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LS_NYPractice_KIRGIS

VIEWS: 27 PAGES: 55

									Litigation in NY
    1. Pleadings (complaint and answer): complaint is a blueprint that recites the facts
        the plaintiff will prove; answer responds to the blueprint by trying to defeat it or
        adding to it with affirmative defenses
    2. Motions: first motion is usually a motion to dismiss (i.e. for failure to state a claim
        upon which relief can be granted)
    3. Discovery: process through which the parties collect the facts (from your own
        party as well as the other side)
            - how cases are evaluated and settlements are reached
            - often involves the courts (because of discovery disputes)
    4. Preparation of expert witnesses
    5. Motions: 2nd is usually for summary judgment
            - Look at the facts that are undisputed; given those facts, the plaintiff can’t
                prove his claim (first place to look is the plaintiff’s own deposition)
    6. Trial
    7. Appeal: usually only at the end of the case at the entry of final judgment
            - In NY, a party can appeal any order that affects a substantial right
            - Every appeal takes a minimum of 9 months and is very expensive (a good
                reason for choosing a forum other than NY)

Procedural law descended from the common law
§103(a) – no more distinction between law and equity (only one form of civil action)
§104 – construction: purpose of the CPLR is to secure the just, speedy and inexpensive
resolution of every civil judicial proceeding

Elements of Jurisdiction

Basis (Personal) Jurisdiction: court’s power over a particular defendant
    Notice: accomplished by service of process, part of personal jurisdiction
           o if service satisfies the NY rule, it satisfies the Constitution
Subject Matter Jurisdiction: court’s power over the cause of action

Basis Jurisdiction
   1. In personam: power over the person of the defendant (the judgment follows the
       defendant everywhere and can be enforced in any state under full faith and credit)
   2. In rem: power over the defendant’s property (does not attach to the defendant
       himself, judgment enforced only to the extent of that property)
   3. Quasi in rem: judgment limited to the value of property in the state

In Personam Jurisdiction
General: gives court power over all causes of action against the defendant (§301)
     Presence: even if fleeting (tag jurisdiction)
           o Exceptions
           o Fraudulent enticement: deception in procuring presence in state
                   once defendant is in the jurisdiction, can use deception to get the
                      defendant to come to the place of service


                                              1
                              fact-intensive: if the defendant has other reasons for being there,
                               the fact that he was deceived won’t have an impact
Hammett: court found defendant was in NY anyway, fact that plaintiff lied to get him to come to her apartment
so that he could be served has no bearing on jurisdiction once he is in the state

                  o Immunity if coming to NY to attend court (includes parties, witnesses,
                    etc., and depositions and trials)
                         Does not count if subject to jurisdiction for other reasons (must be
                            the sole reason for presence in NY)
Merigone: defendant was in NY for a hearing in a previous action but he was amenable to service for many
other reasons (doing business, etc.) so was not immune from service in this case

                            §303: commencement of an action confers personal jurisdiction
                             over plaintiff during the action in any separate action in which he
                             is a defendant and another party is a plaintiff
            Domicile in the state when the action is commenced (created by physical presence
             in the state and an intention to make the state a permanent home)
                 o Only one domicile until intent to establish a new one is manifested
                 o When action commenced, not when cause of action arose
            Consent (express or implied): mostly for corporations (convenient to designate an
             agent for service)
                 o forum selection clauses: jurisdiction is proper in a certain state (not like
                     choice of law clauses: suit will be governed by laws of a certain state)
                 o generally upheld unless unconscionable

    Jurisdiction Over Other Types of Entities
    Partnerships: service on any one partner is sufficient for service on the partnership as
    well as for the partner individually - §1025
         If partners are not named, can only get at assets vested in the partnership
         Should name as many partners as possible (must serve them individually)
    Limited Partnerships: serve a general partner by personal delivery, or serve the
    secretary of state if designated
    Unincorporated associations: association is present if president or treasurer is present
         must name them and not the association as defendant(s)
                o but no personal liability
    Corporations
         Consent: domestic corporation and authorized foreign corporation name the
            Secretary of State as agent to receive service
         Doing Business: for unauthorized foreign corporations, present if conduct regular
            and systematic business activities in state
                o solicitation “plus” (collecting revenue, bank account, employees and/or
                    office in state)
                o Permanent physical presence is probably sufficient even if not doing much
  Bryant: corporation had solicitation of business in the state “plus” NY office, NY lease, NY employees, NY
  bank account, NY public relations. Court found enough for jurisdiction.

  Tauza: a Pennsylvania corporation had a NY office with NY employees, a bank account in the state, and NY
  customers as well as a steady course of business from one state to the other. Court found this was sufficient
  business in the state to subject the corporation to jurisdiction.
                                                         2
                 o foreign parent may be doing business if it has control over present sub so
                   that sub is a mere department
                         common ownership of assets, financial dependency, control over
                            selection and assignment of personnel, control over marketing
                 o if foreign corporation has an agent in NY acting on behalf of the
                   corporation, there is enough control for vicarious presence
  Delagi: relationship: parent – sub – distributor – retailer. Unlike Frummer, which included a corporation using
  an affiliate reservation service, the court here found no connection between corporation and distributor as a
  parent/sub, distributor too independent, and separate entities so no inference of agency

                 o doing business test is rarely applied to individuals (ABKO)

    Specific
    International Shoe allowed states to get jurisdiction over a defendant for their activities
    within the state only (based on fairness, previously only jurisdiction was when defendant
    was physically in the state)
         Gives court power only over the C/A relating to the defendant’s in-state activities
         up to states to decide what kind of long-arm jurisdiction they want to exercise (i.e.
             California allows every type of jurisdiction the Constitution allows)
    §302: NY’s long-arm statute: cases over which NY has chosen to exercise jurisdiction
         cause of action must arise out of the acts enumerated in this section
    (a)(1): transacting business or contracting to supply goods or services within the state
         can be just one act, quality and not quantity of transaction is important
         mere making of a contract, solicitation or delivery of goods not enough
Reiner:; defendant had a long-term contractual relationship with the NY company (one purposeful and continuing
transaction is enough)

            a single phone transaction is usually not enough (though it might be if enough
             money and/or units involved)
            an agent cannot rely on his own acts in acquiring jurisdiction over a principal
             (unless principal came to NY to deal with the agent)
                 o If defendant has no connection at all to NY except for an agent, there is
                     jurisdiction if agent engaged in purposeful activities in NY on behalf of
                     principal with principal’s knowledge and consent
                          transaction of business must be linked to the claim (need a nexus
                             between the business and the underlying action)
Talbot: no nexus because the defendant’s “business” (his daughter went to college in NY) ended before he wrote the
allegedly defamatory letters; therefore the cause of action arose after the business.

                           good if defendant has reason to foresee a cause of action in NY
                            (injury tied to actions in NY)
                          this is very often the only way to get jurisdiction over a non-
                            domiciliary for acts outside of NY
            For contracting to supply goods and services, the injury must arise out of the
             contract in NY regardless of where it was made



                                                         3
                  o knowledge that product is destined for NY (shipping goods FOB),
                    promissory notes, stock sales, contract to deliver goods outside NY
                    generally not enough
                  o may be enough if seller sent people to NY to help buyer set the product up
Paradise: defendant was going to deliver but plaintiff wanted to save shipping charges so picked product up
himself. Defendant’s knowledge that plaintiff was bringing the product to NY not sufficient to confer
     II. Is the exercise of if defendant constitutional under the due process clause?
jurisdiction.(probably enoughjurisdictionhad delivered the product)
    (a)(2): Tortious Act within the State
         similar to NY’s out of state motorist statute: creates a fiction that defendant
            consents to jurisdiction in NY if he uses, operates or owns a car in NY
                o driving in NY appoints Secretary of State for service
                o (a)(2) covers practically every situation now
         specifically excludes defamation (free speech policy: encourage media to conduct
            business in NY); might be able to get in under (a)(1)
         Almost always need defendant present physically and affirmative act taken in NY
    (a)(3): Tortious Act without the State
         most likely to raise constitutional issues (could have someone acting entirely
            outside the state)
         defendant commits a tortious act outside the state, the cause of action arises from
            that act, and the act caused injury to a person or property within the state
                o if tortious act is in manufacture of product, and product is sold to retailer
                    who passes it on, retailer’s tortious act probably occurs when he passes it
                    on rather than when he buys it
         Not limited to personal injuries, may be used for economic injury if acute enough
                o Mere fact that a NY entity suffers a general loss of profits is not enough,
                    need something to happen directly to NY operations
  Sybron: plaintiff suing for an injunction so ex-employee does not divulge trade secrets. Court finds 302(a)(3)
  satisfied because potential loss of money, customers in NY. (a)(3) can be used for anticipatory relief

       and
    (a)(3)(i) defendant regularly does or solicits business, engages in any persistent course of
    conduct, or derives substantial revenue from goods used or services rendered in state
         (i) is less stringent than “doing business” test
         can be enough that the defendant sells products to every state, including NY
        or
    (a)(3)(ii) defendant expected or should reasonably have expected the act to have
    consequences in the state; and defendant derives substantial revenue from interstate or
    international commerce
         not necessary to anticipate the specific event but only that a defect, if present,
            would have direct consequences in NY
         (i) and (ii) are designed to protect against unconstitutional application (only
            people who would reasonably anticipate being haled into court in NY)
                o might not always happen, so still have to do constitutional analysis




                                                         4
       (a)(4): Ownership of Property within the State
            only real property (diminishes the importance of in rem jurisdiction)
            not just disputes of ownership but also use or possession (i.e. trespass, personal
               injury, breached leases)
Tebedo: fact that defendants no longer have the land in dispute does not mean jurisdiction cannot be exercised; the
statute applies to claims arising out of that property (and the claim here arose when defendants owned the property)

               may apply to an out of state purchaser who breaches an agreement to buy property
                in the state (once he agrees to buy, he becomes the equitable owner)

       If defendant fits within NY’s long-arm statute, must go through constitutional analysis:
           1. Minimum Contacts: defendant has purposefully availed himself of the protections
               and benefits of the laws of the state
                  a. therefore should reasonably anticipate being haled into court should
                       something happen as a result of his actions
WW Volkswagen: purposeful availment is necessary; at a minimum need knowledge of the sale of the
product in the state and not just the possibility that the product, sold elsewhere, would go there
Asahi: mere knowledge that the product will be sold in the state is not enough; need more than placing the
product into the stream of commerce

             Internet jurisdiction: mere fact that people in NY can see your website doesn’t
              make it constitutional for minimum contacts purposes to confer jurisdiction (need
              to actually direct products towards NY)
                  o If a product is bought from the state, same analysis as a phone or catalog
                      mail order (biggest change with internet is in trademark infringement)
            For reasonable anticipation, product sold should be product giving rise to suit
           2. Fair Play and Substantial Justice: court’s exercise of power based on minimum
              contacts must be reasonable
                  a. Look at the burden on the defendant, the forum state’s interest, plaintiff’s
                      interest, efficiency concerns, social policy (strong enough showing of
                      these factors can alleviate insufficient contacts)
                  b. Defendant can use these factors to show unfair play and substantial
                      injustice (must present a compelling case)
  Burger King: court finds sufficient minimum contacts because circumstances existed to give defendant notice
  and litigation was foreseeable (mail went to and came from the state, forum selection clause selected that state,
  etc.). Exercise is reasonable because no real burden on defendant (probably most important factor) – court
  basically rehashes minimum contacts analysis

       Rem Jurisdiction

       In Rem: rights in the property are the subject matter of the action (§314(2))
            lien, mortgage foreclosures, action to quiet title, specific performance
            if the property attached doesn’t completely satisfy the plaintiff’s claim, he cannot
             bring another action for the rest
                  o judgment is for the value of the property
                  o but if property is worth more, only get value of the claim
            Usually no constitutional problem because claim relates to underlying property


                                                             5
         Quasi in rem: rights in the property are not subject matter of the action (§314(3))
             Property is attached as a basis for asserting a money claim
             A way to confer jurisdiction before International Shoe; after, constitutionality of
                this practice became doubtful
                    o Need a connection between the defendant, the forum and the litigation
                        (QIR version of minimum contacts), not necessarily with the property
Shaffer: court finds minimum contacts analysis necessary even for QIR cases; the mere presence of property is not
enough to confer jurisdiction. Here the fact that stock might be in the state is not enough to find QIR in a shareholder’s
derivative suit; the claim had nothing to do with the state

                       o Shaffer makes it likely that the only time DP concerns are satisfied with
                         QIR will be when there is IPJ
Banco Ambrosiano: only connection to NY is the banks used to clear foreign loan transaction in US dollars, court says
this is enough for QIR. The cause of action (default) relates to the property (bank account) and the activities in NY.

         Matrimonial Litigation
         DRL §230: plaintiff or defendant must be a domiciliary at time action is commenced; and
            1. either plaintiff or defendant resided in the state for 1 year immediately preceding
                the action as long as the parties were married in state or resided in the state; or
            2. either the plaintiff or defendant resided in the state for 2 years immediately
                preceding the action
                     Not a personal jurisdiction issue, a limitation on the ability to sue
                         (residency must be pleaded and proven)
         §314(1): jurisdiction to affect martial status is a type of in rem jurisdiction because the
         marriage is a thing (a “res”)
             jurisdiction is tied to the situs of the res (affects the marriage but not the person)
         §302(b): personal jurisdiction over defendant in a matrimonial action or in family court
             not an in rem issue, a IPJ issue
             Plaintiff must be domiciliary of the state at the time the action is commenced; and
                1. NY was the last matrimonial domicile; or
                2. defendant abandoned plaintiff in NY; or
                3. claim accrued under NY law or under an agreement executed in NY
  Levy, Lieb: question over whether marital domicile was immediately prior to action; Kirgis thinks as long as short
  enough time, probably okay


         Commencing the Action.

         Supreme Court and County Courts
          File initiatory papers (summons with notice or summons and complaint), pay fee
                o Important paper is the summons – invokes the power of the court
          The fee purchases an index number – court’s system number identifying the case
                o §306-a: an index number is assigned when the fee ($170) is paid
          Serve papers after filing (unlike old rule – and current lower court rule – that service
            of process satisfied commencement and notice simultaneously)



                                                               6
  §306-b: How to Serve
      Within 120 days of filing, papers must be served or action may be dismissed
            o Court can extend time to serve in the interests of justice or upon good
               cause shown – looks at the length of the delay, the excuse of the plaintiff,
               the prejudice to the defendant, etc.
      If defendant shows up and fails to raise improper service as a defense, waives it
      Dismissal is without prejudice, so plaintiff may start over if still within S/L

  R305: Requirements for Summons
      Basis of venue, plaintiff’s address, index number, date of filing
           o Basic info to alert the defendant of the nature of the case
           o Also need names of all parties (not with subsequent papers)
      If summons with notice, have to include object of the action, relief sought
           o Not if using summons and complaint because that is in the complaint
           o Summons with notice may be used if there isn’t a lot of time to serve and
               need to draft a summons quickly before the S/L runs
                   Later you still have to draft a complaint
                   Delays the process, will ultimately cost more money
      Because the summons invokes the power of the court, if there are defects, there
        may be defects in jurisdiction
           o If defects are discovered before the S/L runs, they may be changed
           o Some defects are mere irregularities that can be cured with amendments
           o Others cannot be cured; therefore, new summons is needed
Tamburo: S&C failed to name the court, the plaintiff served a supplemental summons after the S/L ran, court
granted defendant’s MTD because a summons that fails to name the court is voidable and since the defendant didn’t
waive the defect it was void and could not be cured by amendment. Court had no power over the defendant.

  Jurisdictional defects (defeat jurisdiction)
      1. Failure to name court or county (not a hard and fast rule, amendment may be
          allowed if all parties have proper notice of the real court)
      2. Failure to include sufficient notice in the summons with notice (nature of the
          action must be sufficiently detailed)
  Mere Irregularities (R305(c): may amend if a party’s substantial right is not prejudiced)
      1. Error in the defendant’s name (misnomer): usually not a jurisdictional defect as
          long as right person was served and fairly apprised of claims against him
              a. Most often when suing an entity and don’t know which entity to sue
Provosty: plaintiff tried to sue a hospital that was neither an association nor a corporation and so could not be sued
(just a trade name); had notice that they had sued the wrong entity (defendant denied jurisdiction in the answer and told
plaintiff at an EBT); does not take steps to correct error until after S/L ran. Plaintiff may not correct error now.


           b. if the plaintiff doesn’t know the name, he should write “John Doe” with a
                specific description of the plaintiff and still serve the defendant
  Amended summons corrects a mere irregularity (305(c))
  Supplemental summons adds new parties (305(a))

  R2103: papers can be served by anyone over 18 who is not a party


                                                        7
  Service By Mail - §312-a
      eliminates some formalities of personal service
      mail the summons to the defendant by first class mail including statement of
         service by mail and acknowledgement of receipt
      defendant has 30 days to return acknowledgement
             o service is complete upon mailing or delivery by defendant
             o if the defendant does not return the form, plaintiff must serve personally
                 and defendant must pay for cost of service

  Personal Service - §308
  (1): Personal delivery – hand to hand service
       must also announce they are being served
       if defendant refuses to take it, you are okay as long as you have tendered service
Macchia: server gave the defendant’s son, son gave to defendant. Court says service defective because have to
deliver directly to the defendant. Personal delivery allows no middleman. (Server could have effectuated
service by handing to the son and then mailing to the father later – 308(2), but chose service under (1) and have
to fulfill the method chosen.)
         Service is not complete no matter what the person served says (i.e. “I am the
          defendant”) unless doing so at the behest of the defendant
       Service by trickery is okay as long as the server doesn’t lie to get the defendant to
          come into the jurisdiction
       There is no limit on the number of times a person can be served (if server gets it
          wrong the first time, can serve again)
  (2): Leave and Mail – service upon someone of suitable age and discretion, mailing of
  copy to defendant within 20 days and a filing of proof of service within 20 days of either
  service or mailing, whichever comes last
       Mailing must be to defendant’s last known residence or place of business
Bossuk: S&C left at defendant’s house on doorstep; kids inside the house are teenagers who did not open the door
so the server had no choice but to leave it. Court said okay. (no issue made of whether the teenagers were of
suitable age and discretion but Kirgis says this is risky.)

         Can leave service with the doorman in an apartment building as long as you try to
          get up to the apartment
              o Similarly can leave with receptionist at place of business (must be
                  unmarked envelope stating “personal and confidential”)
              o Can leave in a drop box but not a P.O. box
       If the defendant never receives service but you have followed the rules, actual
          notice does not matter (similarly, if defendant receives notice but you didn’t
          follow the rules, no service)
       (2) can be used at any time, don’t have to try something else first
  (3): Service on an Agent
       Must be designated as an agent for service of process
       Managing or general agent of a corporation is designated by law for service of
          process but the same person for an individual person is not
Manilow: defendant’s manager was served, an agent but not designated for service of process; service no good



                                                        8
  (4): Nail and Mail – affix S&C to door of dwelling, usual place of abode or actual place
  of business; within 20 days mail to last known residence or actual place of business and
  file proof of service within 20 days of affixing or mailing, whichever comes last
        Must attempt service under either (1) or (2) with due diligence before a plaintiff
          can use nail and mail
              o Due diligence is strict, must use methods that will work (i.e. don’t go to
                  defendant’s home during working hours or vice versa)
Feinstein: plaintiff’s nailing at defendant’s last known residence not enough; must be usual place of abode
(though last known works for mailing). Defendant was not estopped from raising improper service because
defendant had no hand in concealment of his current address.

  (5): Expedient Service (Catch-all)
       Normal methods must be impracticable (unlike due diligence, don’t have to try
         other methods first, but failure of other methods is evidence of impracticability)
       Court may order any of a variety of methods “reasonably calculated to get notice
         to the defendant under the circumstances”
       DPC factors to determine constitutionality of alternate means of service:
             o plaintiff’s need (always high)
             o public interest
             o reasonableness of plaintiff’s other methods (if reasonable, presumption
                 that defendant has done something to evade service)
             o safeguards of defendant’s interest (lower safeguards when the defendant
                 has reason to know he might be sued)
       §315 allows service by publication, §316 prescribes content of publication
             o used mostly for matrimonial and in rem actions, has a due diligence
                 requirement (not necessarily available as a backup plan)

  VTL §253: Provides a basis for jurisdiction and a method for service of process
     Service: serve the secretary of state with a $10 fee, mail summons to defendant by
       certified or registered mail return receipt requested
           o If defendant accepts, file proof of service
           o If defendant refuses, send notice of mailing and refusal by ordinary mail
               and file proof of service
           o If certified letter is returned unclaimed, send summons by ordinary mail
               and file proof of service
           o If returned “moved – no forwarding address,” service has failed
     §253 can be used whenever there is a C/A under the statute even if the C/A fits
       under CPLR §302 as well
  Dobkin: methods of service failed because wrong address (plaintiff attempted under both CPLR §308 and
  VTL §253); upon motion, court allowed alternate methods of service such as publication in newspaper,
  service upon secretary of state, service to defendant’s last known address, service to defendant’s
  insurance carrier. Defendant’s actions indicated evasion of service and plaintiff’s and public’s interest
  was high, so no constitutional problem with allowing alternate methods.


  Service on Corporations - §311



                                                       9
(a): delivery of summons (must be hand to hand) upon (1) a list of people authorized by
appointment or by law (i.e. officer, director, managing or general agent)
     a managing agent must have supervisory authority
            o apparent authority can create an agency relationship
Colbert: plaintiff’s service upon a receptionist was ineffective because she had no supervisory duties and
had never taken service before. Court distinguishes another case in which a secretary who had some
supervisory responsibilities said she could take it and had taken service many times before without
reprimand, and therefore the defendant had informally designated her as an agent.
        Service upon a domestic corporation or foreign corporation authorized to do
         business in NY is prescribed by BCL §306
            o Serve two copies upon the secretary of state, secretary serves one upon
                defendant, service complete upon delivery to the secretary
        Service upon an unauthorized foreign corporation is governed by BCL §307
            o The court has jurisdiction over the corporation any time it would have in
                personam jurisdiction over a non-domiciliary defendant
            o one copy to secretary of state, one copy to the defendant corporation
                (personal delivery or registered mail, return receipt requested)
            o proof of service must be filed with the clerk within thirty days of personal
                service or within thirty days of receipt of the return receipt signed by the
                foreign corporation. Service is complete ten days later.
                     If defendant returns receipt, file proof of service; if defendant
                        refuses, send notice and refusal by ordinary mail and file proof of
                        service; if registered letter returned because moved, service has
                        failed (use §311(b) to move for expedient service)

Flick: service upon an unauthorized foreign corporation is not effective if BCL §306 is used; §307 is the only
way to get jurisdiction (though for a domestic or authorized foreign corporation, §307 will confer jurisdiction).
                          §307 is unique because filing proof of service is part of service of
                           process procedure

§313: Service without the state
 Must be one of the NY methods
 defendant can be served in another state by someone authorized to make service by
   that state’s law or by any attorney who is admitted to that state’s jurisdiction or by
   someone authorized to make service within NY who is a resident of NY.

Proof of Service
Don’t need for personal delivery within the state, or for delivery upon the secretary of
state for a domestic or authorized foreign corporation
For leave & mail and nail & mail, file proof twenty days after last act, service is complete
10 days later
VTL §253 – file 30 days after receipt of return receipt, service complete immediately
upon filing
BCL §307 – file 30 days after receipt of return receipt, service complete 10 days later
     need proof of service to get a default judgment regardless of the method of service
§306 – what constitutes proof of service (papers and person served, date, address, etc.)


                                                     10
Forum Non Conveniens.

No issue of jurisdiction; allows courts to dismiss action even if everything else is proper

§327 – codifies the common law rule
    courts consider:
          o location of witnesses and evidence
          o residence of parties (used to be dispositive)
          o availability of an alternative forum (normally want to ensure that litigation
               will go on and so require defendants to waive certain defenses – i.e. S/L)
    court cannot dismiss for FNC sua sponte
Martin: okay for FNC that neither party was NY resident because accident took place in NY, but court
granted defendant’s FNC motion because there was no nexus between NY and the C/A (also clear case of
forum shopping because plaintiff submitted contradictory statements in response to motion to move out of
NY and motion to move to different NY county)

(b): Court cannot dismiss if parties have contracted in NY, the transaction is $1million or
more, and a forum selection clause designates NY as the forum for the action
     want big deals to take place in NY
     courts can dismiss for FNC in smaller agreements despite a forum selection clause

BCL §1314: limits use of NY courts by foreign plaintiffs
    if plaintiff is foreign and suing a foreign corporation they must satisfy certain
       conditions (usual bases under the long-arm statute or general jurisdiction) or the
       action will be dismissed (QIR jurisdiction isn’t enough)
§1312 bars an unlicensed foreign corporation from bringing suit in NY
    to pressure unauthorized corporations to become authorized

Appearance.

If the defendant does nothing the plaintiff will take a default judgment
      to avoid default, defendant must appear – indicate his willingness to litigate in
        that forum (though not necessarily for everything, can still contest issues)
      usually by mailing papers back (don’t have to show up physically)
Three effects:
            1. avoids default
            2. entitles defendant to receive copies of papers served on any party to action
            3. commits defendant to litigate any jurisdictional objections in NY forum
                (but does not submit defendant to jurisdiction in NY yet)
Methods of appearing
      serve answer
      serve notice of appearance
            o Usually only when the plaintiff gives the defendant a summons with
                notice but no complaint (notice of appearance demands the complaint)
      serve motion extending time to answer (§3024: motion to correct the complaint;
        §3211: motion to dismiss the complaint)


                                                   11
  Time Limits for Appearing
      service by mail: 20 days after defendant returns acknowledgement
      personal delivery within NY: 20 days after delivery
      all other methods of service: 30 days after service is complete
            o personal delivery outside NY: complete upon delivery
            o BCL 306: complete upon service to secretary of state
            o BCL 307: compete 10 days after filing proof of service
            o VTL 253: complete upon filing proof of service
      Whenever the time for doing something falls on a holiday (including the
        weekend), bump over to the next business day
      For Nail and Mail, the date the mailing is made is the date of mailing, then file
        proof of service within 20 days and service is complete 10 days later

  §3012(b): If plaintiff begins an action with a Summons with Notice:
      Defendant must make written demand for complaint or serve notice of appearance
             o Demand is not an appearance and allows the defendant to see the
                 complaint without appearing (also doesn’t preclude a default)
                      May not be ready to litigate jurisdictional objections in that forum
      After a default judgment, the plaintiff will try to enforce the judgment in the
        defendant’s state of domicile and the defendant can challenge the judgment there
             o If defendant eventually defaults, can’t challenge in his own state if he
                 served a notice of appearance because he has submitted to jurisdiction
      Same time limits: 20 days after service by mail or personal service is complete, 30
        days after all others are complete
      Plaintiff has 20 days to serve complaint after service of demand or notice of
        appearance
             o If defendant served a demand, has 20 days after service of complaint to
                 appear by answer or a motion having effect of extending time to answer

  The key issue is how to preserve jurisdictional objections (raised or waived)
             o Improper service
             o Lack of jurisdictional basis
             o Defective summons
Adesso: defendant served an answer that raised jurisdictional objections but his first filing was a motion to
dismiss for failure to state a C/A so the court finds he waived the jurisdictional objection. Plaintiff’s service of
an amended complaint after defendant’s MTD did not start everything over for the defendant.


        Jurisdictional objections must be raised in initial response no matter what that is
             o §320(b): must raise defenses in first response
             o §3211(e): defenses waived if not raised
      plaintiff can be proactive by making a motion to strike the defense of lack of
         personal jurisdiction (to get the ruling before S/L runs) - §3211(c)
  The defendant can also waive jurisdiction by Subsequent Inconsistent Conduct
      i.e. if a counterclaim is unrelated to the C/A in the complaint, the defendant is
         taking affirmative advantage of the court’s jurisdiction



                                                         12
                o for a related counterclaim (must have the same parties and the same issue),
                  no waiver because of the risk of collateral estoppel
Textile: plaintiff’s complaint arose out of acts in 1986; defendant’s counterclaim arose out of acts from before
1986. court said defendant waived defense of lack of personal jurisdiction asserted in the answer because the
counterclaim was unrelated to the C/A in the complaint.

  Waiver rules:
    1. MTD and don’t include defense
    2. Answer and don’t include defense
    3. CC with unrelated claim
Gager: for QIR, need a specific objection in the answer or motion because QIR is so distinct that a sufficiently
particularized pleading is necessary to apprise the plaintiff of its nature. Simply objecting to personal jurisdiction
waived the QIR objection.


  Where Jurisdiction is General, An Appearance Concedes Jurisdiction for the C/A Raised
  in the Original Complaint
       If defendant doesn’t raise jurisdictional objection or does and loses, additional
          unrelated causes of action may not be added if the basis for jurisdiction has ceased
          to exist (i.e. “tag” jurisdiction for complaint; defendant leaves state and plaintiff
          wants to add C/A to complaint)
  Where Jurisdiction is Specific (§302 long-arm jurisdiction), Defendant can Defend
  Action based on Long-Arm Statute and is not Subjecting Himself to General Jurisdiction
  on an Unrelated C/A
       Restricted appearance
       Appearance concedes jurisdiction for C/A in the original complaint
  Where Jurisdiction is Based on In Rem, if Defendant Appears and Defends on the
  Merits, Confers In Personam Jurisdiction with Respect to the Underlying C/A in the
  Original Complaint
       I.e. defendant moves to dismiss for insufficient service and loses, defendant
          should withdraw and leave the res for the defendant rather than defending on the
          merits because that will confer IPJ and he could be held liable for the whole claim
          rather than just for what the property is worth
       Mostly with matrimonial actions, with respect to any claim for money, defendant
          confers IPJ on the court by showing up to defend the divorce action
  Where Jurisdiction is QIR, if Defendant Appears and Defends, Plaintiff Can Only
  Recover Amount of Property Attached and Defendant’s Appearance does not Confer IPJ
       Limited appearance

  Informal Appearance
  A defendant cannot do anything in an action that suggests a willingness to litigate in that
  forum without raising a jurisdictional defense and still expect to be able to raise that
  defense subsequently
Rubino: plaintiff sues NYC and Bd of Ed, Corp Counsel defends both defendants, Bd of Ed never served
properly but court says that defense was waived when Corp Counsel defended both defendants (Bd of Ed
appeared when Corp Counsel appeared).



                                                         13
Juel: defendant made motion to interpose an answer without annexing answer. Court denied motion; defendant
moved to renew, included an allegation that defendant was not properly served. Court denies 2 nd motion, saying
defendant waived jurisdictional objection because defendant’s motion did not assert jurisdictional defense.

Parotta: process was never completed but defendant’s insurance company interacts with plaintiff’s counsel, asks
for more time to answer, takes discovery, etc. court says these things would constitute an appearance but for the
fact that plaintiff granted extension of time to answer. Defendant therefore did not waive jurisdictional objection
because asserted it in ultimate answer (and technically, this was the first filing).

             Motion for change of venue, FNC, removal will all probably waive jurisdictional
              objections if not raised in the motion

    Subject Matter Jurisdiction.

    The court’s jurisdiction over the action itself
        cannot be conferred upon the court by the parties (i.e. can’t waive lack of SMJ)
        court can dismiss sua sponte at any time

    NY Court System
    Court of Appeals > Appellate Divisions > County Divisions (Supreme Court)
        Supreme Court is a statewide court broken up into counties
        Article VII, § 7 of NYS Constitution gives the Supreme Court general law and
           equity jurisdiction: can hear any action with few exceptions
Kagen: C/A seeking increase in child support, therefore Family Court presumptively has exclusive jurisdiction (§240
Family Court Act); however, court finds that 1962 Amendment to NYS Const. giving Supreme Court jurisdiction
over all “new C/A” means Supreme Court has jurisdiction over all C/A new since CL rather than new since 1962.

          Kagen gave Supreme Court power over every C/A the legislature has created ever
           with only a couple of exceptions (and unless the legislature limits jurisdiction
           exclusively to a specific court)
               o Court of Claims has exclusive jurisdiction over claims against the state (an
                   aspect of sovereign immunity – NY has limited its vulnerability to suit)
               o Administrative Claims are the exclusive jurisdiction of agency involved
               o Certain claims can only be heard in federal court (ERISA, bankruptcy)
        Supreme Court has very wide power of process
               o Can serve statewide (and if fit under CPLR 302, out of state)
    Other Courts
    Family Court, Surrogate’s Court, Court of Claims limited as to SMJ
    Civil Court, Justice Court, City Court are limited to actions with specific damages
    amounts (Also do not have equity jurisdiction except in certain situations)
        Some county courts have considered damages in each individual C/A, but weight
           of precedent is consideration of the entire complaint
        City Court and Supreme Court are both governed by the CPLR
           o CPLR applies in other courts unless separate statutes apply (i.e. Dist. Ct. Act)
           o Uniform Court Rules govern nitpicky procedural aspects
        NYC has Civil Courts rather than County Courts
        District Courts are a statutory option (only Nassau and Suffolk have created)

Mennella: Suffolk County Court recognizes there is IPJ over defendants but must consider SMJ. Judiciary Law
190 limits the county court’s SMJ to actions where all parties are residents of NY. The court therefore dismisses
the action for lack of SMJ and in addition states that the plaintiff is not seeking a sufficient amount of damages
(added the damages sought in each C/A in the complaint rather than considering them separately).
                                                          14
Court               City             District          Civil        County                 Justice
Service             Limited to       Limited to        Acc to §404  Statewide              Within county
                    county           county            of NYC Civil
                                     (beyond if        Courts Act
                                     contacts are
                                     present)
Damages       15k (C/A               15k (C/A          25k (C/A           25k (C/A         3k
Limit         considered             considered        considered         considered
              together)              together)         individually)      together)
Counterclaims Unlimited              Unlimited         Unlimited          Unlimited        Actions for breach
              jurisdiction           jurisdiction      jurisdiction       jurisdiction     of contract or
              (no equity)            (no equity)       (no equity)                         negligence
Residency                                              No residency       Parties must
                                                       requirement        be NY
                                                                          Residents
Appeals             App. Term        App. Term         App. Term          App. Term        App. Term

     Removal.

     Removal down
     Supreme Court has jurisdiction but doesn’t want to hear the case because it will fit within
     the jurisdictional limits of a lower court
     §325(c): Voluntary Removal Down – If actual damages are less than demanded, court
     may remove to lower court upon reduction of damages with consent of all parties
     (d): Involuntary Removal Down – If actual damages are less than demanded, court may
     remove without consent of parties without reducing damages
          Arises out of App. Div. rule promulgated according to NY Const. Art. VI, §19(k)
                 o (d) doesn’t necessarily allow this but describes App. Div. rule that does
 Offner: Action brought in Supreme Court Kings County worth less than plaintiff claimed, plaintiff refused court’s
 request of voluntary removal down because doesn’t want to lower amount of damages. Court doesn’t want to order
 involuntary removal down so interprets NY Const Art. VI §19(a) as separate from §19(k) and therefore allowing the
 court to remove involuntarily without keeping same amount in original claim.
             Threat of involuntary removal down had been used by judges to force settlement;
              now App. Div. rules state this action is prohibited unless removed case can be
              heard within 30 days of removal
             Only Supreme Court may remove down without parties’ consent (in lower courts,
              only removal down permitted is voluntary) under 325(c)-(d) and §19(a)
                 o Lower courts have means to pressure voluntary removal down (will grant
                     or deny general preference to get on the calendar)
                 o Lower court must have personal jurisdiction for removal down

     Removal Up
     §325(a): when plaintiff made a mistake as to forum, can make a motion in Supreme
     Court to transfer to the proper court
         Supreme Court can do it sua sponte



                                                        15
        Art. VI §19(b) also allows the county court to remove a case if it does not have
         jurisdiction (if plaintiff’s claim is larger than the county court limit and plaintiff
         made a mistake as to forum)
(b): if damages are revealed to be higher as the case progresses so that the court hearing
the case no longer has jurisdiction, a party can bring a motion in a higher court with
jurisdiction to remove the case to itself
     Have to get out of the lower court to get permission to amend the complaint

Venue.

The county in which plaintiff should bring an action
    Purpose: efficiency and judicial administration (not an issue of whether the court
       has jurisdiction over the parties or the action)
    if Supreme Court has jurisdiction, there are many Supreme Courts that can hear
       the action; venue says which Supreme Court is proper
           o whereas jurisdiction in one county court does not apply to all county
               courts, so the county court with jurisdiction is always the proper venue
    venue can be waived by the parties
           o the court cannot move the action sua sponte (§510: only upon motion)
           o plaintiff gets to make initial choice of venue and if defendant does not
               object, objection is waived

§503: General Rules (proper venue unless otherwise given by law)
(a) county of residence of each party is a proper venue for natural persons
     not the same as domicile: residence is any place you live for some part of the
         year; can have multiple residences
     under federal venue rules, proper venue includes the site where the cause of action
         arose; in NY the site can be a venue even if improper under §510(3)
(c) for corporations, residence is the principle office
(d) for unincorporated associations and partnerships, residence is the principal office or
the residence of a named individual in the complaint
§507: use, ownership, possession of real property: proper venue is location of property
§503(f): consumer credit transactions: proper venue is residence of defendant or county
where transaction took place
     to limit the ability of the creditor to bring the action in its home location and
         create difficulty for the defendant
     clerk must reject summons if improper (§513)
     the one place where venue is not waivable
§501: Venue can be contractually decided before trial
     usually specifies that an action can be heard in the commercial division of the
         Supreme Court (complex commercial disputes require sophisticated judges)
§510: Grounds for Changing Venue
    1. Wrong county: action brought by plaintiff in improper county, defendant trying to
         move to proper county
             a. §511: procedure – defendant serves a demand (with or before the answer
                 is served) on plaintiff to change


                                               16
                   i. if plaintiff consents within 5 days, action is transferred by clerk of
                       tranferee court
                  ii. if plaintiff contests within 5 days, defendant makes motion for
                       transfer in original court within 15 days of service of demand
                 iii. if plaintiff does nothing, defendant makes motion for transfer in
                       transferee court within 15 days of service of demand
         b. plaintiff’s choice is presumptively correct until defendant objects; if
             defendant does §511 correctly, has a presumptive right to change venue
   2. Impartial trial cannot be had in the county chosen
   3. Convenience of material witnesses and ends of justice promoted by change
         a. When party wants to move the case to an improper county
         b. Motion must be made within a reasonable time after commencement of
             the action, but can happen at any time procedurally (even after venue has
             been changed according to §511)
         c. Either party can make motion in court where action is currently pending
                   i. Plaintiff might do it to cut defendant off (plaintiff brings in proper
                       county, defendant can’t move according to §511, then plaintiff
                       moves to transfer to where plaintiff really wants it)
         d. §510(3) requires that movant show what will be proved by the named
             witnesses and provide substance of the testimony
                   i. problem is that it requires the lawyers to divulge their case early

Statutes of Limitations.

Arbitrary time period after which an action cannot be commenced
     operates mechanically and indiscriminately; exception to courts’ usual power to
        bend the rules in the name of justice (§201: “no court shall extend the time limited
        by law for the commencement of an action”)
     varies widely (shorter in disfavored claims, i.e. defamation = 4 months; enforcing
        a judgment = 20 years)
     affects the remedy but not the right (distinction without a difference)
             1. an affirmative defense, waivable if not raised by the defendant
Policy: litigation becomes stale after a certain time
     harder to prove cause of action as time goes by (witnesses forget, evidence
        becomes speculative)
     defendants should not have to submit to litigation so late after C/A arose
Four important questions:
    1. When did the cause of action accrue? S/L starts running upon accrual (the first
        day on which the plaintiff can bring an action)
    2. What is the applicable limitations period?
    3. When is the cause of action interposed (summons filed)? Stops S/L from running
    4. Do tolls or extensions apply? Tolls delay time of accrual; extensions extend S/L

Time Periods
§211: 20 years to enforce a judgment
§212: 10 years to achieve adverse possession


                                            17
           §213: 6 years for breach of contract (except the UCC’s S/L which is 4 years)
               Might be a tricky case if no damages yet at time of breach
               Also a catch-all for actions not stated in CPLR (covers all equity C/A)
           §214: 3 years for personal injury and property damage (negligence)
               Unintentional tort claims accrue at time of injury (usually)
               §214(6): designed to ensure all non-medical malpractice claims had 3 years
                  regardless of a C/A in contract or tort (if defendant is a professional, plaintiff has
                  no separate negligence or contract claim)
                      o professional malpractice claims accrue at delivery of services (usually)
Chase: 4 years between services and commencement of action, 3 years between injury and commencement. Defendant
argues non-medical malpractice so under §214(6) a 3 year limitation from date of professional services; plaintiff argues
negligence (3 yrs) with accrual at date of injury. Court says insurance brokers are not professionals because no real training,
no code of conduct, no duty to client like lawyers. Plaintiff has C/A in both tort (negligence) and contract (breach - 6 yrs)
                    good to have both contract and tort action available because with torts plaintiff
                     can get consequential damages (non-economic)
                    For third party plaintiffs, does not matter when negligence happened
                     (indeminfication/contribution C/A accrues at date 3PP must pay plaintiff)
Cubito: defendant rendered services in 1973, injury in 1974, commencement in 1977. defendant claims malpractice (3
years from date of services), but court says personal injury (3 years from date of injury) because defendant architect was
negligent and plaintiff had no claim at the time of services. Defendant building-owner’s cause of action for
contribution/indemnification does not accrue until defendant architect pays plaintiff, so within S/L
                 §214-d: to bring a personal injury action against an architect, engineer, etc. for
                  something they designed and delivered more than 10 years ago, plaintiff must
                  serve a notice of claim at least 90 days before commencement
                      o Plaintiff must plead and prove a substantial basis in law that defendant
                          was negligent, plaintiff can take discovery in the 90 day period
                      o If no notice of claim, defendant can move to dismiss
               Some states have statutes of repose: a time period after which service is given
                  when claims can be brought
           §215: 1 year for intentional torts
           EPTL 5-4.1: 2 years for wrongful death
           General Municipal Law 50-i: 1 year 90 days for actions against municipalities

           Third Party Injuries
                                    Personal Injury              Property Damage               Economic Damage
           Negligence               3 years from injury          3 years from injury           May be available if in
                                                                                               privity, date of
                                                                                               accrual
           Products                 3 years from injury          3 years from injury,          Not available
           Liability (2-318:                                     might not be
           limited to PI)                                        available if privity
           Breach of                4 years from date of         4 years from date of          4 years from date of
           Implied                  delivery by the              delivery by                   delivery by
           Warranty                 defendant                    defendant, only               defendant, only
                                                                 available if in privity       available if in privity



                                                                 18
       UCC 2-318 extends breach of warranty to 3rd parties who may reasonably be expected to
       use the goods and is injured in person by breach of the warranty
            exception to usual contract theory of no consequential damages
       Economic Damages are the cost of repair/replacement of the thing causing the property
       damage but not the cost of repairing property actually damaged by the thing

       Latent Injuries
          1. Toxic Torts: C/A accrues at 1st exposure – first time toxin was inhaled, ingested,
               assimilated, etc. (interpreted harshly)
                   a. §214-c: action accrues at discovery for injuries caused by latent effects of
                       exposure to substances (3 years from date discovered or should have been)
                            i. includes both personal injury and property damage
                           ii. expressly excludes medical malpractice
                          iii. statute does not expressly define “substance” but courts and
                               legislative history say must be inherently harmful (can be
                               biological, i.e. blood)
                   b. If discovery of the cause of the injury is within 5 years of the discovery of
                       the injury, plaintiff gets one year from discovery of cause
                            i. Provided plaintiff can prove technology was not available to learn
                               of the cause within original S/L
Blanco: Plaintiff had repetitive stress injury from prolonged use of keyboards. Court says keyboard not a toxic
substance within meaning of §214-c. For RSI, S/L is 3 yrs and starts at earlier of onset of symptoms or last exposure.

            2. Foreign Objects: one year from date of discovery of object left in the body
            3. External Injury: action accrues when injury is caused
                  a. Because these injuries are not as hidden

       Medical Malpractice
       §214-a: C/A accrues at delivery of services; period is 2 ½ years, except
          1. Discovery rule for foreign objects: 1 year from date of discovery
LaBarbera: doctor failed to remove object from plaintiff in 1986, plaintiff discovers in 1992, brings action in 1993.
Plaintiff argues foreign object (therefore timely action); court says a fixation device is intentionally left in the body
for a while and therefore is not a foreign object – failure to detect a previously inserted fixation device is akin to a
misdiagnosis, which is typical medical malpractice so 2 ½ years from date of services
                    o Fixation devices, prosthetic devices and chemical compounds are
                       expressly excluded from foreign objects in the statute
                             Fixation devices: IUD and sutures; foreign objects: clamps
                    o With foreign objects, a clear mistake, doctor should know the object is not
                       supposed to be there or stay there temporarily (no problems of proof or
                       frivolous claims, no question of doctor’s lack of skill)
               Difficult sometimes to distinguish between medical malpractice and negligence
Goldsmith: plaintiff’s replacement hip is an obvious prosthetic device, so no §214-a. Plaintiff brings action against
manufacturer for faulty prosthetic (products liability – action accrues at date of injury). Court says action accrued
when the hip broke. Not always easy to define the date of the cause of injury so the court will likely say the date the
product malfunctioned for clarity purposes (product could break and cause injury at two different times)




                                                              19
           2. Continuous Treatment
                 o Don’t want to force patients to sue doctors the moment something goes
                     wrong; give the doctor a chance to right their wrongs first
                 o S/L starts to run at date of last visit
Nykorchuck: plaintiff seeing doctor for endometriosis continuously until 1983, in 1979 finds a lump that doctor looks
at twice and ignores, finds out she has cancer in 1986 and brings action in 1987. court acknowledges continuous
treatment for endometriosis but not for the lump (two occasions not enough for continuous). DISSENT says “let’s
keep an eye on it” constitutes continuous treatment.

               when patient relies on doctor’s incorrect advice and doctor knew it was wrong,
                may have a fraud claim
                    o patient must show a knowing misrepresentation, reasonable reliance, and
                       an ability to fix the problem if not for the fraud
                            if there was no way the patient could have fixed the problem even
                               without the fraud, patient would only get nominal damages
                               (damages: difference in condition with the fraud and without it)
               if medmal S/L has run, might have equitable estoppel argument:
                    o plaintiff must show affirmative misrepresentation by doctor, reasonable
                       reliance on misrepresentation, and due diligence in bringing action
Simcuski: Plaintiff has two causes of action for defendant doctor’s damage to her nerve and subsequent failure to treat
it: medmal and fraud. The S/L has run on medmal, but plaintiff says defendant is equitably estopped. Court remands
for inquiry as to plaintiff’s due diligence. Plaintiff probably has good fraud claim, but damages for medmal include
pain and suffering and might be larger than fraud damages, which may only be nominal.
           214-a applies expressly to doctors, dentists, etc. but has been held to cover nurses
       §213(8): S/L for fraud is 6 years from date of fraud, but must be read in conjunction with
       §203(g): allows only 2 years from date of discovery for all discovery S/L
           so two alternative periods for fraud: 2 years from date of discovery or 6 years
              from date of fraud, whichever ends later

       Wrongful Death/Survival
       Survival: continuation of an action the decedent would have had if he had been alive
           don’t have to start the action before the decedent dies, just bring it within S/L for
              underlying claim (accrual date is the same)
       Wrongful Death (EPTL §5-4.1): brought by the personal representative of the decedent
       on behalf of survivors for losses suffered because of death
           S/L is two years from date of death
           Decedent must have had a viable claim on his own behalf at the time of death
                  o If decedent would have been time-barred, survivors don’t have C/A
           If decedent brought action already, personal representative continues the
              (survival) action and the survivors have WD claim regardless of whether time
              passed between accrual and death is longer than S/L
                  o If decedent settles before death, survivors can’t bring WD action

       Altering S/L Period
       §201: courts may never extend, but parties may change S/L under certain conditions
            Period may be shortened before the C/A accrues
                  o §201: Must be in writing


                                                           20
                   o UCC: 1 year minimum; non-UCC, period must be reasonable (courts have
                      upheld 3 months as ok)
              Period may be extended only after C/A accrues
                   o Public policy against unconscionable contracts
                   o General Obligations Law §17-103: agreement to extend S/L for C/A
                      arising out of breach of contract must be in writing
                   o No express authority to extend for non-contract actions
                   o Also extended by revival of debt (partial payment, acknowledgement)
    Kassner: contract contained a provision modifying S/L from 6 years to 6 months from the filing of the certificate of
    final payment. Plaintiff brings suit within 6 months of filing, but more than 6 years after the alleged breach. Court
    says parties can reasonably restrict the S/L but cannot extend it before accrual.

      Laches: no numerical period; C/A not timely because plaintiff sat on his rights
          only limitations concept that applied in equity cases (courts had discretion)
          not as significant today because §213 6-year S/L for C/A with no statutory S/L
                 o laches applies now with respect to tolls and extensions

      §203: When is the Claim Interposed?
            Stops S/L from running
      (b) interposition of a claim when there is commencement by service
            (b)(1): when the summons is served on the defendant
            (b)(2): when the summons is first published pursuant to an order
            (b)(5): when the summons is delivered to sheriff of county outside NYC or clerk
              of county within NYC (still must serve defendant but get an extra 60 days)
      (f): Relation Back: when adding new claims or parties
            New claims: original pleading must have given notice of new claim for new claim
              to be considered as interposed at time of original filing
                  o Must arise out of same transaction or occurrence as the original claim
Caffaro: medmal C/A brought by plaintiff in timely fashion, plaintiff dies and personal rep continues the action and
attempts to amend complaint by adding WD action. Although more than 2 years after plaintiff’s death, court says WD
relates back to medmal (defendant had notice, should have known that plaintiff might die and prepare, no prejudice,
future defendants will be on notice because of this case). Fact that WD action is deemed commenced as of date of filing
of medmal claim (which was before plaintiff’s death) is a fiction. Court ignores fact that medmal and WD have different
damages standards and different aspects of liability. This case effectively makes EPTL 2 year WD action insignificant.

                   o Whether relates back and whether timely are two different questions (2nd
                       claim considered filed at time of filing of 1st claim: had S/L run by then?)
              Untimely service on named parties: defendants must be united in interest: same
               defenses, defendants will stand or fall together on plaintiff’s claim (i.e. co-
               obligors on a debt, vicarious liability, etc.)
                   o (c): claim is interposed against a defendant united in interest when the
                       action is commenced (must be commencement by filing)
              New parties (claim does not name all parties): claim against new defendant must
               arise out of same transaction or occurrence as the claim against existing defendant
                   o Defendants must be united in interest
                   o New party should have known the mistake (not prejudiced if had notice)



                                                           21
                     o If plaintiffs deliberately left defendant off or pretended it was a mistake,
                       no relation back because not a mistake
Buran: plaintiffs sue H but leave out W, by time W is added S/L has run and defendants claim adverse possession. Court
says three part test for relation back is satisfied (claims against H&W arise out of same act; H&W united in interest; and
W should have known that but for the mistake action would have been brought against her as well). Mistake does not
have to be excusable as long as it is not willful.


       Tolls/Extensions
       §205: Toll for Termination of Action
            If plaintiff’s suit is terminated involuntarily, can file and serve within 6 months
                  o Grounds for dismissal cannot have been lack of personal jurisdiction,
                      failure to prosecute, or a loss on the merits
                  o Can re-sue if dismissal for lack of SMJ
            New action must arise out of same transaction or occurrence as the old action
                  o New action can be brought in name of representative of the estate if first
                      action was dismissed because plaintiff had died prior to commencement
       §207: Toll for Absence: S/L is tolled where
            defendant is not in NY when C/A accrues, or
                  o defendant is in NY when C/A accrues but leaves for 4 months or more, or
                  o defendant is in NY under a false name
            no toll if there is a basis for acquiring IPJ over defendant by service outside NY
  Yarusso: accident in 1968; defendant leaves NY in 1970; comes back in 1974. While gone plaintiff attempts twice to
  serve under VTL §253 but service never completed. Plaintiff moves for default judgment in 1974; defendant
  successfully MTD for lack of PJ. Plaintiff then serves defendant personally in 1974 for new action. If toll for absence
  applies, action is timely. Court said toll does not apply because IPJ could have been obtained without personal delivery
  (i.e. through the long-arm statute, VTL §253, BCL §306, 307).
       §208: Disability: legal disability includes both infancy and insanity
            S/L tolled during the pendency of the disability
       Insanity: if not adjudicated insane, have to be unable to function on your own
            Must be insane at the time the C/A accrued (includes if the event giving rise to the
               C/A causes the insanity)
            Difficult to figure out when the insanity begins and ends (determine when
               plaintiff couldn’t and now can function in society)
       Infancy: S/L tolled until the infant reaches majority
            S/L expires no later than 3 years after disability ceases if S/L is 3 years or more
                    o If S/L without disability would give more time, can use regular S/L
I.e. if plaintiff is 16 in 2000, has breach of contract action, under §208 would have until 2005 (2 years to majority plus
three years) but under regular breach of contract S/L plaintiff has until 2006. With the same facts, if breach of contract is
under UCC, plaintiff should use §208 because under UCC would only have until 2004

       §208 has a 10 year cap which is a maximum tolling time limit
                     i.e. P insane in 1988, recovers in 1999, S/L runs in 1998
           No cap for infancy unless the C/A is for medical, dental or podiatric malpractice

       §210: Death of Plaintiff or Defendant
           Regular survival C/A uses the underlying C/A’s S/L


                                                             22
    (a) gives one year from plaintiff’s death (again, if using normal S/L of underlying claim
    would give more time, personal rep can choose that)
         statute works if plaintiff dies before commencement of suit for the underlying
            claim; does not apply if the S/L for the underlying C/A ran before plaintiff’s death
    (b) tolls S/L for 18 months after the defendant’s death
         (b) is a toll; (a) is an extension
         §205 six month toll for dismissed action: will apply if plaintiff tries to sue the
            deceased defendant before appointment of personal rep and case is dismissed
            because decedent does not have capacity to be sued

    §202: Borrowing Statute for a C/A accruing without the State
        if claim arises outside NYS and plaintiff is not a NY resident, apply shorter of
           NY’s S/L for the action or S/L of the state where the action accrued
        have to figure out where the C/A accrued (easier for torts than for contracts)
Global Financial: breach of contract action, plaintiff sued within S/L in fed ct, suit dismissed for lack of SMJ, plaintiff
later sues in NY court after S/L ran and argues not time-barred because §205 toll applies. Plaintiff a DE corporation with
business in PA. Plaintiff argues NY’s S/L law applies because contract was formed in NY and court should use NY’s
choice of law rules (to determine which state’s law should apply, look at center of gravity of the claim). Court says the
issue is not substantive law. Procedural standard of where plaintiff can bring his C/A is where the injury was suffered.
For contracts that is where the plaintiff suffered monetary loss – the place of plaintiff’s residence, which is PA. No toll.

             borrowing statute exists to prevent forum-shopping

    Conditions Precedent
        Conditions the existence of a right, rather than S/L which suspends the remedy
           provided by the right
        Something plaintiff has to plead and prove (S/L is an affirmative defense for the
           defendant to plead and prove)
               o Can work like S/L in that the condition requires plaintiff to file suit but has
                   more drastic consequences
        When statute both creates a C/A and gives a time limit for commencement, the
           time limit is a condition precedent rather than S/L
               o CP is an element of the C/A
        When created through contract, plaintiff does not have to plead and prove (when
           in insurance contracts, an affirmative defense for the defendant)
    Most common CP is in tort actions against government entities and their subdivisions or
    municipal employees statutorily entitled to indemnification
  Yonkers Contracting: defendant is Port Authority, an arm of the state (has sovereign immunity; in exchange for
  allowing itself to be sued, defendant has given a shorter S/L for commencement of suit (1 year)). In addition, C/A
  has CP with which plaintiff did not comply in first action. Plaintiff’s 2 nd suit was commenced after S/L; plaintiff
  argues §205 toll applies. Court says tolls and extensions do not apply to CPs.

             Suits against cities are covered by General Municipal Law
  GML §50-e: must serve notice of claim on the city within 90 days of its occurrence (city itself must be served
  regardless of which subdivision did the wrong). Theory: allow city a chance to redress the wrong, allow for quick
  investigation and settlement of claims (but really to make it harder to sue the city). The last day the plaintiff may sue
  is 1 year and 90 days after the C/A accrues; first day plaintiff may sue is 30 days after serving defendant with notice
  of claim (allow city a chance to investigate before being sued).

                                                          23
             50-e has a separate provision dealing with WD: notice of claim 90 days from
              appointment of personal representative; S/L is 2 years from date of death
             Often people do not file notice of claim in time (because they do not know about
              the requirement), so 50-e allows an application for leave to serve late notice
                  o Defendant must have had actual notice within 90 days, plaintiff must
                      apply for leave within the S/L period
                           Cases are often remanded to decide whether defendant had notice
Cohen: 50-e’s 1 year and 90 day requirement is a S/L so tolls apply but the 90 day notice of claim requirement is a CP
so cannot be tolled or extended. Court remands case for decision on whether defendant had actual notice.

                   o Other factors include whether plaintiff was an infant, whether defendant
                     was substantially prejudiced by delay of filing, etc.
Newson: Leave not limited to exceptional cases; recent amendments to 50-e(5) relaxed the requirement. Court seems
to suggest that courts should usually grant leave, but not all courts have been this liberal (this is a 2nd department case;
1st department has been less forgiving).
             not every government is covered by 50-e (i.e. NY Port Authority has its own time
              for filing notice of claim and S/L)

     Pleadings

     Usually only two pleadings (complaint and answer)
     §3026: liberal construction, no dismissal unless prejudicial to the other side

     Two Basic Requirements for Complaint (§3013):
     1. Statements shall be sufficiently particular to give notice of the transaction or
     occurrence to be proved
          Notice: present in some recognizable form any valid C/A known to NY law
                o no distinction between evidence, fact and conclusion
Foley: Court denies defendant’s 3211(a)(7) MTD for failure to state a claim because the court was able to discern
some valid C/A from looking at the complaint. Court says the complaint, when attacked for insufficiency, is deemed
to allege whatever can be implied from its statements by fair and reasonable intendment.
           formal requirements (§3014): numbered paragraphs with single allegations;
            separately stated C/A, alternative, hypothetical, inconsistent allegations are
            permissible
                o mistakes under §3014 will not be fatal in light of liberal construction rule
          how basic the allegations are dictates how specific defendant has to be in the
            answer (vague complaint allows defendant to give vague answer)
          rather than make a MTD, defendant can either move under §3024(a) for a more
            definite statement, under (b) move to strike a scandalous statement or just let
            ambiguity go if defendant knows what plaintiff means
                o saves time, work and money for both sides just to end up at square one
     2. Give the material elements of each C/A
          Refer to facts or occurrences giving rise to legal liability rather than plead precise
            legal theories
                o pleadings have one set of facts = one C/A, but many different legal
                    theories on which to recover different standards of damages


                                                           24
                o this is important for res judicata
  O’Brien: plaintiff’s theory in 1st C/A was a taking, lost on the merits; 2nd C/A alleged trespass with the
  same facts plus events that had occurred since the 1st trial. Court said plaintiff can’t litigate the same factual
  transactions or occurrences – different legal theories or elements of proof do not create a new C/A.

          Don’t have to plead precise legal theories, or even the correct legal theory
              o Correct label is unnecessary if the correct C/A is undeniably alleged
  Diemer: H plead CIT because W stopped having sex with him; loses the trial but Ct of App says H proved
  theory of abandonment even though he never plead the theory in the complaint or argued it at trial. Old rule of
  pleadings where if plaintiff brought wrong writ case was thrown out is discarded.

              o Can bring up new theories until entry of final judgment (§3025(c):
                  amendment to conform to evidence allowed as long as it is just)
          Possible for plaintiff to get the kind of remedy wrong and still get relief
              o §3017(a): court can grant any relief appropriate to the proof
              o §4103: when it becomes apparent that a jury trial is warranted, court can
                  grant it (fixes problem with requesting equitable claim but really deserving
                  a legal remedy)
Lane: Plaintiff framed claim to get an accounting (equitable remedy); defendant MTD because complaint did
not state C/A for equitable claim. Court said no equitable theory but complaint did state a C/A at law and can
therefore recover damages. No longer a distinction between equitable and legal C/A.

  §3017-a: Ad Damnum clause: demand for relief
      total damages are based on the one C/A stated by the facts regardless of whether
        the complaint has multiple legal theories
      with medmal, may not list the amount sought (also §3012-a: need a certificate of
        merit of good faith investigation with complaint for medmal)

  Requirements of Particularity
  §3015: as to specific matters (i.e. CP, corporate status)
  §3016: as to specific actions (i.e. libel, fraud, separation or divorce)
      most important is fraud: need sufficient detail to clearly inform defendant of the
         incidents complained of

  Responsive Pleadings (§3018)
  (a): Denials: Deny on personal knowledge/Deny on information and belief/Deny
  knowledge or information sufficient to form a belief (DKI)/Admit/do nothing (which has
  the effect of an admission)
       1st three require plaintiff to prove the facts denied; 4th and 5th considered proven
       Don’t have to deny ad damnum; plaintiff always has to prove damages
       General denial: deny each and every statement in the complaint (disfavored)
       Defendant can admit, deny or DKI each allegation individually, can give a general
          denial “except that defendant admits…”
              o Can package different responses into each paragraph
  (b): Affirmative Defenses: defendant must plead and prove all matters which if not
  pleaded would take plaintiff by surprise or raise issues of fact not appearing in complaint


                                                         25
            I.e. contributory negligence, collateral estoppel, lack of personal jurisdiction, etc.
                  o To the extent that defendant wants to add new information, he must
                     interpose an affirmative defense
            Failure to plead can result in waiver
Munson: plaintiff tries to argue affirmative defense in court that it did not plead in its reply to defendant’s
counterclaim. Court finds that plaintiff waived affirmative defense because although no surprise to defendant,
the affirmative defense raised issues of fact absent from the prior pleadings. Unlike Diemer court, much more
unforgiving (luck of the draw).

            Courts can grant leave to amend answer to include affirmative defenses but not
             lack of personal jurisdiction
                 o Defendant must also plead the lack of the right kind of personal
                     jurisdiction (i.e. IPJ vs. in rem)

    Counterclaims (§3019)
         Separate claim for relief raised by the defendant against the plaintiff
    (a) may be asserted against plaintiff and any other person who is alleged to be liable
         Can counterclaim for anything (does not have to be related to the initial claims
            against the defendant)
         Court can sever claims if trying them together would confuse the fact-finder or
            draw out the litigation, but cannot dismiss CC
    (d) 2nd person must be properly served (defendant can just mail the plaintiff a copy)
         Plaintiff not allowed to reply to answer unless defendant asserts a CC
                o If plaintiff fails to reply, he is in default of CC
         If plaintiff’s reply asserts a CC, defendant can’t respond

    Federal court has a compulsory counterclaim rule: if defendant does not bring a CC
    related to the transaction or occurrence in the initial complaint, he loses right to litigate it
         NY doesn’t have compulsory (all permissive), but RJ principles may force a
            defendant to bring a claim
      Chisolm: Attys won fees in 1st action against client; client commenced 2nd action asserting malpractice (saying
      services were worthless so he shouldn’t have to pay). Would be barred under federal rules as compulsory.
      Court uses collateral estoppel (precludes a party from relitigating issues previously determined even though
      prior suit involved a separate C/A). Previous suit decided attys were entitled to recover fees, therefore services
      were of value. Action fails because a specific dispositive issue; client automatically loses because of RJ.


            Collateral estoppel does not bar litigation of issues which were not previously
             raised, but does foreclose litigation of issues which were necessarily decided in
             the first action, litigated or not
      Modell: tenant cannot bring action to remain in possession because 1 st action gave the landlord an eviction

            The federal rule and NY RJ rules will not always produce the same result
      Batavia: Contractor is plaintiff in 1st action, sued district for money for work done. Jury found district was
      justified in terminating the contract. In 2nd action, district is the plaintiff suing contractor for breach of contract.
      Under federal rules, same transaction so district would be barred. Court says district not barred here because not
      trying to re-open any issues resolved in the 1st action. District can use issue preclusion offensively to stop
      contractor from re-litigating issue of contractor’s fault and win because of 1 st action’s ruling on that issue.

                                                           26
        if defendant in first action does not bring counterclaim and loses, he cannot
         relitigate the issues actually or necessarily decided
        if the defendant in the 1st action does not bring the counterclaim and wins, he can
         assert the claim in the 2nd action and use issue preclusion offensively

Cross Claim (§3019)
(b) any cause of action in favor of defendant and other persons alleged to be liable
     may assert that cross-claim defendant is liable for any or all of the claim asserted
        against the defendant in the original action
§3011: does not require an answer (allegations deemed denied) unless one is demanded

Verification (§3020)
     statement under oath that a pleading is true (only applies to pleadings)
     purpose: to create possibility of a perjury charge
(a) normally by party (but can be verified by another person under certain circumstances)
     if the party is not a resident of the same city as the attorney, attorney can verify
           o verification must state reason the party is not verifying and verifying
               person’s basis for their belief (§3021)
     verification is usually optional
           o but once a pleading is verified, all subsequent pleadings must be verified
           o complaint in a matrimonial action, eviction action by a LL, and a petition
               in an Article 78 proceeding must be verified
     why verify? A verified complaint can serve as an affidavit of merit if the
       defendant defaults (only if verified by the client)
     consequences of failure to verify are not severe
           o §3022: opposing party can treat an unverified pleading as a nullity but
               must give notice to pleading party with due diligence (held to be 24 hours)
           o even if treated as a nullity, no more than a nuisance (no practical effect)
Giambra: atty rather than client verified but failed to state the basis for his belief. Court held the verification
invalid but said the error had no effect because the defendant failed to object in time.


Costs and Sanctions (Part 130 of the Rules of Chief Administration of Courts)
     for frivolous conduct in civil litigation (designed like FRCP 11)
     attorney must sign every paper served or filed (represents attorney’s oath that the
        paper is not frivolous)
(c) definition of frivolous conduct
             1. completely without merit in law or cannot be supported by a reasonable
                argument for extending, modifying or reversing existing law; or
             2. undertaken primarily to delay or prolong the resolution of the litigation, or
                to harass or maliciously injure another; or
             3. asserts material factual statements that are false
     #3 sounds like a strict liability requirement (no mention of requirement of
        reasonable investigation or a good faith basis for asserting false statements)
§130-1.2: Sanctions
     include fines against attorney, party, or both


                                                       27
       Amendments (§3025): add to but do not supersede the original pleading
            unlike supplemental pleadings which add additional or subsequent transactions
                or occurrences
       (a) amendments as of right:
                a. either 20 days after service of original pleading; or
                b. within time for defendant to answer; or
                c. within 20 days after defendant answers
            if defendant MTD, his time to answer is extended; therefore, plaintiff’s time to
                amend is extended
                    o therefore best route for plaintiff is to wait and see what defendant does
                        after service of complaint (and amend in response to a possible MTD)
            defendant must serve amended answer within 20 days of service of 1st answer
                    o only exception to “raise or waive” rule with IPJ
            only one amendment as of right
       (b) motion for leave to amend
            leave should be freely given (courts adhere to this rule); therefore, a party doesn’t
                usually have to go to court if it can get consent/stipulation from other parties
            when leave to amend denied:
                    o amend to add IPJ defense
                    o where leave would prejudice the other party (i.e. the party would be
                        surprised or has relied on the other party’s original pleading)
                             courts have denied motions to amend the ad damnum clause when
                                there is a partially insured defendant
            defendant should make motion to amend and include the amended pleading so the
                court can deem the pleading amended when the court grants the motion
       (d) if a response is required, the opposing party has 20 days to respond to the amendment

       Bills of Particulars (§3041-45)
            many of the same characteristics (rules, effects of complying/not complying) as a
               pleading but neither pleading nor discovery
            courts will take a bill more seriously than a pleading
            do not have to produce evidence in a bill
Felock: medmal action, defendant moved to strike certain portions of the bill as vague, plaintiff claimed was unable
to be more specific because defendant didn’t produce all necessary documents. Court said bill ok, plaintiff gave as
much as they could considering what they got, don’t have to give evidence.


           §3043: for personal injury actions, states specific particulars that may be required
       §3042 – Procedure:
           A bill can only be demanded of party with BP (i.e. plaintiff can demand a bill
              from defendant only with regard to affirmative defenses)
                 o a party is not required to provide a bill unless it is demanded
                 o no time limit on the demand, but usually served with the answer
           plaintiff has 30 days from service of the demand to serve the bill
                 o if the plaintiff objects to anything in the demand, can state so in the bill or
                     make a motion under (e) to modify or vacate the demand



                                                           28
        if defendant thinks the bill is insufficient or vague, can move under (c) to compel
         compliance (time consuming and without much effect)
             o or move under (d) to preclude plaintiff from offering evidence at trial
                  about which plaintiff didn’t provide sufficient particulars
             o courts often make preclusion conditional on plaintiff giving sufficient info
             o defendant must show willful noncompliance to get the penalty (either
                  make a motion to compel or send a letter asking plaintiff to comply; if
                  plaintiff ignores, enough to show willful noncompliance)
      if plaintiff does not have sufficient evidence at the time of the bill, must say so in
         the bill and supplement it when plaintiff has the info
             o plaintiffs don’t like this, especially in PI actions, because defendant then
                  can state at trial that plaintiff proceeded without sufficient info
  Amendment Rules (§3042(b))
      A party can demand bill once as of right before the note of issue is filed
      Any other amendment can be made only by leave of court (freely granted)
  Verification (§3044)
      If the complaint is verified, the bill must be verified
      Bill in a negligence case must always be verified

  Joinder
  Of Claims (§601)
       Plaintiff in a complaint or defendant in an answer setting forth a counterclaim or
         cross-claim can join as many claims as he has against an adverse party
  Of Parties (Article 10)
       Permissive joinder (§1002): plaintiffs and defendants can join in one action as
         long as the right to relief arises out of the same transaction or occurrence and
         there are common questions or law or fact
              o Once the party satisfies the transaction or occurrence prong, will most
                 likely satisfy the common question prong
              o Claims are permitted in the alternative as well as jointly or severally
       Permissive joinder rule is stricter than the rule for joinder of claims
Akely: court allowed 200 plaintiffs to join together against one defendant. Each plaintiff bought fraudulent stock from
defendant; court calls this a series of common transactions. The same fraudulent prospectus was sent to each plaintiff,
so there will be common questions of law or fact.

                o Akely is probably not the norm
Bender: multiple plaintiffs against one defendant, court does not allow joinder because the accumulative prejudice
would not be outweighed by the benefit of joinder.

        Preventing joinder is a big win for defendants because multiple plaintiffs often
         have an impact on a jury
             o Increased probability of winning and getting higher awards
  Consolidation (§602)
      Upon motion of either party, court can consolidate actions already commenced
      Must be common question of law or fact (higher than §601, not as strict as §1002)
  Necessary Joinder (§1001)


                                                       29
  (a) When should a party not involved be involved?
       “Ought to be a party” if:
             o without joinder, those already present may not get complete relief; or
             o judgment in the action might inequitably affect the absent party
       If defendant is subject to multiple consistent obligations, will often claim that
         another potential plaintiff is a necessary absent party
             o i.e. plaintiff is one of joint-obligees, can bring in co-obligee
             o joint tortfeasors are not necessary parties
Mechta: plaintiff and wife made contract with defendant to buy house, subsequently separated. Plaintiff sued
defendant for return of down payment for failure to comply with contract. Defendant MTD because W not a
party to the action. Court says W a necessary party because if judgment is for H, W can sue on her own (W not
bound by RJ because not a party to the action) for the same relief and defendant might have to pay twice,
therefore no full relief for involved parties without W as a party.
          inequitable effect does not refer to RJ principles (because not possible if absent
           party is not a party to the action) but rather refers to the practical effect of an
           absent party feeling bound to the judgment
NYC v. LI Airports: taxi co. got license from both the state comm’n and NYC to operate. NYC now wants to
enjoin taxi co. from operating; comm’n not a party. court says comm’n a necessary party because might be
inequitably affected to the extent the comm’n feels bound. If comm’n doesn’t feel bound, no complete
resolution for all involved parties (taxi co. might be subject to same suit from comm’n).
          if absent party won’t be joined and is subject to jurisdiction, can be summoned as
           either or a plaintiff or defendant, or added as a defendant
  (b) if the necessary party is not subject to jurisdiction, the court can allow the action to
  proceed without him based on:
           1. whether the plaintiff has another effective remedy if the case is dismissed
           2. prejudice that may accrue to the defendant or the absent party from nonjoinder
           3. whether and by whom prejudice might have been avoided
           4. feasibility of a protective provision by order of the court or in the judgment
           5. whether an effective judgment may be rendered without the necessary party
       courts often issue conditional dismissals requiring defendant to waive
           jurisdictional defenses in another forum where the necessary party may be joined
  Interpleader (§2006)
       a stakeholder who is or may be exposed to multiple liability as the result of
           adverse claims can give the stake to the court and walk away
               o the court determines which claimant is entitled to the stake
       stakeholder can initiate the action or can convert a suit in which he is a defendant
           and one claimant is a plaintiff into an interpleader action
               o Must have jurisdiction over and serve all claimants
       common with insurance policies with multiple beneficiaries
  Intervention (§1012/13)
       someone not in the action wants to get involved
       must be done on motion, but there are certain situations in which the court must
           grant intervention
               o §1012: intervention as of right: most commonly when representation of
                   the person’s interest by the parties is or may be inadequate and the person
                   is or may be bound by the judgment


                                                     30
                       usually a class-action member (who is bound in RJ fashion)
               o §1013: permissive: when the person’s claim or defense and the main
                  action has a common question of law or fact
                       factors considered are the timeliness of the motion, delay of the
                          main action, and prejudice to any party
          Permissive standard is so low that courts often look for another reason to allow
           intervention under §1012
  Spring Valley: village suing for dissolution of subdivision. Residents attempt to intervene under §1013 because
  common question of law and fact. Court allows under §1013 and says could be granted under §1012(a)(2)
  because residents’ interests may not be adequately represented and residents’ lives are so intertwined that
  dissolution would adversely affect their interest.


  Reurs: H’s current wife attempting to intervene in ex-wife’s action for higher child support from H, claiming the
  action might negatively impact H’s ability to support current family. Court says potential adverse effect is too
  indirect for permissive intervention. H’s arguments will likely adequately represent current W’s interests.

          §1012(a)(1): when a statute of the state confers an absolute right to intervene:
           usually when the constitutionality of a state statute is in issue

  Third-Party Practice
  Allows defendant to bring in someone else who may be liable for plaintiff’s injury
       usually plaintiff will sue as many people as possible to ensure full recovery
              o defendants in one action can cross-claim to recover from each other
       if two or more liable parties are not included in the same action, the defendant in
          the action can try to sue the other parties later for indemnification
              o might lose because the other parties were not part of 1st action and
                  therefore not bound under RJ to 1st action’s findings (jury might find
                  against original defendant in 2nd action)
  §1007: Without seeking leave of the court, defendant may file a 3PA against another
  liable party after he serves his answer
       same index number but new filing fee
       hypothetical C/A: if it turns out that defendant must pay plaintiff, 3PD must pay
          defendant (3PP)
              o limitation: defendant may only bring in someone who is or may be liable
                  to defendant for all or part of plaintiff’s claim against defendant
              o unlike joinder rule, which allows inclusion of a broader class of people
Cohen: defendant bought property from plaintiff, failed to pay on promissory notes because claimed property was no
good. Plaintiff sued for breach and defendant tried to bring in 3PD who issued the property that plaintiff sold to
defendant. 3PD claimed 3PA barred because defendant’s claim in 3PA more than plaintiff’s claim against defendant.
Court says this is ok because the excess is for a C/A that would be proper under joinder rules, and no need for that extra
procedure considering the liberal pleading rules and considerations of judicial economy.

        defendant in Cohen could have brought in 3PD through a counterclaim under
         §3019 and avoided the 3PP filing fee
  §1008: 3PD’s Answer
      same rules as for defendant’s answer, 3PD has to serve a copy on all parties
      3PD may assert in answer to 3PP any defenses 3PP has to plaintiff’s claim


                                                        31
               o liability is derivative, so if defendant doesn’t owe to plaintiff, 3PD won’t
                   either; if defendant fails to raise a defense to plaintiff’s claim, 3PD is not
                   bound by defendant’s waiver
        3PD can turn around and implead other people
    §1009: Plaintiff’s claim against 3PD
        without leave of court, plaintiff can amend complaint within 20 days of service of
           3PP’s complaint to include 3PD as a defendant (after 20 days, can do so at any
           time with leave of court)
        important: if plaintiff does not amend, plaintiff won’t get a judgment against 3PD
               o if S/L has run, plaintiff will never get a judgment against 3PD
Duffy: initial plaintiff is H; H dies and W is substituted; defendant brought in H’s doctor as 3PD; W moves to amend
complaint to make 3PD a defendant to W’s action. Defendant’s 3PA was made within S/L for H’s claim against
doctor but W’s motion was made after. Court says 3PD had notice of action when he was brought in as 3PD; W’s
claim against him relates back to date of filing of 3PA. If defendant had waited until after S/L had run for W in her
claim against 3PD, defendant’s claim would still be timely (because S/L does not start to run until defendant pays
any judgment to plaintiff) but W would have been barred.

        if defendant and 3PD are united in interest, plaintiff’s claim against 3PD will never be
         barred because relation-back date is the date plaintiff filed her claim

    Theories of Recovery
       1. Subrogation: 3PP steps into shoes of plaintiff and impleads 3PD
                S/L is same as for underlying C/A (subrogation claim must be commenced
                  within S/L for original C/A)
                Court-derived limitation: want insureds to get paid right away, so insurer
                  cannot implead tortfeasor in a car accident case
       2. Indemnity: where 3PP can shift entire liability onto 3PD (3PD has not done
           anything wrong but must pay because of a duty to answer for 3PP)
                       i. By contract: in construction contracts (for GC to indemnify subs)
                      ii. By statute: municipal/state employees
                     iii. Implied in law: vicarious liability
                S/L is 6 years, begins to run on date 3PP actually pays
       3. Contribution: Joint & Several Tortfeasors
                3PP can shift some liability onto 3PD
                S/L is 6 years from the date 3PP pays
                Joint & Several liability: both TF liable for the whole judgment, so if one
                  defendant pays more than his equitable share, can go after other for excess
    Dole: plaintiff suing manufacturer of product; manufacturer wants to bring in plaintiff’s employer as 3PD and
    shift entire liability. Both defendants are liable for plaintiff’s death. Court allows defendant to bring in 3PD and
    apportion liability based on how much each was at fault. Each defendant liable to the other for their share.

    §1401: Two or more TF liable for same injury may claim contribution among each other
        Successive liability: 1st TF is liable for injury caused by 1st TF and subsequent
           injuries caused by later acts of 2nd TF that aggravated injuries caused by 1st TF
               o 2nd TF not liable for original injuries
        Sometimes both original and subsequent TF are liable for all injuries
    Schauer: plaintiff sued atty for malpractice; atty impleads 3PD who represented plaintiff after defendant. Court
    says don’t need privity between the two defendants for atty to implead 3PD; acts of both attys caused plaintiff’s
    injury and 2nd atty liable for any injury plaintiff received after 1 st atty’s representation ended.
                                                          32
Ravo: medmal action; 1st dr. negligently delivered baby; 2nd dr. negligently treated baby. Plaintiff sued both
defendants (no 3PA). 2nd dr. says only liable for 20% of damages because jury found him 20% at fault (not
responsible for injury caused by 1st dr.). Court says injury is indivisible; don’t know which part of it is attributable to
which dr. Finding of 20/80 liability is only so defendants know how much they owe each other in contribution.

     §1402: 1st TF can only force 2nd TF to pay him 2nd TF’s share to the extent that 1st TF has
     paid in excess of his own share
          No TF can be forced to pay more than his equitable share in contribution (if can
             forced to pay more to plaintiff, but can go after the others in contribution)
     §1403: Contribution can be sought in a cross-claim or counterclaim (if every TF is in the
     case), or in an impleader or a separate action (if not all TFs are in the case)

     §1411: Comparative Negligence (Article 14A)
         In personal injury, property injury and WD actions, defendant’s liability is
            reduced by the amount plaintiff contributed to her own injury

     The Effect of Settlements

     GOL §15-108: Release or Covenant not to Sue
     (a): if plaintiff settles with one of many TF, plaintiff can still proceed against the other TF
     unless the settlement agreement says otherwise
          Plaintiff’s claim against the other TF is reduced by the greater of:
                  o The amount stipulated in the release; or
                  o The amount paid for the release; or
                  o The amount of released TF’s equitable share of the damages
     (b): released TF is not subject to contribution by the other TF (promotes settlement)
     (c): released TF not entitled to contribution from the other TF
          Statute puts the burden of a bad settlement on the settling parties
    Hypo: TF1 is liable for 5k; TF2 liable for 55k; TF3 liable for 40k. TF1 settles with P for 45k; TF2 settles with P for
    10k. Courts have held to take the greater of the settlement amounts or liability amounts in the aggregate from
    P’s award; in this case, TF1 & 2’s liability amounts = 60k, which is greater than their settlement amounts = 55k.
    Therefore, 60k is taken from P’s jury award of 100k and P can only collect 40k from TF3.

             With Comparative Negligence or multiple NSTF, do §15-108 analysis first and
              then apportion the remaining damages between plaintiff and NSTF
    Hypo: Award = 100k. P liable for 20%, TF1 for 20%, TF2 for 60%. P settles with TF1 for 40k. Take out TF1’s
    settlement amount (b/c greater than liability amount) and then apportion remaining 60k between P and TF2. P’s
    liability is 20% of the remaining 80% of liability after removing TF1 from the picture = 20%/80% = 25% of remaining
    60k of the award is attributable to P = 15k. TF2’s liability is 60% of the remaining 80% of liability = 60%/80% = 75%
    of remaining 60k of the award attributable to TF2 = 45k.

             The statute does not speak to indemnity
    Rosado: plaintiff is 3PD’s EE; defendant is manufacturer of a defective product and impleads 3PD on theory of
    indemnification. 3PD settled with plaintiff, so defendant can’t get contribution from 3PD according to §15-108. Court
    says defendant can’t get indemnification from 3PD because no express or implied duty of 3PD to indemnify defendant.
    Defendant is a JTF with 3PD and therefore the only available claim would be for contribution, which is barred here.
             Indemnity is allowed in situations where contractual, statutory or implied
                 o Defendant can continue indemnification action whether settling or NSTF

     Article 16 – Partial Abrogation of J&S Tort Liability Theory
     §1601: in action for personal injuries, TF is limited to equitable share of damages:
         1. only if 50% or less at fault


                                                            33
    2. only with respect to non-economic damages (i.e. pain and suffering)
            a. not out of pocket (i.e. lost wages and medical costs), for which TF is liable
                 for the whole as a J&S TF
     Rules of contribution operate independently: a defendant’s liability may be
        limited to his equitable share but still may be sued in contribution for that share
     TF1 cannot give evidence of TF2’s fault to reduce TF1’s share under Article 16 if
        plaintiff shows (due diligence) that he was unable to obtain jurisdiction over TF2
§1602: Exceptions to §1601’s application
(6): does not apply to users, operators or owners of motor vehicles (except cop cars and
firetrucks)
(5): does not apply to actions requiring proof of intent
     Problem with the word “actions” rather than “claims” because actions may
        arguably contain multiple claims, only one of which may require intent
(2): does not alter, limit or enlarge certain rights or liabilities, including
        (iv): liability based on respondeat superior (but tie principal’s liability to agent’s
        liability so the principal is only liable for amount agent is liable)
(7): does not apply to person’s acting with reckless disregard for the safety of others

Interaction between §15-108 and Article 16
       1. Determine which TFs, if any, get an Article 16 limitation
       2. Remove TF who has settled under §15-108 (removes that TF from both
           economic and non-economic liability)
       3. Calculate §15-108 setoff from total amount (including the % of economic and
           non-economic liability that applies to each TF’s share)
       4. Apportion remaining amount between NSTF for each kind of damages
       5. Calculate judgments to be entered (full economic damages and equitable share
           of non-economic damages for Article 16 TF; full economic damages and full
           non-economic damages for non-Article 16 TF)
       6. Calculate NSTF equitable shares for purposes of determining contribution
           (which is the equitable share after taking out settling TF’s share calculated
           from the amount left after taking out settling TF’s share)

Motion Practice.

Affidavits
     The building blocks of motion practice in NY
     Similar to sworn testimony (have the same effect in most cases)
     Only way to communicate information to the court for motion practice
     Affiant must have personal knowledge of everything in the affidavit
     Must be notarized (an affirmation does not have this requirement, but has the
       same force and effect b/c presumed attorney will be honest)
           o No notarization requirement in federal court

Form and Service of Motion Papers
    Interlocutory papers: anything after initiatory papers, including motions



                                             34
§2103: Service of Papers
(a): anyone 18 or over who is not a party to the action may serve
(b): usually the attorney for the party to be served must be the recipient of service
     As opposed to initiatory papers, which are served on the party
     Attorney can be served:
            o Through personal delivery
            o Through mail: complete upon mailing
                     Adds 5 days to prescribed period for responding to a mailed paper
                        (federal court adds 3 days)
            o By leaving the paper at the attorney’s office
            o By leaving the paper at the attorney’s residence with a person of SAD
                (only if service at attorney’s office cannot be made)
            o Through fax: complete upon receipt by sender of an indication of receipt
                from receiving attorney’s fax machine
                     Sender must then mail a copy to the attorney
                     No extension of time for responding
                     Attorney must consent to service by fax by putting his fax number
                        on a paper served and filed in the action (not letterhead)
            o Through overnight delivery: complete upon deposit to delivery service
                     Extends response time by one day

Individual Assignment System
RJI: Request for Judicial Intervention
     Made by the party making the first motion in a case
     Must pay $75 fee
     Judge who is assigned oversees all of the subsequent components of the litigation

Motions
    How parties formally communicate with the court
    An application for an order from the judge
    Ex parte: other party does not get notice before the order is issued
        o Usually can make an ex parte motion anywhere before any judge (unless a
           judge has already been assigned)
        o Must state applicant has not sought the same relief in a prior application
    On notice: other side has notice of the motion before the judge issues the order
        o Consists of:
                 An RJI (if the first motion)
                 Notice of Motion: formal paper that seeks court’s intervention
                         Fills opponent in on substance of the motion
                         Relief may be sought in the alternative
                 Supporting papers: includes attorney affirmation and documents
                   for court to rely on in deciding motion (i.e. exhibits)
                         Affirmation only supposed to contain procedural posture
                           but often includes legal argument (improper because an
                           affirmation may only be based on personal knowledge)



                                          35
                     Memorandum of law: uniform rules require this for legal argument
                      rather than putting it in the affirmation
Timing of Motions
     Return Date: date all papers are due, often not date motion is decided
            o R2214(b): minimum time limit is 8 days before the return date to service
                the notice of motion on the opposing party (13 days if served by mail)
                     respondent gets 2 days before RD to respond
                             no additional time for applicant if respondent uses mail
                     applicant can require respondent to serve 7 days before RD if
                        notice of motion is made 12 days before RD (must demand
                        answering papers in motion)
                             becomes 17 days if by mail
                             applicant is then permitted to reply by 1 day before RD
            o Applicant may not unilaterally change the other party’s response time
                     May seek an adjournment of RD (usually only allowed one)
            o Key date for complying is date motion is served, not date on motion
                     Date motion served usually contained in an affidavit of service
            o R2215: Cross-motion by respondent must be served 3 days before RD
                     Can be with or without supporting papers
                     Can be based on anything (not just subject of applicant’s motion)
                     Courts have held that 5 days get tacked onto this period (so 8 days
                        before RD to cross-move if by mail)
R2214(d): Orders to Show Cause
     Alternative way to make a motion on notice (same effect)
     An order from judge in response to ex parte motion from one of the parties
            o Signed OTSC served on opposing party becomes motion on notice
            o Because ex parte, must state whether relief was sought previously
     Advantages: because an order, judge can order provisional relief (i.e. TRO) in
        addition to the substance of the motion
            o Also removes applicant from standard timing requirements
     Often requires a certain type of service (i.e. personal delivery)
     Attorney drafts order (with wish list) for judge
            o Includes standard supporting documents
R2219: Time and Form of Order Determining Motion
(a): judge usually has 60 days from RD; 20 days if ordering provisional remedy
     Parties must find out for themselves whether a decision has been made (no
        provision requiring announcement of decision)
            o Decision carries no legal force; need a signed and entered order
     Winning party either submits an order with no notice to the other side, or both
        sides are permitted to submit proposed orders and the judge chooses
            o Latter route is called settling the order
            o Must be done within 60 days of the decision (UR §202.48)
                     If no order is submitted within 60 days, motion deemed abandoned
     Order is entered by filing it with the clerk
            o Party must then serve notice of entry on all parties



                                           36
             o No time limit for this but the time for an appeal (30 days) does not begin
                 to run until after service of notice of entry
       Loser’s options:
             o Appeal (§5513, 5701): must be done within 30 days
             o Move to reargue or re-settle (§2221(d))
                      Must be done within 30 days
                      The denial of a motion to re-argue is unappealable, so the loser
                         should file a notice of appeal at the same time
             o Move to renew (§2221(e)): when losing party has new evidence that was
                 not available at the time the motion was made
                      No time limit
       A party cannot appeal an order granted on an ex parte motion
             o I.e. cannot appeal the grant of an OTSC
                      But if OTSC includes a TRO, can make a motion (on notice) to
                         vacate, and that denial is appealable
                      Can also make a motion directly in the appellate division (not an
                         appeal) if loser thinks the judge who issued OTSC won’t vacate
                              §5704: review of ex parte orders
  Substance of Motions
  Provisional Remedies: preliminary injunction is most common (also attachment,
  receivership, notice of pendency, order to seize chattel)
  §6301: Grounds for Preliminary Injunction and Temporary Restraining Order
       Prelim Inj may be granted if defendant may do an act in violation of plaintiff’s
         rights respecting subject of action tending to render judgment ineffectual
             o Also where plaintiff has demanded and would be entitled to a judgment
                 restraining defendant from commission of an act which if committed or
                 continued during the action would produce injury to plaintiff.
Credit Agricole: plaintiff loaned money to defendant and are now suing for breach of contract and breach of FD.
Also asking for a prelim injunction to stop defendant from transferring assets so as to be judgment proof. Court says
no right to prelim injunction if plaintiff has no rights in the actual assets (6301 says “subject of the action”), and
plaintiff here has no rights in the property until he gets a judgment. Plaintiff’s request for a permanent injunction
does not give him rights to a prelim injunction because the permanent injunction is incidental to the other C/A and is
only for enforcement of primary relief (which is a demand for money)
        §6301 almost always deals with claims for tangible property
        as a practical matter, prelim injunctions are not available except in equity actions
             o in monetary actions, the provisional remedy is attachment
      To prevail on a prelim injunction
             o Plaintiff must post an undertaking (bond) as provided by the court
                      In case the defendant ultimately prevails and suffers losses as a
                         result of the injunction
                      Because a prelim injunction does not consider the merits
             o Plaintiff must show
                      A likelihood of success on the merits
                      Irreparable injury if prelim injunction is not granted, and
                      Balance of the equities is in plaintiff’s favor
  §6311: Preliminary Injunction


                                                       37
    (a) Must be served with the summons or any time thereafter (therefore must have an
    action pending to get it)
         Rule that plaintiff cannot serve process on a Sunday does not apply to rules
            regarding provisional relief
         Procedure:
                o Commence an action
                o If need for prelim injunction is pressing and standard motion practice does
                   not provide immediate enough relief (because typical time for a RD when
                   motion not sent by mail is 8 days), move for a TRO (§6313)
                         Ex parte motion for OTSC why prelim injunction should not issue
                                Include a TRO and a short RD
                         If granted, serve all papers on defendant by personal delivery
                         Do not have to post bond for TRO (only in effect for a short time)
                o §304: if plaintiff has even less time than is available under §6313, can find
                   a judge anywhere and get him to sign an order
    §3211: Motion to Dismiss
          gives several grounds for dismissal, essentially defenses that are easily proved
                o i.e. (a)(5): collateral estoppel, infancy, res judicata, S/L, S/F
    (a)(7): does not dispute facts; even if all of plaintiff’s claims are true, still no C/A
          need some kind of recovery under some rule of law to maintain an action
Morse: defendants manufactured product that they used on plaintiff. Plaintiff sues for strict products liability, breach of
express and implied warranties, and fraud (in addition to negligence and medmal). Defendants MTD under (a)(7). Court
grants as to strict products liability and breach of implied warranty because of incidental use doctrine (physicians are not
subject to defective products liability for materials used incidentally to their medical services, even if the physician was
the manufacturer), but denies as to breach of express warranty because of an explicit agreement between the parties with
regard to the suitability of the product. The court grants defendant’s MTD fraud C/A but grants leave to plaintiff to
renew the motion to replead upon submission of a pleading identifying the nature of and evidence showing an adequate
ground for the fraud claim because there are special elements to fraud in a doctor/patient relationship.

Lanzi: court grants defendant’s MTD fraud claim because plaintiff did not allege facts supporting an element of a fraud
C/A. different from a plaintiff’s failure to plead facts of fraud with sufficient particularity (to give defendant notice).
Courts are less likely to grant MTD with failure to plead in sufficient detail (will usually grant leave to replead); in
contrast, failure to allege an element of a C/A means that there is no rule of law under which plaintiff can recover.

            MTD most useful to defendant because knocks out plaintiff’s leverage in
             settlement negotiations (i.e. if no fraud claim, no punitive damages)
    (e): procedure for MTD
          Must be made before serving a responsive pleading (i.e. before serving answer)
                 o (f) extends the time to serve a pleading 10 days after service of entry of an
                    order deciding the motion
          No waiver: MTD under (a)(2) – SMJ, (7) – failure to state C/A, and (10) –
             necessary joinder, may be made after answering
          Strict waiver: personal jurisdiction defenses (a)(8) and (9) must be raised in
             answer or pre-answer MTD or they are waived
          Lenient waiver: defenses under (a)(1) – no documentary evidence, (3) – no legal
             capacity to sue, (4) – another action pending, (5) – arbitration, estoppel, infancy,



                                                          38
                etc., (6) – counterclaim may not properly be interposed: must be raised in an
                answer or pre-answer MTD or are waived
                    o BUT court usually allows party to amend paper to add
             One MTD permitted, but can raise non-personal jurisdiction defenses in MSJ
       (c): evidence may be used
            Most MTD do not require evidence but some do
            Court can convert MTD into a MSJ but must give notice to all the parties
                   o If converted, plaintiff must come forward with evidence to supplement his
                        pleadings and respond to affidavits defendant may have submitted in
                        support of his MTD
                   o If no conversion, plaintiff can choose to rely on his pleadings
                             Unless defendant’s affidavits establish conclusively that plaintiff
                               has no C/A, MTD will not be granted
                   o Better for defendant to wait and make MSJ later
      Rovello: defendant’s affidavits raised a strong presumption that plaintiff had no C/A, but did not establish
      conclusively. Since MTD was not converted to MSJ, plaintiff can rely on his pleadings, which do show at least
      initially that he has a C/A.

            (c) also allows the court to order an immediate trial
       (b): motion to strike a defense
            usually only jurisdictional defenses because plaintiff is concerned about timing
                  o otherwise wait and allow defendant to raise the defense when he chooses
                      (because motions and RJIs cost money)
      Riland: defendant included (a)(7) basis as an affirmative defense; plaintiff tried to dismiss that defense under
      3211(b). The court says this basis is non-waivable; it is up to the defendant to decide when to bring it as a defense.
      Plaintiff cannot force the issue and dictate when defendant must argue it.

             plaintiff can force the defendant to argue most other defenses and get an early
              resolution (i.e. S/L, IPJ)
       §3212: MSJ
       Content: notice of motion, affirmation, memorandum of law, evidence, pleadings
           goes beyond plaintiff’s complaint and gets into the merits
           look at the undisputed facts; with these facts, either movant wins or opponent
              can’t win (different objectives when trying to win or trying to defeat)
                  o to win: show that under all the agreed-upon facts, there are no issues for a
                      jury to decide and the issue can be decided by the judge
                           movant can concede facts just for the purposes of the motion
                           if defendant is movant, must simply show that one element of
                               plaintiff’s C/A is undisputed in favor of defendant
                           if plaintiff is movant, must show that all elements are undisputed in
                               favor of plaintiff (unless MSJ is on a limited issue)
                  o to defeat: opponent must show there are disputed issues of fact that a jury
                      would have to resolve
           Will be denied if there genuine issues of material fact
           “material” and “genuine” are critical; often there may be issues of fact in dispute
              but only because plaintiff and defendant are in disagreement
Ugarizza: defendant hit a divider in an unilluminated parking lot; parties do not dispute any facts for purposes of
the motion; only question is whether defendant is negligent as a matter of law. Court says negligence has not
                                                              39
been established – facts need to go to the jury to decide issues such as whether defendant acted reasonably.
Andre: MSJ granted, negligence established as a matter of law because there was no conflict at all in the evidence,
defendant’s conduct was far below any permissible standard of due care, and plaintiff’s conduct either was not
involved or was clearly of exemplary prudence


Goncalves: defendant hotel had a safe deposit box from which plaintiff’s jewels were stolen. Issue is whether the
box was a “safe” under GBL §200. Outcome decides amount of damages if defendant ultimately found liable (so a
MSJ only on this one issue). Court rejects defendant’s argument that MSJ is warranted because the only issue is
an interpretation of a statute, which is a legal question for the judge to decide. Court says there is conflicting
evidence as to the application of the statute, and the question of application (not construction) is left to the jury.

           Most courts would conclude that this was a question of law
               o Goncalves dissent argued that the majority goes against uniformity in
                    statutory application and the legislature’s intent to limit hotel liability
    (a): MSJ has an outside time limit to avoid delay
        o No later than 120 days after filing of note of issue unless court finds good cause
    (b): BP
        o Prima facie case (sufficient evidence that a reasonable jury would find in his
            favor) that movant is entitled to judgment as a matter of law on subject of MSJ
        o BP shifts to opposing party to produce sufficient evidence of a genuine dispute of
            material fact
Gonzalez: plaintiff does not remember the accident in which he was hurt and therefore submits evidence from an
accident reconstructionist; defendant MSJ based on eyewitness deposition that plaintiff caused accident. Court says
reconstructionist’s affidavit was too conclusory and so did not overcome prima facie case established by defendant
with deposition. Court also says there was good cause for delay in making MSJ because of discovery delays.
         o Credibility issues of whom to believe will beat MSJ almost every time (normally
              created by plaintiff’s own recount of the accident)
    (b): Evidence
         o Movant must support by affidavit, copy of pleadings and other available proof
                  o Once movant submits evidence, opposing party must submit its own
         o In general, evidence must be admissible (whatever can be brought in at trial), but
              courts are usually more lenient
         o Court does not decide questions of fact; it looks for questions of fact
                  o Nonmoving party gets the benefit of the doubt
    (f): If facts essential to justify opposition exist but cannot be stated, the court can deny
    MSJ or order a continuance
         o Opponent must show with affidavits that facts do exist and he has tried through all
              reasonable means to obtain them
    (b): searching the record
         o Court can grant MSJ for nonmoving party once movant makes the motion
                  o Only with respect to issues raised in the initial motion
  Glass: plaintiffs are decedents’ children suing defendants for trespass on decedents’ property. Plaintiffs MSJ;
  appellate court grants MSJ for defendants, even though they had not moved, because plaintiffs have no standing to
  sue for trespass on someone else’s land.

    3211(c): conversion to summary judgment
  Mihlovan: defendant asserts pre-answer MTD on (a)(7); on appeal appellate division converts to MSJ because
  defendant’s defense of qualified privilege is an affirmative defense, which should be considered under the law (with
  more evidence than just the pleadings). Court of appeals reverses because court must give notice to the parties to
  convert a MTD to MSJ to give them an opportunity to put in evidence.




                                                          40
     o the Mihlovan case will go back to the trial court, where the defendant will MSJ
         on the issue of qualified privilege, and the parties are right back where they
         started (plaintiff would have been better off treating defendant’s MTD as a MSJ)
  Res Judicata Issues
     o Most time a grant of summary judgment will have RJ effect: if a substantive
         issue, cannot be relitigated
             o No RJ effect when MSJ is on a jurisdictional issue
     o Denial of summary judgment will not have a RJ effect
             o Only a statement that there are issues left to be decided

  §3213: Commencing an Action by MSJ
      Available in limited situations because don’t want to capriciously skip trial stages
         (such as pleadings and some initial discovery)
      Action must be based on an instrument for payment of money only or for
         enforcement of a judgment
      All plaintiff has to do is show the instrument/judgment for defendant to be liable
             o Not available if proof beyond the instrument is required
      An attractive way to proceed because saves time and money
Weissman: defendants default on structured money settlement; plaintiff commences suit for breach on MSJ,
saying indemnification clause in the agreement is a personal guaranty (and therefore an instrument for the payment
of money only). Court says indemnification clause is not a personal guaranty because it is too vague and open-
ended; need outside evidence to show liability. Defendant’s MSJ granted because the indemnification clause could
not be shown as a personal guaranty, even with outside evidence.
         Usually if the court denies MSJ under §3213, MSJ is treated as the complaint and
          the responding papers are treated as the answer
       This provision is not often used for enforcement of a judgment because NY
          judgments are automatically enforceable and foreign judgments have FFC
               o Only when foreign default judgment must be converted to a NY judgment
  Procedure for §3213:
  1. plaintiff files and serves a summons with MSJ (summons invokes power of the court)
  2. MSJ includes the instrument and an affidavit by the plaintiff (to meet prima facie
  burden that the money was not paid)
  3. RD different than ordinary motion because MSJ here is technically an initiatory paper
       RD cannot be earlier than the time period for appearing under CPLR 320 (amount
          of time defendant has depends on how he was served and attendant time periods)
       RD is the date defendant must appear to respond
               o Plaintiff won’t usually see defendant’s papers before RD (can’t force
                    defendant to serve before RD as with regular motion practice)
               o If date is later than §320 minimum, plaintiff can demand answering papers
                    to be served within excess period but not earlier than 10 days before RD
       §3213 does not mention reply papers, but plaintiff should try to serve

  §3215: Default Judgment
      same result as a judgment on the merits with some caveats
      plaintiff must act to get judgment on default entered within one year or it is
         assumed abandoned


                                                      41
             o more than one year if can show good cause/excusable delay
    Who can enter Judgment?
       Clerk, if plaintiff’s claim is for a sum certain and it is within 1 year of default
Reynolds: brokerage firm suing because defendant failed to tender stock certificates and plaintiff had to cover to
satisfy buyers. Stock price had gone up so plaintiff had to pay more, default judgment was entered by the clerk for an
amount equal to the difference between the money paid for the new shares and the money it received from the buyers.
Defendant does not dispute default judgment but says there should be a hearing regarding whether plaintiff properly
covered (had a duty to mitigate). Court agrees, says it was improper for clerk to enter default judgment because actual
sum could not be computed without such evidence, but if defendant fails to show up again he loses right to argue this.
           Default concedes liability but not damages; if sum is certain, concession of
            liability has the effect of conceding damages
                o If sum is not certain, need a hearing (inquest) on damages
                o Classic situation of sum certain: contract with liquidated damages clause
                o Tort/expectation/reliance damages are never sum certain
          Can have an action on instrument for payment of money only that does not have a
            sum certain, so no trial but need an inquest if defendant defaults
                o §3213 can give automatic liability; §3215 can give automatic damages
    (f): Proof required
          Proof of service of summons and complaint (affidavit from the process server)
                o In some cases, needed for complete service anyway (i.e. nail and mail)
          Affidavit from plaintiff of the facts of the case and the amount due together with
            any documentary evidence
                o Or a verified complaint (but only if verified by the client)
          Proof of default (affidavit of attorney)
          Where default is for failure to appear, need an affidavit stating that defendant is
            not in military service
    (g) Notice required
          if defendant has appeared in the action or if more than one year has elapsed since
            the default, must give 5 days notice (serve motion papers 5 days before RD)
          Defendant who has not appeared may serve written demand for notice entitling
            him to 5 days
                o Demand does not constitute appearance
          In contract actions against a natural person, plaintiff must serve a 2nd copy of the
            S&C on defendant 20 days before entry of default ((g)(3))
                o Designed to get at consumer credit actions but really much broader
    (g)(4): Plaintiff must show affidavit of additional service of summons upon a defendant
    corporation authorized in NY at last known address within 20 days of entry of default
    judgment based on non-appearance
          Another protection for authorized corporations
    §5015(a): Relief
          Vacatur allowed if defendant shows excusable default and meritorious defense
          Where defendant did not receive actual notice of the litigation, §317 provides a
            separate ground for relief
                o No requirement of reasonable excuse or defense on the merits
                o Vacatur allowed within 1 year of obtaining knowledge of default and in
                     any event no later than 5 years after entry of default judgment


                                                         42
DiLorenzo: defendant corporation moved and never updated address with Secretary of State. plaintiff gets
default judgment entered, garnishes defendant’s bank account. Defendants seeking vacatur by OTSC. Court
says 5015 and 317 can both be considered, even if one isn’t raised in the OTSC. Court also says the lower
court’s finding of reasonable excuse can only be reversed on an abuse of discretion, and it wasn’t so here.
           OTSC in court that entered default is the only way to make a motion for vacatur

  Disclosure.

  §3101: any party may seek all matter that is material and necessary
      Matter does not mean evidence – does not have to be admissible (as long as it
         might lead to the disclosure of admissible evidence)
      Necessary = needful, not indispensible, test is one of usefulness and reason
      party’s need for information v. possible relevance, burden on the other party, and
         the potential for unfettered litigation
Andon: defendant wants to take plaintiff’s mother’s IQ because claim is for malpractice resulting in brain damage
and defendant claims plaintiff inherited his retardation. Court otherwise probably would have allowed it but balance
is in favor of plaintiff considering the burden on the mother and any collateral litigation resulting from the IQ test

           no need to involve court in disclosure unless there is a dispute
                o requesting party can go to court for motion to compel or opp. party can
                   move for a protective order to be relieved from obligation to disclose

  §3103(a): Protective orders: party seeking disclosure cannot cause unreasonable
  annoyance, expense, embarassment, disadvantage, or other prejudice
      can be issued upon motion or sua sponte
      often when discovery request is too broad

  §3102(c): disclosure may be sought before an action is commenced but only to preserve
  evidence or identify potential defendants
       party must have a meritorious C/A and the information sought must be material
         and necessary to the actionable wrong
Holzman: plaintiff injured in city bus accident, defendant is the transit authority. Plaintiff filed notice of claim and
moved for pre-action discovery for opportunity to inspect the bus. Court says no pre-action discovery because
plaintiff does not have facts upon which to state a C/A and is only looking for some.

  §3101(a)(1)-(4): who can be required to disclose?
      Regardless of the burden of proof (not limited like bills of particulars)
        (1): Parties: includes 3PD, co-defendants, etc.
        (2): Predecessors in interest
  Non-parties
        (3): outside or leaving state, 100 miles from place of trial or too sick to attend trial
        (4): any other person upon notice stating the circumstances or reasons such
        disclosure is sought or required
            o with (3), don’t need a reason for needing info from non-party
      Only if non-party refuses to cooperate (otherwise can just talk to them)
      Can only get depositions and documents (subpoena duces tecum)
      Must serve subpoena with notice of deposition and give notice to all parties (can
        only be served in NY and must be by a statutory method)
Dioguardi: defendant wants to depose plaintiff’s doctor (non-party under (a)(4)). Court says defendant’s reason
that plaintiff’s doctor’s testimony is relevant is not good enough, must be special circumstances. Would be special
                                                           43
if it could not be obtained from other sources (i.e. if defendant’s own doctor could not examine plaintiff). 1st Dept
has held that these depositions can be held without limitation.
              a party may depose its own treating/expert doctor (if it does, opp. party must be
               allowed to do the same) (a)(3)
                   o a party may offer its expert doctor for a deposition and if other parties
                       accept they must make their expert doctors available as well (d)(1)(ii)
       §3101(b)-(d): materials protected from disclosure
       (b): Privileged matter
            §4503 – Attorney-Client Privilege: confidential communications between client
               and attorney for the purposes of receiving legal advice
                   o Evidentiary rule but applies throughout litigation; can assert privilege at
                       any time including in response to discovery requests
Spectrum: plaintiff suing defendant to recover fees, demands memo from defendant relating to defendant’s internal
investigation. Court grants protective order, says requisite relationship exists and memo contains privileged information,
doesn’t matter that it contains non-privileged information as well. Must look at document as a whole, memo was made in
order to assess defendant’s legal position and therefore to render legal advice. Fact that no legal conclusions were reached,
that no litigation was imminent, and that no legal research was included does not change privileged nature of the document.

                   o Burden is on party asserting privilege – fact-specific determination
                            If privilege applies, is absolute unless waived
                   o In corporate context, privilege applies to any EE who discusses matters
                       within the scope of his employment to the corporate attorney
       (c): Attorney work product: mental impressions and legal analysis
            Materials which reflect legal research, analysis, conclusions and legal theory or
               strategy prepared in anticipation of litigation
            Absolute immunity
Hoffman: plaintiff suing landlord for failure to secure premises, landlord seeking disclosure of names and addresses of
witnesses other than eyewitnesses. Court considers broad discovery principle and says info regarding names and
addresses of potential witnesses who may testify to notice and condition of which plaintiff complains is not attorney work
product and therefore is discoverable.


       (d): Materials prepared in anticipation of litigation or for trial
            Fact-specific: need evidence that person who found info was thinking of the
              litigation at the time
            Includes records of factual investigations
            Not absolute: protection may be overcome upon showing of substantial need and
              no means of obtaining substantial equivalent without undue hardship
                   o May be shown if circumstances have changed; not if a deposition may be
                       taken to get the information
                   o If shown, opponent can piggy-back on attorney’s investigation
            After Hoffman, disclosure of witnesses is limited to witnesses to events of
              litigation, not expert witnesses or character witnesses
       Analysis:
              1. Is info material and necessary? 3101(a)
              2. Is it particularly burdensome, intrusive, risk confusion of issues? 3103
              3. Is it privileged or immune? 3101(b)-(d)
              4. If immune because prepared in anticipation of litigation, does party have
                   alternative means or can party obtain substantial equivalent? 3101(d)(2)
       §3101(d)(1): Experts


                                                            44
             No disclosure required for consulting (non-testifying) experts unless requesting
              party fulfills (d)(2) showing
                  o Protected as trial preparation materials
             Disclosure of testifying expert is limited to identity, subject matter and substance
              of testimony, qualifications, and grounds for opinion
                  o Identity not required in medmal cases
                  o If testifying expert looks at privileged material, privilege is lost
             No time limits for disclosure, but if going to be last minute, need good cause
SAAR: plaintiff in medmal case seeking disclosure of defendant’s expert witnesses; defendant dr. said he didn’t have
one yet; defendant hospital said gave only cursory and general information. Court says dr. cannot be required to give
name of expert now since 3101(d)(1) gives no time limit, despite prejudice to plaintiff of risk of eve-of-trial
disclosure. Hospital’s disclosure was inadequate and did not fulfill the rule. Although court cannot give exact
definition for satisfaction of the rule, a good faith effort is required.

    §3101(e): a party may obtain his own statement
    §3101(g): Accident reports
        Discoverable if made in regular course of business, even if made solely in
          anticipation of litigation
               o Report not made in regular course of business and in anticipation of
                   litigation is not discoverable
        Not discoverable if prepared by liability insurance company in anticipation of
          defending claim against insured
Miranda: plaintiff suing manufacturer and ER, plaintiff’s supervisor made oral statement to defendants that was
transcribed, plaintiff seeks disclosure as an accident report. Court says statement was made in the regular course of
business and therefore discoverable.

    §3101(i): Surveillance films and other films, photos, videotapes or audiotapes of a party
    must be disclosed
    §3101(h): Amendment or Supplementation
        Every party has an ongoing disclosure obligation
        Must amend or supplement if realize later that disclosure was inaccurate or
           incomplete

    Depositions
         Forced question and answer about any relevant information in the case
         Most effective way to get information not filtered through opp.’s attorney
         Functions:
                 1. discovery (strengths and weaknesses of both positions)
                 2. set up W for impeachment at trial (§3117(a)(1))
                 3. get damaging admissions from other side
                         can be used both at trial and in MSJ
                 4. preserve testimony for trial ((a)(3))
    §3115: Objections in depositions
         rules try to create a balance between preventing obstruction of info-gathering
             during deposition and preservation of privilege and non-relevant material
    (a): objections are preserved, attorney not allowed to object on certain bases but can do
    so if statements are brought up at trial (i.e. hearsay, character evidence)


                                                          45
               (b): attorney can object as to form (i.e. leading, assuming facts not in evidence) but
               objections are waived if not raised
                    attorney can also object to questions seeking privileged information
                    as a general rule, attorney cannot instruct client not to answer
Procedure of
                    cross examination is not limited to the scope of the direct
Depositions    §3107: Notice
                    must give time and place, must be served on deponent and all parties
                    must give at least 20 days before (+5 if mailed)
                    for non-parties, notice must be served with subpoena by a service method
                    party being deposed may notice other party’s deposition for the same day – must
                        give 10 days notice
               §3112: Errors in notice are waived unless objected to 3 days before deposition
               §3106: Priority
               (a): plaintiff may not depose defendant before time for serving answer expires
                    defendant can get deposition priority by serving notice with answer
                            o priority minimized by noticing defendant’s deposition on same day as
                               plaintiff’s deposition
               (d): corporation gets to chose whom to produce for a deposition
                    corporation may designate an EE but can change designated EE on 10 days notice
                    should be someone with knowledge of the subject matter of the action
               §3110: Place of Deposition
                    for parties, county where the action is pending
                    for non-parties, county where deponent resides or had a business office
                            o for non-resident non-parties, county where deponent was served
                    outside the state, by commission (§3108)
               §3111: Production
                    Notice (and subpoena for non-parties) may require deponent to produce books,
                        papers and other things
                    Rule only useful for non-parties (other discovery devices available for parties)
               §3113: Conduct of Exam
               (a): deposition must be taken before a notary (who also can give the oath)
                    Often a court reporter
               (b): can be transcribed or videotaped
               §3116(a): deponent has 60 days to review transcript, make changes and sign deposition
                    If does not do so within prescribed limit, deposition is treated as if signed

               Interrogatories
                    Written questions/requests for information
                          o May ask about any relevant information (3101(a))
                          o Courts are willing to pare down/strike overly burdensome questions
                    Answered by attorneys; therefore pre-packaged and not spontaneous
                          o Good for getting basic data
                          o Must be notarized and signed by the party
                    Can have multiple sets of interrogatories and document requests
                          o As parties keep discovering new info


                                                         46
           1st questions usually ask who defendant is, important EEs, partners, officers, etc.
                 o looking for people to depose
                 o get info regarding insurance policies (facilitates settlement)
         Usually contains a definitions section (because terms like “document” are not
            defined in the CPLR)
                 o Respondent likely to interpret terms narrowly
    §3133: party must respond within 20 days of service (+5 if mailed)
         Usually difficult to comply; parties often ignore this limitation
    (a): party must respond or object (and if objecting must state grounds for objection)
         Parties must supplement response if they get more information (§3101(h)
            continuing disclosure requirement)
    (b): interrogatories must be answered separately and fully for each question
         Also must include the question before the answer
    §3130: Availability
         Interrogatories cannot be served if party has demanded a bill
            ○ except in matrimonial actions
            ○ usually pick interrogatories because can seek evidence/names of witnesses
         In an action based solely on negligence, cannot serve and also take a deposition
    §3131: Scope
         May require copies of documents that are relevant to the answers required

    Request for Discovery and Inspection - §3120
        Can get more than documents (i.e. handwriting sample)
        Available from any party and non-parties upon motion
                       Nonparties: subpoena duces tecum is better than §3120 because it
                         does not require a motion to the court first
                       typically only use §3120 if party wants to enter land of non-party
        must give at least 20 days notice
        Request items individually or by category, described with reasonable particularity
                       can use “all” or “any and all” if category is sufficiently identified
  MacKinnon: court frowns upon plaintiff’s use of “any and all” language to request defendant’s financial
  documents, says this constitutes an impermissible fishing expedition. Plaintiff should depose defendant first to
  determine exactly what she needs. KIRGIS thinks this opens the door for dilatory discovery objections and fights.

    §3122(a): responding party must produce requested items or serve a written objection
    (b): if document is withheld based on privilege, must serve a privilege log with
    identifying information in addition to objecting

    Notice to Admit - §3123
        establishes facts as true for all purposes of the litigation
                o facts about which party believes there will be no substantial dispute at trial
                o most often used to authenticate documents
        cannot be used to seek admissions of material issues or ultimate or conclusory
            facts, interpretations of law, questions already admitted in responsive pleadings,
            or questions clearly irrelevant to the case
Villa: court allows requests to admit status as owner of a building, as landlord, and attendant duties. Inappropriate to
request an interpretation of health code or the general municipal law; also should not request defendant to admit facts
on public record, because plaintiff could find those out herself.
                                                          47
               responding party must deny or state why they cannot admit or deny
                    o matters not denied are deemed admitted (i.e. can be relied on in MSJ)
                    o may admit with qualification or explanation
                    o if refusal to admit is unreasonable, responding party may be required to
                       pay cost of proving the matter at trial
               response probably must be sworn by the party
               response must be made within 20 days of service of notice
                    o strict time limit – automatic sanction

       Physical and Mental Evaluations - §3121
            physical or mental examination of a party (or agent or EE) by a designated
              physician may be required only if such condition is in controversy
       Uniform Rules have superseded CPLR in this area
            i.e. CPLR allows 20 days notice but UR requires 30 days
       UR 202.17: Examined party must give its own physician’s reports to examining party and
       authorize disclosure of medical records
            tricky issue because of doctor/patient privilege (§4503)
                  o party has burden of putting issue in controversy by submitting evidence of
                      that condition
                  o burden shifts to person claiming privilege to assert it by seeking a
                      protective order
                  o burden shifts to party to prove privilege has been waived because
                      condition “in issue”: being used as part of claim or affirmative defense
                           PI plaintiff’s condition will always be in issue
Dillenbeck: defendant killed plaintiff in drunk driving accident, convicted of criminally negligent homicide in criminal
proceeding. Plaintiff wants defendant’s medical records which contain her BAC. Court holds issue is in controversy
(because plaintiff argues that defendant was drunk at the time of the accident) but that privilege overcomes §3121
because defendant has not waived privilege by putting it in issue.

               Examining party must give examined party a copy of physician’s report within 45
                days of examination

       Compelling and Avoiding Discovery
       Primary method of avoiding disclosure is objection (3115: to deposition; 3122: to
       discovery and inspection; 3133: to interrogatories) and refusal to disclose
               alternative is to seek a protective order (3103), which is also a tool for
                  managing the discovery process and limiting subject matter to be disclosed
       Process for Compelling Discovery
           1. Serve request
           2. Good faith effort (send a letter requesting disclosure)
           3. Move to compel
           4. Move for sanctions
               If party wants to skip motion to compel, should show willfulness by failure to
                  respond to repeated correspondence and good faith efforts to resolve dispute
       §3124: Motion to Compel
               Results in an order directing the other party to disclose
               Movant must show failure to respond or comply (show letter)


                                                           48
               Does not carry a penalty (this often leads receiving party to be recalcitrant and
                forces moving party to go back to court for sanctions)
    §3126: Motion for Sanctions
         Available for refusal to obey discovery order or willful failure to disclose
    (1): Resolving order – issue resolved in favor of movant
    (2): Order of Preclusion – prevents opp. from introducing evidence on the issue
         Movant still has burden of establishing that the fact is true (but will inevitably win
            if movant does so because opp. prevented from responding)
         Conditional order of preclusion is most common sanction (i.e. opp. gets 30 days
            to comply with request)
    (3): Order striking out pleadings – prevents opp. from litigating some or all issues
         Can strike out opp.’s whole pleading
Siegman: Trial court ordered defendant to serve supplemental responses, which it failed to do, and plaintiffs moved for
sanctions. Defendants then said documents could not be found but did not indicate what efforts were made to find
them. Defendant’s actions willful because of repeated failure to respond to discovery demands and inadequate excuses.

    Calendar Practice.

    Ways for the court to structure litigation
       Preliminary Conference – 22 NYCRR 202.22
               o Early in litigation
               o Sets a schedule for progress of pretrial litigation (i.e. discovery schedule)
               o Only required where one party makes a motion, but judges are likely to
                  schedule in every case (although he is never there)
       PreTrial Conference – 22 NYCRR 202.26
               o Not mandatory but usually in every case
               o Between 45 and 15 days before trial
               o Purpose: simplification of issues, obtaining admissions, attempting
                  settlement, limiting witnesses, etc.
               o Judges often pressure parties to settle, have a lot of subtle power
                       Can get away with making faces, overruling objections, etc.
Wolff: judge put case on quickest trial calendar as punishment for defendant refusing to settle. Settlement should be
voluntarily reached by mutual consent; judge can use influence, but not pressure parties so that they settle without
their day in court. App Div says “gross” abuse of discretion.


    Getting the Case on the Trial Calendar
    §3402; 22 NYCRR 202.21 – Filing Note of Issue
          Lets court know what has been done so far (issue joined, summons served, etc.)
          Must be served on all parties with a certificate of readiness and then filed within
            10 days of service
                 o Certificate of readiness shows court that plaintiff has fulfilled all
                     requirements thus far (completed discovery, exchanged medical reports)
          Puts case on applicable trial calendar
    202.21(e): within 20 days of service, any party can move to vacate/strike note of issue if
    it thinks it was filed too early (or court can do this sua sponte)
          Can be reinstated (202.21(f)) but must be within 1 year


                                                         49
             Move to strike beyond 20 days if the party has good cause for waiting (i.e. didn’t
              know before that he would need more time for discovery)
       202.21(d): court may allow additional discovery if unanticipated circumstances arise
           Defendant’s choice is to strike note of issue because takes case off the calendar
           Filing note of issue does not affect expert disclosures or admissions or general
              ongoing obligation to supplement discovery

       Preferences - §3403
       Cases are generally tried in the order in which the note of issue was filed
           At some point the court gives a general preference to get the trial started
           Special preferences bump the case up in line
                  o Plaintiff must seek special preference at time of filing of note of issue and
                      make motion for special preference
                            If defendant wants preference, make motion w/in 10 days of filing
                  o I.e. Actions against the state, Party is 70 years or older, Medmal, Plaintiff
                      is terminally ill and claims that defendant caused illness, etc.
                            Also “interests of justice”
  Tintner: plaintiff is 72, on social security, claim is for loss of employment which lowered his limited income. Court
  says old people deserve special consideration in terms of preference, especially if a party’s resources are inadequate to
  permit living in both dignity and self-respect. (Case is before 70 years criterion for special preference was in CPLR)

       Trial.

       Jury Trial
       NY Art. I § 2 grants jury trial for all actions at law at common law and before 1894
           Also for actions that are analogous to those given jury trials traditionally
       §4101(1): jury trials allowed in actions for sum of money only
DES: litigation in which each defendant will show how much they received of the general market sales of DES to
determine their individual liability. Court rejects defendants’ argument that there should be no jury trial because this is
essentially an action for damages (and just deciding the causation issue, which has always been a jury issue).

       (2): Jury trials allowed in equitable actions for which NY allows a jury trial
            I.e. ejectment, dower, etc.
            Otherwise, no jury trials for actions in equity (decided by the judge)
  DiMenna: plaintiff bringing action to foreclose a mechanic’s lien and alternatively for damages. Court says plaintiff
  cannot foreclose defendant from getting a jury trial simply because plaintiff has joined an equitable claim. Plaintiff only
  prevents himself from a jury trial of legal issues in that case.

       §4102(c): joinder of equitable and legal claims does not waive plaintiff’s right to jury if
       claims arise out of separate transactions
            Defendant does not get a jury trial on equitable defenses or CC, even if plaintiff’s
              claim is at law
            Defendant can get a jury trial on legal CC even if plaintiff’s claim is equitable
       §4102(a): plaintiff must demand jury at filing of note of issue
            If plaintiff does not, defendant must do so within 15 days of service



                                                             50
    Selection of Jurors
    §4104: jury is composed of 6 jurors
    §4107: unless judge’s presence is requested, attorneys conduct voir dire
    §4110: Challenges for cause
         Relationship (blood or marriage)
         To the favor (bias)
    §4109: Peremptory
         Each side gets 3 plus 1 for each alternate juror
         Must comport with equal protection: challenges constitute state action when the
            court sustains them
               o If a party has a prima facie case of racial discrimination (usually statistical
                    showing), opponent must give a race-neutral explanation
Siriano: white plaintiff objecting to defendant’s use of peremptory challenges to strike black jurors. Court says Batson
ruling against discriminatory challenges has been expanded to cover all protected groups (i.e. gender) and civil
litigation. Parties may also enforce a juror’s right to serve on behalf of the juror. Plaintiff and juror do not have to be
the same race. Court says defendant’s argument that minorities are more likely to find for personal injury plaintiffs is
not race-neutral, orders 3 remaining minority jurors to be on the panel.

    Charge - §4110-b
        Each side submits proposed instructions, judge decides what to say
        Proposals usually given after summation but CPLR allows it before that

    Verdict - §4111
    1. General verdict: jury finds in favor of one or the other party without explanation
         Difficult when there are complex issues, multiple parties, etc.
    2. Special verdict: jury finds facts by answering written questions (interrogatories)
         Judge determines which party is entitled to judgment
         Required in certain cases (medmal, public ER, etc.) because of fault
           apportionment problems
    3. General verdict with interrogatories: jury gives verdict and answers factual questions
         If interrogatories and the verdict conflict, the interrogatories control

    Post-Trial Motions
        During and after trial, parties make motions to resolve issues either without or in
           contravention of a verdict
    Judgment as a matter of law
        May be made
               o During trial after close of either party’s case (directed verdict - §4111(a))
                       If plaintiff fails to establish a prima facie case or defendant fails to
                          meet its burden of production
               o After trial (JNOV - §4404(a))
                       Either party can make a motion JNOV if they feel the verdict for
                          the other party was against the weight of the evidence
                       Court more likely to grant JNOV than directed verdict: if appellate
                          court disagrees with judge’s decision it can just reinstate verdict



                                                          51
       Standard: taking all evidence in the light most favorable to the nonmoving party,
        no reasonable person could find in that party’s favor
            o No valid line of reasoning or permissible inferences for the jury to make
            o Same as MSJ: appropriate when no genuine issues of material fact
 Cohen: Plaintiffs get $50k in punitive damages; defendant contests because says did not act knowingly. App.
 Div. deletes award as a matter of law because not enough evidence to warrant jury finding that defendant acted
 knowingly. Ct. App. reverses, says knowing use is a factual determination for the jury to decide. JMOL would
 have been appropriate only if there had been no questions of fact for the jury. App. Div.’s job here was to decide
 whether jury finding was against the weight of the evidence (and if so, to order a new trial).

     Appellate review standard: de novo
           o Trial judge is given little discretion because JMOL takes away the party’s
              right to a jury trial
           o Same standard for MSJ
Motion for a New Trial - §4404(a)
   May be made when the jury’s finding is contrary to the weight of the evidence
           o Standard: not supported by any “fair interpretation” of the evidence
           o Lower standard than JMOL
   Appellate review standard: abuse of discretion
           o Trial judge’s decision is given deference because a new trial won’t really
              infringe on the right to a jury trial
   Nicastro: medmal action; all parties are dead before goes to trial. Jury found that defendant was not negligent
   and trial judge set aside the verdict and ordered a new trial. App. Div says judge did not abuse his discretion
   because consideration of a new trial involves a discretionary balancing of many factors indicating that
   substantial injustice has been done. Judge given respect because he was at the trial and knows the parties’
   evidentiary positions, especially if the loser’s was much stronger than the victor’s.


Res Judicata

Claim Preclusion
    Bars relitigation of causes of action (defined as transactions or occurrences)
          o Prohibits related claims regardless if not previously litigated
 O’Brien: plaintiff lost an Article 78 proceeding in which he had claimed de facto taking of his land by the city;
 later brought an action for trespass. Court said plaintiff’s action barred by claim preclusion because once a
 claim is brought to a final conclusion, all other claims arising out of the same transaction are barred, even if
 based upon different theories requiring different evidentiary proof or if seeking a different remedy.
       Earlier action must have resulted in a final judgment on the merits
           o Procedural dismissals, 3211(a)(7) motions granted without prejudice, and
                default judgments entered after all parties have appeared are not included
       Both actions must involve the same parties (identity of parties)
       Merger: if plaintiff wins, all claims related to that transaction are merged into the
        judgment and plaintiff cannot thereafter bring a related claim against defendant
       Bar: if he loses, barred from later bringing any claims related to that transaction

Issue Preclusion
     Bars a party from relitigating issues decided against it in an earlier action
           o Only need the party from the earlier action against whom IP is being used


                                                    52
           o Offensive IP: plaintiff in new case using the issue decided in the earlier
               case against the defendant
        Must have:
           o Identity of issue which has necessarily been decided in the prior action
               and is decisive of the present action
  O’Connor: plaintiff found 60% negligent in civil suit; in suit against the state each party was found 50%
  negligent. State says there can be two different determination on plaintiff’s comparative negligence because
  each is between two different parties; the civil suit did not resolve the relative culpability of the plaintiff as
  against the state; therefore, they are two different issues.
  Weiss: earlier decision decided that there had been no fraud between plaintiff and defendant and therefore
  plaintiff’s settlement could stand. Court says attorney in 2nd action cannot use IP to prevent plaintiff from
  arguing that the settlement was insufficient. Issue in 2nd action is whether attorney was negligent in
  procuring a sufficient settlement is different from 1 st action, where it was determined that as between
  plaintiff and defendant there was no fraud to invalidate the settlement.
              o A full and fair opportunity to contest the decision now said to be
                controlling by the party against whom IP is being used in the earlier action
                    If there is a disparity in the actions so that the defendant may not
                        have had motivation to litigate in the first, court might not allow IP
Kaufman: defendant being sued in a number of drug cases; plaintiff using “test case” to preclude defendant
from litigating certain issues. Left out proximate cause issue because that issue was specifically tied to
plaintiff in the test case; plaintiff still has to prove her own injuries were caused by drug. Court says plaintiff
can’t get IP on concerted action claim because several legal theories and court has not yet ruled on which
theory is appropriate. Also not litigated because defendant failed to object to claim in test case.


Special Proceedings.

Hybrid between a motion and a normal action
    Plaintiff and defendant = petitioner and respondent
    Complaint = petition; summons = notice of petition
           o Petition contains numbered allegations like a complaint
           o Contains time and place like a motion (has RD – 403(b))
           o Time for serving and responding before RD same as a motion
                    Not for Article 78 Proceedings
           o Affidavits are attached to petition like a motion
    Commence proceeding by filing as with a trial
           o Then serve process through normal means – 306(b)
                    But must be served within 15 days of expiration of S/L (which is 4
                      months or sometimes less)
    Common method is OTSC because can get preliminary relief and adjust time
       periods for serving and responding
           o Service of process usually by personal delivery
    No discovery allowed without leave of court except for admissions
           o Court attempts to resolve the matter based on papers (like a motion)
              without even a hearing
           o If evidentiary proof is required, court will order a trial



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Article 78 Proceedings: Proceeding Against a Body or Officer
     Must be brought in Supreme Court – 7804(b)
           o Don’t trust lower courts to review actions of government entities
           o Exception: if the respondent is a Supreme Court justice, the action must be
               brought in the Appellate Division
     Petition and answer must be verified – 7804(d)
     RD must be at least 20 days after date of service – 7804(c)
           o Answer 5 days before RD
           o Reply 1 day before RD
     S/L is 4 months or less – 217(1)
           o Begins to run from the time the agency’s decision becomes final or the
               agency refuses to act
           o Hard to tell when this takes place, so most courts treat this as the date the
               petitioner receives notice of the action
Remedies
     Usually a specific order compelling or preventing an action
           o Sounds like an injunction but really a remedy at law (if petitioner has an
               Article 78 claim, must bring it and cannot bring an injunction)
 Hamptons Hospital: petitioner challenging respondent’s decision to review an initial determination approving a
 hospital. App. Div. converts action into one for an injunction. Ct. App. says petitioner seeking mandamus to
 compel (not to review because that requires a final decision and one hasn’t been made here), but because he is
 trying to compel the agency to make a decision over which it has discretion, Article 78 is not available so an
 injunction proceeding is appropriate. DISSENT says injunction isn’t appropriate; Article 78 is available even if
 petitioner would ultimately lose on the petition. Whether petitioner can bring the petition and whether he will
 prevail are two different issues that courts often lump together (because no MTD with Article 78).

      Possible to get monetary relief as long as it is incidental to the main relief
          o I.e. a government EE seeing reinstatement can get backpay
    Article 78 can be used against universities, corporations, etc. but usually against
       government entities
Three Types
   1. Certiorari – 7803(4): review decisions made in trial-type evidentiary hearings
          a. Usually determinations that affect individual rights (i.e. revocation of
              parole, of welfare benefits, etc.)
          b. Standard of review: agency’s factual determinations will be upheld as long
              as they are supported by substantial evidence
                   i. Legal decisions are reviewed to make sure there were no violations
                       of procedure, errors of law, or abuses of discretion
          c. Supreme court reviews legal decisions, after which appellate division
              reviews factual determinations (7804(g))
                   i. Initial factual procedure is formal so no need for Supreme Court to
                       repeat that process
   2. Prohibition – 7803(2): to prevent a judicial actor from taking an action that
       exceeds his jurisdiction (Rare to allow this proceeding)
          a. Court has discretion, considers factors such as the gravity of the harm
              caused by the excess of power, whether that harm can be adequately



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                  addressed by other remedies (such as an appeal after trial), and the burden
                  of collateral proceedings on the judicial process
                      i. Maybe if judge wants to violate double jeopardy, open grand jury
                          transcript, proceed on a complaint alleging C/A without SMJ
La Rocca: judge won’t let defense counsel wear clerical garb because prejudicial to the state and therefore no fair
trial. Ct. App. says prohibition proceeding is proper considering free exercise is a fundamental right and no adequate
alternate remedies (an appeal takes a chance for the defendant; proceeding in contempt and getting a writ of habeas
corpus takes too long). Court finds no excess of jurisdiction because infringement on petitioner’s freedom of religion
is not strong enough to outweigh risk of prejudice at fair trial.
    3. Mandamus
         a. To Review – 7803(2): final non-trial-type administrative determinations
                 i. Informal proceedings, may use hearsay evidence, may be an ALJ,
                    maybe no cross-examination, etc.
                ii. Standard of review: factual decisions will be upheld unless they are
                    arbitrary and capricious (more deferential than with certiorari
                    because these decisions typically do not involve individual rights)
                        1. Legal decisions are reviewed to make sure no violations of
                           procedure, errors of law, or abuses of discretion
              iii. Both factual and legal decisions are reviewed by Supreme Court
125 Bar Corp: petitioner was denied renewal of his liquor license based on reports of violations (hearsay but informal
hearing so ok – would have been a formal proceeding if agency had revoked the license). Court says not enough
evidence to justify this decision, so it had no rational basis, so it was arbitrary and capricious.

             b. To Compel – 7803(1): nondiscretionary ministerial acts
                    i. I.e. to compel an agency to take an action required by law




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