs. from accrual of the claim. iv. Insanity will be narrowly construed….the test is if they can manage his/her daily affairs. 2. The disability must exist when the cause of action accrues; if it accrues afterwards, there is no toll. 3. If the applicable statute of limitations is less than 3 yrs, the entire period of disability is a tolling period, i.e., the statute of limitations does not run during it. 4. If the applicable period is 3 yrs. or longer, the ¶ will have at least 3 yrs. for suit from the time the disability ceases, but only if he needs it. 5. If the time left on the original statute exceeds 3 yrs when the disability ends, in other words, the extension is not needed and CPLR 208 does not give it. 6. Neither disability precludes suit from being brought in the ¶’s behalf during the disability. 7. The disability toll applies only to the claim of the incapacitated person proper. i. A derivative claim by 1 who is not under disability, such as the claim of a parent for loss of the infant’s services, does not get the toll. 8. Another disability toll is that for military service i. This 1 comes not from the CPLR but from the Military Law and differs from the CPLR 208 tolls in that: 21 a. it applies whether it is the ¶ or the Δ who is in military service and b. the period of service is a tolling period no matter when the claim accrued, i.e. the disability of military service does not have to exist when the claim accrues, as is required of the infancy and insanity disabilities. Tolling for Death (CPLR 210) The death of a potential party after the statute of limitations expires has no effect on the claim; the claim is barred; but death before expiration has. What the effect is depends on who died. a. If would-be P dies, here personal rep. has at least 1 year from the time the personal rep is appointed to sue. i. This is an alternative period, not an extension, and is used only if needed. ii. If at the moment of death more than a yr. remains on the original period, this provision adds nothing and whatever remains is usable; the time left is not cut back to a yr. 1. If more than one year still exists, you don’t get an extra year iii. ex. 2.5 years after accident, you die negligence action is brought by rep. 18 months later would be too late…only has one year from death, not in addition to 6 months that were remaining…a wrongful death claim at this same time 18 months after death would be okay b/c of 2 year s.o.l.’s. b. If would-be D dies before suit, there’s a straight 18-month toll tacked onto whatever period remains. no matter what…not an alternative. i. This is an addition and not a mere alternative. ii. Suit in such case must be brought against the decedent’s personal representative. 1. Cannot sue a dead person. iii. Hypo: med. mal. claim but doctor dies…so P gets 18 months on top of 2.5 years…4 years to bring claim. But, D’s family decides when personal representative is appointed so they could wait 4 years to appoint personal representative…This is not unethical because if none is appointed at the behest of the family – an omission that may be aimed specifically at frustrating the suit – the ¶ is herself authorized to apply to the surrogate’s court for the appointment. c. A claim that does not accrue to ¶ until after Δ’s death exists not against Δ, but against Δ’s estate, and gets not death extension. i. Exception: When both parties die in a common disaster. 22 Estopping D from Pleading Limitation Our courts have long had the power, both at law and equity, to bar the assertion of the affirmative defense of the Statute of Limitations where it is the Δ’s affirmative wrongdoing….which produced the long delay in bringing suit. An actual agreement b/w ¶ and Δ reasonably leading to postponement of suit can and should work an estoppel, but anything less than that should not be depended on. Equitable estoppel is used as a tool. a. If there is a fiduciary or other special relationship b/w the parties, estoppel may have easier sailing. i. Fiduciary duty – fiduciary must be acting in the best interest of the other person (principal). Not in the best interest of yourself or another party. ii. A dr.’s representations had the direct effect of getting the ¶ to forego suit and on these facts (as pleaded) the ¶ could reasonably rely on the representations. b. Actual agreement b/w the ¶ and the Δ to postpone suit – better to get written agreement that D waives affirmative defense of s.o.l.’s for a period of time. i. Never rely on your adversary’s oral representation to waive the s.o.l. c. EXAM QUESTION: company bookkeeper is embezzling money and affirmatively hides in the book for 6 years, employer now finds out…intentional tort (1 year s.o.l.’s) equity will estop D from asserting s.o.l.’s defense b/c affirmative actions hid it. i. Exam question: what is the best argument employer has to overcome s.o.l.’s defense to embezzlement claim?…equitable estoppel ii. Exam question: what is the best argument the employer has to overcome s.o.l.’s defense to the fraud claim?…discovery rule applies b/c the s.o.l. does not start running until the fraud is discovered. Borrowing statute: foreign claim brought in NY ct. When cause of action accrues outside NY to P, at the time a NY resident, then NY s.o.l.’s applies. If it accrues outside NY to non-NY residents, then the shorter of the two limitations applies…only when it accrues outside NY. 23 Personal Jurisdiction (Chapter 4) Allows a ct. to issue a judgment, forces D to pay, and to compel in a certain manner. If the ct. lacks personal jurisdiction, it does not mean it cannot hear the case, just can’t issue a judgment. Introduction: The ¶ submits to the court’s jurisdiction when she invokes it by suing. Any pary that seeks affirmative relief of the ct., consents to the personal jurisdiction of the ct. 3 requirements: (1) notice to the Δ that an action has been commenced (service of a summons), (2) opportunity to be heard, (3) jurisdictional basis (some nexus b/w the Δ and the state). A state cannot subject a nondomiciliary to its jurisdiction w/o a thread of some kind of connection to the state. Best way: personal service of the summons in NY…satisfies all 3 jurisdictional prerequisites…the check on this is forum non conveniens even though you can still get someone just passing through. The Δ can apply for forum non conveniens to get the suit dismissed. a. The mere fact that you served the person in NY satisfies the jurisdictional basis. b. This is true even if the Δ is only passing through the state. If you fail to raise the defense of personal jurisdiction in your first answer to the complaint, it is waived. If time is running out on s.o.l. and Δ raises the affirmative defense of lack of personal jurisdiction, the ¶ should make a motion to strike to test the validity of the s.o.l. claim. The Summons: Summons Service in NY as Jurisdictional Basis: Delivery of the summons to the Δ while the Δ is physically in the state is the only instance in which the separate demands of due process – basis on the one hand, notice and opportunity to be heard on the other hand – overlap. Personal delivery of the summons to the Δ w/i the state, no matter how transient the Δ’s presence, will still give personal jurisdiction. Issuance of Summons; Accompanying Papers: In NY, the attorney issues and signs the summons (unlike clerk in fed. practice who serves the summons) and that is deemed official process of the court. a. Sufficient copies of the summons should be issued so that a separate one can be served on each party. In NYC Civil Ct. and town, dist., and village cts., service of summons and complaint marks commencement. a. If served with complaint, notifies the Δ to answer within 20 days (personal service) or 30 days (other methods of delivery). b. If served with notice, it requires D to serve a notice of appearance on D’s attorney. i. May demand a complaint…P gets 20 days to provide complaint – may be subject to dismissal if P does not provide complaint…but might not if P would be prejudice. Either way it’s a good idea to demand b/c if P fails it puts judge on notice that P’s attorney is incompetent. 24 Can either serve a summons w/ complaint OR summons w/ notice a. Summons must contain: Index #, caption (all P’s and all D’s), venue, possibility of default if D fails to respond, notify that action has commenced against him/her, notify of how long to respond (notice to appear or answer). b. Notice must contain: (CPLR 305(b)): subject of action (must say a little more than “breach of K”), relief sought, specific $$$ amount (t.b.d. but not less than…). c. “Bare summons” is invalid per se…205(a) will not apply here! (won’t get 6 more months if dismissed). i. Bare summons is without notice. ii. It’s better to write a bad complaint that can be amended by right within 20 days. iii. An inadequate notice can’t be amended and can therefore result in a jurisdictional dismissal. iv. Hypo: Δ gets served w/ bare summons w/o notice and s.o.l. is 2 yrs. Δ is served 1 ½ yrs. after incident. What should the Δ do? 1. Nothing b/c the service is improper b/c it lacks notice and this causes a lack of personal jurisdiction. 2. What if the Δ answers? a. Then the Δ has waived the lack of personal jurisdiction. d. If the complaint does not accompany the summons, instead of the Δ being required to answer the summons, the Δ is required to appear in the action. Δ must file a notice of appearance. i. The Δ will do so by serving a notice of appearance on the ¶’s attorney. ii. The time to appear is 20 or 30 days depending on the method of service. 1. 20 days for personal service, 30 days otherwise. iii. It is customary in NY to accompany the notice of appearance w/ a demand for the complaint. 1. You should do this! e. Why would you serve a summons w/ notice? i. To get it in before the s.o.l. runs out. ii. A summons w/ notice takes 3 minutes to file. See page 89 for form. f. Why would you write a complaint? i. To tell your adversary that you are serious and to tell the judge that this is not a bullshit case. ii. Hopefully this will cause the Δ to settle. Commencement of Action; When and by Whom Summons Served Summons may be served by anyone over 18 and not a party to the litigation (P’s attorney or family member okay). a. Even if a party does serve the summons, the defect must be raised by the Δ promptly or is deemed waived. Cannot serve on Sunday (even if service is made outside of the state and that state permits it)!!! a. Service on a holiday is allowed. b. Service on Sunday in civil cases is only permitted when accompanied by an injunction needed to avoid irreparable injury. c. It’s a misdemeanor if you serve on Saturday if you know the Δ holds Saturday as the Sabbath. 25 i. Caselaw permits the service to be invalidated on motion if the malicious showing is made. The Filing System for Commencing Actions d. 1st step is for the ¶ to file the summons and complaint or summons and notice w/ the clerk of the ct. i. Supreme and County Courts – commencement is at filing (interposed, s.o.l.’s stops running) with service to come later. ii. CPLR 306-b permits ¶ 120 days to serve Δ after filing…as long as service is made, the service relates back to the initial filing for s.o.l.’s purposes. 1. If service can’t be made w/i the 120 days despite ¶’s diligent efforts, ¶ can move for extension. a. ¶ must show good cause. b. Ct. can grant w/o good cause in the interest of justice. c. There is no limit on how long an extension the ct. can grant. d. Extension can be granted even after the expiration of the 120 days. 2. Service in a Foreign Country is not exempt from the 120 days. iii. If service in any case is attempted, but fails, and a dismissal on that ground occurs w/i the 120 day period, or if the ¶ has developed apprehensions about whether the service is good, the 1st service can be disregarded and a 2nd service can be made w/i the remaining time. iv. If the ¶ is getting down to the wire and can’t make service (e.g.) b/c she doesn’t know where the Δ resides, ¶ can move for an ex parte order under CPLR 308(5), under which the ct. can invent a method of service for the ¶. v. A dismissal for failure to make service w/i the 120 day period may be made only on the Δ’s motion; ct. can’t do it sua sponte. Altering Papers After Filing But Before Service e. The papers served should be the same as those filed. f. Even if the ¶ detects some omission in the papers after their filing, it may be better not to chance an amendment until the Δ has appeared. g. The changed papers should be filed before they are served and all should occur w/i the 120 day period so the ¶ can at least argue that the served papers are identical to the set last filed. Strict Construction for Filing Requirements h. The Δ or respondent can waive the ¶’s failure to fulfill the filing requirements, and does so by appearing and defending w/o raising the objection. i. B/c these requirements don’t go to subject matter jurisdiction, they may be waived through inaction of the Δ. ii. The cts. may not raise them on its own motion. Who is the “Clerk”? The Mendon Ponds Problem i. The county clerk’s office is a financial office to which all the fees connected w/ litigation are paid. j. It is not the office through which the daily business of litigation is conducted; that’s done through the other clerk offices. k. ¶s and petitioners can consider pursuing the practice used in NY County, where 2 sets of papers are prepared, 1 set to file w/ the county clerk along w/ the filing fee and 26 ¶’s Lawyer Accountable for Process Server’s Acts l. ¶’s attorney is responsible for the activities of the process server and can’t escape responsibility by relying on the theory that the process server is an independent contractor. m. A mistake by the process server that causes a dismissal of the action too late for a new one under the statute of limitations will make the attorney liable to the client for legal malpractice. Contrasting the Former CPLR 306(b) n. Original CPLR 306(b) required service to be made w/i 120 days and proof of service w/i that time. o. Even if service was timely but the proof was not, the action was dismissed. p. The dismissal was automatic, calling for neither a direction by a judge nor even an entry by the clerk q. The ct. had no discretion to extend the time period no matter how diligent the ¶’s efforts at service. Amendment of Summons Ct. can permit amendment so long as “a substantial right” of the Δ is not violated…for mere irregularities (ex. minor spelling defects, d/b/a misnaming), no prejudice here to D b/c he had notice. a. Amendment requires a court order. i. While a pleading can sometimes be amended by a party as of right, w/o judicial permission, the amendment of a summons ordinarily requires a ct. order. b. A mere defect in naming a Δ who has been duly served and who knows from all of the papers served that he is the intended Δ is a mere amendable irregularity. c. When a claim is brought in an amount over the ct’s jurisdictional limits, the summons should be amendable to reduce the sum demanded to bring it under the court’s ceiling, but some judges take the narrower view that bars such an amendment. Amendment of Summons to Change Parties; Supplemental Summons Without Leave If the ¶ acts no later than the 20th day after the Δ’s service of the answer, the ¶ may add additional parties w/o leave. a. Must file a supplemental summons – along w/ the complaint that the new Δ is required to answer – and then serving both on the new party. b. It is also a good idea to serve copies of the supplemental summons on all existing parties who have appeared to assure that all are aware of the new joinder. c. It is also a good idea for the ¶ to see to it that proof of the service of the supplemental summons is filed w/ the clerk w/i 120 days after the filing of the supplemental summons itself. By Stipulation of Parties New parties may be added if all existing parties who have appeared so stipulate. In the Absence of Stipulation and if time has expired ¶ must get court leave for joinder. a. If a motion is made to add a party, those who are already parties need only be given notice of the motion through the ordinary mail channels applicable to motions made w/i actions. 27 b. Only the party to be added must be served w/ the supplemental summons, and even service on that party is dispensed w/ if he consents to jurisdiction. Supplemental Summons When the s.o.l. has expired as against the party whom the ¶ now wants to add, a supplemental summons, even if allowed, is likely to be too late. a. Misdescription of the Δ : ¶ may be able to convince the ct. to allow a mere “change of title”, redesignating the Δ as named to the Δ as it should have been named. i. Done by amendment, but ct. has to be persuaded that the error is one of mere misdescription, thus negating prejudice. ii. 2 things must be shown: 1. Must be clear from all the papers served (including the complaint if it accompanied the summons) that the Δ now sought to be added (or redesignated) should have known that it was the intended Δ. 2. Must be shown that the summons was served on a person authorized by law to be served in behalf of the intended Δ. b. Can amend within 20 days as of right from D’s service of answer answer time or by stipulation of the parties…no leave of the ct. required. situation: maybe D identified other parties in answer. c. After 20 days of D’s answer, motion to court is required!!! (or parties can still stipulate). Methods of Service h. From the outset, personal delivery or “deliver and mail” can be used w/o showing inability to serve. Personal Delivery – CPLR 308(1) All process server has to do is hand the summons to the Δ, tender can be in silence although it’s usually announced. a. Need only leave on table or in front of the D if he will not take it or behind him as he walks away. b. Cannot conceal the fact that it’s a summons. i. Should not be enclosed in any type of packaging. 20 days for Δ to answer with personal delivery. Redelivery Process server serves the wrong person, but someone else who immediately or later the same day or the next day (close in time, in any event) gives it to the right person. a. Will be effective if passes the Due diligence test: a diligent effort has to be made to find and serve the right person before service will be allowed on an intermediary. b. Delivery of the summons to the door answerer (whatever that person thereafter does w/ it) is good service on the Δ provided that it is followed by the 2nd step of mailing as directed in the statute (CPLR 308(1)). Enticement into Jurisdiction Cannot entice Δ from beyond cts. jurisdiction into it for service! (similar to not hiding the fact that you are serving process) a. But a phony representation that prompts only a short move by the Δ from 1 place to another w/i the state is ok. A sincere invitation to a would-be-Δ to come into the state for settlement talks will not be deemed an enticement if the talks break down and service is made at that time. 28 Immunity from Service Nondomiciliaries have immunity from civil process while in NY to participate in legal proceedings (either as parties or as witnesses). a. Must be in the state solely, exclusively, and voluntarily testifying to action pending in NY to be immune from process while in NY for that time. i. The person that has a dual purpose for being in the state will probably lose immunity. ii. Hypo: subpoenaed to go to NY, can be served in NY b/c not there voluntarily. iii. This situation would arise when opposing attorney wants to serve you to bring you in as a party. iv. This type of immunity is rare b/c how many people are actually there voluntarily? b. Immunity covers a reasonable period before the proceeding, in order to prepare for it, and a reasonable period afterwards for return home. c. Immunity is waivable, and is waived by not raising it either in a motion to dismiss or in the answer. Does not matter what type of legal proceeding it is……can claim immunity in an arbitration hearing. Immunity does not apply to a nonresident lawyer who is here for the proceeding b/c the lawyer is here in pursuit of his business and not just to facilitate NY litigation. Whom to Serve in Behalf of Various Δ’s Infants (UNDER 18) – Service must be to someone listed in CPLR 309(a). a. (a) parent or guardian, or (b) if married and living with spouse over 18, then spouse…if no such person in state under (a) or (b), then (c) serve person with whom infant resides or infant’s employer. i. Also, must serve infant if over 14, 2 service one 2 people is required. ii. No diligence rule – strict liability on age. iii. Service by mail method of CPLR 312-a is not available against an infant. Incompetents – CPLR 309(b) and (c) b. For incompetent with guardian appointed, must serve BOTH (2 services) c. Ct. can dispense with requirement of serving incompetent (for ex. ¶ would apply for such an order if the person is institutionalized or dangerous). d. Service by mail method of CPLR 312-a is not available against an incapacitated person. Partnerships e. Must name the partnership AND serve any general partner. i. If you only name the partnership, you can only enforce against the assets of the partnership. f. If you want to get personal assets of individual partners, must name all in caption (partnership plus Does 1-50) g. Cannot serve a limited partner. h. Each partner carries the partnership with him … so personal delivery in NY gives juris. over partnership…even if in NY for non-business related reasons i. ONE SERVICE SUFFICES, if suing partner and partnership. j. Can also serve appointed agent for service of process OR managing or general agent (ex. person running the NY office). k. For deliver and mail, deliver to managing agent and mail to general partner. 29 Service on a Corporation Associations – must be brought in the name of Pres. or Treas…an officer carries the association about with her (ex. labor union). Foreign Nations and Agencies: Service governed not by NY but federal law, applicable in federal and state courts alike. Must be personal service on a corp. unless ct. grants permission to do otherwise. Can serve Officer, director, managing or general agent (ex. branch manager), cashier or asst. cashier (high level overseer of corp. finances, i.e. controller or treasurer), or any agent appointed by law for service. a. Corp does not travel with these like a partnership, UNLESS officer is in NY solely to take care of corp. business. b. EXCEPTION to personal service being required…If D is a domestic business or licensed foreign business, it will have designated secr. of state for service for service of any claim…THIS IS ALTERNATIVE SERVICE. i. Serve two copies of summons on secr. of state who keeps one and forwards the other. ii. Ins. company – serve the superintendent of insurance. If the corp. is a NY corp. or a corp. licensed in NY, service can be made on the NY Secretary of State. a. Deliver 2 copies to the Sec. of State and then he will send one copy to the Δ. If foreign corp. not registered to do business in NY, a. Can serve one copy on the Sec. of State and mail (registered) or serve personally the other copy on the Δ. Government agency – must be personally served. “Sewer Service”; The Amendment of CPLR 308 (Gone) Delivery and Mail Service – CPLR 308(2)… CAN USE THIS AT THE OUTSET Just as good as personal service, but does not create its own jurisdictional basis as does personal service. ALTERNATIVE TO PERSONAL SERVICE…NOT AVAILABLE FOR CORPORATIONS! a. Both the delivery and the mailing are required for jurisdiction, and both steps must be taken w/ 20 days of each other. Two Requirements: 1. Delivery to a person of suitable age and discretion at certain premises. a. Need not be an adult, responsible teenager will do. b. Need not reside with the Δ.(unlike fed. rules) i. Can leave w/ doorman if access is denied (unlike fed. rules). ii. If the doorman lets you up, you have to make an attempt at service. c. Premises can be (a) actual place of business, (b) dwelling house, or (c) usual abode. i. Hypo: If girlfriend spends 4 nights a week at the boyfriends house, delivery there would serve as her usual place of abode. d. If person won’t open the door, can leave outside the door. 2. Mailing either to the Δ’s (a) last known residence or (b) actual place of business. a. Ordinary 1st class mail is the method.; neither registered or certified mail is required. 30 b. If mailing to business, must be labeled “personal and confidential” and not bear any indication it comes from a lawyer (avoids embarrassment at work!). c. Need not be “actual” residence, but it needs to be actual employment. d. Actual place of business is any location D has solicited , held out or advertised as his place of business (ex. address in a letterhead), including places such as Mailboxes, Etc. (CPLR 308(6)). CPLR 308(2) requires ¶ to file Proof Of Service w/i 20 days of delivery or mailing (whichever happens later). a. Service is then complete 10 days after service is filed. b. D’s responding time starts then…actually gives D 40 days to respond then (10 days from filing to be effective + 30 days for anything other than personal delivery to answer). Service on an Agent under 308(3) Authorizes a person or entity to designate a person to act as agent for service of process. agent endorses consent…proper designation must be in writing, signed by principal and agent. Filed w/ the county clerk where principal resides or has its main office. Valid for 3 years. Hardly ever done so don’t worry about it. Affix and Mail Service – 308(4) (“nail and mail”) May not be used w/o acting with due diligence to use personal service (1) or deliver and mail (2). a. Requires detailed affidavit about steps taken. i. Affidavit must set forth the particular steps taken in attempting service. ii. Hypo: go every day at noon? Not due diligence…need to make legitimate shot. 1. Should go different days at different times. iii. Should check with neighbors, DMV, phone book, post office to check for proper address to either personally serve or deliver and then mail. Two Steps: a. (1) Affix to premises – Presently used premises, not “last known address”…even if he eventually gets it from whoever lives at his last known address. i. Can be to a business or residence. ii. Must be done in such a way to avoid damage. 1. Do not destroy door – tack or strong tape or wrap with rubber band around door knob… 2. NOT sticking in door jamb. Must be “affixed” in some manner to the door. b. (2) Mail – “last known” address suffices. File proof of service within 20 days after last element fulfilled…service effective 10 days later Court-ordered service – 308(5) Accomplished by ex parte motion and may be invoked whenever service proves impracticable. This is called service by a substituted method. Ask ct. to order a method of service that will effectively give D notice of the action. 31 a. Not mandatory that D get actual notice, just that P does something “reasonably calculated” under the circumstances. i. ex. class action settlement – opt-out or be bound by it, with a general release in settlement…mailed to “last known” residence as prescribed by the court was sufficient to give constructive notice to P and therefore release was binding even though didn’t live there anymore!!! b. ex. property action – might allow publication. Need only show that service is impracticable…with due diligence, you couldn’t find the address. a. Some case law says that you don’t even need to try (1), (2), and then (4)…just that you need to show it would be “futile.” MUST submit affidavit of what you did and why you can’t serve under statutory methods. Good in situations when 120 days for service is approaching fast and you can’t figure out how to serve D. Service in Matrimonial Actions The key provision is §232 of the Domestic Relations Law. Service can be by any of the methods of CPLR 308. a. Note: Only the personal delivery method of CPLR 308(1) may be used w/o ct. leave in a matrimonial action. b. The other CPLR 308 methods are available, but all require an order of ct. in the matrimonial action whereas only service under CPLR 308(5) requires one in other actions. Service by publication is still available as a ct. ordered alternative, but should be used only as a last resort. B/c the matrimonial action is in the jurisdiction of the supreme ct. exclusively, and the supreme ct. is a filing ct., the matrimonial action is commenced today not by the service of the initiatory papers, but by their filing. Personal Service by Mail under 312(a) – won’t cover, rarely used…just know it exists (similar to federal waiver form of waiving personal service). Getting to the Courthouse General Filing Requirements: Supreme and County Cts- the filing commences the action a. First Step: file the summons and complaint b. The case then gets and index number. Lower Cts – service of the summons and complaint, not the filing marks commencement. a. Because the case is not initially filed w/ the ct., it is possible for a case to come and go – such as by settlement – w/o the ct. having any record of the case at all. If no file yet exists for the case, a file can be voluntarily opened by any party at any time. You must purchase an index number when you file…AND include the index number on the summons served (in NY Supreme and County courts). Summons is the document that must always be filed!!! (w/ either notice or w/ complaint). a. Answers need not be filed, just need to be served. Also, don’t need to file discovery notices or amended complaints. b. Motions must be filed. 32 c. Add’l requirement in med. mal. cases…CPLR 3406 requires that the ¶ file a notice describing the action within 60 days. i. The point that starts the 60 days is not the commencement of the action, but the joinder of the issue (the moment when the Δ serves an answer). ii. The notice is desgined to trigger the scheduling of a pretrial discovery that will expedite the action. 1. Policy in favor of expediting med. Mal. Cases. iii. The ¶’s omission to serve a timely notice under CPLR 3406(a) can be punished w/ money sanctions, but not a dismissal. 1. A ¶ unable to serve it timely should seek a time extension under CPLR 2004 as promptly as possible. Individual Assignment System (IAS) Old system, no judge was assigned before trial…when they heard a motion, it was their first exposure to it, different judge for each motion. Individual Assignment System now…one judge assigned for all pretrial activity…BUT, no judge assigned until need for judicial intervention…(RJI below) Getting a Judge Assigned: Request for Judicial Intervention (RJI) Note of Issue Filing an RJI activates the IAS machinery. a. Upon filing, a judge will be assigned to the case and that judge is on the case until the end. b. Anything you need a judge for….preliminary motion, pretrial conference, etc…. When a RJI is needed: if a judge has not already been assigned to the case, an RJI, in duplicate, must accompany any of the following: a. notice of motion, order to show cause, application for an ex parte order (ex. 308(5)), notice of petition, notice of issue, notice of med. mal. action, and request for preliminary conference…very important one…party who wants judge assigned early to set preliminary conference. Party requesting pays a fee as well (like getting an index number). Document you file to the ct. to let them know that discovery is finished and you are ready for trial. Form of Request for Judicial Intervention The Preliminary Conference Made optional, to take place at a party’s request. Getting an Index Number Proof of Service Jurisdictional Basis i. (pers. juris. = (1) notice, (2) opportunity to be heard, (3) Jurisdictional Basis…all 3 accomplished by service by hand in state) Several things can satisfy as a “jurisdictional basis”, including the Δ’s NY domicile, the corporate Δ doing business in NY, etc……. 33 General Jurisdiction CPLR: whenever CPLR 301 or 302 supplies a jurisdictional predicate, CPLR 313 immediately becomes applicable to permit summons service to be made outside NY as well as w/i. 301 – carries forward all prior basis law required for jurisdictional basis…adopts everything from the past. a. For natural persons, domicile is the jurisdictional basis 302 – establishes add’l basis for extraterritorial juris. of nondomiciliaries 313 – permits service outside of NY if either 301 or 302 is satisfied. a. Ex. domiciled in NY but live in FL for winter, can serve in FL in Jan. b/c jurisdictional basis, therefore, 313 allowed. b. EXAM QUESTION: SERVICE CAN BE BY ANY PERMISSIBLE METHOD IN NY! (both bases adopted by 301 from prior existing law) CPLR 301: Domicile – A Δ who is a NY domiciliary is amenable to juris. of the NY cts. no matter where served (313). a. Domicile implies physical presence coupled with an intention to remain indefinitely, i.e. to make the state one’s home, while residence entails mere physical presence in the state, not necessarily accompanied by that intention. b. Key time to look at domicile is at commencement of action (time of filing). i. It is at that moment that the Δ must be a domiciliary in order for the ¶ to exploit this basis. ii. It has also been held that the Δ’s NY domicile at the time a claim arose outside the state may serve as a jurisdictional basis for that claim even if the Δ has by now left the state and is therefore no longer a NY domiciliary at commencement time. c. Domicile doesn’t actually change until you reach new domicile. i. Hypo: Lawsuit filed in NY but Δ has left in his car to go to CA. He has signed a lease and intends to stay in CA. He is still a NY domiciliary b/c he did not reach his new domicile. d. Residence might be enough but for the sake of this class, only dealing w/ domicile. Corporate “Presence” Doctrine Doing Business Test: looks to aggregate of activities conducted in the state or business done through agents or employees…activities found to be conducted on a regular day-to-day basis. a. Hypo: Bank of America takes over Fleet which had 100’s of branches in NY…now “doing business” in NY. b. Mere solicitation by the corp. will not suffice, but solicitation coupled w/ some additional activities will. i. Ex. not how you get to VW for jurisdiction…other ways to do it…BUT, this is how you get to franchisee though who has a corp. presence in NY. c. Some examples: i. Wholly independent agent…juris. over agent but not likely “presence of corp.,” but agent is likely to bring indemnification action against principal. ii. Parent/subsidiary…more confusing analysis. “Alter ego” gives “presence.” 34 Specific Jurisdiction d. Questions of corp. presence doctrine ONLY ARISE when (1) D is an unlicensed foreign corp., and (2) the cause of action does not arise out of activity conducted in NY. e. “Presence” is a fact-intensive inquiry and only arises in two situations! General jurisdiction only matters if you can’t find a basis under CPLR 302. Claims that “arise out of or are connected w/ activities w/n the state…and such minimum contacts”. Long Arm Jurisdiction a. If the claim sued on “arise out of or are connected w/ activities w/i the state”, the state can exercise personal jurisdiction of the Δ in respect to those claims no matter where the Δ is served w/ process. b. Longarm jurisdiction allows the state to exercise extraterritorial jurisdiction of a nondomiciliary Δ based on contacts the Δ had w/ the state if the claim arises out of those contacts. NY does not permit the outer bounds of the Constitution. Where personal jurisdiction is conferred under CPLR 302, jurisdictional basis only applies to claim brought under 302, NOT to other claims. a. Hypo: NJ co. doing sporadic business in NY…2 claims against them but only one arose out of the activities in NY, can’t bring other claim that did not have jurisdictional basis. b. Doesn’t matter for CPLR 301 (domicile/corp. “presence”), can bring all claims. CPLR 302 a. CPLR 302(a) is applicable to all categories of Δs, including corporations, associations, partnerships, trustee of a trust, and any entity or creature capable of being made a Δ in a lawsuit and applies whether the activities were carried on by the Δ in person or through an agent. CPLR 302(a)(1) Transacts Any Business Test i. If Δ transacts business in NY AND the CoA arises from it. 1. Jurisdictional basis if cause of action arises from any business in the state…313 permits service anywhere once 302 basis is identified. 2. The question is whether what the Δ did in NY constitutes a sufficient “transaction” to satisfy the statute. a. The test is not quantitative but qualitative and the inquiry should determine whether the Δ has engaged in some purposeful activity in this State in connection w/ the matter in suit. 3. Different than “doing business” test (day-to-day business) ii. Selling and sending goods into NY alone is not “transacting” business…merely shipping goods to a NY resident is not enough. 1. Exception: where the seller soliciting business through advertising or a catalog, and injury results…this is “transacting business.” 2. Has to be personal and not economic injury. Contracts Anywhere iii. If Δ contracts to supply goods/services in NY AND the CoA arises out of that K iv. The K need not necessarily have been made in NY. 35 1. Can reach a Δ who contracts anywhere to supply goods or services in the NY 2. IL co. K’s to supply 1000 widgets in NY to NY co 3. OR co. ships toaster to NY, burns NY person, arises out of K to provide good in NY…$5K claim – do you bring it? No, it costs too much. NY ct. costs, hire OR atty. to enforce, motion practice > $5K. CPLR 302(a)(2) – Tortious Act Within the State b. Any tort in which actionable conduct takes place in NY AND the injury is outside NY. i. Defamation specifically excluded (from 302(a)(3) also) b/c of fear too many defamation cases would find their way into NY cts. CPLR 302(a)(3) – Act Without/Injury Within NY c. the Δ committed a tortuous act outside NY and (2) the act caused injury w/i NY, Plus, one add’l showing from sub (i.) or two add’l showing from sub (ii.). i. Sub (i.) – must also show Δ regularly does or solicits business (not as much as “corp. presence” doctrine), or engages in any other persistent course of conduct, OR derives substantial revenue from goods used or consumed or services rendered in the state. 1. Designed to guarantee overall contact w/ NY or any other persistent course of conduct. 2. The cause of action sued on need not be related to those NY activities. ii. Sub (ii.) – must show that the Δ “expects or should reasonably expect the act to have consequences in the state” AND “derives substantial revenue” from interstate or international commerce (generally, not specific to revenue in NY… “bigness” requirement)…fact-specific inquiry. 1. Designed to ensure that D is economically big enough to be able to defend a NY law suit w/o undue hardship. 2. Foreseeability…need not show specific injury foreseeable. Ex. Product liability – need not show that Δ knew a specific injury would occur in NY but that prod. might end up in NY and cause injury there if defective (ex. OK dist. in Worldwide VW, need not show it was specifically foreseeable that that car would end up in NY). CPLR 302(a)(4) – Real Property Longarm for claim arising out of ownership, use or possession of NY real property. a. applied to a claim to compel Δ to convey the realty to ¶ or pay damages in the alternative. b. In rem jurisdiction – if someone has a dispute over property in NY, 2 ways to assert personal jurisdiction over the person is (1) in rem jurisdiction and (2) the person is subjected to personal jurisdiction. 36 Longarm Jurisdiction for Family Support and Other Relief Under CPLR 302(b) Gives the ct. longarm personal jurisdiction in certain family actions, i.e. support, alimony, maintenance, distributive awards or special relief in matrimonial actions. Requirements: The party against whom the demand is made need not be a domiciliary or resident of NY, but the party making the demand must be such when the demand is made…..also must show: 1. NY was the matrimonial domicile of the parties before their estrangement or a. Must be immediately prior to the estrangement, not at some more distant time in the past. 2. “the Δ abandoned the ¶ in NY; or 3. the claim for the relief “accrued under the laws” of NY or “under an agreement executed” in NY. When the statute applies, it invokes CPLR 313 and permits service w/o regard to state lines. Restricted Appearance Under CPLR 302(c) Jurisdiction vs. the Merits CPLR 302(c) guarantees Δs that if they do appear in an action, the appearance may not be exploited by the ¶ to add non-longarm claims against them. a. i.e. If the ¶ in a case predicated on longarm jurisdiction should seek to amend the complaint to add an additional claim, that claim would also have to fall w/i the longarm standards of CPLR 302. b. If a new claim does not, it may not be interposed in the action through amendment or otherwise. Applicable only when jurisdiction is based solely on CPLR 302. Separate questions…a jurisdiction holding does not determine the holding on the merits. P’s burden to show that jurisdiction exists. a. P meets burden by alleging facts that, if true, would give personal jurisdiction. b. You don’t have to demonstrate the merits of the case for a jurisdictional showing. Many different longarm bases may overlap. Can choose either service method. a. Ex. car accident – motorist statute OR tortious activity within state…both apply. i. Nonresident motorist statute – driving or owning a car in NY is deemed equivalent to appointing secr. of state for service of process for claims arising out of. 1. Service – mail to secr. of state and mail to D via cert. or registered mail. A regular hearing is oral argument and whatever a lawyer says is not considered evidence. An evidentiary hearing is when the ct. takes evidence from people w/ personal knowledge. Non-resident Motorist Statute A non-resident driving in NY or owning a vehicle being driven in NY w/ permission has subjected themselves to personal jurisdiction if they get into an accident. Jurisdiction by written Agreement People can agree on jurisdiction via written contract. They can also agree to the method of service. 37 Service Outside NY If ct. can exercise pers. juris. under 301 or 302, it can use same methods outside of state as in the state. EXAM QUESTION: assuming you have jurisdictional basis to exercise personal jurisdiction over out of state resident, by what methods can you effect service?…all the same ones you can use in NY (under CPLR). Person who can make service is (a) a non-party, NY resident over 18, OR; (b) anyone authorized in the state where the service is made. SERVE UNDER NY RULES, NOT STATE WHERE PERSON IS! Ex. NJ allows for service by regular mail…don’t do! Method – must be by NY law. Person who serves – either NY law OR foreign jurisdiction. Ex. permits an atty. to serve in a foreign jurisdiction even if foreign juris. does not permit atty.’s to serve. Sunday rules apply to extrastate service! NO SERVICE ON A SUNDAY even if the other state’s rules allow it. Vacating Defaults D who is served but fails to appear and judgment is made may move to vacate w/n one year. Two provisions (both one yr., run from different times) under which a party can move to vacate a default: CPLR 317 applies to any service other than personal delivery (does not apply to personal service OR agent service!!!). a. Have 1 yr to vacate the default and time runs for one year from time D “obtains knowledge of entry of judgment”…w/o regard to source of the info. b. Runs for a maximum of 5 yrs from the time the judgment has been entered. CPLR 5015(a)(1) gives ct. discretion to vacate the judgment for “excusable default” regardless of service method. a. Have 1 yr to vacate the default and time runs for one year from the time Δ is formally served with “written notice of the entry of judgment.” b. There is no 5 yr. limit. Two things needed to vacate a default: (1) a meritorious defense to the action– does not mean necessarily a successful defense, but at least showing that vacating won’t be a waste of time; AND (2) a reasonable excuse for delay – law office failure will often suffice, don’t want to punish client or to give reason for malpractice claim as alternative. Appearance (Chapter 5) Some kind of participation in the action, way of submitting to ct.’s jurisdiction for a particular or all purposes j. There is no such thing as a special appearance in NY. k. ¶ appears in an action by bringing it. l. CPLR 320(a) - D appears by either (1) serving a notice of appearance, (2) serving an answer, or (3) making a motion that has the effect of extending the answering time (ex. motion to dismiss or motion for a more definite statement, both of these relieve the Δ from having to answer.). m. Must raise personal jurisdiction objection in first response to complaint ((1) notice of appearance is excluded). For example, D receives complaint, has two options: (a) motion to dismiss…need to raise pers. juris. in the motion and can re-assert it later in the answer, OR (b) answer and assert defense of lack of pers. juris. EXAM ANSWER: defense of pers. juris. is waived if not asserted in first response to complaint!!! When answer route is taken: 38 Once raised in an answer, can make a motion any time afterward…for ex., might hold onto b/c of 205(a) (P will not get 6 month toll)…strategy – P should put in motion to strike the defense right away. ONE EXCEPTION: if the objection is improper service and the D asserts it in the answer, the D must move for judgment on it within 60 days, thereafter it is waived. Otherwise, there is not limit on how long D has to bring motion on personal jurisdiction once asserted. When counter-claim is made in answer, it does not waive the jurisdictional objection so long as the counter-claim is related to P’s claim…relatedness test (impleader of 3rd party doesn’t waive either). a. If counter-claim is unrelated, then personal jurisdiction is waived…it’s like bringing a new lawsuit (like P submitting to juris.). n. If D defaulted and judgment has been entered, the lack of personal jurisdictional objection may be taken by a motion to vacate the default judgment. Informal appearance o. When D takes none of the CPLR 320(a) actions, but nevertheless participates in the case in someway relating to the merits. i.e. sitting in on depositions or where D’s lawyer shows up at trial to question a witness…it waives the defense of pers. juris. THIS WAIVES THE OJECTION TO PERSONAL JURISDICITON! Consequence: While the informal appearance is a full submission to jurisdiction, and in fact perfects a jurisdiction otherwise lacking, it is also a waiver of any jurisdictional objection the Δ might otherwise have had. Adding Claims in Various Appearance Situations If the ¶ serves a summons and a notice and the Δ serves a notice of appearance and a demand for a complaint, the complaint is not confined to the claim described in the notice. As a matter of right, it may plead any other claim the ¶ has. Representation by an Attorney Adult natural persons may prosecute or defend an action in person ( pro se), but a corp. may do so only through an attorney. The assignee of a corp. may sue in person. Infants and incapacitated persons can neither appear for themselves nor hire lawyers. a. Appearance in their behalf must be made by persons authorized by CPLR 1201. Appearance by Purported Attorney: Change of Attorney: An appearance by an attorney in purported behalf of a nondomicilary or NY resident, but w/o the authorization, confers no jurisdiction and any judgment based on it will be vacated on motion. With Consent: CPLR 321(b) authorizes a change of attorney by merely filing w/ the clerk a consent signed by the retiring attorney, and both signed and acknowledged by the party. a. Notice of the change must then be given to all other parties. W/O Consent: absent consent, the ct. can effect a change of attorney upon motion. Death or any other reason not able to act: if b/c of death or any other reason a party’s attorney becomes unable to act before judgment, leave of ct. is needed before any further step may be taken against that party unless she is given at least 30 days notice to appoint a new attorney. 39 Venue (Chapters 6) CPLR 503 is the general venue statute. Venue, Generally Venue means the geographical subdivision in which an action can be brought (ex. supreme court has statewide juris. (both personal and subject matter), but can’t just bring in any county you want). A mere defect of venue is not a dismissal ground in NY practice. In NY, transfer if improper…different than fed. practice where it’s dismissed. a. Change of venue requires a motion, it cannot be made sua sponte by the ct. (See CPLR 511(b) below). i. The ct. is required to entertain the case unless the venue is changed to a proper county on motion. If brought in the wrong venue and it goes to judgment, can D defend against enforcement? NO because the judgment is valid, jurisdiction existed. Venue assumes there is pers. and subj. matter juris., venue is not jurisdictional. When specific real or personal property is involved in the action, venue can be based on the situs of the property. If it is, the action is called a “local” one for venue purposes. All other actions qualify as “transitory.” Venue is measured by P’s claim and is not ordinarily affected by a counterclaim. U only look to the complaint to see if venue is proper, not to the counterclaim. If there are multiple parties and claims, or even an ordinary ¶ v. Δ suit w/ several claims, venue proper to any one of the claims satisfies for the whole action, including the claims that would have demanded different venue if sued on alone. Agreement to Fix Venue CPLR 501 p. Parties can fix venue by contract even if it would otherwise be improper under Art. 5… upheld unless no connection b/w either party or action, public policy violation, or substantial backlog in the county. The only ground expressly recognized by CPLR 501 for rejecting a contract-selected venue is a finding that an impartial trial can’t be had in the selected county. Venue in Transitory (“Residence”) Actions CPLR 503 q. a.k.a. money actions P may bring in any county in which any one of the parties on the P’s OR D’s side resides. If no party is a resident (assuming the case managed to get by a forum non conveniens objection), P may bring the action in any county she wishes. Depends on residence at moment of commencement of action. a. Measured by complaint, not counter-claim…where P alleges he is a resident, not where D says he is. Parties can have multiple residences = multiple venues, but can only have 1 domicile. Note: it doesn’t matter where cause of action arose for venue (only for common carrier exception (below))…can be brought there though and possibly D won’t object though. The assignees of a claim may not sue in his own county unless it is also the assignor’s or some other party’s. Assignees for the benefit of creditors and the holders of negotiable instruments are exempt from this limitation and can sue at home. Fiduciaries (executor, trustee, etc.) who sue or are sued in their own names are deemed residents of the county of their appointment as well as of the county where they actually reside. 40 Factors for P in choosing a venue: convenience for P or for witnesses, awards, judges, demographics (jury pool), court congestion. Venue for corporations and other private Creatures… Domestic or licensed foreign corp. is a resident of county where certificate that is filed with secr. of state lists its office…doesn’t matter if the actually place of business is somewhere else. An unlicensed foreign corp. is not a resident of any county so suit against it must be brought in county of another party’s residence. Suit against a common carrier can be brought in county where the claim arose. If corp. is kind that is not required to file cert. (designate an office in its filed papers), it may be deemed a resident of the county in which it actually maintains an office or the country of president or treasurer. Partnership residence is office and partner’s residence if being sued additionally. Individually owned business (“sole proprietorship”) and doctors are treated like a partnership… principal office is usually an alternative b/c most likely can be brought at person’s residence. Venue for Gov’t Entities CPLR 504 An action against a county (or city) must be brought in the county. An action against NYC is brought in the country where the claim arose OR in NY County if it did not arise in the city. These rules apply only then the gov’t entity is the Δ…..if they are the ¶, the normal venue rules apply. Venue in Local Actions Any action that would affect title to or possession, use or enjoyment of real. prop. must be brought in the county of the realty. It is not sufficient that the action merely involves realty; it must be shown to affect it in some way. Special Venue Requirements in Consumer Credit Cases CPLR 503(f) r. Must be brought in the D’s (the consumer’s) county of residence OR in the country where the transaction occurred…precludes P from suing in his own county unless it happens to satisfy as the Δ’s or the transaction’s. Consumer Credit Transaction (CCT) CPLR 105 - (def.) - where credit is extended to individual and the money, property, or service which is the subject of the transaction is primarily for personal, family or household services. Hypo #1: borrow $100K to open restaurant, default, venue = bank’s location or your location…not a CCT. Hypo #2: loan for college tuition? Personal so it is a CCT…location is your county or country of transaction. Summons must also identify as a CCT case too! Change of Venue CPLR 511(b) Change of Venue from Improper to Proper County; “DEMAND” PROCEDURE When Δ contends that ¶ has laid venue in an improper county and Δ seeks to change it to a proper county as a matter of right, Δ must follow the special “demand” procedure of CPLR 511(b): a. With or before the answer, Δ must serve on ¶ a written demand that venue be changed to the county Δ specifies as proper. 41 b. W/I 5 days after service of the demand, ¶ must do 1 of 2 things: 1. Serve on Δ a written consent agreeing to the change; or If this occurs, the consent is filed pursuant to CPLR 511(d) and the change Δ wants is effected. 2. Serve on Δ an affidavit showing either that the county chosen by ¶ is improper or that the one to which Δ seeks transfer is not. ¶ must set forth enough facts to show why the venue they want is proper and why the venue Δ wants is improper. If this occurs, Δ now has to move (formal motion) to change the venue, the court to decide whether the change is in order. o Δ must do so in 15 days from the time Δ served the demand…..if done, Δ gets a change as a matter of right. Be careful b/c the 5 days the ¶ has to submit the affidavit. o If not done in time, Δ is no longer entitled to a change of venue as a right…..the change lies in the ct.’s discretion, so Δ can still make a motion at any time before trialΔ If ¶ does neither w/i the 5 days, Δ is allowed to make the motion in the county to which she seeks the transfer.…gives Δ an advantage to pick venue…but P can still oppose the motion. IF SOMETHING IS SERVED ON YOU VIA MAIL, AND YOU HAVE TO RESPOND, YOU ARE GIVEN 5 ADDITIONAL DAYS FROM THE DATE OF SERVICE TO RESPOND. SERVICE BY FAX IN NY IS ONLY ALLOWED WITH THE CONSENT OF THE RECIPIENT. o Consent can be implied…..if someone puts their fax # on the papers that are filed with the ct., this is consent. o If the paper is letterhead and has fax number, this is not consent. Discretionary Grounds for Change of Venue CPLR 510 Can still file motion after answer but it’s at the ct.’s discretion, not as of right…look to “reasonableness”…reasonableness will be determined by the prejudice to the non-moving party. CPLR 510 offers 2 grounds for change of venue: 1. That there is reason to believe that an impartial trial can’t be had in a proper county or 2. That the convenience of material witnesses and the ends of justice will be promoted by a change These discretionary grounds can be applied even though the venue selected by the ¶ is proper, and can even bring about a change to a county that would not be a proper one under the initial venue-fixing rules. Change must be sought by direct motion made w/i a reasonable time after commencement. Motion may not be made in the proposed transferee county, must be made to the current ct. 511(c) – there will be no stay of the proceedings if the motion is not made early….check this b/c I did not catch what he was saying. Effecting the Change of Venue If a change of venue is ordered, or if ¶ has served on Δ a written consent to the change under the demand procedure, CPL 511(d) directs that the order be entered, or the consent filed, w/ the clerk in the original county. 42 That clerk is then required to deliver all papers in the action, including certified copies of any minutes that may already have been taken, to the clerk of the transferee ct. That clerk must now make them part of her records as if the case had originally been brought there. Parties (Chapter 7) Joinder of Claims and Actions Severance: CPLR 603 CPLR 601(a) – ¶ may join in a single action as many claims as he has against D…whether the claims are related or not. If it would confuse jury or too unrelated or would unduly influence the jury, severance is the remedy…in the cts. discretion. Severance cleaves the action into two separate judgments. Separate trial relates to the sequence of the trials. a. Proof: showing prejudice is the key for severance. i. Ex. disclaiming insurer impleaded by insured in a negligence action. b. Severance is in the sound exercise of judicial discretion. c. Severance cannot be ordered once consolidation of those very claims has previously been ordered by another judge. i. The judge that orders the consolidation can then order the severance. d. No time limit is placed on the motion to sever or separately try, but it should not be made before issue is joined b/c not until then can the issues be seen. Consolidation: CPLR 602(a) Takes 2 or more actions and fuses them into one action a. If cases brought separately, may be consolidated (2 cases become one, under one caption and one judgment). Or perhaps a joint trial will be the choice (actions maintain separate identities resulting in separate verdicts and separate judgments, though may be delivered by the jury at the same time) i. Proof required for consolidation or joint trial: two or more actions pending before a ct. and they involve a “common question of law or fact.” 1. Must be on motion of a party. ii. There is no stated time limit on a motion to consolidate, but motion cannot be made until issue is joined (the pleadings are all in……answer is served, not joined if only motion to dismiss) b/c not until then would the ct. know whether the actions present common issues. b. Can occur if cases are pending in different counties and also if they are pending on different levels of cts. c. Federal and state cases cannot be consolidated. d. The party opposing consolidation has the burden to show that it would prejudice him, and the mere fact that his case may be somewhat delayed by the consolidation will not suffice to bar it. e. 2 actions can be consolidated despite the fact that 1 is a law claim (triable by jury) and the other an equitable one (triable by the ct.), but the consolidation does not divest the right to the jury on the law claim. f. It is permissible to consolidate an action w/ a special proceeding, and even w/ a summary proceeding to recover the possession of realty. 43 g. Right to open/close: When separate actions are consolidated and involve different ¶s, both want the right to open and close. i. The right belongs to the ¶ whose action was commenced first. h. There is a preference to have a consolidated action tried where the claim arose. i. Justified b/c this is the place most likely to be conducive to the witnessess’ convenience. Bifurcated trial Third option is a bifurcated trial…trial of liability in a personal injury case is separate from trial of damages issues. Both heard by the same jury. To show liability, you do not need to know the extent of the damages…..you just have to show that the Δ was negligent. When the damages comes up, then you would talk about how hurt the ¶ is. This will prevent sympathy in the liability trial. a. Bifurcation is in the ct’s discretion. i. Whether to bifurcate depends on whether the 2 issues are wholly distinct and whether there is a substantial saving that can result. b. ¶ will usually resist b/c he wants juror sympathy. c. Advantage: If liability is determined in the Δ’s favor, there is no need to try damages d. ¶ will argue that he cannot prove damages unless he talks about the injuries. i. Where the nature of the ¶’s injuries have a direct bearing on the question of liability, as when there is a serious question of whether the Δ’s conduct was the proximate cause of the particular injury, the jury should consider the 2 items simultaneously and bifurcation is not appropriate. e. There is a general policy against allowing appeal from a liability finding before damages are tried. i. Such an appeal lies only when an interlocutory judgment has been permitted by the ct. on the liability finding. ii. Whether to permit it is in the ct.’s discretion. Liberal joinder of claims applies equally to D’s cross and counter-claims, as long as all those initially made parties have been made so in satisfaction of the joinder-of-parties rules. This is for judicial efficiency to allow Δ to do this. Necessary (“indispensable”) Joinder of Parties (CPLR 1001(a)) Necessary joinder rests in each instance in the sound discretion of the ct. CPLR 1001(a) – Persons who ought to be parties to the litigation if complete relief is to be accorded b/w the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made ¶s or Δs. The joinder of an ought-to-be party person is directed whenever either (1) his joinder would make the relief b/w those already parties more complete; or (2) the judgment may in some way inequitably affect him. If the person has an interest in any way adverse to ¶, she should be made a Δ. If she has some share in ¶’s claim and ought to be a co-¶, ¶ should consult her, for she might consent to join w/ ¶ in bringing the action. a. If she resists, ¶ can make her a Δ. Problem arises where person who ought to be joined is not subject to the pers. juris. of the ct….dismissal is of last resort (the ct. will do anything it can to avoid dismiss!). CPLR 1001(b) allows the case to continue w/o a necessary party. Ct. should take action “as justice requires”…5 factors that must be considered: 44 (1) Whether ¶ has another effective remedy in case the action is dismissed on a/c of the nonjoinder; (2) Prejudice that might accrue from non-joinder to the Δ or to the person not joined; (3) Whether and by whom prejudice might have been avoided or may in the future be avoided; (4) Feasibility of a protective provision by order in the judgment; and, i. This comes up the most often. (5) Whether an effective judgment can be rendered in the absence of the person who is not joined. When this type of thing occurs, the ct. can see whether any sister state or reasonably accessible (and trusted) foreign ct. would have jurisdiction over all of the interested persons if NY hasn’t. a. ¶’s action could then be dismissed on condition that w/i a stated period Δ stipulate to submit to jurisdiction in the other ct, where the absent party would be subject to suit. Ex. #1 - city decision to build dock for home owners, P sues city…dismissal for failure to join all necessary parties (all homeowners who have residence on lake). Ex. #2 – ¶ and X (NY residents) own apt. in IL, they rent to Δ and he doesn’t pay rent, ¶ wants to sue Δ in NY but X doesn’t want to… a. action can be protected…(4) can be used…..the ct. can require that the judgment be distributed and X receive his share. b. If all parties live in IL, the judge can tell them to go to IL. i. What if the s.o.l. has run in IL…..Δ can make the motion to dismiss b/c he has the s.o.l. defense. 1. The judge can say that the trial is to be held in IL and that Δ has to waive the s.o.l. defense. Ex. #3 – H and W buy realty in another state, and give Δ (NY resident) a down payment. The deal does not close and the husband and wife split up. W leaves state, H sues D, ct. has no juris. over W (not a prop. action, K action)…dismiss b/c she may want specific performance. Permissive Joinder of Parties (CPLR 1002) Parties w/ separate and distinct claims may join and those against whom the claims exist may be joined as Δs in a single action if the several claims (1) arise out of the same transaction, occurrence, or series of transactions or occurrences AND (2) have in common any question of law or fact. The fact that the diverse claims arise at different times does not defeat the joinder; the transaction can still constitute a “series”. Applies to voluntary joinder of multiple P’s and to multiple D’s joined by one or more P’s. The existence of separate questions, distinct to each ¶, does not defeat the joinder as long as there is some common question too. CPLR 1002(c) provides that it shall not be necessary that each ¶ be interested in obtaining, or each Δ…in defending against, all the relief demanded or as to every claim included in an action. As long as the threads of “series of transaction” and “common question of law or fact” run through the several claims, the absence of an interest by each litigant in the claims asserted by or against the others offers no barrier to joinder. 45 Ex. #1 – 27 ¶’s on a greyhound bus that flips over b/c the driver fell asleep and all are suing separately Can be joined together because the same occurrence and has the same question of law (negligence). Just b/c they are all joining, doesn’t mean that they all have the identical proof. They each will have to prove out their own damages. Exception – Consumer Credit Transactions (CPLR 601(b)) - check Provides that 5 separate consumer credit transactions may now be joined in a single action provided that all are against the same Δ and that all the ¶s are represented by the same attorney. As long as each of the claims falls w/i the ct’s monetary jurisdiction when independently measured, the ct. may entertain them all in one action. Joinder in the Alternative (CPLR 1002(b) Proper Parties ¶ can join Δs in the alternative, so that when ¶ has a claim but does not know who, as b/w X and Y, is liable on it, ¶ can sue them both. It is the law’s policy to allow only an aggrieved person to bring a lawsuit. When one w/o the requisite grievance does bring suit, and it is dismissed, the ¶ is described as lacking “standing to sue” and the dismissal is one for lack of subject matter jurisdiction. Has the Δ done anything or threatened to do anything that would aggrieve or harm the ¶…..IF SO, THERE IS STANDING. There must be an actual controversy. Standing is to be measured generously and the occasion or closing the ct’s doors to a ¶ by finding that his interest is not even sufficient to let him address the merits, which is what a “standing” dismissal means, should be infrequent. Advisory opinions are never permitted in federal ct, but in very limited circumstances, they are allowed in NY. Only the Ct. of appeals can issue an advisory opinion to entertain requests for advisory opinions on NY law submitted by : a. The U.S. Supreme Court; b. A Federal Court of Appeals; or c. A sister state’s highest court Real Party in Interest…..CPLR 1004 Provides that suit may be brought by or against these representatives instead of the person represented: an executor or administrator of a decedent’s estate; a guardian of an infant’s property; a. does not include guardian ad litem who only acts as a representative during litigation. b. Does not include parents, even though parents may be served in the infant’s behalf under CPLR 309(a). a committee of a declared incompetent; a conservator of a conservatee; a trustee of an express trust; an insured to whom the insurer has become subrogated; and a. Occurs in a situation in which the insurer has paid the loss to its insured and stepped into the shoes of the insured or the purpose of making a claim against, and suing if need be, the 3rd person who caused the loss. 46 b. The action may still be maintained in the insured’s name. the intermediary in a 3rd party beneficiary situation. Procedure for Joinder (CPLR 1003) Misjoinder Parties may be added or dropped by the ct., at any stage of the action by motion OR of right OR sua sponte in the “interests of justice” (ex. divorce case to add child (guardian ad litem)). It is very likely on its own motion to make a guardian ad litem. In a civil litigation, gugig has a car accident with someone and the owner of the car is someone different. ¶ has 1 opportunity to join an additional party as a matter of right within any of the 3 periods: (1) w/i 20 days after service of the original summons, (2) at any time before the time for responding to the summons expires, or (3) w/i 20 days after service of a pleading responding to the summons. EXAM QUESTION a. Only one shot at adding a party as of right…then must be motion. b. If motion is granted, must serve by supplemental summons and w/ pleading that must be answered. i. Supplemental summons is used to join the new party. c. Misjoinder does not result in a dismissal; the party is just dropped from the action BUT the court will look at the potential prejudice to see if the party should be dropped. If court see that it is for a plaintiff to get a second chance to sue the court with dismiss the claim with prejudice so they can not just refile. d. Under 1003, they can join a party as of right, they do not need a motion or court order. e. Rule 305(a)-a supplemental summons is the document required! The time b/w the making of a motion to add X as a party and the entry of an order granting the motion is a period during which the s.o.l. is tolled. For a ¶ to avoid dismissal, she should join anybody they think should be joined. A formal motion to add/drop parties, whether made by ¶ or Δ, must be made on notice to all who are already parties, but notice need not be given to the person sought to be added. If that person does not come into the action voluntarily, he must be duly served w/ a “supplemental summons”, which must specify the pleading she is required to answer. There is a 20 or 30 day answering time, just as any original Δ would have, depending on the manner of service. Under CPLR 1003, the misjoinder of parties is not ground for dismissal. The remedy is to drop the improperly joined party. If the action has been tried w/ the improper party and judgment has been rendered as to all the parties, the improper party can be dropped at that point and the judgment preserved as to the others. Def. – possibility of multiple liability at the hands of conflicting claimants. Stakeholder (holder of the pot) brings all claimants (want the pool of money) into ct. to fight it out. Money is the “stake”; Claimants are the people fighting over the money. Ex. insurance co. payment – don’t want to pay and find out they paid the wrong party. Res judicata and collateral estoppel apply fully to protect the stakeholder. Class Actions Interpleader 47 Initiation Jurisdiction problem Federal interpleader Stakeholder can move to be discharged after time for filing pleadings has expired (issue fully joined). Stakeholder must prove that he is liable to only one of a designated number of claimants but not to all claimants. a. Atty.’s fees and costs might be granted from the pool of money…so it would be foolish not to consent and let stakeholder out of the case. 2 ways to initiate: (1) Stakeholder initiates lawsuit; (2) if claim is brought against stakeholder, stakeholder can start interpleader action w/n that case. this is called a defensive interpleader. so long as the claimants seek the same stake, interpleader is the right way to go. Under 1006(f), is way he loves this. After stakeholder commences action and all the others are interpleaded, he can discharge from the suit and just let the court take care of it. If discharge is granted, the court will almost always will award all fees including attys fees to be paid from what is at stake. No right to jury trial over stake. BUT if there is a direct claim between claimants, that could be tried by jury. What if stakeholder can’t get all the claimants before the ct. Two approaches: (1) in rem juris. for mere money claim – CPLR 1106(g) (he said 1006(g) I don’t have my rule book to see which is correct) permits stakeholder by motion to pay a sum into the ct. thereby deeming a res to invoke the rem jurisdiction offered by CPLR 314(c); and, (2) CPLR 216 where stakeholder can get order from the ct. authorizing service of registered mail to last known address…woefully ineffective! If claimant takes no action within a year, then it will be barred later by s.o.l.’s (case is stayed in NY for that year)…hoping to let s.o.l.’s run in another state but problem is that that claimant might start a separate action in another state or one yr. won’t be enough for s.o.l.’s to run. He said this was so ineffective that he issn’t going to bother going thru it. Only one party needs to be diverse on either side of the “v.” (complete diversity not required), amt. in controversy = $500; nationwide service of process typically Federal courts can only serve process where the court sits. No parties benefit with this because if you force the stakeholder by bring an action, all of the fees will come from the stake and thus the pot of money is reduced drastically. This is the hammer for the stakeholder to make the parties resolve it. Impleader (“Claim Over”) You must must must know the difference from interpleader and impleader. The header here is Gugig v. jones v. smith; Jones here in a defendant/third party plaintiff. Def. – D (3rd party P) claims that X (3rd party D) may be liable to D for all or party of which P may recover from D…Policies: avoids multiple suits, saves time and money and reduces prospect of inconsistent verdicts. Usually where indemnification and contribution are at stake. a. 3 times: (1) common law right to indemnity, (2) K’l right to indemnity, (3) statutory right to contribution (goal is to make each party responsible for his level of fault). i. Contribution in NY generally: if one party is >50% responsible, he is responsible for 100% of award and has to seek contribution…skipped contribution in this class. 48 ii. Remember that indemnification s.o.l.’s does not accrue until payment of judgment…then it is 6 yrs. iii. Also, one of the only actions you can bring before it accrues (prematurely)…technically you don’t have a cause of action against X until judgment against you occurs. No ct. leave is necessary Laches applies D files summons and serves on 3rd party the complaint, summons, and all prior pleadings. D also serves P’s atty. will 3rd party complaint simultaneously. D cannot serve 3rd party D until D answers the main complaint…issue must be joined before 3rd party action is commenced. Ex: trying to join party on remand after appeal. Equitable time bar to a cause of action. What is the difference between of statute of limitations and laches. There is no legal claim/statute of limiations bar for indemnification. However, shouldn’t there be an equitable bar?? That’s what laches is—it is all about fairness. 3rd party D can assert all defenses available and all other rights of the D as well. Rules about relating back are the same. Plaintiff can also assert claims about the third party to become a plaintiff and third party plaintiff. Use of Impleader is not limited to indemnification and contribution…use any time there is some link btw P-D and D-X claims such that it suggests the practical soundness of having them heard together…don’t even have to be common questions of law or fact. You do not have implead; if you are going to sue for indemnification you can assert the claim before it arises. Exam-why wouldn’t you want to implead the third party contributor? The third party may have deep pockets. Contribution…skipped. In NY if defendant is found to have be liable for 50 percent or more then he will have to pay everything. If he is found to have been liable for less than 50 percent, he only has to pay his percentage of fault. That’s all we should know. Must always be brought by motion. Can either be brought as of right under 1012 or by permission under 1013 Def. – non-party seeking to become a party on his own CPLR 1012 – as of right a. Where it is permitted by state. Ex. state can always intervene when constitutionality of a statute is involved. CPLR 1013 – by ct. permission a. Always by motion w/ notice to all parties, NOT sua sponte. b. Where intervenor’s claim or defense has any question in common w/ a claim or defense involved in the existing action. c. Inadequate representation is the claim. i. It is a “may be” std….need not show that person is actually inadequately represented. ii. Ex. co-owner of a boat might not care at all if boat is repossessed and intervenor might otherwise be barred by the judgment if case is allowed to proceed w/o him. d. Factors: i. Will intervention result in unnecessary delay, OR; 49 Intervention ii. Will intervention prejudice any parties to the suit. iii. I missed about what is required for filing. I think all parties must be notified etc. look in book. Papers (Chapter 8) s. Papers are formal legal papers that you are required to do. (correspondence is something different) All must have caption, where venue, title of the action, title of document being served or filed, index number and name of judge if one has been assigned. t. In calculating time, the day you receive it doesn’t count. u. And if the end date falls on Saturday, Sunday or legal holiday you get the next business day. v. Stipulation-he would make it a practice to always have a written statement-not required? w. Affadavit- is a sworn statement by the person not you. It is under oath. The person lying is subject to perjury. x. Only 3 papers require all names of parties on them: (1) summons, (2) complaint, and (3) judgment. All other papers can mention first party followed by et al. y. Each paper must have name, address and telephone # of the lawyer for the party serving or filing AND it requires subscription by atty. (signed). Signature constitutes atty. certification w/o formal attestation. Constitutes certification that complaint is in good faith and to the best of the atty.’s knowledge. If know or should have know it contains false allegations, ct. will find frivolous and result is heavy sanctions. z. CPLR 2101(f) – any defect in mere form, if no one prejudiced by it, shall be disregarded or at worst corrected. Service of Papers (other than CPLR 308) aa. (CPLR 308 only applies to jurisdiction-getting papers like summons, notice of petition and subpoena) Most papers fly back and forth through regular first-class mail. The day from which a time period runs is excluded from the computation (ex. served on April 1, that day is excluded, if you have 20 days, you have until April 21). If last day falls on a weekend or holiday, it is the next day. Deemed served when dropped in the letter box. When mailed from outside the state, it is deemed served when it is received. Overnight is deemed served when it is given to the carrier. FAX is also permitted but it requires consent…BUT implied if any litigation document includes a fax # on it (such as in a letterhead). Otherwise, send a letter to other atty.’s asking for consent. Get 5 add’l days to respond if served by mail (which is effective when it is dropped), 1 day for overnight service, and NO add’l time for fax (b/c instantaneous). Pleadings (Chapter 9) Two primary: the complaint and the answer. bb. CPLR 3013: Statements in a pleading shall be sufficiently particular to (a) give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved, and (2) the substantive material elements of each cause of action or defense. (2) must contain each essential element of the cause of action. Merely pleading negligence implies duty, breach, causation, harm. CPLR 3026 - Generally, very liberally construed, UNLESS it does not give notice!!! Does not have to plead every fact, but must be enough to put the Δ on notice. 50 Lack of Notice If a cause of action can be determined by the 4 corners of the complaint, the pleading will survive as long as any cause of action is pleaded. Strategy suggestion…write well! If the ¶ does not put you on notice, you have leave to dismiss, but the judge will usually allow an amendment. Liberalized pleading in NY…draftsmanship is secondary. Cause of action doesn’t have to be pleaded under a particular name…in fact, can even use wrong name for cause of action. It is sufficient if the pleading alleges any cause of action that the law recognizes and on which it offers relief. If no prejudice amendment could be allowed later. a. A defect shall be ignored if a substantial right of a party is not prejudiced. No need to prove theory that is pleaded, BUT not allowed if later you attempt to prove something resulting from a different t. or o. than that which was pleaded. If no prejudice amendment could be allowed later. Inconsistency is permitted…BUT party is not allowed an inconsistent judgment! Ex. ask for rescission and also ask for specific performance. Alternative pleading is invited. Form: CPLR 3014 cc. Every pleading must “consist of plain and concise statements in consecutively numbered paragraphs and that each paragraph contain, as far as practicable, a single allegation.” Separate numbering and separate paragraphs are required, separately numbered paragraphs for each allegation…aids in clarity for responsive pleadings. The numbering requirement is governed by the “practicable” standard…. If presentation is facilitated by including a few facts in a single paragraph, it is permissible. Separate causes of action must be separately numbered. To test whether the ¶ has 1 or several causes of action, apply the “double recovery” test. a. Ask whether, if the ¶ were to get a satisfied judgment on theory A, she could then turn around and seek more in a suit on theory B. b. If the 2nd recovery is permissible, the pleader has 2 separate causes of action. Repeated statements are allowed… can rely on previous statements made (incorporation of things prior). Prior statements are deemed repeated or adopted subsequently in the same pleading, thus dispensing w/ repetition, but If needed for clear presentation, CPLR 3014 does encourage repetition of the earlier statements, but even there it allows the repetition to be made merely by referring to the numbers of the earlier paragraphs, dispensing w/ the duplication of their substance. ¶ can only collect once for each injury, but can collect on the most generous theory. All exhibits attached to the complaint are considered part of the complaint. If alleging breach of contract, you must attach the contract ¶’s are allowed to plead in the alternative, you can plead inconsistent theories. You can say that there is no remedy at law (money) and then go on to ask for money damages. 51 Jury v. Judge When ¶ sues at law, and a jury is present, but ends up proving an equity theory, judgment on the equity ground is permissible. But when the case is pleaded in equity, and no jury is present to try it, the establishment of a mere law claim may not ground judgment if the Δ objects. CPLR 4103 – Although the ¶ waives the right to trial by jury by pleading a claim in equity, the Δ doesn’t waive the right to have it tried by jury. a. The Δ must be given the opportunity to demand a jury. b. If the Δ demands a jury, a new trial will be required, which will nullify the one just had before the judge. CPLR 3015 and 3016 – Particularized pleading requirements dd. CPLR 3015 and 3016 contain particularized pleading requirements notice not good enough, but overall, everything must be in harmony w/ 3013. The following must be plead w/ particularity Defamation (including libel and slander) – Must state defamatory words quoted verbatim; if you fail to then dismissal…paraphrasing not good enough. Applicability of the words to P can be plead generally. Fraud – CPLR 3016(b) Not just for cause of action called “fraud”…ex. negligent misrepresentation, mistake, willful default, breech of trust/fiduciary duty, undue influence.…any cause of action where misrepresentation is plead. The facts giving rise to the cause of action shall be stated in detail. Detail of the wrong is required in actions based on misrepresentations. Give as much detail as you can. Where the detail is uniquely in the Δ’s possession, you need to say that and this would be the reason why you can’t provide the detail. Intent to defraud can be plead generally (notice only…they intended to deceive me). Separation or Divorce Judgment The time, place and circumstance of each act the Δ is accused of must be specified. The complaint must state the extent to which the judgment has been satisfied. This is to guard against a possible double recovery. Other points of pleading If cause of action relyies on foreign law Personal injury claims arising out of motor vehicle accident must allege “serious injury.” What does particularity mean? A detailed statement. Who, what, when, where with particularity AND elements. Ex. misrepresentation made w/ intent for other party to rely and other party does rely and is harmed…can allege intent generally. If information solely in possession of other party so you can’t state w/ particularity, must state only that other party knows. CPLR 3017 – Demand for relief (“wherefore” clause) ee. Every pleading shall contain a demand for the relief which the pleader deems himself entitled. ***¶ must plead specific sum of money. 2 Exceptions: (1) med. mal. – purpose is to spare doctors the embarrassment of local press based only on demand clause of ¶, (2) claims against a municipal corp. Violation of this rule can be cured w/ an amendment striking the reference to the demand. 52 The parties may mention specific figures in the opening and closing statements at trial….the barrier exists only at the pleading stage. Relief clause in a money action is called the ad damnum. The relief clause does not count in determining whether a cause of action is stated, except perhaps in those cases which a showing of damage is a substantive element of the claim. 3017(a) lets ct. in its discretion grant “any type of relief within its juris. appropriate to proof whether or not demanded. To otherwise get around though, state… “to be decided but in no event less than $X.” Limited to demand amount in default. Can demand legal and equitable relief, even if inconsistent. CPLR 3017(a) can’t be used to force on a pleader relief the pleader doesn’t want. i.e. ¶ sued for a separation from Δ and was awarded a divorce she did not want. Cannot do this! 2 ways to respond to a complaint: (1) answer, (2) motion to dismiss. THE ANSWER If you choose motion to dismiss instead of answer, you need not answer until 10 days after ct. denies motion to dismiss. Requires that Δ respond to each and every factual allegation in the complaint w/ denials or admissions. 3 OPTIONS IN ANSWER (1) admit, (2) outright denial, or (3) denial of knowledge or info (DKI) sufficient to form belief as to matter asserted. Failure to deny or DKI any allegation serves as an admission. Need to parse through all allegations. Ex. one thing in a sentence true but another not… “deny, except for admit X….” a. Should always deny the entire paragraph and then admit to certain things and not vice versa b/c if you miss something, you have admitted to it. Answer will also set forth Affirmative and “other” defenses: Δ can disprove anything ¶ is required to prove but ones where Δ has the burden of proof are affirmative defenses. a. Ex. Unclean hands in an equitable action or in a defamation case the D has the burden to prove truthfulness. b. Ex. Condition precedent is the P’s burden, not an affirmative defense. c. Δ has to prove failure to cmply w/ the s.o.l. Many defenses can be raised by motion to dismiss rather than in answer, depends if it appears in CPLR 3211(a) motion grounds (see below). Most popular affirmative defenses – truth, collateral estopel, discharge of a debt in bankruptcy, illegality of a contract, fraud (typically the inducement), infancy or disability of the Δ, satisfaction of a debt, release (the claim has been released), res judicata, statute of frauds (no writing), s.o.l. a. REMEMBER 2 OR 3 FOR THE EXAM! Verification of Pleadings CPLR 3020 Turns it into a sworn statements, same thing as affidavit…makes the pleading a statement under oath. Verification is a document that is akin to an affidavit by which you swear to the truth of the matter asserted unless they…….. 53 Verification is optional except…mandatory in 4 instances: (1) matrimonial pleadings, (2) action to recover real property, (3) where complaint appends schedule of goods and services, and (4) Art. 78 proceeding (trying to overturn agency decision). Answer MUST be verified if complaint is verified (even if it didn’t have to be!!!). Must also verify answer in fraud, where corp. Δ is being sued on a promissory note and defenses not on the merits (jurisdiction). The party not the attorney should verify b/c the party has personal knowledge. The lawyer can sometimes verify: a. If corp. is a foreign corp. b. If client does not live in the same county in which the lawyer has its office. i. In this case, the attorney should always verify only on information and belief. Never say you have personal knowledge of anything in the pleading. c. If the attorney has personal knowledge…..(this is very rare). d. KNOW AT LEAST 1 OF THESE FOR THE EXAM! If 2 parties are united in interest, 1 party can verify for both. Amendment of Pleadings (CPLR 3025)…(similar to amending summons). Amendment as of Course Each party can amend once w/o leave of the court (amendment as of course)…Must be done w/i any of these 3 time periods: (1) w/i 20 days after pleading you want to amend is served, (2) w/i the period that the adverse party has for responding to the pleading (ex. maybe Δ has 30 days to answer), or (3) w/i 20 days after a responsive pleading is served. KNOW THE 3 TIME PERIODS FOR THE EXAM a. This one time amendment as of course applies to each round of new amendments. b. (3) is most important since it enables a ¶ to remedy some defect in the complaint to which attention has been called in the answer. c. (2) and (3) are ONLY available when the pleading to be amended requires a response. i. For example, for an answer containing no counterclaim, no response is necessary so 20 days to amend after its service…only (1) can apply to answers! d. EXAM QUESTION: served by mail, get 25 days to amend…20 days for D to respond and 5 days for mailing (fed ex. +1). The of course amendment can include anything that could have been included in the original pleading. a. Can add all new causes of action. It can add separate and distinct causes of action or substitute a different one for the original. If the pleading being amended required a responsive pleading, so does the amended one. a. Where ¶ amends the complaint, Δ must serve an answer to it even though Δ has already answered the original complaint. b. Must do w/i 20 days after service of the amended pleading. Amendment by Leave - CPLR 3025(b) CPLR 3025(b) a party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or 54 by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the grating of costs and continuances. a. If there is no prejudice to the other side, leave to amend must be freely given. b. There is no stated time limit for the amendment by leave. c. There is no stated limit on the # of by-leave amendments a party may have. d. Causes of action can be added or subtracted by amendment, whether they involve changes of fact or changes of theory. e. If amendment is allowed, the amended pleading must be served on the other parties. Prejudice: A showing of prejudice must be traceable not simply to the new matter sought to be added, but also to the fact that it is only being added now. S.O.L.: The matter in the amended pleading is deemed to relate back to the earlier one as long as the earlier one gave notice of the transaction or occurrence out of which the new matter arises. Bill of Particulars What is it? It is an amplification of a pleading. It is not technically a pleading, just an expansion of one. It supplies more detail than the complaint and the answer and therefore affords the adverse party a more thorough picture of the claim or defense being particularized. a. Whatever the pleading pleads, the bill must particularize. A bill of particulars need only be served if it is demanded. Parties are only required to particularize that of which they have the burden of proof. a. Δ need not particularize denials contained in an answer b/c they are the P’s burden of proof. b. Δ will have to particularize affirmative defenses. c. Damages need not be particularized. General Rule: A bill of particulars is not usable to obtain evidence. a. It’s supposed to be used to offer a more expansive statement, not for discovery. PROCEDURE: CPLR 3042 Demand starts it off. The party seeking the bill of particulars serves a “written demand’ on the other side stating the items w/ respect to which particulars are desired. There is no stated time for when the demand may be served. a. Should not be served before joinder of the issue (common practice is to serve w/ answer) 30 days to respond to demand…must answer all non-objectionable demands and in the same response include a statement of reasons for not responding to the others. a. Each objection must be stated “w/ reasonable particularity.” CPLR 3043 lists the items to be particularized in a personal injury action. Amending and Supplementing the Bill: CPLR 3042(b) allows the particularizer 1 amendment of the bill as of right, provided that the amendment is made prior to the filing of the note of issue. Remedies in Connection w/ Bill of Particulars: If the party receiving the demand for a bill of particulars serves a bill that the seeker deems inadequate, the seeker may move to compel compliance, or, if such failure is willful, for the imposition of penalties. 55 a. Sanctions might be to strike the answer or complaint, strike the particular cause of action, rule that certain facts will be established as a matter of law. Penalties against the Seeker: Variances CPLR 3042(e) is the tool the recipient of the demand may use against the seeker, but it may be invoked only if the ct. finds that the seeker’s demand is “improper or unduly burdensome.” a. Demanding things not relevant to the case would be improper. b. The ct. may impose a sanction in addition to vacating or modifying the demand. Any and all motions affecting the bill of particulars, made by any party, must include an affirmation by the moving party’s lawyer “that counsel has conferred w/ opposing counsel in a good faith effort to resolve the issues raised by the motion.” Variances b/w the bill of particulars and the pleading together on 1 side, and the proof at trial on the other, are usually resolved today by giving the proof the upper hand and allowing the pleading and the bill to be amended to conform to the actual evidence, at least when no prejudice is shown. Motion Practice (Chapter 10) 3211(e) – (1), (3), (4), (5), and (6) are waived if not raised in motion to dismiss or in the responsive pleading… Answer is the last shot, can raise even if you didn’t move to dismiss on it before. 3211(a)(8), (9) – personal jurisdiction must be raised FIRST RESPONSE. “The papers in opposition to a motion based on improper service shall contain a copy of the proof of service, whether or not previously filed. An objection based upon a ground specified in paragraphs 8 or 9 of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he does not raise such objection in the responsive pleading.” Ex. if you make a motion, personal jurisdiction needs to be in it. CPLR 3211(f) Extension of time to plead. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order. Accelerated Judgment (Chapter 11) Getting judgment before trial (3211) – Possibility of disposing of the case or some significant part of it w/o having to try the merits. Motion to Dismiss CPLR (3211) Motion to dismiss is available for use by any party against whom a cause of action is asserted. Equally available to a ¶ against a counterclaim. The same is true of CPLR 3211(b) (motion to strike a defense). The grounds may be raised by motion, but may instead be used as defenses in the answer. Can use CPLR 3211(a) against all claims pleaded, or against 1 or a selected few. 56 Dismissal Grounds: CPLR 3211(a) CPLR 3211(a) lists the various grounds on which a dismissal motion may be predicated. The list is almost exhaustive, but not quite. Forum non conveniens is NOT part of this list. 11 grounds upon which to move to dismiss complaint (KNOW A FEW OF THESE FOR THE EXAM) (NEVER improper venue in NY state ct.) 1. Defense Based on Documentary Evidence; or a. Permits the dismissal motion whenever a defense is founded upon documentary evidence (docs. that resolve claim, attach docs. To affidavit, judge decides); 2. Lack of Subject Matter Jurisdiction (get extra 6 months to re-commence under 205(a); or a. There is no time limit for moving on this ground. 3. Lack of Capacity to Sue; or 4. Other Action Pending; or a. Action can be dismissed where it is shown that another action b/w the same parties on the same cause is pending elsewhere. b.For the current action to be instantly dismissed, the other action must have been commenced 1st. 5. Affirmative Defenses Usable on Dismissal Motion; or a. The cause of action may not be maintained b/c of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, s.o.l., or statute of frauds; or 6. Non-Interposable Counterclaim…..only applies to counterclaims; or a. A counterclaim may be interposed by or against a party only in the capacity in which that party is present in the case. i. i.e. If the ¶ is a partnership, the Δ may interpose only a counterclaim that lies against the partnership. Δ cannot interpose a claim existing against only one of the partners, specifically. 7. Failure to State a Cause of Action/Claim; or a. To succeed on the motion, Δ must convince the ct. that nothing the ¶ can reasonably be expected to prove would help; that the ¶ just doesn’t have a claim. 8. Lack of Personal Jurisdiction (don’t get extra 6 months under 205(a); or a. EXAM QUESTION: After s.o.l., complaint is dismissed b/c of lack of minimum contacts (or failure to properly be served) (personal jurisdiction), how much time does ¶ have to re-commence the action? NONE! i. But, if dismissed b/c value too high for the ct. (subject matter jurisdiction), ¶ gets the extra 6 months. b.If the objection is improper service a special rule governs: i. If Δ takes the objection as a defense in the answer, the Δ must move for judgment on it w/i 60 days or the objection is waived. 9. Lack of Rem Jurisdiction; or a. The ct. has no jurisdiction in an action where service was made under CPLR 314 or 315 10. Dismissal for Indispensable Party; or a. The ct. should not proceed in the absence of a person who should be a party. 11. The party is immune from liability pursuant to §727(a) of the not-for-profit corporation law. 57 Plus four others 1. ground not set forth…forum non conveniens (CPLR 327), 2. failure to serve a duly demanded complaint after serving summons w/ notice (for example, not responding to demand for complaint) CPLR 3012(b), 3. failure to submit to disclosure/discovery CPLR 3126 4. Neglect to prosecute CPLR 3216 Motion to dismiss is available for use by any party against whom a cause of action is asserted. Motion to Dismiss Defense CPLR 3211(b) provides that a party may move to dismiss 1 or more defenses on the ground that a defense “is not stated or has no merit”. a. It allows the attack to challenge the defense as deficient on its face – i.e. argue that it fails even to articulate a defense. b. Or go behind a perfectly pleaded defense to test its merits. Any defense may be attacked on any ground; there are no listed grounds on which a defense may be attacked. When the defense is attacked on its face, the truth of its allegations will be assumed; when the attack goes beyond , and w/ affidavits and other extrinsic proof aims at the defense’s merit, all reasonable inferences are drawn in favor of the defense. By allowing the ¶ to move early in the case to dismiss the defense, CPLR 3211(b) may enable the ¶ to test its validity in time to permit a new and timely action if the defense is sustained. Treating CPLR 3211 Motion as Summary Judgment Court is empowered to treat any CPLR 3211 motion as a summary judgment motion and the resulting judgment is deemed to be a judgment on the merits. Judge gives parties notice and opportunity to put in whatever evidence they want to put in. Important b/c motion for s.j. cannot be filed until issue has been joined…here ct. can get around!!! Immediate Trial of Fact Issue Under CPLR 3211: CPLR 3211(c) allows the ct, when appropriate for the expeditious disposition of the controversy, to order an immediate trial of an issue of fact arising on a CPLR 3211 motion. a. Exercised only when the immediate trial has some potential for ending the litigation. i. i.e. Motion to dismiss for lack of jurisdiction. b. Immediate in CPLR 3211(c) merely indicates that the trial should be given preference. CPLR 3211(e) provides that the Δ’s motion against a claim under CPLR 3211(a) must be made w/i the responding time. a. If Δ has 20 days to answer the complaint, and chooses to move under 3211(a) in lieu of answering, she must make the motion w/i the 20 days; b. Whatever the responding time is, that is the amount of time Δ has to make the motion. c. If the time to answer is extended, then the time to make the motion to dismiss is extended. Time for 3211 Motion 58 Single Motion Rule: For lack of subject matter jurisdiction, insufficiency of a cause of action, and nonjoinder of a party, the motion to dismiss can be made at any time. CPLR 3211(e) allows only 1 subdivision (a) motion per case. a. Designed to avoid duplication /c the movant can join in the 1 motion whatever grounds she then has. b. It has been held, however, that a 2nd motion is permissible if based on paragraph 7 (insufficiency of the claim). nd A 2 motion may be permitted on any of the subdivision (a) grounds if the 1st motion was premature and it was only b/c of the prematurity that the motion was not considered on its merits. It is also permissible for a party to make a 2nd CPLR 3211 motion if each aims at a different pleading. a. i.e. In one case, where Δ moved to dismiss ¶’s claim and then moved to dismiss a co-Δ’s cross-claim, both motions were allowed. If the 3211 motion is used up, motion relief is not yet lost. a. As long as the subdivision (a) objection has been preserved by being included as a defense in the answer, it can be made the subject of a summary judgment motion under CPLR 3212 after the answer has been served. The 1st Dept. has said that when ¶ amends the complaint while Δ’s dismissal motion is pending, Δ “has the option to decide whether its motion should be applied to the new pleading.” a. Unless Δ withdraws the motion, the ¶ should respond to it on the return day and let the ct. decide the abatement issue. Option to Plead Instead of Move; Waiver: If Δ has available a # of the objections listed in subdivision (a) of CPLR 3211, subdivision (e) allows Δ to raise them all by a dismissal motion, or instead, plead all of them as defenses in the answer. a. Δ may divide them up and take some by motion and – if the motion does not succeed – plead the rest by answer. It is preferable as a rule to take them all by motion since an answer will not be needed at all if the motion is granted. CPLR 3211(e) singles out the objection of improper service of process and imposes special additional time limit on asserting it. a. If the objection is taken by answer instead of by motion, the party so asserting it must move for judgment based on the objection w/i 60 days after serving the answer, or the objection is waived. Caselaw holds that a Δ does not waive a jurisdictional objection by interposing a counterclaim related to the ¶’s claim or by impleading a 3rd party Δ, either step being deemed a necessary precaution should the jurisdictional objection fail. a. But it has been held that the Δ does waive the objection by interposing a counterclaim unrelated to the ¶’s claim. i. It makes the Δ the equivalent of a ¶ who initially invokes the ct’s jurisdiction. Leave to Replead - CPLR 3211 On a motion to dismiss a claim for insufficiency under CPLR 3211(a)(7), or to dismiss a defense for insufficiency under 3211(b), the party whose claim or defense is attacked will likely want a chance to plead over if the motion is granted. a. The ct. often grants such leave to replead. 59 b. The party moved against should specifically ask for leave to replead in the event the motion is granted. c. The pleader must convince the ct that she has a genuine prima facie claim or defense….if the ct. is convinced, leave to replead is granted. The facts as pleaded are assumed to be true and the only question is the law question of whether the facts state a cause of action. Res Judicata Effect of CPLR 3211 Disposition: A judgment resulting from the grant of a CPLR 3211 motion is not res judicata of the entire merits of the case (unless the motion was treated as one for summary judgment). a. It is res judicata of whatever it determined, and that can sometimes have the same effect. b. The order invokes a doctrine known as the “law of the case”. c. It holds that once an issue is decided, it cannot again be litigated at trial level, although it may be reviewed by an appellate court either by immediate appeal or as part of a later appeal from final judgment in the action. Whenever it gives rise to a final judgment, the grant of a CPLR 3211 motion invokes the “res judicata” doctrine outright. Motion Under CPLR 3211 Extends Time to Respond: As long as the CPLR 3211 motion is itself timely, the mere making of the motion automatically extends the answering time should the motion be denied. a. i.e. ¶, winning on the motion, must serve on Δ a copy of the order denying the motion with notice of entry. Δ then has 10 days after that in which to answer. b. Depending on when the motion comes on for hearing and how long the judge takes to decide it, the extension can run into months. If several claims are asserted but only 1 is moved against, the motion extends the answering time as to the entire complaint, including claims not moved against. The making of a CPLR 3211 motion also suspends all pending disclosure/discovery proceedings until the motion is determined or the ct orders otherwise. a. An exception is where the objection is for improper service, where no automatic stay of disclosure/discovery results unless the ct. specifically so provides. TWO OPTIONS: motion to dismiss (see above) and motion for summary judgment. Difference: motion to dismiss, ct. can only view the “4 corners” of the complaint; motion for s.j., can consider all types of admissible evidence. BOTH: 3211 motion stays all discovery in the case unless judge has individual part rule exempting him. Summary Judgment (CPLR 3212) Ct can grant s.j. on motion from a party. Summary Judgment Standard: the ct. after going through the papers, finds that there is no genuine issue of material fact in dispute and therefore nothing to try. Rather than resolving issues, it decides whether issues exist. If no reasonable jury could find for the nonmoving party, s.j. is warranted. All reasonable factual inferences are in favor of the non-moving party. Time to Move for Summary Judgment: Can move for summary judgment any time after issue is joined! AND up to 120 days after filing note of issue (note of issue = discovery closed, time put on trial calendar). 60 a. Ct. can allow a late motion upon a showing of “good cause.” The mere making of a s.j. motion under CPLR 3212 automatically suspends all pending disclosure/discovery proceedings until the motion is determined or the ct. orders otherwise. There is no stated restriction on the amount of s.j. motions that can be made in 1 case, but it is rare to have more than 1. Ct. can grant s.j. for some but not all issues. Proof on Sumary Judgment Motion Any form of evidence, documentary or otherwise, may be considered on a motion for s.j. failing to respond to a fact attested to in the moving papers will be deemed to admit it. If a key fact in issue is w/i the exclusive knowledge of the moving party, the motion for s.j. will de denied. Denial will also result when the fact is 1 the opposing party cannot know. All objections to admissibility are to be asserted on s.j. Searching the Record: CPLR 3212(b) CPLR 3212(b)provides that if it shall appear that any party other than the moving party is entitled to s.j., the ct. may grant such judgment w/o the necessity of a cross-motion. Once s.j. motion is filed, ct. can search entire case record to determine whether appropriate either on grounds set forth by movant or for other reasons…ct. can find reason (but very rare!). Searching the record is permissible only w/ respect to the claim on which s.j. is sought. There is no general authorization for a ct to grant s.j. sua sponte…..A motion is necessary, on papers, so that all sides have an opportunity to muster their proof. Partial Summary Judgment CPLR 3212(e) authorizes partial s.j…..It applies to part of single cause of action as well as to separate causes of action.. It can operate on defenses in the answer as well. The ct. can work out whatever seems fair in a particular case. The mere assertion of a counterclaim does not bar an otherwise warranted s.j. on the main claim. Res Judicata Effect of Summary Judgment Motion The denial of a motion for s.j. establishes nothing except that s.j. is not warranted at this time. If it appears at the trial that judgment is warranted as a matter of law for 1 side or the other, the trial judge, despite the pretrial denial of a motion for s.j., may direct a verdict or grant judgment notwithstanding the verdict. The grant of s.j. operates an an adjudication on the merits and is entitled to res judicata treatment. CPLR 3212(f) – If party opposing needs to conduct further discovery to oppose, set forth in affidavit for ct., ct. can stay s.j. motion hearing. Ct. std. – “facts essential to justify opposition may exist” (pretty high std.) for nonmoving party to defend s.j. motion. a. For example, unable to raise a genuine issue of material fact w/o discovery. Summary Judgment In Lieu of Complaint – CPLR 3213 CPLR 3213: recognizes that some claims have greater presumptive merit than others and should have easier access to the cts. than an ordinary plenary action gets. It singles out those claims and permits them to be brought on by an initial s.j. motion. 61 a. Instead of a complaint accompanying the summons, a set of s.j. motion papers does. b. Instead of having the Δ answer the complaint at any time w/i a stated period following service, the motion papers pick out a specific return day and require the Δ to appear and argue the case on that day. 2 Claims that get this expeditious treatment: 1. Claim on an instrument for the payment of money only; and 2. Claim on a judgment NO OTHER CATEGORY OF CLAIM IS ENTITLED TO USE CPLR 3213 Money Instrument as Basis for CPLR 3213 Motion b. It must be an instrument for the payment of money only. i. If the instrument calls for something in addition to the payment of money, it doesn’t qualify. c. A case is made out for CPLR 3213 use if 2 things are shown: (1) the instrument itself and (2) proof of non-payment. d. The instrument doesn’t qualify “if outside proof is needed.” Judgment as Basis for CPLR 3213 Motion e. There is no requirement that the judgment be of a particular kind, but the judgment must qualify for recognition and adoption. f. Sister-state judgments and those of the federal and territorial cts and the District of Columbia, since all are entitled to full faith and credit as long as rendered w/ jurisdiction of subject matter and parties, are of course entitled to recognition and qualify for the CPLR 3213 motion. g. CPLR 3213 is not restricted to money judgments. h. CPLR 3213 should also be available to renew a judgment originally rendered by a NY Ct. Effect of Denial; Conversion a. CPLR 3213 does not guarantee the ¶ success on the merits. b. The Δ may refute the claim and s.j. may be awarded to the Δ instead of the ¶. c. Under CPLR 3213, when the motion is denied, the case is not dismissed, but the ct. will merely convert the action into an ordinary one, the moving papers becoming the equivalent of a complaint and the answering papers an answer. i. The case is now equal of an action brought in conventional form in which a s.j. motion has just been denied. Provisional Remedies (Chapter 12) One we need to know…preliminary injunction. Preliminary injunction ff. Designed to maintain status quo until ct. rules on whether permanent injunction should issue. SO, to get prel. injunction, you need to be seeking a permanent injunction in the complaint!!! Elements: Likelihood of success on the merits (more likely than not); Irreparable harm absent the issuance of the prel. injunction (no adequate remedy at law); Balance of the equities in favor of moving party…weigh benefit to movant vs. harm to non-movant. 62 Temporary Restraining Order (TRO) Put in place until there can be a hearing on the prel. injunction…obtained under order to show cause, ex parte basis(!)…get to see judge w/o D being there. Disclosure (Chapter 13)…discovery. Article 31 of the CPLR governs disclosure and applies in all NY cts of civil jurisdiction. Disclosure; Introduction: CPLR 3101 supplies the criteria and sets the tone for the whole article 31. CPLR 3103, a broad judicial power to make what is known as a “protective order.” The protective order enables the ct. on an individual basis to take any needful step to prevent abuse of the easily abused disclosure devices. Disclosure Criteria; CPLR 3101(a): CPLR 3101(a) sets up the standard for disclosability in NY practice and then leaves it to subdivisions (b), (c), and (d) to carve out a few exceptions. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. Disclosure from a Party When disclosure is sought from a party, it must only be relevant. Disclosure from a Non-Party Info must be relevant AND satisfy paragraph 3 or 4 of CPLR 3101(a): 3. Would have to show that the nonparty is about to depart from the state, or w/o the state, or residing at a greater distance from the place of trial than 100 miles, or so sick or infirm as to afford reasonable grounds of belief that he will not be able to attend the trial 4. Permits the party to obtain disclosure from a nonparty by merely serving a notice on all other parties and a subpoena on the nonparty, advising of the disclosure and stating “the circumstances or reasons such disclosure is sought or required.” What is discoverable in NY state ct? Discovery means to give to the other side. Documents w/i the scope of discovery in NY is info or documents that is material and necessary to the prosecution or defense of a cause of action. THIS MEANS ANY RELEVANT INFO. Disclosure extends to all relevant info calculated to lead to relevant evidence. There are very liberal discovery rules in NY. What is not subject to discovery? gg. Materials that are not material and necessary (relevant) AND Privileged Material…CPLR 3101(b): Communications b/w spouses, attorney/client, physician/patient. Privilege may be invoked by anyone, even a nonparty. Attorney’s Work Product…CPLR 3101(c) Mental impressions of the attorneys are absolutely privileged. 63 Materials Prepared for Litigation…CPLR 3101(d)(2): Gives conditional immunity to materials otherwise discoverable under subdivision (a), it is shown that they were “prepared in anticipation of litigation.” The condition that removes the immunity and makes the materials discoverable is a finding by the ct. that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable w/o undue hardship to obtain the substantial equivalent of the materials by other means. Trial preparation materials are only discoverable if (1) the party seeking discovery has substantial need of the materials and is unable w/o undue hardship to obtain the substantial equivalent of the materials by other means. Four basic forms: Depositions Under oath, ct. reporter takes down every word, witness sworn in, atty. can question and go far beyond that allowed (ex. hearsay) in court room. Why? B/c can get all “relevant” info. Deposition of a party can be done on notice. A 3rd party has to be done by subpoena and service must be served in the same way you would serve process to commence a lawsuit. a. Subpoena must be served 20 days before Failure to respond…..file motion to compel. Interrogatories Questions adversary is required to answer under oath…no limit (unlike fed. 25 question limit). Usually used to obtain info. of people who have info…but, he prefers to get more substantive b/c under oath…good to have “under oath” statement before deposition. Failure to respond…..file motion to compel. Document Request/Demand for Inspection of copying CPLR 3120 (docs.) (“production requests”) – CPLR 3120 – an adverse party is entitled to inspect and copy ALL documents necessary and material that may lead to (potentially be relevant) admissible evidence. You are asking the other side to make available for inspection and copying all documents and tangible things in certain categories and then you list the categories. Request in particular specificity so that other party can effectively respond. Never withhold a responsive document…client must do reasonably diligent search. Failure to respond…..file motion to compel. Requests for Admission (“notice to admit”) – CPLR 3123 - admit X (certain fact). Actually not to be used in NY state practice as a discovery device. Responding party has two options: (1) admit, (2) deny or provide a really a good explanation why you can’t admit or deny. a. Failure to respond is an admission. CPLR 3124 b. Never file a motion to compel. c. If you receive a request for an admission that you think is improper, you should never ignore it. You should move for a protective order (this is the reverse of the motion to compel). i. This is not explicitly provided for in the rules. Can be used to authenticate documents or photographs, or admission of facts that are not really in dispute. EXAM QUESTION: Remedy for failure to respond to a request for an admission is_____. The answer is failing to respond is an admission. 64 Requests for admissions that go to the heart of the lawsuit are not permitted. “Relevance” std. in NY – hh. All information that is material and necessary to prosecution and defense of a claim. Material – if information sought may lead to discovery of admissible evidence. ii. EXAM QUESTIONS: …by whether info. sought standard for materiality is determined if it may lead to discovery. Party to a lawsuit is entitled to receive all info. that is material and necessary to…. REMEDIES If party refuses deposition, interrogatory, or production of documents (1 thru 3 above, not request for admission…has its own remedy (below)), then remedy is motion to compel. If granted and won’t comply, then contempt. If party fails to deny (request for admission), then it is deemed an admission!!! If you receive a request and don’t want to answer (info. not material and necessary), then affirmative step is motion for protective order. jj. After discovery is closed, file note of issue…end of pretrial activity. 65
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