Term
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Definition
- Court of claims houses all claims against the state
- When suing multiple defendants, must bring suit against the state in court of claims and the others in Supreme Court
- Defendant when suing the state is the state, not the individual actors - must bring suit against individual actors in supreme court
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Term
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Definition
- Judges elected to 10 year terms
- Jurisdiction in matters not exceeding $25k
- Defendant must either reside or have business in the county at the time action is commenced to have valid jurisdiction
- Acts as appellate court for city, town and village courts, except the 2nd department in NYC
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Term
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Definition
Can have original jurisdiction over all matters with 2 exceptions: jurisdiction given solely to federal courts (e.g. bankruptcy and copyright), and suits against the state (court of claims)
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Term
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Definition
Requires service and jurisdictional basis.
Jurisdictional basis can come from any amount of presence, as long as the person is present at the time of service, no matter how transient or whether or not the presence was related to the claim |
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Term
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Definition
| CPLR 310 grants jurisdiction over the partnership through service of one partner in NY. However CPLR 1501 and 1502 only permit access to the personal assets of the partner served. |
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Term
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Definition
Provided for in CPLR 301
Established through the "doing business" test, and only required if the defendant corp is not licensed to conduct business in the state and the cause of action did not arise from activity conducted in the state. |
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Term
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Definition
Defined as business done not occasionally or casually, but with a fair measure of permanence and continuity.
Consider the aggregate of all activities of the corp within the state |
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Term
| Corporate Presence Through Agents |
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Definition
Issue is whether one is a department or agent of the other.
Once agency is established, the additional fact of a parent subsidiary relationship will allow the agency to establish corporate presence.
Just being a franchisee or distributor of the corporation is not enough to establish presence |
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Term
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Definition
Available under CPLR 302
Established in 4 situations
Transaction of business within the state
Tortious act within the state
Tortious act outside the state causing injury within the state
Owning or possessing property within the state |
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Term
| Transacting Business Within the State |
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Definition
CPLR 302(a)(1)
Can be based on a single act
Mere shipping of goods in to NY is not sufficient for jurisdiction |
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Term
| Tortious Act Outside the State Causing Injury Within the State |
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Definition
302(a)(3)
All claims under this section require showings that the defendant committed a tortious act outside the state and that the act caused personal injury or property damage within the state.
To satisfy a claim under 302(a)(3)(i), must further show that defendant derives a substantial commercial benefit from NY, but not to the same extent as the "doing business" test.
A claims under 302(a)(3)(ii) requires showings that the defendant could foresee being sued in NY and that they are profitable enough to support being brought to NY to defend themselves. |
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Term
| Owns Possesses or Uses Property Within the State |
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Definition
302(a)(4)
Suit brought must arise out of the ownership, use or possession of the property.
Whether or not the defendant still has an interest in the property is irrelevant, as long as they had an interest at the time of the events leading to the claim. |
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Term
| Subject Matter Jurisdiction |
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Definition
Court competence to hear a certain type of case
Given by the constitution and the laws of the state
Cannot waive lack of subject matter jurisdiction |
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Term
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Definition
Where the action is to be heard
Real property - the county where the property is located
Transitory action - county of residence of the parties at commencement - if different, plaintiff chooses
Corporation or partnership - county where the principal office is located
These default venues can be changed by agreement |
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Term
| Grounds For Change of Venue |
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Definition
Improper venue
Impartial trial cannot be held in the county designated by the plaintiff
Convenience of material witnesses - must make motion stating why a change would promote the ends of justice |
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Term
| Removal or Transfer Within the Court System |
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Definition
325(a) - Mistake in choice of court --> motion to supreme court to change venue
325(b) - removal from court of limited jurisdiction --> motion to court with jurisdiction to grant the relief requested. |
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Term
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Definition
Process must be served within 120 days of filing
308(1) - personal delivery - can trick in to accepting process, but cannot trick in to coming in to NY to receive process
308(2) - delivery to a suitable person - must be following by a mailing of summons to the intended party
308(4) - affix to defendant's door - follow up mailing within 20 days
308(5) - method at discretion of court - must comport with due process |
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Term
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Definition
Serve an officer, director, manager - someone with power with regard to financial concerns
Can also serve through secretary of state - corporations registered in NY must indicate to the secretary of state who is authorized to accept service
For an unauthorized foreign corporation - serve secretary of state in person and send a mailing to a corporate officer. |
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Term
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Definition
Personal Service - 20 Days
All Other Forms - 30 days
Calculated starting the first day after service
If time to respond ends on a holiday, deadline is extended to next business day |
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Term
| What Constitutes Appearance |
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Definition
Answer
Notice of Appearance
Motion to Dismiss
3024(a),(c) motion to correct pleadings |
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Term
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Definition
Intentional Torts - 1 year
Ordinary Negligence - 3 Years
Medical Malpractice - 2 years 6 months
Professional Malpractice - 3 years |
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Term
| Accrual Date of Statute of Limitations |
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Definition
Torts - Date of injury
Contracts - Date of breach |
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Term
| Continuous Treatment Exception |
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Definition
Exception to the general "date of injury" rule for accrual of statute of limitations for torts.
SoL does not run until the last date of treatment of the condition by the doctor involved in the claim. |
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Term
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Definition
Exception to the general "date of injury" rule for accrual of statute of limitations for torts.
SoL calculated from date of discovery of the object
Whether it is a "foreign object" is determined by its original purpose - if designed to stay in the body for any period of time after a procedure, not a foreign object. |
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Term
| Estoppel in Medical Malpractice |
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Definition
Exception to the general "date of injury" rule for accrual of statute of limitations for torts.
Intentional/ purposeful act disguising what the doctor knows to be malpractice --> reasonable reliance on misrepresentation --> plaintiff fails to file in a timely fashion as a result --> plaintiff showed due diligence in filing upon discovery of misrepresentation |
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Term
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Definition
| Plaintiff brings cause of action within SoL, then wants to bring another claim arising from the same set of facts - ok because the defendant is already on notice of potential suits from those events |
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Term
| United in Interest Doctrine |
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Definition
One person served, another deemed to have sufficiently the same legal interest so that they would suffer no prejudice through failure of being served separately
Most common - husband and wife |
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Term
| Termination of Action - New Action by Plaintiff |
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Definition
205(a)
Plaintiff has 6 months to commence a new action if the original action is dismissed, even if the SoL has run
May not be available if there has been a consistent failure to meet deadlines. |
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Term
| Agreements to Shorten the Statute of Limitations |
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Definition
Must be in writing and period chosen must be reasonable under the circumstances
Can be void for fraud, duress or misrepresentation
New provision construed strictly against the party invoking it |
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Term
| Agreements to Lengthen the Statute of Limitations |
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Definition
CPLR does not talk bout it, but general obligations law 17-103 sanctions extension in contract actions
Cannot be more than 6 years from the date of the second agreement
Must be in writing AND signed |
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Term
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Definition
Happens when relief cannot be had unless a certain party is included in the action
Test is whether or not the plaintiff, in order to be accorded complete relief, must include the other party
e.g. two parties own a parcel, commence an action against one, need the other party in order to recover |
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Term
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Definition
| Jurisdiction over a thing rather than a person - available when you cannot get personal jurisdiction but have a claim arising from property |
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Term
| Quasi In Rem Jurisdiction |
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Definition
Attachment of an asset occurs for satisfaction of a debt - use the property attached to establish jurisdiction for enforcement
Shaffer v. Heitner imposes a sufficient minimum contacts requirement so that claims quasi in rem satisfy due process |
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Term
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Definition
Plaintiff may recover for any percentage of fault for which they are not responsible, no matter how small
Adopted by NY in CPLR article 14 |
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Term
| Joint and Several Liability in NY |
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Definition
Adjusted by CPLR Article 16
If tortfeasor has 50% or less of the liability, plaintiff may only collect up to that percentage of non-economic damages awarded - e.g. damages awarded for pain and suffering |
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Term
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Definition
Defendant in suit brings in a third party for contribution or indemnification
Availability limited in workers' compensation cases by workers' compensation law section 11 - can only implead an employer if there is "grave injury" - loss of limb, blindness, deafness, loss of index finger
Burden of proof on the first defendant to prove suitable injury to allow impleader of employer |
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