Term
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Definition
general jurisdiction:
1. unlimited monetary jurisdiction
2. only court with full equity jurisdiction
exclusive jurisdiction:
1. marital claims (divorce, separation annulment, validity)
2. article 78 review of admin
3. declaratory judgment ction
exceptions:
1. cases on laws granting exclusive federal jurisdiction (e.g., bankruptcy, patent, copyright)
2. claims for money damages in tort/contract against NY (Court of Claims) |
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Term
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Definition
1. affirmative defense based on passage of time raised by D
2. begins to run when the cause of action accrues (e.g., date of injury; date of breach-->generally NOT date P discovers injury)
3. to satisfy, action must commence before SOL runs out (i.e., filing process consisting of summons/complaint or summons/notice
4. must be examined for each individual claim |
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Term
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Definition
2 1/2 years from the date of the malpractice
exceptions:
1. continuous treatment rule: doctor continues to treat patient after an operation for the exact same medical condition that gave rise to the malpractice, SOL begins to run at the end of treatment
2. foreign object rule: doctor responsible for introducing foreign object into patient's body and leaves it there, P gets whichever is longer:
(i) 2 1/2 years from operation; OR
(ii) 1 year from date P discovers or should have discovered the object (e.g., clamp, sponge, scalpel; NOT chemicals, prosthetics, pacemakers, etc.-->these are date wrongfully placed in body) |
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Term
| SOL: non-medical malpractice |
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Definition
3 years from when the services are completed, regardless of P's lack of awareness
exception:
1. claims for bodily injury, rather than financial loss, run from the date of the injury regardless of date of completion
2. personal injuries against architects and engineers when action is brought more than 10 years after building complete:
(i) P must serve notice of claim at least 90 days before suit;
(ii) P may obtain pre-action discovery during 90 day wait; AND
(iii) if D MSJ, burden on P to make immediate evidentiary showing that there is a substantial basis to believe D's negligence was proximate cause |
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Term
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Definition
1 year 90 days from date of accident; notice of claim no later than 90 days from accident (NOT serving=failure to state a cause of action); P must wait 30 days after serving notice of claim to commence with complaint that pleads compliance with notice of claim requirement
exception:
if 90 days expires but 1 year 90 days still good, P can make motion requesting permission to serve late notice of claim |
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Term
| SOL: negligence for products liability |
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Definition
| 3 years from date of injury against all Ds in chain of distribution |
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Term
| SOL: strict products liability |
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Definition
| 3 years from date of injury against all Ds in chain of distribution |
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Term
| SOL: breach of warranty (UCC) |
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Definition
| 4 years from particular D's delivery of product (i.e., each D in chain of distribution has different dates) |
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Term
| SOL: indemnity and contribution |
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Definition
| 6 years from date of actual payment of judgment |
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Term
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Definition
3 years from the earlier of either:
1. discovery of injury; OR
2. date injury should have been discovered with reasonable diligence
exception: med mal |
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Term
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Definition
1. if D NOT in NY when accrues, not until D comes to NY
2. if D in NY then leaves for at least 4 continuous months, toll period of absence
exception: unavailable if P has PJ basis so process could be served outside NY |
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Term
| SOL tolling: disability (infancy or insanity) |
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Definition
if infant or insane at time accrues, SOL tolled until disability ends:
1. if original SOL was 3+ years P gets longer of either:
(i) usual SOL running from usual date of accrual; OR
(ii) 3 years from date disability ends
2. if original SOL less than 3 years, P gets that SOL from when disability ends
exceptions:
1. infant med mal claims must be commenced no later than 10 years from date of accrual (NOTE: continuous treatment and infant tolls run separately)
2. all insane tolls capped at 10 years |
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Term
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Definition
1. wrongful death: 2 years from date of death, but must also show decedent possessed timely cause of action at time of death
2. survival claim: estate gets whichever longer:
(i) time remaining on SOL; OR
(ii) 1 years from P's death |
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Term
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Definition
| if potential D dies any time before SOL expires, 18 months always added to relevant SOL |
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Term
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Definition
if action timely commence but dismissed before trial AND SOL expired or has less than 6 months, P gets 6 months from date of dismissal to re-file and serve
exceptions:
1. dismissal on merits
2. voluntary discontinuance
3. neglect to prosecute
4. dismissal on LOPJ (improper service, lack of basis, improper form of summons) |
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Term
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Definition
if claim arises outside NY:
1. non-resident P: SOL of state where claim arose if shorter than NY's
2. resident P: ALWAYS NY SOL |
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Term
| jurisdiction over case/valid judgment |
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Definition
1. proper commencement
2. proper service
3. proper basis of jurisdiction |
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Term
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Definition
| filing summons and notice/summons and complaint |
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Term
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Definition
process must be served no later than 120 days from filing process; D challenging as untimely must be raised by motion to dismiss; court has discretion to permit corrections
exception: court can grant extension on good cause OR interests of justice |
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Term
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Definition
process may be served by any person at least 18 that is NOT a party to the action (lawyers are NOT parties) on any day (holidays OK) except:
1. Sunday
2. Saturday if known Sabbath observer |
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Term
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Definition
| complete upon tender of summons directly to D; can leave in D's vicinity if D refuses |
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Term
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Definition
deliver to person of suitable age and discretion at D's actual dwelling or actual place of business AND mail to D at actual place of business or last known residence
-steps must be performed within 20 days of each other and both must take place within 120 days from filing |
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Term
| service: affix and mail (nail and mail) |
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Definition
affix process to door of D's actual dwelling or actual place of business AND mail to D's actual business or last know residence
-within 20 days of each other; both within 120 days of filing
-process server MUST first exercise due diligence (several attempts on different days of the week at different times of day) by making attempt to serve D then leave and mail |
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Term
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Definition
-leave/affix and mail require proof of service filed after 2 steps performed (complete 10 days after filing)
-but, filing proof does NOT have to occur within 120 days |
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Term
| service: expedient/court ordered |
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Definition
| if traditional methods NOT practicable, P may make ex parte motion for reasonable alternative appropriate under circumstances |
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Term
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Definition
infant's name goes on summons but process served on either:
1. either parent
2. guardian
3. person with legal authority
4. if married, adult spouse that lives with infant
-14+: process must be served on infant and above adult |
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Term
| service: mentally incapacitated |
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Definition
1. with guardian: serve guardian and D
2. without guardian: serve D normally |
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Term
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Definition
same methods by:
1. any NY resident 18 and NOT a party
2. anyone authorized to serve process by the laws of that state
3. any attorney authorized in that state |
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Term
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Definition
1. personal: any officer, director, designated agent, or managing agent
2. SOS: domestic or foreign licensed corps can be served by personal delivery of 2 copies to SOS
3. foreign unlicensed: 1 copy to SOS AND mail 1 copy by certified mail return receipt requested |
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Term
| service: 1st class mail plus acknowledgment |
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Definition
mail by 1st class with 2 copies of acknowledgment form plus return envelope with postage prepaid
-ONLY effective if D signs and returns within 30 days after receipt; otherwise must use other methods
-NOT available for infants/mentally incapacitated
-NOT a concession to jurisdiction |
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Definition
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