Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>

New York Practice Outline - Fordham Law School - Professor Dillon by kimny113

VIEWS: 11,033 PAGES: 83

									1. The Hodgepodge of Courts and their SMJ - all in Siegel - don't worry too much about the details a. Federal i. District courts ii. Circuit courts of appeals iii. U.S. Supreme Court b. State i. Village courts and Town courts 1. $3000 jurisdictional limit a. If aggregate is over, can't have case there but can try each separately 2. Small claims court a. Many rules of procedure, etc. apply b. Court can do anything that provides "substantial justice" 3. Regular civil part a. Subject to all the regular procedural rules 4. Traffic cases 5. Municipal code violations 6. LL/tenant disputes w/ town or village 7. Criminal cases a. Can dispose of misdemeanors or violations b. Cannot dispose of felonies - go to county court 8. Service of process only effective in town or village or any adjoining county 9. Judges elected to 4 year term ii. City courts 1. $15k jurisdictional limit 2. Traffic, LL/tenant, criminal cases w/in the city 3. Like village and town, can dispose of misdemeanors, violations 4. Cannot dispose of felony cases 5. Can perform felony hearings to determine if enough evidence to present to grand jury 6. Service of process must be w/in county where city is situated 7. Judges elected to 10 year term iii. District courts 1. Only Nassau and Suffolk counties 2. $15k jurisdictional limit for regular civil part, but small claims limited to $5k 3. Process can only be served on a D who initiates a case w/in the county where the district court sits 4. Judges elected to 6 year term 5. Criminal jurisdiction same as city, town, village iv. NYC criminal court 1. In every other county, criminal cases begin in town or village court 2. Judges have 10 year terms, but are appointed by mayor, not elected 3. Same functions as village, town, city, dist. cts. 4. Cannot dispose of felonies - go to supreme court

v.

vi.

vii.

viii. ix.

x.

xi.

xii.

NYC civil court 1. $25k jurisdictional limit 2. No limit on counterclaims (different from what we've seen in the other courts) 3. Has a small claims part that can hear up to $5k County courts 1. 62 counties in state 2. Judges elected to 10 year terms 3. $25k civil jurisdiction 4. No limit on counterclaims 5. In most counties (not the 5 in city of NY) used almost exclusively for criminal felonies 6. Why would you bring a case to county court? If over limits of another court, but most people don’t do that and go right to supreme Family courts 1. Judges elected to 10 year terms on county-wide basis 2. 5 or 6 subject areas that supreme court can handle but family court handles b/c more specialized court: adoption; offenses b/t family members like spousal abuse; juvenile delinquency; paternity disputes; custody and visitation - not including divorce 3. Not subject to jury Surrogate's court 1. Specialized to issues of wills and estates 2. Judges elected to 10 year terms Court of Claims 1. Lawsuit against state can only be brought here 2. Not subject to jury 3. Judges appointed by governor Supreme court 1. Court of unlimited jurisdiction - no limit on how much money can be awarded - but actually a court of general jurisdiction, b/c can also do what the other courts can do (concurrent jurisdiction) 2. Used primarily for civil cases 3. Can handle felony criminal cases but by and large doesn’t, unless cases come to it from NYC criminal court 4. Judges elected to 14 year terms Appellate terms of supreme court 1. Takes appeals from village, town, city, district, nyc criminal, and nyc civil courts 2. Panels of 3 judges on any term, 2 of which must agree to result 3. Judges selected by Administrative Judge of NY 4. 95% trial level, 5% appeals Appellate division of supreme court 1. Takes appeals from county, family, surrogate's court of claims, supreme court, and even split decisions from appellate term

2. 100% appellate work 3. Judges appointed by governor and must currently sit on supreme court 4. Usually 5 judge panels 5. Divided into 4 departments 6. Exception where appellate division can hear case initially - Article 78 xiii. Court of appeals 1. 7 judges, appointed by governor for 14 years need not occupy underlying seat on supreme court 2. Can only take cases from appellate division w/ 1 or 2 exceptions (certain death penalty issues, but that law is basically done; or if federal court wants clarification on NY law for one of its own cases, can ask court of appeals to certify question) 3. 3 instances where cases can go from appellate division to ct. of appeals: a. 2 dissenting judges in decision b. Permission from appellate division c. Permission from ct. of appeals xiv. U.S. Supreme Court c. What happens if you bring a case in the wrong court, or bring it in right court but find out your damages can be higher and want to go to a diff. court? i. CPLR 325b: bring motion to supreme court to remove case to its court b/c it has SMJ ii. Case can be pushed down in 2 ways: 1. 325c: Plaintiff consents to lowering of damages to number w/in lower court, then an order can be rendered from supreme court pushing case down to lower court 2. 325d: Supreme court has authority to send case down w/o P's consent, if in assessing case decides its worth less (but P can still recover more) 2. Statute of Limitations a. 3 concepts: i. Duration ii. Accrual iii. Toll b. Duration i. CPLR 201: Cases commenced in court must be commenced w/in SOL w/ 2 exceptions: 1. When there is some different time proscribed by law (e.g. case law) 2. An agreement b/t parties that the SOL shall be either longer or shorter - must be a written agreement - binds parties and courts (judges have no authority to extend the SOL) ii. Spierig v. Evans: D moved to dismiss P's claim on grounds that it was barred by SOL by 1 day. P argued,

iii. iv.

v.

vi.

vii.

viii. ix.

don't dismiss as being untimely b/c the D should be estopped from arguing that the case is untimely b/c they were investigating a claim and negotiating a settlement. Ct. held not a sufficient excuse - even though 1 day untimely, case dismissed. Exceptions to SOL are very rare If parties agree to lengthen an SOL from what would otherwise be provided for in the law, the agreement they put into writing MUST be created before the SOL that the law would otherwise provide for expires. If the parties agree in writing to shorten the SOL, only enforced by the court if it is reasonable. CPLR 211: 20 year SOL 1. (a) Bond: action to recover principle or interest 2. (b) Collect money judgment that hasn't been satisfied by the person owing you money from a previous suit 3. (c) By state of NY to recover real property or rents owed on real property 4. (d) Land grants by state of NY to individuals - rare - but interest on such a grant is 20 years 5. (e) Matrimonial cases: where one spouse owes the other child support or alimony CPLR 212: 10 year SOL 1. (a) Adverse possession 2. (c) Redeem RP from a mortgage - distinguishes b/t mortgage on RP and repossessing property itself - this section talking about an action by, let's say bank, in action to repossess the property - doesn't cover seeking money damages for breach of the mortgage itself CPLR 213: 6 year SOL 1. (1) Action for which no limitation is proscribed by law - by default use 6 year SOL a. Example: equitable relief 2. (2) Generally speaking, a claim to recover damages for breach of contract is 6 years 3. (4) Bond or note - unlike 212(c) which was for real property itself, here it's for the money 4. (6) Mistake - another way of saying reformation of contract 5. (7) Corporate cases by or behalf of company against corporate officers 6. (8) Fraud a. 6 year period measured from when fraud is committed OR b. 2 years from its discovery - from when it reasonably should have been discovered i. Reason: fraud is often concealed Espie v. Murphy: Lawsuit should have been brought earlier b/c Ps should have known of the fraud. CPLR 214: 3 year SOL 1. (4) Property damage (personal or RP)

x.

xi.

xii.

xiii. xiv.

xv.

2. (5) Personal injury 3. (6) Malpractice other than medical or dental legal, accounting, architectural 4. (7) Action to annul marriage on grounds of fraud measured not from marriage but from discovery of fraud CPLR 214-a: 1. 2 1/2 year SOL: Medical, dental, podiatric malpractice (as opposed to 3 year general negligence SOL) a. 2 1/2 years of act where there is continuing treatment - what is continuing treatment? b. 2 1/2 years not measured from when malpractice actually occurred; measured from time you stop treating w/ doctor who originally malpracticed c. Example: failure to diagnose cancer 2. Foreign Object: 1 year from discovery or discovery of facts that would reas. lead to such discovery, whichever is earlier 3. No mention of chiropractor or nurse - statutes unclear - case law says treated as med. malpractice - 2 1/2 years 4. Brainstorming other professions: a. Psychiatrist - 2 1/2 year medical, but psychologists 3-year professional b/c deal w/ head and not body b. EMT: 2 1/2 years if acting as Dr., 3 years if just driving ambulance c. Normal lab: 3 years; lab headed by Dr. is med malpractice 2 1/2 years d. Orthodontists considered dentists - 2 1/2 years CPLR 214-b 1. Agent Orange - 2 years from date of discovery or from reas. diligence cause of injury should have been discovered (case by case basis) CPLR 214-c 1. 3 year discovery rule as result of exposure or latent effects of exposure to substances - must be a toxic substance a. Written as a result of asbestos CPLR 215(3): 1 year SOL 1. Intentional torts: defamation, assault/battery CPLR 215(50: 2 year SOL 1. Wrongful death: a right the distributees have for their loss as a result of someone else's death 2. 2 years from toll but a toll - longer than 2 years when you factor in the toll CPLR 215-i 1. Most lawsuits against municipalities are 1 year, 90 days

General Construction Law 57 - adopts Pope Gregory's weekday calendar system 1. 58: Feb. 28 and 29th shall be deemed a single day xvii. If you have an accident today, begin counting SOL tomorrow - 1st full day after claim has arisen. If ends on a Sunday, rounded off onto next business day. If lands on holiday, get benefit of an additional day. xviii. When SOL's are measured in years, it's easy, but some are measured by days. A count of days means just that. xix. Multiple theories of recovery - each theory has its own SOL. Every claim is looked at individually in terms of how long SOL is and when it accrues (when the claim arises so that SOL starts to run). Accrual will sometimes have diff. dates for diff. theories even if all theories come out of same underlying occurrence. 1. Ex: wrongfully arrested for shoplifting, sent to jail for 2 days, criminally prosecuted, 10 months later case terminated in your favor. Claim for false imprisonment accrues on date released from jail, but claim for malicious prosecution doesn't accrue until termination of criminal case 10 months later. xx. Can't take an untimely claim and turn it into a timely claim by calling it something else. 1. Ex: med malpractice 2 1/2 years - can't get around it by calling it negligence (3 years) c. Accrual i. CPLR 203(a): time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed 1. Accrual: when something happens giving you the right to sue 2. Interposed: when you actually start your lawsuit ii. When causes of action accrue: 1. Personal injury: claim occurs at time of injury a. Usually black-and-white. 2. Contract: time of breach a. Also straight-forward b. But can be factual disputes on case-by-case basis - where parties dispute amongst themselves, a function of court and parties is to litigate that very issue and determine when the ct. decides the claim arose and measure SOL accordingly 3. Discovery (fraud, Agent Orange, exposure to toxic substances, foreign object) a. Always worded, from discovery or when it should have been discovered. A lot of litigation where discovery involved. 4. Defamation: a. Written word: date of publication, not the date someone later reads the publication

xvi.

iii.

iv.

v.

vi.

vii.

Exception: a republication, new SOL begins upon date of 2nd printing Single Publication Rule b. Website defamation: date material is first put on website 5. Wrongful death: date death occurs 6. Warranty/sale: date product leaves the hands of the party selling it a. What if 5-year warranty, and SOL is 4 years? It's 4 years. Interposition 1. For higher level trial courts (supreme, surrogate's county, family) claim is interposed when you file with the court. 2. Lower cts. (town, village, city): claim commenced by service of papers by P on the D. Counterclaim: If P timely asserts lawsuit against D and D wants to assert a counterclaim, and counterclaim arises out of same transaction or occurrence, counterclaim will be considered timely as long as the P's initial case was timely 1. 1 catch: Dr. sues patient for $2000 for unpaid fees, patient files untimely med. malpractice counterclaim which is allowed b/c arises out of same incident (says didn’t pay b/c malpractice), the most the counter-D can get is 2 grand b/c considered an offset. CPLR 2001: If someone makes a mistake or omission w/ filing of papers, things that are technical or all that important (like misspelling of names or putting down wrong date), ct. in its discretion may allow the parties to correct the error or omission so long as other side not prejudiced by that correction. Aug. 2007, section amended to specifically include w/in its scope omissions or mistakes in papers filed to commence a lawsuit. Pelt v. City of NY: Administrative matters: 4 months. P claims he mailed papers in month 2 which would make his case timely, but clerk didn't filed until 5 months. Question was, is lawsuit timely filed? No - filed means when papers are taken in my clerk of the court and stamped received, not when you send them off. CPLR 205(a): 6-month extensions 1. When you are NOT entitled to 6-month extension: a. Voluntary discontinuance b. Failure to obtain personal jurisdiction over D c. Neglect to prosecute i. Diff. from voluntary discontinuance. d. Final judgment on merits 2. 6-month extension will apply to any other type of dismissal, but 90-95% of all dismissals fall into one of these 4 categories. So you don't see the 6month extension popping up very much. Also, Ps

i.

only have to use it if they don't have 6 months remaining anyway on the SOL. a. Classic example of 6-month extension: federal lawsuit is started where P thinks has federal question or diversity jurisdiction, and later on federal judge rules no federal question or diversity jurisdiction (no SMJ) - then you get a 6month extension to start case in state court. b. This is an extension, not a toll. viii. Relation-back 1. Can P amend claim to add on new theories of recovery/new claims, even if SOL on those claims has expired? Yes and no. For yes, need 2 things: same parties and same underlying transaction or occurrence. 2. Relates back to date original claim was filed 3. What if P wants to add a new party even though claims against that party are otherwise timebarred? Normally can't do it, unless establish 3 elements (need all 3): a. Same transaction or occurrence b. Unity of interest i. Means if one is responsible, one must also be responsible 1. Ex: vicarious malpractice 2. Exception is there to prevent prejudice c. New party knew or should have known that but for a mistake by P in not suing that D originally, the lawsuit would have been brought originally against that D d. Tolling i. Stops clock on SOL 1. Toll either stops clock from running in 1st place, or if it's already running, it stops that clock 2. SOL tolled for however long the period of time is that the reason for the toll exists 3. When toll is lifted, it doesn't start the clock anew just pauses it ii. Absence - CPLR 207 1. Section not intended to apply to someone who in a transient way leaves NY, comes back, leaves. Or someone who commutes to NY for work and goes home at night. Intended to apply to a more permanent/long-term situation, only in an instance where the individual is outside the U.S. and also unavailable for service of process by any means whatsoever. 2. 3 instances:

iii.

iv.

a. Absent from state in beginning - where person already out of NY and not available for process i. Toll triggers immediately. b. Leave state. But if someone is in the state of NY, if a 6-year SOL and 2 years go by and haven't started lawsuit, and then person leaves the state, clock starts to tick on absence of that individual (2 years are already lost). i. Person must be absent for not less than 4 months. ii. Toll will apply to those 4 months starts when the person leaves. c. Where person resides in state under a false name unknown to person entitled to commence action. Caveat: if you want to sue person whose name has been changed, must be unaware of name change - must be name change itself that prevents you from locating that individual in order to serve that person w/ process and obtain jurisdiction - rare. 3. Where this provision doesn't apply: a. A person or company leaves a designated agent for service of process, you can serve the agent - toll does not apply i. Voluntary or involuntary b. If there is a corporate officer in the state, can serve the officer and jurisdiction attaches to corp. even if corp. otherwise absent c. Jurisdiction can be obtained w/o personal delivery i. Ex. corp. has designated an agent for service Infancy - CPLR 208 1. Infant: anyone under age 18 - considered an incapacity 2. SOL will be tolled until individual turns 18 - on 18th bday, SOL starts to run 3. If SOL is 3 years or more, once it begins running on 18th bday, the SOL is capped at 3 years 4. Cap does not apply to any claims where SOL is less than 3 years Insanity - CPLR 208 1. Applies to pretty much any mental incompetency a. Ex. Alzheimer's, psychiatric problem preventing person from managing his or her affairs 2. If SOL less than 3 years, and mental disability ceases, that individual must start lawsuit in

v.

vi.

vii.

viii.

ix.

period of SOL, but if it's longer than 3 years, gets capped at 3 years. 3. Overall 10-year cap on the bringing of any case for no matter how long a disability might otherwise continue (for insanity, not infancy) a. Exception: medical, dental or podiatric malpractice 4. If an occurrence causes the mental incompetency, the toll triggers the moment the cause of action accrues (immediately). War - CPLR 209 1. He's never seen it used - reflects thinking of that time 2. Section covers Ds and Ps oversees in countries we are at war with Death of claimant - CPLR 210 (a) 1. Don't confuse this w/ 2 year SOL for wrongful death, which is a claim that can be pursued by distributees of decedent. This section is talking about a claim that the claimant has prior to death that he or she could have sued on, but didn't get around to before death. Doesn't involve the death itself. a. Ex.: If claimant is in an auto accident governed by 3-year SOL and 2 1/2 years go by w/o a lawsuit commenced and claimant dies, a representative of that claimant can be appointed to bring a lawsuit to recover whatever damages the claimant would have been entitled to had he not died. 2. Subject to a one year cap from death. a. So in example, a 3 1/2 year time frame in which claim can be brought. Death of D - CPLR 210 (b) 1. Look at what time is left on the SOL and add 18 months if D dies before you've sued 2. If someone dies and you have a claim against the estate, you have no toll - just the standard SOL against whomever is administering the estate Bankruptcy - 11 USC 362 1. Stays proceedings, including commencement of proceedings, against an individual in bankruptcy 2. Operates as a toll, so that when person emerges from bankruptcy, SOL continues along 3. If you don't want to wait until person emerges from bankruptcy, can file your claim w/ bankruptcy court and make it part of your bankruptcy claim - actually advisable b/c emergence often means wiping debt Military service - NYS Military Law 308 1. Applies to both P and D 2. Applies only to individuals on active duty

3. Doesn’t matter whether individual assigned to military base within or outside NY 4. Tolls until individual gets out 5. If cause of action accrues when person in military, it tolls outright; if person enters military, starts tolling at that point x. Continuous treatment (sometimes) 1. Can be treated as a toll for period b/t malpractice and end of treatment 2. Can apply to drs, dentists, accountants, lawyers, etc. e. Borrowing Statute - CPLR 202 i. NY P, NY D, occurrence in NY = borrowing statute does not apply ii. NY P, NY D, out-of state occurrence = borrowing statute does not apply iii. NY P, foreign D, occurrence here = borrowing statute does not apply iv. Foreign P, NY D, out-of-state occurrence = borrowing statute applies 1. Only applies to out-of-state Ps 2. Time limited by NY state applies f. Distinguished from Notices of Claim i. GML 50-e, 50-I 3. Venue a. Generally i. Venue: geographical subdivision in which an action may be brought ii. Needed only for courts w/ territorial subdivisions - don't apply in county or lower courts. In Supreme Court, 62 counties (including 5 in city). iii. CPLR 509: Place of trial shall be in county designated by P. Makes sense that P initially chooses the county in which the action is to take place, b/c the P is starting the action. iv. Defect of venue not a dismissal ground (unlike SMJ, PJ, and federal practice) - remedy is change of venue b. Placement i. CPLR 503 - Venue based on residence (transitory): 1. As a general rule, lawsuits are placed in any county where a party has a residence. 2. Difference b/t residence and domicile a. CPLR doesn't use the word domicile, uses residence b. Can only have one domicile but can have more than one residence - residence is any place where you have a residence 3. a): Persons a. P may bring action in any county where one of the parties resides - can be D or P; in multiple party lawsuits, where any party has a residence

b. Where they resided at the time the lawsuit commenced. Not concerned w/ where they reside at accrual, but the day the papers get filed in court - the commencement of the lawsuit. c. Party can have more than one residence and any is proper venue 4. b): a. Executors, Trustees, Receivers, etc.: individuals appointed by a court to do something i. Ex. a lawsuit against an estate where there is an executor b. Considered residents of the county in which they were appointed by the court, as well as where they personally reside i. Sometimes may be same county, sometimes may not be 5. c): Corporations - deemed residents of a county where a principle office is located a. Principal office usually identified in certificate of incorporation; or for foreign corp., cert. of doing business filed in Albany for its principal NY office b. Suit by or against a railroad or common carrier can be brought where it has its principal office or a county where the cause of action accrued 6. d): Unincorporated association, partnership, individually-owned business (sole proprietorship): a. Unincorporated association (like homeowner's association): location of principal office as identified in association documents or the county where the association president or treasurer resides b. Partnership: county where any of the partners resides (or where P resides) c. Individually owned business: where principal office is or where individual owner resides 7. e): Assignee of a claim may not sue in own county unless also the assignor's or some other party's 8. For the above parties (persons, executors, trustees, receivers, corporations, unincorporated associations, partnerships, assignee), P always has the choice of bringing suit in her own county or county where any of the above Ds reside. But for following parties, a much more restricted choice. 9. f): Consumer credit transaction - D's residence or county where transaction occurred (so Mastercard can't bring suit in own county - must

be in credit card holder's county or where transaction took place) 10.CPLR 501: Written agreement fixing place before trial shall be enforced - applies to contracts b/t parties. 11.CPLR 504: Municipality: must sue in Supreme Court that sits in county you are suing (even if you live somewhere else) a. Same is true for cities, towns, villages, and school districts - you must go to them b. City of NY a bit unusual - usually cities contained in counties, but in NY, 5 counties contained w/in a city - if you are suing the city of NY (let's say you fell on one of their sidewalks) - it's w/in the county in which your cause of action arose (where you were injured) i. NY County is the default w/in the city of NY - a cause of action against the city of NY that didn’t accrue w/in the city is brought in NY County 12.CPLR 505: Public Authorities a. Ex.: Bridge and Tunnel Authority b. If you are suing a public authority, it's the county in which authority has its principal office or where its facilities involved in the case are located 13.CPLR 507 - Real property actions a. Action that affects title, possession, use or enjoyment of real property must be brought in county in which any part of the subject property is located b. Same applies to chattel - go to county where chattel is located at the time the action is commenced ii. CPLR 509 - Venue in county designated 1. County is designated by P unless moved to another county by order upon motion or consent (511b) c. Change of Venue - procedures for when an action is brought in wrong county i. CPLR 510 - Grounds for change of place of trial 1. 3 grounds where ct. may change venue: a. County selected by P is not the proper county - changing venue "as of right" i. Lopez v. Angel K: P and D both resided in Queens so case should have been brought in Queens, but P brought it in Kings. D made motion and as a matter of right got case transferred to Queens.

1. Why would D want to change it? Verdict value higher in Kings. b. County selected by P is one where can't get an impartial trial i. Dillon has never heard of this happening in a civil trial c. Convenience of material witnesses and ends of justice will be promoted by a change i. Big difference b/t this and matter of right - in 1st situation, actually have the right - very black and white; P resides here, D resides here and ct. must grant it if that's shown. But w/ material witnesses, the ct. has the discretion to grant or deny the motion. ii. Montero v. Elrac: Ds' moved for change of venue based on convenience of material witnesses. Witnesses would have been inconvenienced b/c from Bronx and case was in Orange County. Case changed to Bronx for their convenience. 1. Case discusses 4 factors ct. looked at in deciding whether to order change of venue: a. Identity of the witness: movant must identify specifically witness or witnesses (non-party witnesses) who prompt change of venue motion i. Can include bystanders, police officers, medical witnesses who treat injury b. Availability of the witness c. Must have info that is relevant and material to the case d. Inconvenience - witness or witnesses must actually be inconvenienced in terms of distance b/t where the witness is and where the case is

ii.

You won't see motions granted for counties w/in city of NY, or Nassau to NY it's more for Orange vs. Bronx - usually more like 100 miles or more away from the county 2. If the witnesses are in your favor, you should probably change the venue to make sure they will come to ct. 3. The more non-party witnesses there are that would be inconvenienced, the more likely the ct. will grant the motion (generally won't see it granted if 1 or 2 people are inconvenienced) 2. Court upon motion may change venue. Very important. Someone must make a motion to change venue. Ct. has no authority on its own to notice that venue is wrong and send it to the right place. a. P selects county to bring a lawsuit, files the papers, the county selected isn't one the rules provide for. D sees that the wrong venue was selected - D now makes a motion to change the venue as a matter of right. If D is correct that the venue was placed by the P in the wrong county, that D has the absolute right to have it moved on court order to a correct county. CPLR 511 - Change of place of trial 1. a): Must first make demand on P demanding venue change a. Time limit: have to make the demand either before you answer P's complaint, or at the time you answer P's complaint. b. If don't do so, you've waived your right to later argue the county should be changed use it or lose it. 2. b): After P receives demand, P has 5 days to either consent to D's demand, or to not consent. If no consent by P, burden is on the D who wants the change of venue to make a motion, and the motion must be made w/in 15 days from the original demand (the first 5 is included w/in the 15 so might only be about 10). If don't make motion w/in 15 days, waive it.

i.

a. Reason for tight time limit: so issue gets resolved quickly iii. Ellis v. Wirshba: 1. Case covers change of a matter of right and discretion 2. D in Westchester, P in NY and Westchester, so P had choice and brought it in NY county. Case resolved by looking at documents to show P had residence in NY county (utility bill, stock cert., etc.). Ct. was satisfied that P who brought the case in NY county had a residence in NY county. No change of venue allowed as of right. 3. For convenience of witnesses, D brought motion in Westchester. 2 diff. rules about where you can bring the motion, depending on whether you are seeking to do it as of right or for convenience: a. If seeking to change venue as a matter of right, you can bring the motion in the county where P brought the action (which you think is wrong) or the county where you think the case should go to (which is what they did here). b. If seeking to change venue as a matter of discretion, you don't have that choice. For convenience of witnesses, may only bring motion in county where the case was brought. 4. Here, where Westchester Supreme ct. denied motion to change as a matter of right, couldn’t rule on motion to change for convenience of witnesses - must be brought in NY county. 5. Also, difference for when motions must be brought. For as of right - 5 days, 15 days. For convenience of witnesses, no hard and fast time limit - simply must bring a motion w/in a reas. time (not necessarily from when case started, but from when learned of the info that you need to make the motion) d. Distinguish venue from forum non convenience (federal rules) i. State language: change of venue ii. Federal language: transfer e. Mistake in selecting courts i. CPLR 325(a)-(d) 4. THE BOOK OF GENESIS: THE SUMMONS AND PERSONAL JURISDICTION a. Summons and Filing - CPLR 304, 305, 306, 306-a(a), 306(b) i. See TWEN for sample docs ii. Summons must contain 9 things: 1. Parties 2. Court 3. Notice that it is a lawsuit 4. 20 or 30 days to appear

5. Warning that one would be in default if don't appear and answer 6. Basis for venue 7. Attorney who is to receive your appearance and answer 8. Index # 9. Prayer for relief (what is being sought) iii. CPLR 305 contains less than what is actually provided by these documents iv. If you have a summons w/ notice, not required to produce a complaint. But if it's just a summons and doesn't also say "w/ notice," it is a summons for which there must be a complaint attached. 1. As Siegel says, it is better to have a summons w/ a complaint. Reason: CPLR provides that if you receive a summons w/ notice, the D who receives it can still demand a complaint anyway (and is always done). So either way, you are going to do a complaint. 2. Summons w/ notice allowed - purpose: for the lawyer who is hired day before SOL expires and no time to draft complaint. 3. If an error in the complaint, can amend complaint as of right any time before D answers or by leave of court upon motion. v. When preparing a summons and complaint in supreme court, first thing you do is bring it to courthouse to file it. Purchase an index number (fill out 1 page form) and fill out Request for Judicial Intervention (RJI) (request that a judge be assigned). Fees paid by lawyer. vi. Complaint must be verified, signed, and notarized under oath (makes it a sworn verification - lies subject to perjury) b. Service of Process i. In order to serve process, 3 qualifications: 1. NY state resident 2. Adult (18+) 3. Non-party to the case a. P's atty. is a non-party, so an atty. can serve the process but not a good idea for practicality reasons ii. Every delivery is not a service - service means delivery has been performed in a manner the CPLR says the delivery must be. Certain ways that summons and complaints can be properly served, as a result of which there is now jurisdiction over the D, and all other ways not recognized by the CPLR are improper service, so that no jurisdiction attaches to the D. iii. CPLR 306(b), and 2001 as amended effective 8/15/07 1. CPLR 306-b - 120 days to serve after filing. 2. Service cannot be validly accomplished on Sunday nor on a holiday.

iv.

3. If running out of days, bring motion before a judge for an extension - standard: interests of justice require an extension. a. If you show you've tried w/ no luck, better argument for interests of justice; but if wait until day 119 doesn't look as good, though its all discretionary. 4. Summons and complaint are filed w/ the court. The papers you serve upon the D must be identical to the papers filed with the court. 5. In the event that you try serving the process as an atty. and you screw up, it's legal malpractice. If your process server screws up, it's legal malpractice that you are responsible for. CPLR 308 1. (1): Most basic method for serving process (7 methods overall). Personal service upon a natural person (not a corp.) - deliver summons w/in state a. 2 ways: i. Physically deliver it to the person's hand ii. If person refuses to take it and you leave it in person's immediate vicinity that's service b. It is NOT service where there hasn't been a refusal to take it and you just leave it c. Putting it in a plain envelope and handing it to D - not service. The summons must be visible. d. No requirement that words be spoken e. Putting it in his pocket is service on his person - no requirement that it is placed in his hand f. If wife answers door and hand it to wife, not valid service b/c D has not been served by the process server - personal service means service to the person to which the summons and complaint are addressed g. Can process use a trick to locate person who is to be served? It depends. i. Waiting in hotel lobby ok ii. Telling individual they won a sweepstakes and have to drive 2 hours to NY to get check and get served - not valid iii. Case-by-case basis to determine where the line is drawn h. What if you want to serve process on a diplomat who might otherwise have diplomatic immunity? Like serving process on a French diplomat in NYC. Does individual have the immunity from being

served? It is waivable (PJ is always waivable). If it's waived, it's not absolute. A purely personal beef w/ someone (like a private K) w/ someone who is a diplomat, you can serve process and diplomatic immunity will not apply - civil lawsuits only (immunity does apply to anything done in his/her official capacity as a diplomat, including criminal law, parking tickets). i. Other individuals who fall w/in this category of personal service: i. Infants - 309 (a) - process of service upon the parent or guardian w/ legal custody; or, if individual is married and has a spouse of age, you can serve the spouse ii. Incompetents - 309 (b) - service upon the guardian when and where one has been appointed, AND on the incapacitated person 1. If a person seems to be incapacitated but has never been subject to a proceeding by a ct. determining incapacity, serve it on the person - if truly incompetent, later proceedings will appoint someone iii. Partnerships - 310 - service can be performed on any of the general partners (just need 1), OR the managing/general agent of the partnership (to serve managing/general agent - 2 conditions: (1) must be performed at principal office of partnership and (2) must be followed up by a mailing to any partner by 1st class regular mail at either the partner's residence or place of business) iv. Corporations - 2 ways: 1. 311(a)(1) - can't just serve anyone employed by the corp.; only certain persons: officers, directors, managing agents, general agents, cashiers, assistant cashiers (cashier means high-ranking financial officer of the company) 2. BCL 306 - delivering 2 copies of summons and complaint to the Secretary of State's office in Albany for filing (SoS keeps

one copy and sends other to corp.) 3. For default against corp. to defend, corp. must raise either meritorious defense or reasonable excuse for not appearing 4. Look at: BCL 306(a); BCL 306(b)(1); BCL 307(a); BCL 307(b); General Business Law 11 v. Insurance company - Insurance Law 1212 - delivery 2 copies to Superintendent of Insurance in Albany vi. City of NY CPLR ???a2 - serve corp. council or corp. council's designee. City of ny different rules can serve mayor or controller or treasurer or general council or city clerk vii. Service on counties - serve county clerk, general council, treasurer, chairman of board of legislators, or clerk of the board viii. Towns - town supervisor or town clerk ix. Villages - 10th category - mayor or clerk or anyone on board of trustees x. State of NY - CPLR 307 xi. Associations - service on treasurer or president of association xii. Estates - service on executor or administrator xiii. Trusts - service on trustee xiv. Serving process on anyone not listed in the CPLR - your service is no good - only specific persons are authorized to receive process 2. 308 (3) - Service upon an agent a. Agent - someone standing in for the real person at interest (real person being sued). i. 3 requirements: 1. A written document designating the person as the agent for service - document must be signed by the D designating an agent 2. Document must be filed w/ the county clerk in the county where the person who is designating the agent either lives or works

3. Document to be filed has a life of 3 years and then expires must be redone every 3 years ii. Service is performed the same way you would effectuate personal service - the only difference is who gets served 3. You can try personal service, suitable age and discretion, service upon an agent, and mailing per CPLR 3012-a right off the bat. But for "nail and mail," court order, and publication, must first attempt one of the other methods before you can try these methods. 4. Suitable Age and Discretion - CPLR 308 (2) a. Delivering summons to someone w/in NY to person of suitable age and discretion at actual place of business, dwelling place, or usual place of abode i. Actual place of business, etc. phrase does not use the word "residence" a little broader ii. Suitable age does not mean adult could be 15 year old child of D means anyone of whatever age that is a responsible enough person that the person can be entrusted to receive the papers and to pass them along to the individual that is to be served 1. A lot of case law on this language on where to draw that line - how low can you go in terms of an age and still have that person qualify as being of suitable age and discretion? Case by case basis. A smart process server would come back rather than risk handing it to someone who is not of suitable age. b. AND by either i. Mailing the summons to the person to be served at his/her last known residence 1. Interpreted as meaning regular mail (thought might be smarter to use registered or certified mail) ii. OR by mailing the summons by 1st class mail to the person to be served at his/her actual place of business 1. Only difference b/t sending it to residence and business is

v.

that for business must use envelope stating "personal and confidential" and can't say from atty. - has to look like an anonymous letter - to protect privacy of person being sued c. When using this method of service of process, an affidavit of service must be prepared by person who has effected the service, and proof of that service shall be filed by clerk w/in 20 days or either delivery or mailing, whichever is later i. Usually 1 page document, signed by process server under oath (perjury if not true) identifying person who served the papers, how they were served, date time and place of service d. Service of process deemed complete 10 days after that affidavit of process is received e. Handing the papers to a person of suitable age and discretion and the mailing must occur w/in those 120 days (120 days from filing to service completed), but 20 days to file affidavit can come after those 120 days and still be considered timely w/in the 120 5. CPLR 306 (b) a. Delivery of summons to an individual (personal service, suitable age, or agent) physically handing papers to someone affidavit of service shall also describe the person to whom the papers have been handed (sex, color of skin, etc.) i. Reason: if someone claims never got papers, match description in affidavit 308 (4) - "Nail and Mail" 1. Can't use unless you have exhausted all three of the other methods first (personal, suitable age, agent if applies) a. A lot of litigation on what constitutes due diligence which would allow you to use nail and mail 2. Nail = affixing it to door, plus mailing 3. Estate of Waterman v. Jones: Can't use nail and mail until you exhaust the other methods first. Ct. thought 2 visits to a place that might have been boarded up wasn't due diligence. Made no effort to find his residence, didn't talk to people. 4. No hard on fast rule on what is due diligence - a case-by-case basis. Not just quantity of attempts; look at quality.

vi.

vii.

5. Nassau County v. Gallagher: 4 attempts at an actual residence. Considered due diligence. Key thing about case: not so much the number 4, but that the process server mixed it up, doing it on different days, different times. 6. Method: a. Affix summons to door of either actual place of business, dwelling place, or usual place of abode (doesn't say residence) i. Not really mailing, but not just taping - affixing means securely affixed to the door b. AND by either i. Mailing summons to last known residence OR ii. Mailing to the business in unmarked envelope 7. 20 days to file affidavit and 10 more days before service is deemed completed. Once you have affixed it to the door you can file the affidavit. Impt. for SOLs that start when service is complete. 308 (5) - Court Order 1. If the other methods (personal service, suitable age, (agent), nail and mail) are impracticable, you can make an application to the ct. for some other method - must be by written motion. Party making the motion has burden of explaining why need a break. 2. Rare but you do see it from time to time 3. The ct. can choose whichever manner they think will best get the papers to the D. No restriction on what method ct. can direct but whatever method they direct is ok b/c they said so. CPLR 312 - a 1. Enacted after other sections w/ intention to make it easier for people to both serve the process and get it into hands of intended recipient. But no one really likes this method of service and not used very often. 2. Put summons and complaint (2 copies of each) into a regular mail envelope w/ regular postage addressed to the D. Statute doesn't require that the mail be addressed necessarily to the business or the residence - can be addressed to any location where you anticipate your D might be. In addition to summons and complaint, an additional document: statement of service by mail and acknowledgement of receipt - 2 copies. Also have to include a SASE for a return to yourself. a. Upon receiving these docs, recipient is supposed to fill out form acknowledging receipt and put it into return envelope and

mail it back to sender. Acknowledgement form must contain language warning recipient that if don't cooperate and mail form back, and if P then has to go to trouble of serving you with some other method, the D that received this will become responsible later on for the cost of your process server (expenses must be reasonable). b. Can't do this if trying to serve an infant or mentally incompetent. c. No strict requirement for where to send it b/c if someone is acknowledging they received it, doesn’t really matter where they got it. d. People don't use this method often b/c it relies upon cooperation of recipient to fill out form and send it back. e. Acknowledgement form must also tell recipient that from receipt of papers has 30 days to fill it out and mail it. But the 30 days comes out of the 120 that you have for effecting service, so can only use this method if mail it off w/in days of when the 120 days starts. 3. Don’t need to exhaust other methods of service first - can do this right off the bat. viii. CPLR 316 - Service by Publication 1. Must make application to the court to use this method 2. Used when you can't find the D to serve process and looking for an alternative method 3. Thought of as a last resort 4. Must include brief statement of nature of action, and relief sought, and amount of money you are seeking (unless a med mal) 5. If lawsuit involves title to or use of property, must include description of the property 6. When the ct. allows this method of service, publication must be in at least 2 diff. newspapers at least once a week in each newspaper for at least 4 weeks and at least one of those newspapers must be in the English language 7. 1st publication must be w/in 30 days after order for service by publication has been granted 8. Service is completed 28 days after the 1st publication c. CPLR 302 - Basis of Jurisdiction i. NY Domicile 1. 2 parts - need BOTH: a. Must be a basis for jurisdiction b. Must properly serve the process in order to invoke that jurisdiction

ii.

2. If serving someone who is domiciled in NY, automatic jurisdiction. The service of process can be performed anywhere in the world. Long Arm 1. If D transacts business (purposeful activity in the state) or contracts anywhere to bring goods into the state of NY, that is a separate basis for longarm jurisdiction. a. Subject matter of your case must relate to that transaction or contract 2. Out of state person comes into NY and commits a tort in NY a. Any tort other than defamation 3. Torts committed outside NY resulting in injury in NY, IF: a. 2 conditions: i. Person or company that committed the tort outside NY must: 1. Do business in NY OR a. Different from "transacts business" - doing business is a more regularized, permanent or semi permanent activity, while transacts business can be more transitory 2. Engaged in persistent course of conduct in NY OR 3. Derives substantial revenue from NY a. Look at it quantitatively or qualitatively i. Ex. GM could do 1% of business in NY but that's enough ii. Defamation exempted iii. Can sue them regardless of whether your lawsuit involves the business, conduct or revenue b. OR i. Foreseeability and revenue - expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; 1. Unlike above section, lawsuit must be connected in some way to the conduct of the other party and the revenue derived

iii.

iv.

Non-Domiciliary, real property in NYS [in rem] 1. CPLR 313: A non-domiciliary w/ real property in NYS can be served outside the state of NY by one of the listed methods 2. Who can serve process can be either what the NY rules say or whatever the rules are in that other state He won't test us on basis for jurisdiction, but will test us on service of process

5. THE COMPLAINT DEPARTMENT a. Complaints i. Usually served w/ a summons ii. Document by which a P informs the D of what the case is about - legal theory, damages iii. Complaint doesn’t prove anything - simply a DP notice for the D so they know what to defend against iv. Answer: prepared by D - 4 possible components: 1. Responding to the allegations of the complaint on a paragraph by paragraph basis 2. Affirmative defenses 3. Counterclaim a. Answer to counterclaim is called a "reply" 4. Crossclaim a. Response is an "answer to crossclaim" b. Subject matter of crossclaim from D1 to D2 must be related to the case that was started by P c. But counterclaim can be related to Ps case but can also be completely unrelated d. Impleader: if no 2nd D and no crossclaim, and no counterclaim, 3rd party complaint brings in D2 and is responded to in 3rd party answer e. Interpleader - bring in group of Ds b/c aren't sure which one v. Complaint a public document - exception: matrimonial cases; youthful criminal; family ct children cases vi. CPLR 3011 1. Shall be a complaint and answer, may be crossclaim, counterclaim, etc 2. If a crossclaim asks for an asnwer, there must be one, but not if it doesn’t, and the allegations in the crossclaim are deemed denied vii. CPLR 3013 1. Statements: means just that (not elements) mostly allegations, don’t need proof 2. 2 requirements: a. Notice of the transactions or occurrences i. DP implications - D must know so he can defend b. Material elements of each cause of action or defense

viii.

ix.

In drafting, have at least one sentence that will touch upon each of the elements 3. A complaint lacking either of these 2 things can be dismissed for insufficiency (a drastic remedy) a. To correct an arguably deficient complaint: i. CPLR 3026: pleadings (complaint, answer, reply) shall be liberally construed and defects shall be ignored if substantial right to party not prejudiced - then complaint wont be dismissed ii. Amending complaint to correct defects - far preferable to dismissing a case altogether 4. Johnson ex. rel. Freddo v. Verona Oil: Even though didn’t specifically say the Act, the ct. permitted the Act claim to proceed b/c it was obvious to the D from the rest of the complaint. The language of the complaint covered the elements of the Act. 5. Wills v. Kepner: Didn't give notice of transactions, didn't discuss elements of the causes of action that were being asserted. CPLR 3014 1. Plain and concise statements in consecutively numbered paragraphs 2. Each paragraph shall have a single allegation idea is that you put a new concept for each paragraph 3. No limit to the amount of paragraphs you can have 4. For the complaint drafter, 2 sources of knowledge: a. Direct knowledge b. "Information and belief" - not direct language, but something you believe is true - language seen often in complaints 5. Can incorporate by reference preceding paragraphs rather than repeating them 6. Separate causes of action or defenses shall be separately stated and numbered 7. Separate causes of action can be stated regardless of consistency - means you can as a P assert multiple causes of action, some of which might be fatal to others or inconsistent w/ others. You can mix and match causes of action - tort and contract; can mix and match remedies at law w/ remedies in equity 8. Causes of action or defenses may be stated alternatively or hypothetically (if the court finds this, then I should be entitled to that) 9. A copy of any writing attached to a pleading is a part thereof for any purposes Damages will always be an element - always have to address damages in a complaint

i.

x.

xi. xii.

xiii.

CPLR 3017: 1. Pleading must contain relief P is seeking - stated in Wherefore Clause 2. (c): Exception: personal injury and wrongful death cases - pleadings shall contain a prayer for general belief but shall not state the amount of damages pleader thinks he is entitled to. If the action is brought in the supreme court, the pleading shall also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. a. Supplemental demand shall be provided by P w/in 15 days of request. If not served w/in 15 days, ct. on motion may order that it be served. b. Why might you want P to state the amount of damages? For example, to see if your insurance covers the amount P is seeking. CPLR 3012-a(1) CPLR 3015 - Particular Matters 1. 5 subdivisions, a-e, some regard specificity w/ regards to complaints, some w/ regards to answers, which we will address later 2. Difference b/t 3015 and 3016 is that 3015 talks about specific matters and 3016 talks about specific causes of action 3. (b) Corporate status: if you are suing a corp., the complaint shall so state and also where it is incorporated 4. (e) License to do business: only applies to the 5 counties of the city of NY, Suffolk, Westchester, Rockland, Putnam and Nassau, but will probably expand 5. [Answers] CPLR 3016 - Particular Actions 1. (a) Defamation (libel and slander) a. What is required in complaints is the utmost of specificity; what was said exactly, to whom was it published, when was it said, where was it said, how was it said b. All of the elements involved have to be pleaded w/ particularity, including damages c. Arsenault: wrongful discharge case, letter of dismissal sent to the employee, the contents of which the employee claimed were defamatory; complaint was lacking a lot of details regarding who saw the letter, what it said, etc. so case was dismissed 2. (b) Fraud a. Wint: persons obtaining mortgage thought they were signing on w/ 1 interest rate,

but it turned out the fine print made it higher; the complaint didn't allege any misrepresentation, which is necessary in order to claim fraud, case dismissed 3. (c) Matrimonials: Actions for separations or divorce a. NY only state in country that requires a person to have ground for seeking a divorce (abandonment, sexual abandonment, adultery, etc.) b. P spouse must specify in detail the general ground and underlying particulars of the grounds, e.g., dates, times, people; if D spouse wishes to counter-claim, that must be specific as well 4. (d) Judgments: If you have a judgment against someone and that judgment has not been satisfied, and you start an action to collect upon it, the complaint must state the extent to which the judgment has already been satisfied, if at all 5. (e) Foreign law: If you bring a claim or serve an answer where it is your position that a foreign law applies, that should be alleged specifically in the complaint 6. (f) Sale or delivery of goods/services: Ps are to specify and number the specific items of the claim and the reas. value of each 7. (g) "Serious injury" in autos a. Came about b/c in the '70s courts were being burdened w/ cases about minor accidents, so the legislature enacted a no fault law that says for a P to recover for injuries arising out of an auto accident, you must have sustained a serious injury, and the insurance law tries to define a serious injury (a fracture, disfigurement, significant scarring, death, loss of a fetus, significant limitations of movement, permanent limitations of movement, you can't perform you usual activities for 90 days of 180 days following accident) b. If P's injuries don't fit in above categories, suit can be dismissed c. You must allege serious injury, but you don't have to allege the specific category 8. (h) Gross negligence by corp. officers: If it's a case against a corp. officer for gross negligence or intentional harm in connection w/ the conduct of corp. affairs, that must be specifically mentioned 9. If your complaint doesn't have the required level of specificity, your complaint can be dismissed or the complaint can be salvaged - if somebody

seeks to dismiss it, the P can seek permission of the court to amend the complaint. 10.If P has a case and there are 3 legal theories that P could arguably bring but the P only brings 2 and loses on the merits, the P can't bring a whole new lawsuit alleging that 1 other complaint (res judicata) x. Verification i. CPLR 3020 - when verifications are required 1. When a P or lawyer swears in an oath at the end of the complaint that the allegations are true either from direct knowledge or information and belief this is in order to encourage honesty 2. This is only sometimes, in the following instances: a. CPLR 3020b-1: Fraudulent Conveyances, Judgments, Assignments b. CPLR 3020b-2: Actions Against Corp. on Promissory Notes - to recover damages on nonpayment of a promissory note c. Matrimonials DRL 211 d. Evictions RPAPL741 e. CPLR 3015(f): Schedule of Goals and Services - has to do with the itemized list discussed above f. CPLR 1502: Suit on Judgment Against CoObligor - if there are co-obligors and the P gets a judgment against 1 and then starts a suit to collect from others, that complaint shall be verified 3. If your complaint does not fall into any of these categories, you are not required to verify it, but it is still good practice to do so a. You are less exposed as a lawyer to starting a frivolous or fraudulent lawsuit ii. CPLR 105(u): A verified pleading may be utilized as an affidavit wherever the latter is required - this comes into play when a D makes a motion to dismiss a case, the burden of proof is on the moving party and sometimes the papers prepared by the P in opposition to the motion doesn't hit on everything - but if you have a verified complaint, it can serve as an affidavit and save your motion iii. CPLR 3215(f): Default of judgment - if there's a default against D and the court is deciding how much to award the P, if a verified complaint has been served, that can establish the amount of the default award iv. Travis v. Allstate: P brought an action for refusing to pay an insurance claim and D said that P failed to file a verified loss form w/in 60 days; P said that insurance company told him that they would offer to assist in filling out the form when he attended a meeting but that meeting was postponed twice. The offer of assistance was never withdrawn so P claims that acted

v.

vi.

vii. viii.

as a waiver of the 60 day requirement. Complaint was verified by P and claims that he did not need to file a separate affidavit when opposing the summary judgment. It was a mistake not to file the affidavit, but here, having a verified complaint saved him. Note: When a complaint is verified, each subsequent pleading must also be verified, so if P verifies the complaint, D must also verify its pleadings. Exceptions: 1. If P verifies the complaint, if a D were to admit certain allegations in the answer where the admissions would constitute a crime, then the answer would need not be verified (right against self-incrimination) 2. Matrimonial adultery cases: if P alleges that D committed adultery, D need not verify an answer if that would constitute admitting committing adultery There are times when an attorney can verify a complaint for a client 1. CPLR 3020d-3: a. If a party is a non-NY corp. b. The client resides in 1 county and the law office of the attorney representing that client is in another county c. When you have 2 parties united in interest, and none of them with direct knowledge are in the same county as the law office d. In an action for the payment of money only, where the written instrument (e.g., the promissory note) is actually in the possession of the lawyer e. If the attorney has direct knowledge of the allegations in the complaint 2. If the attorney is verifying instead of the client, the language must set forth one of these 5 reasons why the lawyer has verified instead of the client a. All other verifications must be done by the client CPLR 3021: Form of affidavit of verification CPLR 3022: Remedy for defective verification 1. If a verification is defective, in the example of a defectively verified complaint, the complaint can be treated by the D as an unverified complaint on the condition that D is notifying P w/ "due diligence" (1 to 2 days) that D is treating it as unverified a. If, for example, the actual damages are higher than the amount in the complaint, the trial court has the discretion to award an amount up to the actual damages; one exception is if there is a default and the D

ix.

x.

fails to appear, the court cannot award more than what the complaint asks for Notices of Claim 1. These are not complaints 2. Something about claims against municipalities 3. Wrongful death, property damage, personal injury; no claim for these things can be maintained unless for the first 90 days of the 1 year and 90 days, the P files a notice of claim 4. A notice of claim is similar to a complaint, but it does not start a lawsuit, it just notes that you may have a lawsuit 5. A notice of claim is not subject to service of process rules, all you have to do to serve the municipality w/ a notice of claim is serve it personally to the person designated to accept these notices of claim or just mail it by regular certified mail 6. Service is deemed complete when you mail it 7. White: if you blow your 90 days, you can request to the court that you get an extension, but you have the burden; you must show a reas. excuse, that the municipality had notice of the facts Difference b/t cross-claim an 3rd-party complaint (from email) 1. A cross-claim is asserted by one co-D against another existing co-D. Answers need not be served in response to cross-claims unless the cross-claim expressly demands one, and in the absence of such a demand and answer, the allegations of a cross-claim are deemed denied. Cross-claims may never be asserted against nonparties, as they are by nature and definition between two or more Ds that are already named in the case. If a D wants to assert a claim against a non-party, the vehicle for doing so is the third party complaint. Jurisdiction needs to of course be obtained over the non-party. Therefore, a 3d party summons and 3d party complaint get filed with the Clerk of the Court, and then served on the 3rd party D to acquire jurisdiction. 3rd party actions make parties out of non-parties. The 3rd party D then appears in the case by answering the third party complaint, just like Ds in the primary action. 3rd party actions will be addressed in more detail later in the semester.

6. THE BOXING MATCH BEGINS: THE DEFENDANT APPEARS, ANSWERS, AND ASSERTS AFFIRMATIVE DEFENSES a. Forms of Appearances i. Notice of Appearance

1. Used when there is only a summons w/ notice and no complaint. Summons w/ notice doesn’t require an answer 2. CPLR 3012(b) a. Where summons served w/ notice and no complaint, D may serve written demand for complaint w/in time provided in 320(a): i. If the summons w/ notice or summons w/ complaint is served personally (personal service), D has 20 days to answer. Any other method - 30 days. b. Demand for complaint, if making one, should be w/ notice of appearance. If you are demanding the complaint, the P has 20 days to provide a complaint measured from when the demand is made. c. If you do not demand a complaint, the complaint shall be served w/in 20 days of service of notice of appearance. So either way you're going to get a complaint w/in 20 days. ii. Motion to Correct Pleadings 1. CPLR 3024 a. Vague or ambiguous pleadings: If so vague that D doesn’t know how to frame a response, a motion can be made to the court to compel a more detailed complaint, which the ct. will either grant or deny. The making of such a motion is an appearance. b. Scandalous or prejudicial matter: Rare motion can be made to strike such language from the complaint. Making of such a motion is an appearance. If motion is granted and P cleans up complaint, answer must be made. c. If motion is denied, answer to original complaint is due w/in 10 days after receipt of notice of denial of motion; if granted, entitled to an amended complaint and have 10 days from receipt of that amended complaint. iii. Answer iv. Motion to Dismiss in Lieu of Answer b. Answer and Affirmative Defenses i. Admit 1. Look at complaint on paragraph by paragraph basis to decide what your response will be. If D admits to an allegation in complaint, that allegation becomes a nonissue - P no longer has to prove this. If a paragraph in a complaint has no response, it is deemed admitted (so lawyer should respond to every paragraph. If lawyer

makes mistake and doesn't respond to an allegation it's malpractice). ii. Deny 1. General Denial 2. Specific Denial a. If a paragraph in a complaint alleges something you want to deny, you can deny it, and if you generally deny it it means that everything in that paragraph is denied. But occasions where a complaint may have a paragraph that has 2 or 3 allegations in that paragraph - you can specifically deny one or 2 parts of that paragraph and provide a different response for other parts of that paragraph. This is the difference b/t specific and general denial. DKI: Deny Knowledge or Information Sufficient to Form a Belief as to the Allegations in the Paragraph 1. In other words, I don’t know DKI/R: DKI and refer questions of fact or law to the court 1. Where a paragraph would otherwise require you to DKI but the paragraph also brings up allegations regarding the facts or law of the case. You refer questions of fact or law to the factfinder. Hybrids: 1. You can hybrid any of these responses if a paragraph in a complaint has multiple allegations. If a paragraph has multiple allegations, one which calls for a denial, you may deny the entire paragraph. See sample on TWEN 1. CPLR 3014 allows us to incorporate our answers by reference Affirmative defenses are set forth in answer to give P notice of what your defenses are Answer also has a wherefore clause Urraro v. Green: Complaint alleged that the individual was in the scope of his employment. When municipality did its answer it admitted that. By admitting that, it meant that the municipality was the real party at interest, subject to 90 day SOL. By admitting relationship w/ worker, municipality would get out of the case b/c it was untimely brought. One should give careful thought in the answers that will be set forth - in this case, a smart lawyer on behalf of the municipality instead of referring questions of law and fact to the court, got the party out of the case. Affirmative Defenses 1. CPLR 3018(b): A party shall plead (in an answer) all matters that if not pleaded would be likely to take adverse party by surprise or would raise

iii. iv.

v.

vi. vii. viii. ix. x.

xi.

issues not on the fact of prior pleading. Gives examples of answers that should be pleaded: a. Arbitration b. Collateral estoppel c. Culpable conduct in diminution of damages d. Discharge of bankruptcy e. Illegality f. Fraud g. Infancy h. Payment i. Release j. Res judicata k. Statute of frauds l. SOL m. This is not an exhaustive list of affirmative defenses that should be set forth when they apply. Other examples: i. Truth or privilege defense to defamation case ii. Lack of standing iii. Absence of serious physical injury in auto case iv. Lack of proper service of process c. Amendments i. Rules for amendments apply to all types of pleadings ii. 2 ways pleadings can be amended: 1. As of right a. Limited time frame 2. Leave of court a. Applies where your time as of right has expired b. Make motion to the court to allow amendment iii. CPLR 3025 1. (a) Amendments as of Right a. 3 time frames where there can be amendment to a pleading: i. 20 days from the original pleading OR ii. Before the time to respond to a pleading has expired OR 1. 20 days for personal service, or 30 days for any other type of service iii. W/in 20 days from service of the responsive pleading 1. Even after the answer is served, the complaint can still be amended w/in 20 days from that service 2. Responsive pleading includes the reply b. You can only amend a pleading ONCE as of right.

c. Anytime a complaint is amended, there will be an answer in response to the amended complaint d. Amendments as of right can be minor or major. Can add entirely new causes of action or drop causes of action. Can simply add additional facts or allegations, or drop them, to a cause of action. B/c it's amendments as a matter of right, no mechanism in place to determine whether at that stage your amendments have any merit. e. Complaints aren't amended as of right very often (less than 10%). Most of litigation in NY w/ respect to amending pleadings falls into the leave of court category. f. For purposes of serving the amended complaint, just need to mail the amended complaint to the atty. who is identified in the answer. 2. (b) Motion for Leave of Court a. "Amendments and Supplemental Pleadings" - a difference - an amendment to a pleading as of right only uses the term in the statute "amendment"; does not say supplemental. But the procedure for making a motion can apply to an amendment or a supplemental pleading. The difference: amendment to a pleading will assert an entirely new claim or defense. A supplemental pleading - not a new claim or defense; just expounding more on what was originally plead. b. Mentions that pleadings can be amended or supplemented by stipulation of the parties - you can amend or supplement your pleading w/o making a motion; by just proceeding by means of stipulation. Stipulations generally must be reduced to writing and signed by all attorneys. No need for the court to get involved except for them presenting the stip to the court to have it signed at the bottom (so ordered stipulation). Not a motion - doesn't require exchange of papers. Rare to see stips over amended pleadings. Usually if a party wants to amend a pleading it's b/c something important was left out of original pleading. c. "Leave shall be freely given on such terms as may be just" - a general rule that courts will be generous in allowing a party

permission to amend a complaint or answer. Strong language. d. Leave will be denied in 2 circumstances: i. If the proposed amendment is "palpably insufficient" ii. If the proposed amendment "lacks merit" e. The earlier in the litigation a party makes a motion to amend, the more likely a court will grant it f. Cts. are generally more generous w/ a supplement. Amendment more likely to cause prejudice to a party. 3. Trataros Const. v. NYC Housing Authority: Leave properly given in that instance. 4. Schiavone v. Victory Memorial Hosp.: Claim related back to time of original complaint. The effect this has on the SOL. If you want to amend a complaint to assert a cause of action that's otherwise timebarred, some argue this makes the amendment time-barred. But if relation-back applies, it is timely and complaint can be amended. a. VERY IMPORTANT - POSSIBLE EXAM QUESTION b. If a complaint asserting causes of action against certain Ds and they are all timely, and you now want to amend the complaint to add a new D (this is the situation in this case), but bringing in that D at the time of the proposed amendment would be timebarred as to that person, you are still allowed to amend the complaint and have the timing of it relate back to the time of the original complaint if 3 conditions are met (all 3 must be met): i. Claims against the new individual must arise from the same transaction/occurrence as the original Ds originally brought in ii. New D you are trying to add must be united in interest w/ the original Ds 1. Here, ER Dr. who looked at records and didn't do proper diagnosis - vicarious liability b/t Dr. and hospital iii. Party being brought in must know that but for a mistake, he or she would have been named originally 5. There is one circumstance in which a claim that would have been time barred can be added in an amendment: if the original complaint asserts all the elements of, e.g., a defamation claim and even though the original complaint does not

allege defamation and the claim is now time barred, the P can amend the complaint to include that defamation claim if it relates back to the original complaint 7. MOTION TO DISMISS IN LIEU OF AN ANSWER: WILL THE CURTAIN FALL IN ACT I, SCENE 1 OF THE PERFORMANCE? a. 1 of 4 types of appearances. b. CPLR 3211 (a) i. 11 paragraphs set forth the grounds that can dismiss a complaint in lieu of an answer ii. A D that makes such a motion is taking the posture that the case is so strong in his favor, let's just dismiss it right off the bat iii. CPLR 3211 vs. a motion for summary judgment 1. Motion to dismiss comes at this point in the litigation where complaint has been served and D has to either answer or make this motion to dismiss a. Can be made by D only 2. Motion for SJ can accomplish the same thing of resolving the case, but not made until later, after the D has answered a. Can be made by either P or D 3. 1 circumstance where a P will make a motion to dismiss: if a complaint is served and a D answers w/ a counterclaim, the P instead of replying to the counterclaim can make a motion to dismiss the counterclaim in lieu of a reply 4. Burden of proof is different a. Motion to dismiss: parties and the court must assume or deem the allegations of the complaint as true i. 1 exception: D alleges that even if it's all true, the complaint should be dismissed for one of these reasons in CPLR 3211 5. Must be made w/in same time that an answer would have been due (20 days for personal service and 30 days for other methods of service) iv. (a)(1): A defense is founded upon documentary evidence 1. If a document is provided it must remove all doubt. 2. 1 situation where you may go outside the 4 corners of the complaint. 3. If a D is sued and has a document that will conclusively resolve all factual allegations, D may make the motion. v. (a)(2): Ct. has no SMJ 1. This is strictly SMJ, not PJ 2. Murray v. Reif: Must assume the allegations in 4 corners of complaint are true. If they are true and say things outside scope of his employment so as

vi.

vii.

to create a cause of action against the individual, the individual can be subject to SMJ of the supreme court. (a)(3): Party asserting the cause of action has not legal capacity to sue 1. Mitsinikos v. New Rochelle Nursing Home: P had been residing in nursing home, and had good and bad days but never a judicial finding that the individual was incompetent. When a motion was made to dismiss the case by D on the ground that lacked capacity, it didn't meet the burden of proof that the individual was incompetent at the time the lawsuit was started. Concepts the lawsuit speaks to: a. Burden of proof in making this motion is always on the D b. Has to be done by means of documentary evidence - another example of where we can go beyond the 4 corners of the complaint (like looking at psychiatric records to determine whether the P is incompetent) c. If a minor brings the lawsuit, it's grounds for dismissal, but if parents bring it on behalf of the child, not grounds for dismissal (a)(4): There is another action pending b/t the same parties for the same cause of action in a court of any state or the U.S.; the court need not dismiss upon this ground but may make such order as justice requires. 1. Called a dismissal for prior action pending. 3 requirements: a. Must be the same parties b. Must be the same subject matter c. One has to be prior to the other. Go by the filing date w/ the clerk of the court (not service of process or any other benchmark). 2. Graev v. Graev: Matrimonial action - husband filed for divorce in one county and wife filed in other county. Husband moved to dismiss - denied and affirmed b/c alleged different grounds for divorce. Same parties, but if each alleges different grounds for divorce, those are 2 different cases. 3. Cases can be pending in any court. 4. When motion is made to dismiss for prior action pending, it is a motion to dismiss the 2nd of the actions b/c of the 1st action pending. But need an exact match. 5. If a P sues a D and the D has a counterclaim and the D then starts a 2nd action against the P that duplicates the counterclaim, that 2nd action can

viii.

be dismissed b/c identical to counterclaim that's already viable in 1st action 6. If it's P v. D1, D2, D3 and P v. D1 in Action #1, and action #2, P v. D1, D2, D3 and P v. D1, the ones w/ additional parties won't be dismissed b/c those parties can't get relief 7. "May make such order as justice requires": ct. can dismiss or can do something else. a. Example: stay the 2nd action to wait and see what happens in the 1st pending action. b. Example: ct. can consolidate the 2 cases into 1 case w/ 1 caption before 1 judge in 1 court. Won't happen if you have a NY and CT case, or a NY state and a federal case. But can typically be done w/ 2 cases in different counties in NY, but much more likely when they are in the same county in NY. (a)(5): Multiple misc. reasons a complaint can be dismissed: 1. Arbitration and award a. P sues D and D believes the dispute has already been arbitrated b/t them, resulting in an award. In that case, P cannot credibly proceed w/ a lawsuit and it will be dismissed. Language is precise: arbitration and award. Not sufficient that an arbitration is scheduled, pending, waiting for a decision from an arbitration. Arbitration must have run its entire course, resulting in an award to a party. 2. Collateral estoppel; res judicata a. Difference b/t CE and res judicata - CE means a certain issue has already been determined, whereas RJ refers to an entire claim w/ all its inherent elements having been determined b. CE: D making motion to dismiss must show a prior ct. determination of at least 1 necessary element of a P's complaint c. RJ: usually refers to some prior court finding d. Some circs. where CE and RJ will apply if the finding that you are relying on is an administrative agency determination (rather than a ct. determination). Where you are relying on an administrative agency determination, moving party must show full and fair opp. to be heard and that the issue/claim is in fact the same, and that the same parties were involved administratively as in the later lawsuit.

3. Discharge in bankruptcy a. D owes P money; D files for bankruptcy; P doesn't submit a claim form in the bankruptcy ct.; D's debts are then discharged in bankruptcy; P then sues for his money - if D has been discharged from bankruptcy, that debt is no more and is grounds for seeking and obtaining dismissal of P's complaint 4. Infancy or other disability of the moving party a. Different from (a)(3) - here it's about D's infancy or incompetency 5. Payment a. Typically contract-based cases where P is suing D for money and D maintains that it's already paid. D typically provides extrinsic docs to show payment as part of the motion - question becomes if the amount P is seeking is the amount that was paid determined by the facts of the case. Also was payment by D intended for same debt that P is suing D for? May not be a match there. 6. Release a. If D is sued and has already been released from liability by the same P. In NY a general obligation law - under the GOL, a release typically needs to be in writing and signed by the party charged the enforcement. For D to seek dismissal of P's claim, copy of release must be provided w/ motion papers and there must be a match b/t what is being sought in the complaint and the subject matter of the release. Absent a written release or a match b/t what the complaint and release address, the motion to dismiss would be denied. 7. Statute of limitations a. Tolling provision subject to the most controversy when motion to dismiss made on SOL grounds. 8. Statute of frauds a. 2 main grounds: i. Contract which by its terms cannot be performed w/in 1 year must be in writing and signed to be enforceable ii. Real estate transactions b. Bowman v. DiPlacidi: Parties had oral agreement that title to property would be transferred from 1 party to another. SOL says transfer of property must be in writing and signed to be enforceable. P sued for title to the property. D moved to

ix.

x.

xi.

dismiss saying not in writing. Ct. correctly dismissed the complaint on basis of SOL. i. Language in case of part performance. A way to get around SOL if a party can show performance of an oral K, of the material terms of the K, and which is irrefutably referable to an oral K. Ct. didn’t buy the proof here and complaint was dismissed. (a)(6) Improper counterclaim - "w/ respect to a counterclaim, it may not properly be interposed" 1. Not often seen 2. Counterclaim can only be interposed against a P in the same capacity in which the P has appeared. 3. Suppose the P is a partnership and D interposes a counterclaim against that P - the counterclaim is proper if against the partnership but not proper if it is a counterclaim against an individual partner having nothing to do w/ partnership business (a)(7): Pleading fails to state a cause of action 1. The court would have to decide that despite accepting the allegations in the complaint as true, it doesn't rise to a compensable claim 2. Example: complaint is missing certain necessary elements a. Defamation claim not alleging the element of publication - on its face, even accepting the allegations of true, doesn't state a cause of action 3. Tiffany General Holding Corp.: 6 of the Ds dismissed for SOL. 1 of the Ds - continuous representation tolled the SOL for legal malpractice as against that D. Ct. looked at allegations of complaint and said it states a cause of action. (a)(8): The court has not jurisdiction of the person of the D 1. Difference b/t (a)(8) - PJ, and (a)(2) - SMJ 2. Can mean 2 things: a. (1) improper service of process; or b. (2) an absence of the underlying basis for jurisdiction i. Example: doesn't qualify for long-arm jurisdiction 3. 3211(c): last sentence: upon hearing of a motion based on (a) or (b), ct. may order immediate trial on issues raised on the motion. When a motion is made to dismiss complaint on basis of no PJ, cannot always be resolved on paper. Sometimes an evidentiary hearing is needed to decide whether ct. has PJ over D.

4. 3211(e): 60 day rule. Improper service of process - if you don't move to dismiss and instead answer and include in answer an affirmative defense that service was not properly served on D, you are still required to make a motion w/in 60 days after serving the pleading, and if you don’t, you've waived the objection to improper service of process. a. A catch: the language is specific - 60 day rule applies if pleading was not properly served. Remember: PJ can be 2 things proper basis for jurisdiction plus proper service of process. This 60 day rule doesn't apply to the basis for jurisdiction; only the service. If you think PJ is improper, don't have to make the motion w/in 60 days. xii. (a)(9): Absence of in rem jurisdiction 1. Where only property is at issue xiii. (a)(10): Absence of necessary parties 1. Haddad v. City of Hudson: D challenging tax assessment. Would affect county and school district, but petitioner did not name county and school district. Ct. properly dismissed case. 2. Ct. must find that a party is truly necessary to the fair outcome of the case. xiv. (a)(11): Immunity- non-profit corp. officers/directors 1. Not important 2. Non-profit tax exempt corp. in NY and lawsuit commenced against directors or individuals of that corp. they are immune to lawsuits w/ respect to their corporate work, except 2 instances: a. Gross negligence b. Intentional tortuous conduct c. 3211(b): Motion to dismiss defense i. A party may move for judgment dismissing one or more defenses on the ground that a defense is not stated or has no merit. d. 3211(d): Facts unavailable to opposing parties i. D moves to dismiss P's complaint and now the P is opposing the dismissal in opposition papers, and there are some facts the P thinks are out there that P thinks might help the motion but doesn't have the facts yet. Ct. can (1) deny the dismissal and simply allow an objection to be interposed by the party opposing dismissal; (2) adjourn motion until the additional facts can be obtained and then decide the motion later; (3) make such other order as may be just - broad language e. 3211(e) i. Of the defenses in 3211(a), subdivisions 1, 3, 4, 5, 6 either have to raise them in responsive pleading or make motion to dismiss in lieu of an answer, or you waive them

3211(a) 2, 7, 10: not necessarily waived if you don't make a motion to dismiss or don't have it as an answer in the affirmative defense. But to later raise one of these 3 defenses, you have to make a motion to the ct. seeking permission and the court has discretion to allow or not allow you to raise those defenses at that later time. iii. 3211(a) 8, 9: waived if not included in motion to dismiss or as defense in an answer iv. In personem juris - waived if no motion w/in 60 days or answer v. Can make motion to ct. to have these defenses unwaived f. Typically if you make a motion to dismiss in lieu of an answer, you only get one chance. i. Exceptions: if it's made before it's ripe, ct. can grant leave to get additional facts; if D moves to dismiss P's complaint and P cross-moves to dismiss a counterclaim, they can be made at the same time g. If a party make a motion to dismiss and it's unsuccessful (motion is denied), that D must answer the complaint. The answer can contain all the affirmative defenses you would otherwise want to plead, except for the defense the ct. has just denied leave for. h. You can also make partial motions to dismiss under 3211. If a complaint has a few causes of action, can make a motion to dismiss on some grounds but not the others. If it's granted, will stay the time you have to answer the complaint as to those other causes of action. i. Can also make motions to dismiss a cause of action on more than one ground. j. If motion to dismiss is denied, 3211(f) tells us how much time you have to answer the complaint. Decision denying the dismissal gets served. From the date of that service, you have 10 days to serve an answer. k. If a motion to dismiss is made and granted on a specific ground (like SOL), that is not a dismissal on the underlying merits of the case. It's CE on that issue (SOL), but 3211 dismissals can sometimes be on the merits (documentary evidence); sometimes on procedural grounds where you don't reach the merits. 8. PROVISIONAL REMEDIES: ATTEMPTING A 3-POINT FIELD GOAL EARLY IN THE GAME a. 5 provisional remedies. A provisional remedy is a temporary remedy - usually at the beginning of the case, doesn't decide the final issues of the case. If you get one at the beginning of the case, you get an advantage - secures your rights; secures the thing you are trying to get a judgment on later. Usually sought by a P against some asset of the D (but seen sometimes in reverse). b. Injunctions

ii.

i. ii. iii.

iv.

v.

vi.

3 kinds: temporary (TRO), permanent (not a provisional remedy but added to list to show what injunctions are and orders in which they occur), preliminary Definition: An order from the court to a party that tells that party that he either can't do something or that he must do something. Major points: 1. Court has discretion whether or not to ever grant an injunction. 2. Party seeking to obtain a temporary or preliminary injunction has the burden of proof - clear and convincing evidence (less than reas. doubt but more than preponderance). 3. Never given by a court if the party seeking the injunction has some other adequate remedy short of the injunction itself. 4. Elements the party must prove by a preponderance to be entitled to an injunction must meet all 3 elements: a. Likelihood of success on the merits (likely to succeed at the end of the case); and b. Irreparable harm; and c. Balancing of equities: Court must look at the equities of the situation to weight the arguments of both sides and determine whether the equities tip in favor of the party seeking the injunction i. Most litigation is on 1st 2 elements ii. Municipalities only need to establish likelihood of success and balancing of equities - does not have to prove irreparable harm. Difference b/t temporary and preliminary injunction: Temporary injunction is usually only a few days old when the ct. decides whether to continue it in preliminary injunction or vacate it entirely. The preliminary injunction will extend until the end of the case unless listed (can be weeks, months, years). Forms of motions: 1. Notice motion 2. Order to show cause - used to seek injunctions a. Instead of mailing it to the other side, the party first shows it to a judge. Has an order that the judge will look at and decide whether or not to sign. Then judge would sign the order for injunction. CPLR 6313 - TRO 1. (a): TRO may be granted w/o notice to the other side if on a motion for prelim. injunction P shows immediate and irreparable injury, loss, or damages will result unless D is restrained before hearing can be had. This language is now qualified by uniform rule:

vii.

viii.

a. Uniform Rule 202.7(f): Now a statewide procedural rule that if you are seeking a TRO and a preliminary injunction, you have to give notice to the other side, unless you can convince the ct. that giving them notice will cause significant prejudice. Result of this rule is that now a lot of parties are giving notice to the other side when they are presenting their order to show cause for TRO b/c can't necessarily show the significant prejudice. This has cut down on ex parte applications by Ps seeking TROs against Ds (where Ds aren't present and have no opportunity to be heard). Must also show reasonable. good faith efforts, reas. notice - give at least a few hours or a day. If a party comes to court ex parte seeking a TRO and can't establish significant prejudice and hasn't made good faith efforts to notify the other side, ct. can refuse to sign the order to show cause. 2. (b): Service - TRO together w/ papers on which it is based and in notice of hearing on prelim. injunction shall be personally served in same manner as the summons (unless ct. orders otherwise). a. Higher standard of personal service so person subject to order can know and abide by order. 3. (c): Undertaking - Like a bond - security posted w/ the ct. If you are the P party seeking a temporary injunction against D, ct. in its injunction may require you post an undertaking (bond) w/ the ct. Ct. decides the amount that the undertaking will be if there is one. Purpose is if TRO procures damage to party against it was issued, the bond can help rectify those damages. Discretionary ct. may. Only applies to temporary injunctions. When one party submits order for preliminary injunction, other side can submit opposition papers opposing the injunction (extending temporary to preliminary), and the other party can submit reply papers. CPLR 6301 - Preliminary injunction - may be granted in any action where it appears the D threatens or is about to do or is doing an act in violation of P's rights respecting the subject of the action (there must be a relationship b/t the subject of the case and the injunction you are seeking). A prelim. injunction can be granted where the D may do or is threatening to do something which may render a judgment ineffectual. Also language about injury to P - goes back to irreparable harm prong. 1. The purpose of injunctions is to preserve the status quo so if P succeeds at the end of the case, the judgment that P has can have some meaning.

ix.

x.

xi.

xii.

xiii.

Example: the property they are disputing ownership over still exists. 2. To qualify for this type of relief, the cts. will look at the 3 prongs above. CPLR 6311: 1. Notice must be given to the other side - no such thing as an ex parte preliminary injunction. 2. A preliminary injunction can be sought against a municipality from performing what would otherwise be a statutory duty. Timing: P has 2 options: 1. File and serve summons and complaint, then bring order to show cause seeking injunctive relief. 2. File summons and complaint (have 120 days to serve process), before you serve the summons and complaint on D, go to court with order to show cause (even ex parte), and obtain TRO if entitled to it. You can then serve your TRO and your summons and complaint all at the same time on the D. a. This option is used more often - good b/c leaves no time for D to do anything w/ assets like freeze the money CPLR 6312 1. (a) On a motion for a preliminary injunction the P shall show, by affidavit (important b/c requires personal knowledge) and such other evidence as may be submitted, that there is a cause of action, and either that the D threatens or is about to do an act in violation of P's rights, OR that the P has demanded and would be entitled to a judgment restraining the D from performing an act, which, if committed would produce injury to P. 2. (b) For prelim. injunction, P shall give an undertaking. Discretionary for a TRO, but no discretion for prelim. injunction. a. Both sides give evidence to show how much the undertaking should be based on what the judgment would be, and ct. has to look at it and rationally relate it to that evidence. CPLR 6314 - Vacating or modifying injunction 1. D subject to injunction - right to make motion to vacate or modify the order. Can be done at any time the prelim. injunction is in effect. Must be on notice to the other side. If you are seeking to modify or vacate an injunction against you, the court may (discretionary) require an undertaking of your own. Yellowstone Injunction: specific to commercial leases. The 3 elements don't apply - 4 different elements (see Berghold v. Kirschenbaum). P must act fast.

If someone violates an injunction the remedy is contempt of court: criminal (doesn't apply here) and civil contempt of court. 1. 4 elements for civil contempt of court: a. Clear and unambiguous order compelling someone to do something or not to do something b. Knowledge of the order by the party who has allegedly violated it (satisfied by mere service of the order upon that party) c. Some term of that order is violated d. Violation of the order must in some way prejudice or impair the rights of the party who has the injunction in his or her favor 2. All 4 elements must be established by clear and convincing evidence. Ct. can fashion a remedy - a lot of discretion - fines, incarceration, additional orders, etc. xv. Summary chart of provisional remedies (on TWEN) c. Attachments i. Another provisional remedy. ii. Know what an attachment is in the general sense, how it's obtained, but he won't test us about the details. iii. Not seen as often as injunctions. Difference: an injunction is an order to a person to do or not do something while a case is pending, but an attachment is an order directed to property. Does not require the sale of a property, but is an order which in the 1st instance is given by the court on successful application to a sheriff of the county in which the property is located. The sheriff has the responsibility to do something w/ it to secure the property that is subject to the order. iv. Applies to any type of property - real, personal, intangible (like debt) v. CPLR 6201: Grounds for obtaining - may only be used when P seeking a money judgment, AND 1 of the following 5 categories: 1. D a non-domiciliary residing outside the state or foreign corp. not qualified to do business in NY 2. Inability to serve NY domiciliary 3. D's intent to defraud 4. Crime victim compensation 5. Foreign judgment entitled to full faith and credit vi. CPLR 6212(a): A P seeking an attachment - 2 prong test: 1. Show you have a valid cause of action (doesn’t mean likelihood of success, harm, etc. - just show you have a case) 2. Probability of success (not likelihood - probability - but seems the same) vii. CPLR 6212(c): If you win that order, must file the order w/ the clerk of the court w/in 10 days from the time the order is granted. If you fail to do so, your order becomes invalid on day 11.

xiv.

You can seek an attachment prior to serving summons and complaint on D or after serving summons and complaint on D. If you have sought and obtained your attachment prior to serving summons and complaint, CPLR 6213 provides that once you have your attachment order, have to serve your summons and complaint w/in 60 days. 1. Meshing 60 day requirement w/ general 120 day requirement. Always have to have it served by the shorter of the conflicting deadlines. ix. CPLR 6212(b): Undertaking is mandatory for attachments but amount not less than $500. x. Procedure: 1. Sheriff brings order to party who possesses the asset - sometimes the D and sometimes a 3rd party (ex. the bank of D). When sheriff physically goes to possessor of property and serves it on that party, it's called a levy. Levy is not necessarily a seizure of the property - it's the procedure notifying party property has been attached. This is for personal property or debts owed by D. 2. Real property - 6216 - file order w/ clerk of country where property is located - this acts as an attachment of that property. 3. CPLR 6214(b) - if property is too large to seize, upon levy of whoever has possession of property, that individual is forbidden to sell, assign, transfer, or interfere w/ the property xi. If order of attachment has been obtained ex parte (w/o notice to property owner), property owner must confirm order of attachment xii. CPLR 6214(e) - perfection of levy w/in 90 days from levy or levy becomes void xiii. Remedy for violation is not civil contempt - 6214(d) bring garnishee into court - make motion to compel d. Receivership i. Receiver is appointed by the court to marshal assets and administer and manage them with a view towards being trustworthy and preserve the asset pending the litigation. ii. A receiver will only be appointed to manage assets when that asset is the subject matter or is among the subject matters of the lawsuit. iii. Additional burden: showing there is a danger that if that receiver is not appointed those assets will be looted, lost, injured, or destroyed iv. Discretion of the court (like all provisional remedies) v. CPLR 6401 1. (a): Party can seek to have a receiver appointed either before or after serving process on D. Means a receivership can be sought ex parte by the P before D even knows about the lawsuit.

viii.

2. (b): Powers of receiver - ct. may authorize him to hold real and personal property, sue for collect and sell debts or claims 3. (c): Appointment of temporary receiver will automatically end when case reaches final judgment. vi. Receiver usually a disinterested person but can be a party to the lawsuit who can be trusted to manage the asset. vii. CPLR 6402: Requires that a receiver upon being appointed signs an oath w/ the court saying will faithfully and fairly discharge the trust committed to him or her. viii. CPLR 6403: Requires receiver to post a bond (not posted by the parties). Amount of the bond is set by the court a discretionary amount - but should be an amount sufficient to cover the damages in the event the receiver violates the oath and incompetently handles the asset. ix. CPLR 6404: Requires a paper trail of what the receiver is doing. Those documents are to be available for inspection by any interested person. x. CPLR 6405: Procedure for removing a receiver if the receive is violating the oath or acting incompetently. Must be an application on motion on notice to all parties and the court has discretion to grant it or not. xi. See chart on TWEN e. Notice of Pendency (lis pendens) i. Document filed by P w/ the clerk of the county in which real property is located (can't file it w/ any other county clerk). Existence of the document on file is a warning to anyone who might want to purchase that property or pay security against that property that there is a claim against that property. Existence of document acts as constructive notice to the entire world that that claim exists. ii. Only provisional remedy that doesn't require that you first go to a judge w/ a motion and ask for relief. P can do it unilaterally by filing the notice of pendency w/ the clerk. iii. Can file it either before or after serving summons and complaint on D. But if you file it prior to serving summons and complaint, you must then serve the summons and complaint w/in 30 days (1/2 the amount of time (60 day) for attachment). 1. 30 day requirement abridges the 120 day requirement. a. If you file your notice of pendency on day 30, you have 30 days to serve process and then 60 more days b. If you file your notice of pendency on day 90, you have 30 days to serve process

iv.

v. vi.

vii.

viii.

ix. x.

xi.

which takes you up to same 120 day deadline you would have in a typical case c. If you file your notice of pendency on day 110, you only have 10 days left under general 120 day rule and law puts you at burden of shorter of the 2 amounts 2. If there are multiple Ds in the case, you only have to have one of them served w/in 30 days to be deemed in compliance w/ the statute Contents of notice of pendency: 1. Names 2. Object of lawsuit 3. Description of property 4. Block/lot index 5. [clerk indexes document] Effective immediately upon filing. Title to the property for which there is a notice of pendency can still be transferred to a 3rd party, but with the caveat that 3rd party knows or should know that there is a claim that will follow transfer of title. There must be something about the real property that relates to the subject of the lawsuit. 1. Ex. Automobile accident - no connection w/ property allows for filing notice of pendency 2. Ex. If 2 people claiming they are owners of property and that property is subject of the lawsuit, notice of pendency property Commonly filed in these types of lawsuits: 1. Foreclosure 2. 2 parties enter into a K for sale and purchase of real estate and one party then files a lawsuit seeking specific performance 3. 2 parties jointly own property and they are not getting along - a partition action where ct. divides property and orders it sold Even if your case is in federal court, can still file a notice of pendency in state CPLR 6515: Notice of pendency has a shelf life of 3 years. A party subject to it can bring a motion to extend on notice to all parties but motion must be brought before 3 years has expired. Must simply show good cause to show why it should be extended beyond 3 years. If you don’t make your motion w/in 3 year window your notice of pendency will expire and have no effect after the 3 years is up. CPLR 6514: Procedures and circs. whereby D can seek to have notice of pendency lifted or canceled. Done by a notice motion (motion to all parties). 1. Motion must be granted (no discretion) a. Motion of pendency is filed prior to summons and complaint and summons and complaint not served w/in 30 day deadline b. Lawsuit is settled

Clerk can't just cancel it - court order is required c. P discontinues the lawsuit d. P loses the lawsuit on the merits after being litigated 2. Motion may be granted if action is not in good faith 3. Cancellation by stipulation by both parties 4. Cancellation by P unilaterally - doesn't need court order or stipulation by other party xii. No bond or undertaking is required by person who files the notice of pendency xiii. CPLR 6515: If D makes a motion to cancel the notice, the ct. has discretion to require the D to post a bond in exchange for the cancelation of the notice. f. Seizure of Chattel i. A sheriff seizes property prior to a final judgment in a case in order to preserve it as an asset ii. Difference b/t this and attachment 1. For seizure of chattel to apply, the chattel must be the subject of a lawsuit a. Example: 2 people fighting over who is the owner of a valuable piece of jewelry 2. Attachments: P only seeking a money judgment, not necessarily the property - only seeking to secure the property for ability to collect later iii. Does not apply at all to real property iv. P cannot be seeking any type of money judgment. v. CPLR 7102 (e): An undertaking is required - must be an amount at least twice the value of the property seized. vi. Procedure: a motion is made to the ct. by the party seeking the seizure. Can be on notice to all other interested parties but can also be ex parte (w/o notice) if the ct. finds a probability that absent a seizure that property will become unavailable or impaired. vii. CPLR 7102 (d): Motion made to the ct. must have an affidavit by the moving party, must show probability of success on the merits. If you are seeking it ex parte, it's as if you are required to at least meet the 2 prongs required for injunction. Moving party has burden of proof - clear and convincing evidence. viii. CPLR 7102 (d)(1) and 7110: If motion is granted, order issued by court addresses: 1. Sets the amount of the undertaking that needs to be posted a. Motion must address the property's value so know how much undertaking will be 2. Direction to the sheriff to get the property. If party is not cooperating, the order has language authorizing the sheriff to break into home or business to conduct a search and seizure. ix. If you obtain an order for the seizure of personal property ex parte, you must come to court to confirm

i.

x. xi.

the seizure w/in 5 days of the seizure itself. Your motion to confirm is on notice to the party whose property has been seized. Don't have to make the motion to confirm if your original application for seizure is on notice to the other side. Motion to confirm must have 5 things addressed: 1. Affidavit by party that wants the property seized setting forth reasons why property should be seized 2. Property must be very specifically identified 3. Party seeking the seizure must demonstrate either by affidavit or other evidence a probability of success on the merits 4. D had been wrongfully holding the property prior to the seizure or would be wrongly be in possession of it if it were returned 5. Must address the issue of the property's value CPLR 7109: Remedy for violating an order of seizure: contempt CPLR 7103: Motion procedures for person seeking to get property back after it's been seized: 1. Impoundment - property doesn't go to the P or the D, it stays w/ the sheriff. A D subject to seizure can make motion to ct. to have it impounded by sheriff indefinitely. 2. Notice of reclamation - can be made by anyone filed w/ sheriff who seizes the property. Sheriff is to then keep the property for 10 days. If no challenge w/in that 10 day period either to amount of undertaking ordered or to the order of seizure itself, the sheriff is to return the property to the party that filed the notice. 3. Motion for return by D - motion by D only whereas reclamation can be sought by anyone having an interest in the property

IX. MORE GUESTS TO THE PARTY a. Impleader, Contribution and Indemnity b. Contribution: b/t Ds or b/t a D and a 3rd party D. 1 D is seeking another D to contribute to any monies that 1st D might owe the P i. Ex.: suing LL for slip and fall - LL might bring 3rd party action against the store where the fall occurred ii. Ex.: 2 car accident - P sues owner of the car, but the driver was a3rd party, so D can bring action against driver of car iii. Distinct from indemnity. Amount of contribution that one party might owe to another D party is determined by a percentage (indemnity is 100% or contractual - see below). c. Indemnity i. 2 types: 1. CL indemnity: 100% contribution

2. Contractual indemnity: When 2 parties have a K w/ e/o and one has agreed to reimburse the other for damages ii. Ex.: 2 car accident - D driver is a renter of car from car rental agency. If D thinks accident occurred b/c of mechanical defect of car rented, might start 3rd party action against agency. Typically a K b/t renter and rentee. d. Contribution and indemnity can be against another D in the action or a 3rd party action. e. 3rd party action - D in primary action becomes the 3rd party P in the 3rd party action, and the D in the 3rd party action is known as the 3rd party D. 3rd party P doesn't need permission from ct. to commence 3rd party action. 1 condition: D/3rd party P must have already answered P's complaint in order to start 3rd party action. i. Have a 3rd party summons and complaint that gets served on 3rd party D in same way as we discussed previously. 3rd party D serves an answer - can assert any affirmative defenses that would be available in typical action. When the answer is due depends on how service is done (personal service 20 days to answer; any other means 30 days) f. CPLR 3402(b) statement - amends the caption to give notice that 3rd party Ds have been brought in. 3rd party pleadings consist of 3 documents: this plus 3rd party summons plus 3rd party complaint. g. A D in a case who wants contribution or indemnity has 2 choices: i. Serve 3rd party summons, 3rd party complaint, 3402(b) statement and bring the D in ii. If P sues D, D doesn't have to do anything to bring in a party that he wants contribution or indemnity from. He can defend the case, and if the case is disposed of w/ judgment against D, D can seek a new and separate lawsuit for contribution or indemnification. 1. (1st option is more efficient) h. A P who learns of 3rd party D might want to amend complaint to make the 3rd party D an additional direct D. B/c when case goes to judge/jury, and 3rd party D is the real liable party, the jury will decide whether the D in the main action is liable to the P. If the answer is no and the main D isn't found liable, you don't reach down to consider the 3rd party D. So the P would be out of luck if the only liable party was in the position of a 3rd party D. Now customary practice for Ps to amend complaint to bring 3rd party D into main action. i. A catch: P cannot amend complaint and bring a direct action against 3rd party D if the SOL has expired on whatever claim it is b/t the 2 parties. ii. If a P is going to amend the complaint, P can do so as a matter of right w/in 20 days of the 3rd party D's answer - w/o leave of court. But later nothing would prevent P from filing a motion w/ the court seeking leave to

commence action against 3rd party D. Better off to do earlier b/c the longer you wait more likely that the ct's discretionary decision will be denial. i. SOL for contribution or indemnity is 6 years. 6 years runs from the payment of the judgment from the P to the D. i. Bringing in a 3rd party - never time barred, as long as no judgment against D is made. But if 2 separate suits, then there is a 6 year SOL. j. After litigation on the entire case, a point where judge will declare the case is trial ready and a document called a note of issue has to be filed. Once case is trial ready, if 3rd party action has not been commenced, you are too late to commence it after that. k. 3rd party complaints can be based on diff. theories than the theories in the primary action l. Dole v. Dowd (1972): Allowed for 1st time 3rd-party lawsuits. If P is to some degree at fault for own accident, the recovery will be reduced proportionally by the percentage of fault attributed to them. These concepts were codified in Article 14 of CPLR. m. Jury always determines in a damages trial the full value of the damages. Jury does the liability percentages and the full value verdict, and then the court does the mathematical computation that reduces the full value award to the amount actually awarded in the judgment. i. Jury is first to determine whether the D is liable. If jury finds the D is 0%, you don’t reach the issue of whether the P caused or contributed to his own accident. So can never have a 100% contributory negligence by a P. ii. 1 P and 2 D's - under Article 14 and Dole v. Dowd, jury is asked to determine if one or both Ds are negligent, and if both are (and determining whether P is contributory negligent), to apportion the liability b/t the 2 Ds. iii. Examples - $100,000 verdict - 3rd party D 1. P 0%; D1 50%, D2 50% - all has to add up to 100% 2. P 50%; D1 25%, D2 25% 3. P 50%; D1 0%, D2 50% 4. P 0%, D 100% - D now owes P 100k. But 3rd party action (3rd party P, 3rd party D) - jury is asked to consider what degree of fault, if any, 3rd party D is w/ respect to conduct D is found liable for. If 50/50, 3rd party D now has to pay 50k. D pays its 100k to P and 3rd party D pays 50k as contribution to D's 100. 5. P 0%, D 100%, jury asked to consider 3rd party D liability and finds 3rd party D 100% at fault. Main D still owes P 100k, but b/c of 3rd party liability verdict, D will be reimbursed full 100k from 3rd party D. 6. P 50%, D 50% (so P only entitled to 50k of 100k verdict b/c 50% contributory negligence). Jury then asked to consider division of liability b/t 3rd

parties - if 3rd party P 50% and 3rd party D, that 50% can only be assessed as to 50k D owes to P. So 3rd party D pays 25k to main D. n. Comparative vs. contributory negligence. Contributory negligence always refers to percentage of fault attributable to a P. Comparative negligence is where you are comparing everybody's liability (particularly b/t 3rd party Ds) o. Contribution: i. CPLR 1403: Authorizes the use of 3rd party complaints to bring in additional parties ii. CPLR 1401: Authorizes contribution 1. Talks about cases involving personal injury, injury to property, wrongful death. Says nothing about contracts - probably b/c contracts link into concept of indemnity. iii. CPLR 1411: Provides that if a P is at fault to any degree for his or her own accident, that is not a bar to recovery. Calls for a proportional adjustment of the damages. iv. Contributory negligence is a 3rd party defense that can be pleaded in an answer v. Nothing prevents a 3rd party D from starting their own action, which is called a 2nd 3rd party action. If that 2nd 3rd party D starts a 3rd party action, caused a 2nd 2nd 3rd party action. p. Joint and Several Liability i. 2 Ds are liable - you can enforce the entire judgment against 1, and the 1 who has paid then has to go to the other D for contribution. ii. Most extreme example: if you have D1 and D2, D1 1% liable, and D2 99% liable, P can collect entire 100k from D1 and then D1 then has to go after D2 to get reimbursed for 99k. This existed in NY until a few years ago - still controls in some cases. iii. Article 16 creates exceptions to this idea. iv. CPLR 1601: When there is a verdict in favor of a P on a personal injury action [only involves personal injury cases - negligence, medical malpractice, etc.] and where you have 2 or more jointly liable tortfeasors, the tortfeasor who has the smaller percentage of liability of all the liability assigned will not be required to pay more than its equitable percentage. So above example - not required to pay more than 1% of the judgment. v. Only applies to the portion of the judgment that is for non-economic loss. 1. Economic loss: lost wages, medical bills 2. Non-economic loss: past pain and suffering, future pain and suffering, loss of consortium, emotional distress 3. If a party is less than 50% at fault, that party will not be required to pay more than its own percentage of the liability.

vi.

vii.

viii.

4. If a party is more than 50% at fault, the P can seek to enforce the entire judgment against that party. Joint and several liability only comes into play if there is a problem collecting from 1 or both Ds. The P recognizes the joint and several liability (both Ds are ultimately responsible for 100%), and can enforce the full 100% against one or the other. 1. Set up so the P doesn't have to take the hit - at least one D takes the hit. 2. The 99% that D2 can get back to D1 is contribution. Article 16 Exception to joint and several liability (allows the D w/ smaller percentage to cap his liability and not have to pay the entire thing - modifies joint and several liability where D1 would be responsible for paying the entire thing) - apply in any case where the P has a judgment and all 4 factors are present: 1. Only applies to personal injury cases (injury to a person) AND a. Includes product liability causing injury to a person and to med mal, but not property damage 2. 2 or more Ds AND 3. D seeking to cap his or her liability to pay the judgment must be 50% or less liable AND a. So D1 w/ 1% liability would be able to use exception but D2 wouldn't 4. Award for noneconomic loss a. Personal injury, past or future pain and suffering, emotional distress, loss of consortium) Jury will be asked to break down verdict b/t economic and non-economic loss 1. If jury comes back w/ verdict for pure economic loss, D1 25%, D2 75% liable, personal injury case, D1 could be held responsible to pay full 100k to P b/c the full 100k is for economic loss (not eligible for limitation under article 16) 2. Personal injury case 100k - 40k is economic and 60k noneconomic, D1 25% liable, D2 75% - D1 only has to pay 25% of noneconomic loss (capped at 25% of noneconomic loss), so 15k, but P can still go after D1 for the full economic 40k - so D1 only required to pay P 55k. D1 can go after D2 for extra 30k of 55k that not liable for. 3. P receives award for 100k and all is noneconomic loss, personal injury case, 2 or more Ds, D1 25% liability, D2 75%, so D1 is eligible for the limitations of joint and several liability. Since all 100k is noneconomic, P can only recover $25k from D1.

Exceptions to the Exception - CPLR 1602 - where D will not be able to cap the percentage - reverts you back to original general rule of joint and several liability 1. Indemnity Contract: Prior to an accident the parties have entered into a written agreement where 1 party has agreed to indemnify the other for any losses that might be suffered. a. Ex. car rental situation 2. Administrative Proceedings: If parties are litigating not in court but their dispute is somehow in the context of an administrative proceeding, and it is determined that 2 or more individuals are at fault and owe money to a claimant, general joint and several liability will apply and the cap will not 3. Intentional Torts: Assault and battery 4. Automobile Actions 5. Recklessness: people who act recklessly shouldn't be able to get the benefit of the cap 6. Product Liability 7. Grave Injury as defined by workers compensation law a. The workers comp law changed. P = W.C. Now the subcontractor, general contractor, etc. Ds are only allowed to bring in or implead the P's employer where there is a grave injury b. Death, permanent loss of use or amputation of hand arm or leg, loss of multiple fingers, blindness, deafness, loss of smell, permanent and severe facial disfigurement, brain injury caused by physical trauma resulting in total disability x. Article 16 exception should be pleaded as affirmative defense in answer. Burden is on the party that seeks the benefit of the Article 16 exception. q. Joinder i. Permissive Joinder - CPLR 1002 1. (a) if persons are seeking relief as a result of a transaction/occurrence or series of transactions/occurrences, you can join multiple Ps together in the caption of the case if all of them have the same claims arising out of that same transaction/occurrence 2. (b) - same concept applies to Ds - you can sue D1 and D2 in the same case where your theory of liability is the same against both Ds (can be more than 2 parties) 3. Ps can permissibly join difference causes of action/theories of recovery together in a single case

ix.

a. If you are a P and have been injured by exploding coke bottle, can sue for products liability, negligence, etc. in one complaint 4. This also applies to any counterclaims Ds might interpose against Ps 5. Don't confuse permissive joinder w/ courts taking 2 separate lawsuits and joining them together for discovery or trial ii. Joint Discovery/Trial - 602(a) 1. Joinder of cases must be on motion by a party in either lawsuit. Whether to join them is discretionary on the part of the court. 2. For the joinder to occur, there must be a showing on the motion that they arise from common questions of fact or law. 3. If granted, court would direct that for purposes of discovery b/t the parties, everyone is to exchange that info w/ everyone else as if it was one big case. But on paper each case retains individual identities and index numbers. And each case results in a separate jury verdict. 4. Can be joined for discovery and for trial, for discovery and not trial, only for trial. 5. If joined for trial, can have one trial before one jury rendering separate verdicts. 6. Avoids a lot of the duplication of evidence. iii. Consolidation - CPLR 602(b) 1. P v. D1, P v. D2 - auto case - P suing for personal injury in both cases - same injuries - but has commenced a lawsuit against 1 car in 1 court and other car in another court. Any party under that circumstance can make a motion to consolidate the cases. Ct. would have to find common questions of fact or law. If granted, ct. will consolidate the 2 cases, and instead of them retaining their individual identities, they would be merged. 2. A new caption - P and both Ds appearing in a single caption. 3. The older of the 2 index numbers will become the only index number on the caption of the consolidated case 4. Why will court order joinder or consolidation (one but not the other)? a. Joinder appropriate when P v. D1, D1 v. D2 b/c you can't have both sides on the v. b. Consolidation when P v. D1 and P v. D2 b/c won't have both sides on the v, just P v. D1 and D2 5. For consolidation, one trial, one jury, one verdict iv. Confusion of the jury is a big factor in deciding whether joinder or consolidation is appropriate. r. Severance

Reverse of joinders - undoing that which came enjoined Typically no severance of something that has been consolidated - typically it's undoing joinders iii. CPLR 603 - 2 reasons: 1. Ct. looks at for its own convenience or 2. To avoid prejudice iv. Does not require a motion. Party can move for a severance, but judges have their own authority to do so v. Discretionary given circs and facts of case s. Interpleader - CPLR 1006(a) and (b) i. 2 types: 1. Standard/defensive a. Stakeholder, one who has money or personal property, and 2 or more people appear to have a claim that property. Stakeholder is the monkey in the middle. A standard interpleader is where the stakeholder goes to ct. first and starts an interpleader action, and brings into that case all the potential parties that may have a claim on the property. b. Stakeholder no longer has a claim on the property but knows it has to be paid out to someone, and the question is whom? 2. Offensive a. One of the claimants initiates the lawsuit to get title to the property. As a defensive measure, the stakeholder brings into the case other potential claimants. At which point stakeholder is in same situation as 1st. Doesn't know who the property belongs to so let the courts sort that out. ii. To commence an interpleader, the same as any other lawsuit in terms of filing and service of summons and complaint. iii. The complaint is called an interpleader complaint. iv. Sometimes a stakeholder wants to be discharged from a case. CPLR 1006(f) has a procedure by which a stakeholder can be discharged. Stakeholder makes a motion on notice to all the other claimants in the case. Stakeholder offers to either pay the money to the court pending the case or to give the property to some designated person the ct. identifies or to in another way give over the property to someone pending the lawsuit. Discretionary but typically granted. t. Intervention i. A lawsuit is pending b/t certain people, companies, etc., and someone who isn't part of that lawsuit wants to get in on it, claiming to have some right, title, interest that might be affected by how that lawsuit turns out. ii. 2 types:

i. ii.

1. Matter of right - CPLR 1012(a) - 3 circs. where as a matter of right someone from outside a suit can come into the suit: a. A statute of a state confers an absolute right to intervene - some examples: i. 1012(b)(1) - if constitutionality of a state statute, regulation, rule is challenged, atty. general of NY has absolute right to intervene in case and be heard on whether state statute, regulation, rule is unconst. ii. If a local ordinance, rule, regulation is being challenged, that municipality has an absolute right to intervene and be heard on the enforceability and const. of its law iii. If any lawsuit involves public retirement benefits, state comptroller has right to intervene iv. If constitutionality is at issue, party giving notice must file w/ the court proof that process has been served on that governmental entity b. The representation of a person's interests by the parties is or may be inadequate i. Primarily refers to class actions ii. If individual feels that the representative wont be adequate in representing his own interests, that individual has a right to intervene iii. Can be other circs., not just class actions iv. Bar is set pretty low - when representative of person's interests "is or may be inadequate." Cts. generally give the benefit of the doubt to someone to intervene. c. Lawsuit involves title to property or disposition of property and person seeking to intervene may be affected by that i. Ex. joint owners of a home and foreclosure proceeding by bank against home b/c defaulted mortgage and only 1 of the owners is named, the other joint owner has as a matter of right the right to intervene in the case b/c that person's interests will be affected 2. By permission - CPLR 1013 a. Requires a motion and some showing of common questions of fact or law, ct. in exercising discretion will consider whether intervention will delay the case and

iii.

iv.

whether there is prejudice to the rights of a party Intervener's posture in a case will be more aligned w/ one party than another. Then caption will be changed to add it to that party ("P and Meredith Dahl, intervener"). Not a separate caption box like you see w/ a 3rd party action lawsuit. Substitution: Sometimes party's interests will transfer to another person. Then necessary to substitute the name of the transferee for the transferor. 1. Ex. person injury action, while lawsuit is pending, a party dies. From that point forward, the real party in interest to whom the interest is transferred is the estate of the diseased. The estate will move to be substituted in for the party that died while the case was pending. 2. Substitution isn't always required. A difference b/t a transference which requires a substitution and an abatement. 3. Abatement - b/c someone has died, there can no longer be a lawsuit by definition. a. Ex. divorce case b/t 2 spouses and a spouse dies while it's pending, that action is abated by the death b. Ex. D in criminal prosecution dies 4. In any case where you have a death and underlying issue can survive, the party that inherits or receives that interest is to be substituted into the case. 5. CPLR 1015(a) - If a party dies while case is pending, CPLR imposes an automatic stay on the proceedings until substitution can occur. a. If a person dies while case is pending, any atty. client relationship that existed w/ that party dissolves. An additional purpose of staying the litigation is to give that new party the opportunity to obtain a lawyer (may be same lawyer or someone new). 6. CPLR 1021 - a motion needs to be made by the individual(s) seeking to be substituted a. If a case has already been disposed of, it's over, but there are some post-judgment proceedings (motions, appeal), under those circs., motion for substitution must be made w/in 4 months of the death. 7. Caption changes to "Kristen Coleman, as executrix of the estate of Valerie Bluth, Plaintiff." Person coming in is not suing in her own interests but interests of the diseased. 8. Substitutions don't only occur by someone's death in a case - sometimes can occur b/c a public officer has been sued (office, rather than office holder, is party at interest). No motion is required

but it's a form of substitution when office holder changes hands. CPLR 1019. But if you name just the individual, and not the office, you have to make a motion to substitute the office holder on notice to all interested parties. 9. CPLR 1024 - If you want to sue someone and don't yet know that person's full name. The John Doe situation. Seen on bottom part of v. in a caption. Use as much info as you have to identify the individual. May name the person as an unknown party in the caption when you start your lawsuit. If the name or remainder of the name becomes known, all subsequent proceedings shall be taken under the true name and all prior proceedings deemed amended. An automatic change to caption. No motion needed. You may only name someone as an unknown if you've first exhausted diligent efforts to try to learn that person's identity. a. Problem is CPLR gives you 120 days from filing to serve, and if you don't know that person's name in that 120 days how can you affect service and assert jurisdiction? 3 options: i. Expedited discovery against any other Ds and if you learn the name before end of 120 days through other parties, you still have time to serve process. ii. Make a motion to ct. to extend your 120 day service deadline and ct. has discretion to extend it however long it thinks is appropriate. iii. Alternative means for service of process, one being service by publication. If you can identify someone well enough though not by name, ct. may allow you to serve that person by publication w/ expectation that if you've identified that person well enough, service has been effected w/in 120 days. Not as good an option. u. Class Actions i. Numerous persons in a class, all similarly situated, all having some type of claim, but the amount of money at stake for each person might be so little that it's not financially practical to sue individually. Strength in numbers, so that if everyone joins together as a class, a representative(s) will be appointed to act on behalf of the class. Everyone in the class is not names as a P but the representatives of the class are named as Ps. ii. Everyone in class has a piece in the case.

iii. iv.

v. vi.

vii.

viii. ix. x.

xi.

Most class actions are pending in state vs. federal courts. B/c Zahn v. Int'l Paper says individual claims must be $75k to get federal jurisdiction. CPLR 901 - 5 requirements for class action claim to be brought: 1. Membership of the class that is so numerous that it's impractical to have everyone bring their claims individually 2. All class members must have common questions of fact and law which predominate 3. Representatives bringing the case on behalf of the class - their claims must be identical to the class 4. Representatives must fairly and adequately protect the interests of the class 5. Class action must be superior to others for fair and efficient adjudication Class action complaint gets filed and served like any other complaint; time to answer it is like any other case 1 difference is that from the time an answer becomes due, the P class has to make a motion w/in 60 days to the court to have the class "certified" - procedure by which the ct. looks at case and assures itself that all 5 requirements have been satisfied and it's truly an action that should be treated as a class action 1. 60 day motion requirement is not from when answer is served but from when answer would have been due CPLR 902 - 5 factors to weigh and evaluate: 1. Interests of class members whether any 1 wishes to individually control the case 2. Inefficiency of separate cases instead of a class case 3. If there is already another litigation pending over the same issue, the status of that litigation 4. Desirability or undesirability of having a class action in whatever court was chosen 5. Any particular difficulties that might exist in managing the class If a case meets 1st 5 requirements and 2nd 5 factors, an action will be certified Ct. will determine what type of notice must be sent out to all members of the class Ordinarily members who receive notice that they are part of a class are given an option to opt out. If impossible to give notice to all members b/c so many, ct. may fashion a situation where you have to opt in (such as where notice is by publication). If you opt out and class is later successful in recovering money, you get nothing, but you can start an individual lawsuit looking for same remedy as what class is looking for. "Fluid recovery concept" - like ConEd case, instead of awarding a set sum of money to every individual customer, company would be divested of whatever

xii. xiii. xiv. xv.

moneys were charged by an across the board rate reduction Almost always the Ps as the class, but nothing prohibits Ds from organizing themselves from a class Discretion of court to certify a class If a class is to settle a case or discontinue a case or have a case dismissed, can't do so w/o court approval CPLR 909 - if the class wins the lawsuit, the ct. in its discretion can award the class representatives attorney's fees for reasonable value of lawyer's services expended through litigation of a case, and D losing party is required to pay those fees. One of the few areas in our law with a rule of loser pay, and not automatic discretionary on the part of the court.

9. DISCOVERY: IT'S NOT JUST A SPACE SHUTTLE a. Generally i. Use discovery to determine liability and damages for a case b. CPLR 3101 i. (a): full disclosure of matter (doesn't say evidence, documents - matter is the broadest word they could have used to define the scope of discovery b/c matter can apply to info, documents, photos, etc.) material and necessary in the prosecution and defense of an action. 1. Discovery is liberally construed. Cts. err on side of urging a party to turn it over. 2. "Matter" means that what you can discover for trial is broader than what will be admissible at that trial (ex. you can discover hearsay). ii. (e): Party may obtain a copy of his own statement iii. (f): Party may obtain discovery of existence and contents of any insurance agreements iv. (g): Accident reports c. CPLR 3120(1)(i): There can be a demand to produce for inspection copies, testing, photographing of documents or any things which are in the possession, custody, or control of the party. For cases of premises liability, can be a demand to permit entry to inspect property. d. CPLR 3101(a)(4): Can be disclosure as against any other person (non-parties) upon notice stating circs/reasoning such disclosure is sought. e. CPLR 3102(a): Info is obtainable by any one or more of the following discovery devices: i. Deposition ii. Interrogatories iii. Demands for addresses iv. Discovery and inspection of documents or property v. Physical and mental examinations of persons vi. Requests for admission (ties into notices to admit) f. Bill of Particulars i. There is a demand for a BP and the BP is the response. ii. Purposes:

1. Amplify the pleadings a. How and why are you claiming there was negligence 2. Limits the proof of the case 3. Prevents surprise at trial iii. Designed to elicit info only, and not evidence. BP will not have exhibits, that's evidence. iv. Demands for these discovery things are typically sent w/ answer - typically D serves discovery demands first. If in the answer D asserts affirmative defenses, P can serve a demand for things from the D. v. CPLR 3043: Personal injury actions 1. (a)1-9: date and time of occurrence, location, statement of negligence, notice of a condition, statement of injuries, length of time confined to bed or house, length of time incapacitated from employment, medical bills/lost earnings, etc. vi. CPLR 3044: If a pleading is verified, the BPs must be verified vii. CPLR 3041: A party may require another party to give a BP of such party's claim in any case (not just PI) viii. Miccarelli: BP too vague. Don't just dump the broad complaint allegations into BP. Here, no detailing was provided and ct. said must get more specific. ix. Supplemental BP: an update. If things have changed, info comes in as case is being litigated, it updates the claims, info, etc. x. Amended BP: when you send out your original BP and you don't know if you have, say a lost wage claim, and you later have to stop work and have a new claim, an amended BP adds a new item of damages, new claim, something that wasn't previously disclosed or acknowledged in the original BP. Not just an update something brand new. 1. If you are going to allege something new, you can only do it once and you must do it before the case is placed on the trial calendar. g. Interrogatories i. Written questions and responses in written form. ii. CPLR 3131: 1. Interrogatories may relate to any matters embraced in the disclosure requirement of 3101 (whatever is material and necessary). 2. Form is under oath, and therefore signed by the party under oath at the end. Not signed by atty. but by party itself. 3. Answers may be used to the same extent as the depositions of a party. Answer to an interrogatory is testimony in written form. a. Interrogatories and depositions can be used at trial to impeach a witness's credibility, to refresh a witness's recollection on the

bench, can be used or read at trial if witness is unavailable. 4. Interrogatories must require copies of such documents as are relevant to the answers means that interrogatories can ask for evidence (not just info). iii. Difference b/t interrogatories and request for BP - both go into material and necessary matters, but 1. BP not signed by party under oath 2. Interrogatories may seek info and/or evidence but BP can only seek info 3. Interrogatories can be used like a deposition but BP cannot be used at trial - it's informational, lawyer-to-lawyer, but can't be used to crossexamine a witness etc. iv. CPLR 3130 (1): (other than in matrimonial actions) A party may not serve written interrogatories on another party and also demand a BP. Can't use both. In the case of an action to recover damages for personal injury, injury to property, or wrongful death, predicated solely on a cause/causes of action for negligence, party not permitted to serve interrogatories on and take a depo of the same party. Means in any case grounded upon negligence, you can use interrogatories as your discovery device, but if you do you're barred from taking a depo of that person. Lawyers in negligence cases are going to want to take an oral depo b/c benefits that interrogatories don't have - an answer at a depo raises another question and you're there to ask the follow up but w/ written interrogatory no opp to follow up; also, by taking oral testimony, you can observe the person to see if will be good witness at trial. 1. Therefore, people won't use interrogatories - will use BP (can still take a deposition when use BP). 2. You can use depos and interrogatories in any other case that doesn't involve negligence a. Strict product liability, breach of warranty, commercial cases, contract, matrimonial v. CPLR 3133: When you serve an interrogatory, a 20 day response time for an answer to be served vi. CPLR 3133(c): If a party who has answered interrogatories later wants to amend or supplement those answers, the party must go to court w/ a motion and seek permission. vii. Interrogatory answers are set up so that if you are responding to them, you repeat the question, state your answer - always question answer question answer. Whereas BP is always a list of answers. h. Depositions ("EBT") i. Party under oath prior to trial is asked questions, answers question, transcript generated and witness signs transcript.

ii. iii.

iv.

v.

vi. vii.

viii.

ix.

x.

Can be a party or a nonparty. Questions are posed in the presence of a notary public who places the witness under oath at the beginning. Answers given under oath subject to penalty of perjury. All attys. in case will be present and can ask questions (even own witness/client). Deposition Notice (Demand) - usually 1 page - of date, time and place - party sending out notice will unilaterally pick date time and place. Tells them to bring along certain relevant documentation. Typically sent first by D to P w/ answer to complaint (might also contain demand for BP, etc - initial discovery demands). Once answer is served, P can send out his own discovery demands, incl cross notice to take deposition. CPLR 3107: Deposition notice must give at least 20 days of notice before the depo can be taken. Notice shall be in writing covering time and place, name and address of each person to be examined. Notice need not enumerate the matters upon which the person is to be examined - when you send out a depo notice you are not restricting yourself to any particular subject - can ask any question as long as bear some materiality or relevance to the case. Cost of the depo is borne by the party taking the testimony from the other side. If both taking depos from the other in same day, parties split cost. CPLR 3110: Where depositions must be held. General rule is that when you are deposing a party those depositions occur somewhere w/in the county in which the case is made or where that party lives or works. But lawyers usually go by the venue. NY - 5 counties depos can be in any 1 of those 5 counties as long as case is in 1 of the 5. 3 categories of places where depos are held: law office; conference room of stenography agency; some ct. facilities have rooms set aside for depos If a corp. is the party to be deposed, the corp. gets to choose which employee gets sent out to testify on behalf of the company. But that right or privilege is not w/o limitation - company under a good faith obligation to select for testimony one individual who company feels has most knowledge about the case. Motion to produce a better witness - must show that the witness was inadequate - annex testimony as an exhibit and show he didn't know answers to x questions and that x employee would know... When put someone on notice of depo, can also put them on notice that you are going to videotape the depo. Reasons: party dying and won't be alive by time of trial; party moving permanently out of country; personal injury cases 1 party has Dr./Drs. they want to produce as expert witnesses at trial - getting Drs. schedule wise to be in ct. when you need them is difficult, so

xi.

xii. xiii.

sometimes attys. notice to other side that producing my Dr. for trial (not pre-trial) testimony to be videotaped for use at trial. If some objectionable questions are asked and a ruling would need to be made, videotape and transcript are presented to judge at beginning of trial; some objections are granted some denied; and if anything shouldn't be given to jury technician mutes that part when playing for jury. CPLR 3113: Conduct of Depos 1. (a) May be taken of any of the following persons except an atty, employee of atty. Any person who is authorized to administer oaths can be present at depo to administer oath. 2. (b) Officer for whom depo is taken (like notary public) shall put witness under oath and personally or someone acting under his direction record the testimony. Depo shall be taken continuously and w/o unreas. adjournment. 3. (c) Examination and cross-examination of deponents shall proceed as permitted in the trial of the action in court. Where depo taken at instance of adverse party, deponent may be crossed by own atty, and cross need not be limited to examination in chief. 4. (d) Telephonic depos. Parties may stipulate that depo be taken by telephone or other remote electronic means. Also allows for remote videotape depos. CPLR 3114: If a witness to be examined doesn't understand English, examining party at its own expense provide a translation of all questions and answers Can ask about anything material and necessary to you. Anything related to trial. Cts. tend to give attys asking questions at depos very wide latitude about what they can ask, but 5 circs where witness permitted not to answer the question: 1. "Palpably Improper": very high burden. a. Example: woman suing premises for inadequate security b/c of rape and at depo atty asks about prior sexual history b. No rational nexus b/t questions you're asking and issues of case 2. Violate Constitutional 5th Am. privilege against criminal self-incrimination a. Trial judge always permitted to instruct jury that they may make negative inference for the witness not answering. So a risk. 3. Statutory Privilege a. Spousal, atty client, Dr. patient, priest clergy, social worker, library, rape crisis counselor privilege 4. Custody issues in matrimonial case 5. "Carvahlo" exception in medical malpractice

a. If co-D Dr, can't ask questions that go solely to co-D Dr b/c turns Dr into free expert witness xiv. Usual stipulations - usually given at the beginning: stipulation that all objections to questions by the questioning lawyer are waived except as to the form of the question. If you object right there the lawyer can fix the problem, but other evidentiary objections are waived. When you have your transcript and want to use it at trial, your waiver of the objections is only as to the time of the depo - your objections are preserved for trial. xv. CPLR 3116: Transcript is signed by the witness - 60 days to sign it w/in time you receive it. If haven't signed it w/in 60 days, it's deemed signed on day 61. xvi. At trial can use depo transcript to refresh witness's recollection, impeach testimony. Can read entire depo if witness has become deceased prior to trial or if it is a depo of a party in the case (can't do it if it's a non-party). Can read all or part of a non-party if that person is out of state or more than 100 miles from courthouse. Can read to jury depo transcript of a witness if unable to attend trial b/c of age, sickness or incarceration. Can read the transcript if you can't find the witness to bring him into trial for live testimony as long as you prove to court "diligent efforts to locate" the person. i. Physical, Psychiatric, or other Examinations i. Sometimes called IME (independent medical examination) - but not really independent, D Dr. hired and paid for by D ii. Exchange docs 1st (BPs, etc), provide Dr. w/ docs before physical exam. P is examined by D Dr. iii. CPLR 3121 1. (a) a. Party may serve notice on another party to submit to physical, mental or blood examination by designated Dr. b. Written demand usually not served by D w/ answer c. Notice may require written authorizations permitting all parties to make copies of records relating to condition. Applies not only to hospitals but also private Drs. When the answer is served by D, demand for production of docs typically includes a demand for those authorizations allowing the D to obtain copies of the otherwise confidential hospital and Dr. records. When authorized and processed, D atty. will receive, then recopied and given to Dr. conducting examination. d. Notice specifies date, time, place - not less than 20 days after service of the notice and conditions and scope of exam

2. (b) a copy of detailed written report by Dr. shall be delivered by party seeking examination to any party requesting a copy iv. Physical examinations relevant in claims for IIED, matrimonial actions - but in matrimonial actions not governed by time limits of CPLR, paternity issues v. A uniform rule says that when Drs. perform these exams and write reports (report required), that report must be completed w/in 45 days. vi. Jakubowski: Presence of P attys. permitted at exams. vii. Private notes of Drs. are typically not required to be turned over by Dr. Reports are turned over and are usually comprehensive. viii. Dr. who performed exam is usually called to testify at trial. ix. If a counterclaim, P can request exam. But if just P against D, only D can request exam. j. Experts i. Expert witnesses required in cases of product liability, med malpractice 1. Med mal - no requirement that expert has same specialty as injury - can be any MD 2. If you don't have an expert in a case and you need one, it's legal malpractice 3. Expert disclosure refers to any type of case where an expert will be used ii. CPLR 3101(d) - Expert Disclosure 1. Name of expert a. 3101(d)(i) - 1 exception: in med mal, party hiring expert need not set forth the name of the Dr. Can leave name out but must include other 4 requirements. 2. Subject matter of testimony 3. Substance of the opinion 4. Qualifications a. If doesn’t have sufficient qualifications, ct. can disallow expert from testifying 5. Grounds for opinion iii. All 5 of these requirements must be met. If disclosure is insufficient it's treated under the law as if there's no disclosure at all. iv. Demand for expert witness, served by D w/ answer, and when P receives it P sends out expert and other discovery demands. Expert demand covers the 5 things you are entitled to get. v. Exception: P need not send out expert disclosure if it's the P's own treating Dr. (b/c those records will be disclosed at discovery). vi. If a party should provide an expert disclosure and fails to, the remedy is to preclude that expert from testifying at trial, not dismissal of the case. But if it’s a trial that requires an expert, the case will be dismissed.

General rule: you can't take a deposition of the expert. Exceptions for special circs. unique to that case (hardly any have ever been recognized). In Tedesco 1 was recognized - products liability and product gone before P could inspect it, so P took deposition of D's expert. viii. No statutory deadline for when party who gives disclosure must give it by. Cts. look at following factors to determine whether expert disclosure reas. complies w/ statute (no hard and fast rules): 1. Measure when the disclosure was against when the expert was retained a. If retained 2 years before trial and disclosed 4 days before, untimely, but if retained only 4 days before prob ok 2. When was the disclosure provided prior to the trial? Closer it is before trial, more unlikely expert will be able to tesify. 3. Does the timing of the disclosure by 1 party prejudice the other party? a. If other party already has its own expert prob. no prejudice k. Notices to Admit i. Not seen very often ii. Document served by 1 party on another, saying to that recipient party, admit or deny the following. Idea is that if the party receiving the notice admits, that is 1 less issue the parties have to put evidence in on at trial - to streamline the trial process. iii. CPLR 3123 1. Answer to notice to admit must be under oath and signed under oath by the client 2. 20 day response - if you don't respond w/in 20 days (+ 5 for service), you are deemed by law to have admitted whatever you are asked to admit. 3. Only 3 answers that recipient may give: admit, deny, explain why you can't admit or deny. a. Only discovery device in CPLR where CPLR tells what the answer must be b. Cannot be used to ask you to admit ultimate factual issues of the case (like whether you were negligent). But can admit things like you owned the car, owned the property, etc. If notice asks you to admit an ultimate factual or legal issue of the case, your failure to respond will not be deemed an admission. 4. Expense - if you deny something that you could have admitted and then the trial occurs and the P puts in proof to show proof of a fact you could have admitted, at the end of the trial your failure to deny will result in your having to pay to P monies that were sent to admit that fact. l. Privileges from Disclosure

vii.

Circs. where a party need not provide discovery disclosure ii. CPLR 3101(c) - attorney work product. An absolute privilege. Something self-created by the atty. and put in the atty's file - not subject to discovery. iii. CPLR 3101(d)(2) - material prepared in anticipation of litigation. Only conditionally privileged. Material can be discovered if the party seeking the discovery can't obtain the same or similar info from another source. 1. Ex. Value of property is at issue. Appraiser rights a report (in anticipation of litigation). This is discoverable. 2. If lawyer employs an investigator to follow P around and videotapes P being physically active when claims unable to do things, this is discoverable to prevent surprise at trial 10.NOTIONS OF MOTIONS a. What do you do if you have something protected by privilege and it's accidentally disclosed? Order it returned. i. 2 ways to resolve a dispute over whether something needs to be disclosed in discovery: 1. Party responds to the discovery demand and provides answers to the items not in dispute. As to those in dispute, in response says "objection" and sets forth reason for the objection. a. Common objections: demand is ambiguous; overbroad; overburdensome; seeking irrelevant info; assertion of a privilege b. If the parties can't work it out on their own, parties can make a motion: i. Party seeking discovery: motion to compel; motion to impose penalties for non-compliance ii. Party to produce the docs: motion for protective order (why shouldn't have to turn material over) b. CPLR 2211, 2214 c. Motion contains: i. Notice of motion ii. Affirmation of good faith 1. 202.7 (McKinney's NY Rules of Court) - show time, place, nature of consultations b/t attorneys 2. Good faith obligation regards all discovery motions iii. Supporting affidavit(s) or affirmation iv. Exhibits (include pleadings) v. Affidavit of service vi. Blueback - Atty. certification d. Discovery Motions i. Motion to Compel 1. Application by the party that feels it is entitled to discovery to get an order from the court compelling the other party to turn that discovery over.

i.

2. CPLR 3124: If a party fails to respond to or comply w/ any request, notice, demand, order, etc for discovery, a party seeking disclosure may move to compel compliance for a response. a. Judge can issue order to compel. i. Discretionary on part of judge for how long party must comply by b. No penalty involved, so if party supposed to turn over discovery fails to do so, nothing happens (automatically). For anything to happen, another motion is required. 3. Motion to compel does not apply to when a party does not respond to a notice to admit. B/c if you don't respond to notice to admit, it is deemed admitted. 4. Privileges - Party moving to have privileged document admitted has burden of proving it is not privileged. Court is interested not in title of document, but substance of document itself. 5. CPLR 3126: Difference b/t 3126 and 3124 motion 3126 is remedial - there can be a penalty if the motion is decided against you. a. 6 possible penalties: i. Relevant issues deemed resolved 1. Court can deem resolve any issue of the case that involves that document that has not been provided 2. Not used very often ii. Preclusion of evidence by party who hasn't turned it over 1. Used often 2. Ex. party refuses to turn over name and address of witness; court precludes that witness from testifying iii. Strike pleadings 1. Also used often iv. Stay proceedings 1. Dillon has never seen v. Dismiss the action (applies only against a P) vi. Judgment on default vii. Judgment in favor of P on default b. In order for any of these remedies to trigger, the moving party must not only show that the discovery hasn't been turned over; that the info is discoverable; has an additional burden of showing that the non=disclosure was willful. i. Case law says willfulness can be inferred by the conduct of the parties

c. Up to discretion of judge to decide which penalty to impose (but party can request a particular penalty). d. B/c so harsh, sometimes courts don’t impose them off the bat and instead impose a conditional remedy. 1 last opportunity to comply before imposing one of the penalties. But the orders are selfexecuting, so if the 30 days to turn something over and not done it gets triggered automatically on day 31 w/o further motion. A catch - sometimes on day 31 parties will be disputing whether there has been compliance. Conditional remedy sometimes spawns another motion practice about whether conditional motion has been complied with. ii. Motion for Protective Order 1. CPLR 3103 2. If you have the discovery and you don't want to turn it over, you can ask the court on motion a protective order to not turn the stuff over. 3. Can be sought by a P or a D or a non-party 4. (b): once motion is made for protective order, that suspends/stays any discovery involving that matter in dispute (until ct. decides whether or not to grant order) 5. Also subject to affirmation of good faith - lawyers required to consult w/ e/o before anyone can make motion to compel or motion for protective order e. Motion to Dismiss (in lieu of an answer) - see above notes i. CPLR 3211 1. Only made by D 2. Deem complaint as true 3. Pre-discovery 4. No stay f. Motion for Summary Judgment i. CPLR 3212 1. Made by P or D 2. Written application to the court saying, we don't need a trial on any issues of this case; we can decide this case as a matter of law on paper. 3. If motion is successful, judgment. 4. In deciding motion, don't have to deem allegations of complaint as true. The material you submit to the court shows the court whether the allegations in complaint are or aren't true. a. Burden: Party making SJ motion has initial burden of providing admissible evidence has to be admissible!! - demonstrating prima facie entitlement to SJ as a matter of law.

If initial burden is not met, motion is denied and no need to consider the opposition. ii. If there are questions of fact, goes to trial - has to be entitled to judgment as a matter of law. iii. If the initial burden is met by the moving party, burden shifts to party opposing SJ to demonstrate a question of fact deserving of trial opposition must be presented by means of admissible evidence. 1. Like a mini-trial where the rules of evidence apply. 2. If opposing party succeeds in raising a question of fact the motion is denied and proceeds to trial. 5. Usually during or after the completion of discovery a. Discovery material is used to prosecute or defend the SJ motion b. After completion of discovery is preferable c. Cannot be made until the D has at least answered in the case i. So no overlap b/t SJ motion and motion to dismiss d. When discovery is done, a document filed by P with the court called "Note of Issue" certifies that discovery is completed. Latest a SJ motion can be brought is 120 days after that note of issue is filed. 6. SJ motion stays the case (until court decides whether there is any more case) 7. Can seek partial summary judgment a. If 4 causes of action in complaint, can seek judgment to 1,2,3 of them; if motion granted, that cause or causes of actions will be dismissed out and causes of action not part of the motion will survive for trial b. Can even seek partial SJ against certain elements in a cause of action i. Ex. fraud case - SJ motion directed narrowly at one of the elements to get them out of the way rather than having a trial on all the elements 8. Damage-related motions - where no basis for damages 9. Also available on cross-claims b/t Ds; in 3rd party actions 10.Can move for SJ against affirmative defenses in a D's answer 11.Single Motion Rule: You are only allowed 1 SJ motion per party per case

i.

ii.

a. Only applies to motions made w/in scope of 3212. i. Motion to dismiss in lieu of complaint can be made more than once Summary Judgment Motion in Lieu of Complaint - CPLR 3213 1. Served right off the bat - instead of serving and filing a complaint 2. Only allowed in 2 limited circumstances: a. Lawsuit based on an instrument for the payment of money only i. Commercial paper for a set sum ii. Promissory note iii. Guarantee iv. Bounced check v. Settlement agreement (J.D. Structures) vi. Case law - case by case basis for what qualifies as instrument for payment of money. Supposed to be a document from on its face you can tell it calls for a payment of money in a set amount. There can't be any other claim in the case other than the payment of that money. 1. If 2 claims, 1 for payment of money and 1 for something else, can't use this motion. vii. 2 prong burden of proof: 1. Show the instrument 2. Show the nonpayment (ex. affidavit from creditor saying I never got paid) viii. If these 2 prongs are established by moving party, D coming into case wouldn't serve an answer; simply file opposition papers like any SJ motion. If moving P establishes prima facie evidence (2 prongs), burden shifts to D to oppose it to establish through admissible evidence either that the money has been paid or that this case isn't as simple as payment of money only and involves other issues) ix. The real litigation is on 1st prong of whether it's an instrument for payment of money. b. Judgment that hasn't been paid i. Refers to out-of-state judgment. ii. Full Faith and Credit: Converting an out-of-state judgment into a NY judgment

3. If the motion is denied, parties do not then draft and exchange complaints and answers. Rather, the moving papers (for the motion and in opposition) are deemed the complaint and the answer. g. Motion for Default Judgment - CPLR 3215 i. Usually seen when P serves summons and complaint and D never answers. ii. Also encompasses other types of defaults, like failing to appear, other neglect to proceed iii. When a default judgment is granted, usually a default on the liability of the case. Sometimes, it may also resolve the issue of damages (how much). If a D has defaulted by not appearing to answer, it's the equivalent of a concession of liability. iv. If the lawsuit is for a sum certain (i,e. breach of K and K has liquidated damages clause), by virtue of the default, the D has conceded the liability (breach of K), and b/c the case involves a sum certain, and in any case where it is a sum certain, the P does not have to make a motion to a trial judge for the amount of the default judgment. 1. You can simply submit to the clerk of the court: a. Proof of service b. Proof of the claim i. If it's something promissory in nature like promissory note, attach the document to prove the amount of the claim c. Proof of non-payment i. I.e. verified complaint or affadvait 2. If this is met, clerk can sign off on a judgment for that sum certain and bypass judges all together 3. Statute says this can be for a sum certain OR an amount that can be found by a simple mathematical computation in the document. v. Any other default judgment - must make a motion to a trial judge. 1. Show same 3 things: a. Proof of service b. Proof of the claim c. Proof of non-payment 2. To determine the amount of damages, judge must hold an inquest: a trial conducted upon the default of the D. At the inquest, P presents to the judge in an evidentiary fashion, testimony about the injury, medical documentation, documentary evidence on lost wages or outstanding medical bills. You have a trial and as a result of that evidence the trial judge awards a specific amount of money, and that's your default judgment. a. Sometimes D doesn't show up for inquest, but other times the D after the default has

been entered wants to appear and participate in the inquest - this is allowed. Ds that appear at inquest can't challenge the issue of liability (whether they owe money). Can only challenge the amount of money that might be owed. They can fully participate w/ respect to how much money (not w/ respect to whether it is owed at all) - cross-examine, present affirmative evidence, etc. b. Uniform Rule 202.46(b): at an inquest and only at inquest, the P's proof of damages can consist of sworn written statements of a witness who could otherwise be called to testify. vi. Motion for default judgment must be brought w/in 1 year of the default. 1. If you have 20 days to serve, count forward from there; same for 30 days 2. If you don't bring the motion for default judgment w/in 1 year, you have not only waived it; the court must dismiss your case for lack of prosecution. 3. If SOL has run in the meantime, you're out of luck. vii. Amount that is awarded (whether by inquest or by clerk). cannot exceed what is written in your complaint. viii. Default judgment has res judicata effect, b/c D could have appeared and addressed the matter on the merits. ix. Not appealable. Remedy for a D to undo the default is make a motion to the trial court to vacate it. If motion to vacate is denied, that can be appealed. h. Motions Affecting Prior Orders i. Difference b/t a decision and an order. Party makes a motion, opposition to motion, court renders a decision decision resolves the issue. The order is what puts that resolution into effect (tells someone to abide by that decision). ii. So such thing as a motion affecting a prior decision only motions that affect prior orders. iii. Settling an order - converting a motion into an order. 1. If court renders a decision but doesn’t at same time make it an order, you must settle your order w/in 60 days. Usually done by successful party on the motion. If you don't you are presume dot have abandoned your motion. iv. 3 types of motions relate back to prior orders 1. Motion to Reargue - CPLR 2221(d) a. If a court renders a decision and an order on a motion, and the losing party thinks that in rendering that decision the trial court messed up, losing party will want to reargue the motion. Annex as exhibits the prior motion papers and explain how in

rendering the early decision the court misunderstood the relevant facts or misapplied or overlooked some law. Must explain why it's wrong and why it should correct that wrong by rendering a new decision and order going the other way. b. To make a motion to reargue, have to file it not later than 30 days from when the prior order was served on you. If brought on day 31 the court has no authority to entertain it. 2. Motion to Renew - CPLR 2221(e) a. Make a 2nd motion based on new facts that you weren't aware of when the prior motions were being litigated or a change in the law. b. Not subject to the 30 day rule - can bring the motion anytime once the new facts are learned or the change in law has occurred. c. If you are arguing new facts, you have the burden of showing the court that the facts are in fact new. Not sufficient to say it's just additional facts I didn't bring to the court during the 1st course of motions. Explain why you weren't aware of the new facts during 1st motions. If you knew or should have been aware of the facts on the 1st motion, you will lose. 3. Motion to Vacate a Judgment Order - CPLR 5015 a. Motion to vacate usually when D has defaulted (either in proceeding to trial, appearing for conference, or full default judgment), and party against whom default party was rendered now wants to vacate that default. b. (a)(1): Reasonable excusable default. Explain in motion why you defaulted and why it should be excused. Must bring motion w/in 1 year of the order or judgment you are seeking to vacate. Except if the reason to vacate is that you were never subject to PJ - then you can seek to vacate anytime. c. 2nd requirement to vacate defaults: Must show that you have some type of meritorious defense. d. To present your reasonable excusable default or meritorious defense - can't just show conclusory statement - must show detail and evidence e. Courts will always consider in deciding to vacate a default prejudice to the P

f. Also public policy in NY that disputes should be ruled on merits rather than procedures always a background in determining whether to vacate default judgments. 4. These motions have to be brought to same judge b/c that judge is familiar to case i. Attorney Certification Requirement i. Applies to all types of motions ii. Anytime an atty. makes a motion there is a requirement of the lawyer to sign a certification, usually on blueback of moving papers, certifying to the court that the motion is not frivolous and brought in good faith. 1. Certifying that on the best of his info and belief the application is not frivolous 2. Required b/c if a atty brings a frivolous motion that atty is subject to financial sanctions iii. Uniform Rules 130-1.1-a(b) 1. Court in its discretion may award to any party or atty in any civil action, actual expenses and reas. attys fees resulting from another's frivolous conduct 2. (c): Frivolous conduct: 1) something completely w/o merit and law; 2) something that is undertaken to delay the litigation or harass; 3) moving papers present false material factual statements 3. 130-1.2: Ct. may award costs/sanctions only upon a written decision - give reasons why conduct is frivolous and reasons for amount that has been awarded. Limits sanctions in any one instance to $10k. Written decision requirement so that anyone hit w/ sanctions can appeal. 4. Ct. can't award sanctions sua esponte - must give all parties an opp. to be heard and then render its decision. j. Timing Procedures i. CPLR 2214(a) 1. Notice of motion shall specify the following: a. Time and place of the hearing (date the motion will be heard by the court) - return date b. Papers on which the motion is based (affidavit, exhibits, etc) c. Relief being requested (ex. order to change venue) d. Grounds on which the relief is being sought (ex. cite CPLR section you are moving under) ii. CPLR 2214(b) - Time Frames 1. Can't just pick any return date - certain minimum time requirements 2. At least 8 days b/t service of papers and date you are putting on the notice on which it will be heard

(plus 5 for mail service) - so 13 days of lead time; party opposing must serve the papers not less than 2 days prior to that return date (statute doesn't provide for additional 5 days). Disfavored time limit. 3. 16 days b/t making motion and want it to be heard (plus 5 if you send it by mail). Reply papers must be served at least 1 day prior to return date. XII. FOR TRIALS AND TRIBULATIONS 1. Note of Issue and Certificate of Readiness Siegel Chapter 14, pps. 612-619 (Sections 368-371) CPLR Section 3402 Uniform Rule 202.21 TWEN, Sample Note of Issue and Certificate of Readiness (two pages) 2. Special Preferences Siegel Chapter 14, pps. 619-625 (Sections 372-373) CPLR Section 3403 3. Subpoenas Siegel Chapter 14, pps. 648-655 (Sections 382-388) CPLR Sections 2301, 2302, 2303, 2304, 2305, 2308(a) TWEN, Sample Subpoena (one page) XIII. LET THERE BE PEACE ON EARTH AND GOOD WILL TO ALL, CHARLIE BROWN: HOW CASES RESOLVE 1. The Practical Mechanics of Settlement Siegel Chapter 8, pps. 337-339 (Section 204) CPLR Sections 2104, 5003-a 2. Partial Settlements Siegel Chapter 11, pps. 300-306 (Section 176) General Obligations Law ("GOL") Section 15-108 CPLR Sections 1402, 1601, 1602(1)(a), (3), (5), (6), (7) 3. Voluntary Discontinuance Siegel Chapter 11, pps. 482-485 (Section 297-298) CPLR Section 3217 4. Confession of Judgment Siegel Chapter 11, pps. 485-488 (Sections 299-301) 5. Dismissal for Want of Prosecution Siegel Chapter 14, pps. 625-631 (Section 375) CPLR Section 3216 Rijo v. McLaughlin, 309 AD2d 716 6. Dismissal for Trial Abandonment Siegel Chapter 14, pps. 631-634 (Section 376) CPLR Section 3404 7. Dispositive Motions: Syllabus Part 7, Part XI (4), (5), (6), supra 8. Judgments Siegel Chapter 16, pps. 712-724 (Sections 417-425) Uniform Rule 202.48 TWEN, Sample Judgment (one page) 9. Vacating Judgments Siegel Chapter 16, pps. 725-734 (Sections 426-433) CPLR Sections 5015(a), 51015(b) White v. Daimler Chrysler Corp., 44 AD3d 651

10. 11. 773 803 12.

Ahmad v. Aniolowiski, 28 AD3d 692 Peacock v. Kalikow, 239 AD2d 188 Interest Siegel Chapter 16, pps. 695-701 (Sections 411-412) CPLR Sections 5001, 5002, 5004 Collateral Estoppel and Res Judicata Siegel Chapter 17, pps 747-756 (Chapter 442-447), pps. 769(Sections 457-460), pps. 776-779 (Sections 462-463), pps. 802(Chapter 475) Full Faith and Credit Siegel Chapter 17, pps. 797-801 (Sections 471-472)

XIV. WHATEVER APPEALS TO YOU Siegel Chapter 19, pps. 918-935 (Sections 533-540) CPLR Sections 5512, 5513(a), 5515(1), 5701


								
To top