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NY Practice for NY Bar
NY Practice for NY Bar

Additional Law Flashcards





NOTE ON FORUM NON CONVENIENS: the non-residency of the parties in NY and the lack of relationship of the
claim to New York do not deprive the court of subject matter jurisdiction.


But the court has discretion, upon motion,
to dismiss on the ground of forum non conveniens when the action lacks any substantial nexus to NY. Any such
motion must be made by DEFENDANT

Exceptions to Supreme Court's general jurisdiction

1. Cases as to which federal law confers exclusive jurisdiction on federal courts, e.g., bankruptcy, patents, copyrights.
2. ***Claims for money damages in tort or contract against the State of NY. 
Claims vs. the STATE of NY must be brought in the 

NY Court of Claims.


The only defendant that can be sued in the Court of Claims is the State of New York  (can't join co-defendants)
Employees of the state and subdivisions of the state (e.g. counties, cities, towns, school
districts) must be sued in: Supreme Court.

The Supreme Court has exclusive subject matter jurisdiction over:

1) Matrimonial action: action in which the court is asked to adjudicate MARITAL STATUS.


2) judicial review of NY state and local government administrative action - Distinguish claims against the State for money damages in tort and contract, which must be brought in
the Court of Claims.


3. Declaratory judgment action (judicial declaration of the rights and obligations of the parties to an actual
controversy before one of them engages in conduct that could cause liability. E.g., Michael seeks
declaratory judgment that Dunder-Mifflin's restrictive covenant is unenforceable before Michael begins
employment with the competitor).

"Commencement" requirements

filing PROCESS with the court (process = summons and complaint, or summons with notice). The filing must be made with the clerk of the court on or before the last day of S/L.  (the anniversary date of date SOL triggered)


NOTE: If the last day for performing any procedural act, such as commencing an action or serving a
paper, falls on a Saturday, Sunday or public holiday, plaintiff (hereinafter “π”) gets until the end of the
next business day to perform the required act.

Medical Malpractice (SOL)

SOL = 2.5 years from the date of the MALPRACTICE.

- unless "Continuous Treatment" or "Foreign Object"


respondent superior (vicarious liability): (suit based on vicarious liability for medical malpractice by one of hospital's employees --> use same 2.5 year period and same date of accrual as you would use against the employee)


But if suit for "negligent hiring" --> "ordinary negligence" -- not med mal --> apply usual 3 year S/L from date of injury

Continuous Treatment Rule

Continuous Treatment Rule: If a physician continues to treat the patient, after an operation,
for the exact same medical condition that gave rise to the malpractice,  P gets 2.5 years from the END of the CONTINUOUS TREATMENT if suing for the condition that gave rise to the malpractice.  (doesn't pressure patient to sue Dr. during treatment.)


note: the "continuous treatment" must relate to the SAME medical CONDITION that gave rise to the malpractice (here it was hemorrhoids -- not toenails)

Foreign Object Rule

Foreign Object Rule: P gets whichever is longer:


a) 2.5 years from date of operation (usual med mal rule); or

b) 1 year from date that plaintiff DISCOVERS the presence of the object or SHOULD HAVE discovered (w/ reasonable intelligence)


("foreign object" does not include chemicals/prothetics/fixations)

Non-Medical Malpractice (SOL)

"Learned Profession" = Claims by clients of architects, engineers, accountants, attorneys, etc. (does NOT include insurance brokers, securities analysts, plumbers, etc.)

- financial loss: exclusive S/L of 3 years (regardless if tortor breach) from when the services are completed (completion/delivery/etc., regardless of P's awareness).


- bodily injury:  the DATE of the bodily INJURY (regardless of date of completion of the work; regardless of breach of K or tort SOL)


- Special procedures apply to personal injury actions against architects and engineers when action is
brought more than 10 years after the building was completed:
(1) ð must serve a notice of claim on the architect or engineer at least 90 days before suit;

(2) ð may obtain pre-action discovery from the potential D during the 90-day waiting period; and

(3) after suit is commenced, if D moves for summary judgment, the burden will be on ð to make an
immediate evidentiary showing that there is a "substantial basis" to believe that Ä's negligence was the proximate cause of the injuries.

Municipal Tort Liability

1. SOL: action for personal injury or property damage against a "municipal defendant" (gov subdivision of the state -- e.g., county, city, town, school district, or municipal hospital) -- the SOL = 1 year + 90 days  from the date of the accident.


2. “Notice of Claim” prerequisite: P must serve a notice of claim on the potential municipal defendant no later than 90 DAYS from the date of the accident.  Plaintiff then must wait 30 days and then commence the action.


- if P fails:  the municipal defendant is entitled to have the action dismissed on the ground of "failure to state a cause of action"


- NOTE: If the 90 day period to serve a notice of claim on a municipal entity has expired, but the time
remaining on the one year and 90 days statute of limitations has not expired, the plaintiff may make a
motion requesting permission to serve a late notice of claim. The court has discretion to grant the
motion if the municipal entity will not be prejudiced, as, for example, where it had actual knowledge of
the facts within 90 days of the accident.

Products Liability (SOL)

When a defective product (A/K/A “widget”) causes personal injuries, the π has three possible causes of
action (can all be asserted in the same complaint)


1) Negligence: 3 YEARS from date of injury (bodily impact) -- applies to all Ds in the chain of distribution.


2) Strict products liability: same as negligence (3 years for whole chain of distn)


3) Breach of Warranty: 4 YEARS governing SALES. 

- begins to run when the particular D against whom the claim is asserted made its DELIVERY of the product (that's when that seller breached its warranty)


- 4) Indemnity and contribution claims (eg: retailer vs. wholesaler):  6 YEARS running from the date of actual payment of the judgment for which indemnity or contribution is sought.


5) see "Discovery Rule in Cases of Exposure to Toxic Substances"

"Discovery Rule in Cases of Exposure to Toxic Substances"

- 3 YEAR S/L for suit against the manufacturer, distributor or supplier of the toxic substance
begins to run upon the earlier of either:

a) DISCOVERY of the injury (when P becomes aware of his symptoms); or

b) date injury SHOULD have been discovered, with reasonable diligence.


NOTE: The toxic-substance discovery rule does not apply to claims of medical malpractice.


- "toxic substance" is any inherently harmful toxin that has latent or slow-developing effects, e.g.,
DES, asbestos, insecticides, HIV-virus, leaking petroleum.

- "Exposure" is any sort of assimilation into
one's body or property.

- A “latent” injury is any injury that is not immediately perceptible.


SOL Tolls for D's Absence:


a) If Δ is not in NY when cause of action accrues?


b) If Δ is in NY when cause of action accrues and Δ thereafter leaves NY and is continuously absent for at least 4 months?


c) exception (to both)?


a) S/L does not begin to run until Ä comes to NY.


b) then toll applies to entire period of absence.


c) exception:  no tolling if P has "BASIS of PERSONAL JURISDICTION" over the absent D such that process could be validly served on D outside the state of NY.  (ex: long-arm jurisdiction)

NOTE: The exception usually swallows the rule and a plaintiff is rarely entitled to an absence



Plaintiff's Infancy or Insanity (Legal Disability) -


SOL toll?


a) Infants (under 18) or insane πs may sue within regular S/L through a competent adult representative, but they also get the benefit of a toll:

toll: infant/insane at time cause of action accrues: SOL tolled until the disability ends (infant reaches 18 or insanity clears up.


- SOL (after disability ends): 


After SOL toll for disability (infancy/insane) ends, SOL length?


1) If original S/L was 3 years or more?


2) If original S/L was less than 3 years?


3) Outside limit of 10 years?


1) original S/L 3 years or more, P gets whichever is longer:

a) the usual S/L period running from usual date of accrual; or

b) 3 years from date the disability ends.


2) If original S/L was less than 3 years: the specified S/L, measured from date the disability ends.


3) Outside limit of 10 years for commencement of action in 2 situations:

a) re: toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual.

b) Claims of insane P, regardless of nature of cause of action, become time-barred after
10 years from date of accrual, when relying on toll for insanity.


Survival Claims




Wrongful Death



(Each claim is governed by its own S/L rules [other card])

a) Survival claim is any cause of action π herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by π prior to death, e.g., pain and suffering.


b) Wrongful death cause of action is a tort claim for the pecuniary (economic) damages of decedent's statutory distributees (e.g., surviving spouse, children). Punitive damages are also
recoverable, but not the emotional suffering of the distributees or the decedent's personal pain and suffering.

The party who sues on behalf of the decedent's estate as to either type of claim is the executor (if the decedent died with a will) or administrator (if the decedent died without a will).


Tolls for Death


a) Plaintiffs


b) Defendants


a) Plaintiffs:

1) Wrongful death: TWO years from the date of death, but it must also be shown that decedent possessed a
timely cause of action at the time of death.

2) Survival claim:  If plaintiff dies before the S/L expires, the estate representative gets whichever is

i) the time remaining on the applicable S/L running from the date of accrual;  or

ii) ONE YEAR from plaintiff's death.

- NOTE: The wrongful death action and survival claim are often asserted in
one action.


b) Potential Defendants: If potential Δ dies AT ANY TIME before the S/L expires, 18 months are always added to the relevant limitations period (regardless of whether π needs extra time).



SOL 6-Month Grace Period


(and 4 exceptions)


If a NY action is timely commenced, but is thereafter dismissed before trial, AND at the time of
dismissal the S/L has either expired or has less than 6 months remaining, π gets 6 months from date
of dismissal to re-file the same action and serve process on same Δ.


exceptions:  4 types of prior dismissals where 6-month grace period is not applicable:

1) dismissal on the MERTIS (race judicata defense also);

2) VOLUNTARY discontinuance;

3) dismissal based on plaintiff's NEGLECT TO PROSECUTE, (a GENERAL PATTERN OF DELAY - not if judge dismissed because you missed 1 hearing)

4) dismissal based on LACK of PERSONAL jurisdiction.


NOTE: A dismissal for lack of subject matter jurisdiction is entitled to the six month extension.

The "Borrowing Statute"


If the cause of action arises outside of NY, a choice of law problem is presented if the S/L of the other state is
different from that of NY.

1) If P was a non-resident of NY when the out-of-state claim arose:  NY applies the shorter SOL (either NY or state where claim arose).

2) If P was a NY resident when the out-of-state claim arose:  NY will ALWAYS apply the NY s/l (regardless if its longer/shorter than place where claim arose)




In addition to subject matter jurisdiction, three additional jurisdictional elements must be satisfied in order for a court to render a valid judgment:


1. Proper commencement of the action.

2. Proper service of process on the Δ.

3. Proper basis of jurisdiction over the person or property involved in the action.

Commencement Procedures

QTIP: If the bar examiners say “duly” commenced, do not discuss this issue.


1) action commenced by filing "process" (with the clerk of the court)

- (process = summons and notice, or summons and complaint)

- Supreme Court action: "clerk of the court" is the County Clerk (not the “Supreme Court Clerk").

2) payment of a fee for the PURCHASE OF AN INDEX NUMBER.


3) SERVICE of process made on D, w/in 120 days of filing.

- extension:  court has the discretion, upon P's
motion, to extend time for service if P can show its justified by either "good cause" or "the interest of justice"


Note: If D wants to challenge P's untimely service of process, D must raise the untimely service by motion
to dismiss. If Ä fails to raise the defense of untimely service, it is waived.


NOTE: If π makes a mistake in the filing procedure, such as serving process before the filing of such
process, or failing to purchase an index number, the court has discretion, upon π's motion, to permit
correction of the mistake provided Δ suffers no prejudice, the filing occurs within the S/L, and the filing fee is paid.

Form of "Process"

1. Summons and complaint; or


2) Summons with notice


- if just a naked summons: defect in personal jurisdiction --> so action is subject to dismissal for that reason alone (if D makes timely jurisdictional objection)



- summons: advises Δ that π is suing Δ in a particular court.

- complaint: is π's pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of π 's cause of action.


- "notice":  (basically an abbreviated complaint) sufficient "notice" inscribed on the face of the summons or on a one-page attachment.  consists of:

1) Brief statement of the nature of the action (ex:  "this is a personal injury case based on negligence"; "this is a breach of contract action").

2) the type of RELIEF being sought (injunction, damages, etc.).

3) AMOUNT of damages (If P seeking damages) (EXCEPT personal injury or wrongful death action)


Methods of Serving Process:  Basic Points


who may serve?




actual notice?



a. who may serve? by any person who is at least eighteen provided the person is not a party to the action. (E.g., π's lawyer or spouse could serve
process, but not π herself.)


b. when?  on any day of the week (including holidays) EXCEPT (1) Sunday; or
(2) If D is a Saturday-Sabbath observer, and P knows it.


c. Actual notice is irrelevant to a determination of whether π has complied with the
formalities for proper service of process.


Methods of Service


Personal Delivery, Natural Person


a. Personal delivery to Δ:  Service by personal delivery is "complete" upon process server's tender of summons
directly to Δ. (Δ's response time is measured from date that service is complete.)

- What if Δ refuses to accept the delivery of process?

Can leave process in D's "immediate vicinity"  (ex: put it on their desk)


Leave and Mail


natural person


Process server may


1) DELIVER process to person of suitable age and discretion at Δ's ACTUAL: dwelling place or place of business:


PLUS (w/in 20 days (either order))


2) mail a copy by regular mail to Ä at Ä's actual place of business or last known residence.

3) file proof of service (service complete 10 days later)


- The 2 service steps must be performed within 20 days of each other (in either order), and both steps must take place within 120 days from filing process.


- certified mail not required (regular mail OK)

Affixing and Mailing ("Nail and mail")

(**note:  see due diligence prereq below)


1) AFFIX process to the door of Δ's ACTUAL: dwelling place or place of business:


PLUS (w/in 20 days (either order))


2) mail a copy by regular mail to D at D's actual place of business or last known residence.

3) file proof of service (service complete 10 days later)


-***BUT the process server must first exercise due diligence by: (1) making an attempt to serve D directly and, if that fails, (2) try to leave process with a person of suitable age and discretion at
the home or place of business.


"due diligence" requires:

1) Several attempts, on different days of the week and different times of the day.
2) Trying personal delivery, research on where D is or where you can leave with suitable person.  (if neither works -- affixing/mailing OK)



- The 2 service steps must be performed within 20 days of each other (in either order), and both steps must take place within 120 days from filing process.


- certified mail not required (regular mail OK)




For both leave-and-mail and affix-and-mail service,
proof of service must be filed after the two service steps have been performed. (does not have to be w/in 120-day limit)


Failure to file POS:  it POSTPONES D's time to respond (NOT a jurisdictional defect).


(Proof of service is an affidavit by the process server describing the details of service, e.g., date, time,
place, description of person served, due diligence if relevant).

Expedient Service- “Court Invented Service”

If personal delivery, leave/mail, nail/mail methods of service are not practicable,


P may make an ex parte motion to the court for an order allowing an improvised, expedient method--some reasonable alternative appropriate in the circumstances,


e.g., service on Δ's liability insurer, a family member or
business associate, or service via email.

Service on Infants and the Mentally Incapacitated

When Δ is an infant, Δ's name goes on the summons but process must be served on any one
of the following adults:

1) Parent

2) Guardian

3) anyone with LEGAL CUSTODY

4) if infant is married --> and adult spouse with whom the infant resides.


If infant Δ is 14 or over, process must be served on an eligible adult AND the infant. Two sets of process will be necessary!


When Δ is a mentally incapacitated person for whom the court has appointed a guardian,
process must be served on the guardian AND the incapacitated person. Two sets of process
will be necessary!


If Δ is mentally incompetent but no judicial proceeding has been brought for the appointment of
a uardian, Δ is served in same manner as any other Δ. Court will later appoint guardian ad
litem (guardian for purpose of the pending litigation).


Service Outside New York  (natural person)



[***bar examiner fetish]



The same methods that are used to serve Δ within NY are used when Δ is located outside NY.
(assuming a basis for out-of-state service.)


1) Who may serve?

a) any NY resident at least 18 years old;

b) anyone authorized by law of that jurisdiction;

c) any attorney licensed in that jurisdiction.


**NY methods are controlling.  (methods of state where service made irrelevant)  (so leave/mail still OK even if that state doesn't allow it)


Non-Traditional Method:


Service by First-Class Mail PLUS Acknowledgment



Mail process to Δ by first-class mail, enclosing two copies of a statutory acknowledgment form,
plus a return envelope, postage prepaid, addressed to sender. Service will be effective only
IF Δ signs and returns one of the acknowledgment forms to π within 30 days after Δ receives
the mailed process. Service is complete upon Δ's posting of the signed form.


If D fails to return acknowledgement form:  Service by mail is not effective (P must serve process all over again, using one of the traditional methods).
 - note: D who refuses to acknowledge service by mail must PAY plaintiff's EXPENSES in making 2nd service of process.


- may be used regardless of whether Δ is within
or outside NY.


- available as to all types of Δ s (e.g., natural persons,
corporations) EXCEPT infants and mentally incapacitated persons


- Is Δ's return of the acknowledgment form a concession that the court has jurisdiction?

No.  It merely "acknowledges receipt" --> means D can still raise jurisdictional objections by motion/answer.  (D not conceding jurisdiction)


“Doing Business” in NY






(1) A domestic corporation (incorporated in NY) or " licensed" corporation --> is subject to personal jurisdiction in NY on any claim whatsoever.


(2) unlicensed foreign corporation is said to be present in NY if it is “DOING BUSINESS” in NY. (can then be served same way as any corp)



π must show that at the time the action is commenced, the corporation's EMPLOYEES or AGENTS in New York engaging in COMMERCIAL ACTIVITY for the corporation on a REGULAR, SYSTEMATIC, and ONGOING basis.


Three limitations:

1) "MERE SALES" of a corporation's products

2) "MERE ADVERTISING"  ("mere solicitation")

3) "Mere TRANSIENT PRESENCE of a corporate officer"


NOTE: The doing business basis can probably be used to get jurisdiction over individuals and partnerships as well as corporations.


most significant factor:  if the corporation has an OFFICE or some other physical facility in NY (factory, etc.) with employees coming/going on a regular, ongoing, systematic basis.


NY Domicile




An individual who is a DOMICILIARY of NY at time action commenced, can be served with process anywhere in the US, and this will give P a basis of GENERAL personal jurisdiction over the NY domiciliary defendant.  (no matter where claim arose)


Domicile is the one residence at which a person intends to remain indefinitely and is treated by
her as the principal home. A person has only one domicile.


Distinguish domicile from residence: Residence is a place where a person lives for a fair
amount of time with some degree of permanency. A person can have multiple residences.


Non-Resident Motorist Statute

confers personal jurisdiction over an accident
claim arising from a nondomiciliary motorist's ownership or use of an auto on a NY roadway.

Often overlaps with long-arm category of “tortious act in NY” (category 3 above) but has two unique features:


1) Service of process: by personally serving one copy on the NY Secretary of State PLUS mailing second copy to Δ by certified mail to Δ's out-of-state-residence.


2) Applies to nondomiciliary vehicle owner who gave permission to drive in NY. An agency or business relationship between the owner and driver is not required.

Forum Selection Clause

Parties to a contract may consent in advance to personal jurisdiction in NY in a “forum selection
clause” (such as “any dispute relating to the contract shall be resolved in NY courts”).


Such clause is generally enforceable in absence of fraud, overreaching or unreasonableness.


Matrimonial Jurisdiction








Supreme Court (only NY court with SMJ for matrimonial action (action that "affects marital status")


valid basis:  Having a basis of PERSONAL jurisdiction over D is NOT necessary for matrimonial action, because IN REM jurisdiction will be SUFFICIENT.


To obtain a divorce, separation or annulment, all that is necessary is that plaintiff spouse is a DOMICILIARY of NY.


theory:  In rem jurisdiction means the "marital status" is located in NY.  (so Supreme Court has power over the marital status sufficient to grant a divorce/separation/anullment)


service: The only proper method of serving process in a matrimonial action is personal delivery to Δ.

- Alternative methods, such as deliver-and-mail, may not be used without judicial permission by means of a court order.


"Durational Residency Requirements" are a part of the substance of a matrimonial action, --> They
are not an element of the court's jurisdiction

Matrimonial Long-Arm Statute

Matrimonial Long-Arm Statute: (used for monetary support) When π-spouse is a resident of NY, long-arm jurisdiction can be acquired over Δ-spouse for monetary support if:


(1) NY was the matrimonial domicile of π and Δ prior to their separation, OR


(2) Δ abandoned π in NY, OR


(3) Δ's monetary obligation accrued under an agreement executed in NY (e.g., separation agreement), OR


(4) Δ's monetary obligation accrued "under the laws of NY."

"Durational Residency Requirements"

"Durational Residency Requirements" = statutory conditions precedent to a matrimonial action (seeking monetary support), meaning that P's complaint must allege satisfaction of any 1 of 3 optional durational residency categories:


1) If BOTH PARTIES are NY RESIDENTS at the time the action is commenced AND the GROUNDS for the matrimonial action AROSE IN NY:  NO period of prior NY residency required.


2) One-Year Residency: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action AND NY has any 1 of 3 possible PRIOR LINKS TO THE MARRIAGE:
(1) Marriage took place in New York; or
(2) New York was the matrimonial domicile of the spouses at some point; or
(3) Grounds for divorce action arose in New York.


3) Two-Year Residency: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action.


failure to meet 1 of the 3 = failure to state a cause of action


NOTE: The durational residency requirements do not apply in an action solely to enforce monetary support obligations. They apply only in actions seeking to affect the marital status.


These are not an element of the court's jurisdiction


RULES FOR PROPER VENUE: P chooses venue and specifies it in the summons in accordance with the
following rules:


1. if judgment would affect title or possession to real property: Proper venue = "the county in NY in which the real property is located."


2. In all other actions: Proper venue = any county in NY in which any 1 of the parties resides at the time the action is commenced.

 - if none of the parties reside in NY --> P may choose ANY county in NY.


NOTE: The situs of the cause of action is generally irrelevant to a determination of proper venue.


improper venue






Δ's remedy for improper venue is to serve a demand for change of venue.

The demand must be served before or with the answer.


P consents to the demand: venue change AUTOMATIC.

P objects:  D must make a MOTION for change of venue.  (which will be granted as a matter of right if P chose an improper venue and D designated a proper venue in his demand)



1) The convenience of material witnesses.

2) If there is reason to believe that an impartial trial cannot be had in chosen venue.

Δ's answer consists of:

(1) DENIALS of the allegations Δ wishes to contest (failure to deny an allegation = an IMPLIED ADMISSION).




(3) COUNTERCLAIMs (the "REPLY" is P's pleading in response to a counterclaim (denials/aff-defs)




- Parties must serve copies of their pleadings on all other parties who have appeared in the

How the Answer and Other Interlocutory Papers Are Served

How are interlocutory papers served?


Ordinary mail (1st-class mail).  (can also use personal delivery but expensive/unnecessary)


- interlocutory papers are SERVED ON THE ATTORNEYS.


- service deemed made upon the mailing, not receipt.

Time Limits for Serving the Answer

(note: answer served on date mailed)


a. If Δ was served by PERSONAL DELIVERY WITHIN NY STATE:  D must serve answer w/in 20 DAYS of DELIVERY.



- return of acknowledgment is merely a notification of Δ's receipt of process (not a pleading).


c. Δ was served with process UNDER ANY OTHER CIRCUMSTANCES:  D must serve answer within 30 DAYS after SERVICE IS COMPLETE.


Motion to Dismiss (CPLR 3211)


8 affirmative defenses:



1) DOCUMENTARY evidence as the basis for a defense, e.g., mortgage, deed or contract.


2) OTHER action pending between the same parties on the same cause of action ("redundancy" principle").


3) WANT of capacity of the plaintiff.  (old language for "P lacks capacity to sue") e.g., π is an infant suing without a proper representative, or π as beneficiary is suing on behalf of a trust (only the trustee has capacity).


4) NONJOINDER of a necessary party. e.g. co-makers of a promissory note, joint property owners.


5) FAILURE to state a cause of action.


6) ADDITIONAL affirmative defenses  [see "SPARE RIBS" mnemonic for these 9]


7) LACK of personal jurisdiction: includes improper COMMENCEMENT procedure or SERVICE of process; lack of BASIS jurisdiction


8) LACK of subject matter jurisdiction


FAILURE to state a cause of action.



affirmative defense: even
if all of the allegations are deemed to be true, the substantive law does not recognize a cause of action.



1) In responding to the motion, P entitled to "every favorable inference" that can be drawn from the allegations of the complaint.


2) motion denied if: there is ANY basis for relief under the substantive law.

"Additional" Affirmative defenses ("A" in "DOWNFALL")


1) STATUTE of limitations


2) PAYMENT (ex: "payment of a debt")


3) ARBITRATION award (already resolved by arbitration and resulted in arb award)


4) RELEASE (D saying P already gave D a release)


5) Collateral ESTOPPEL

6) RES judicata

7) INFANCY of defendant (ex:  contracts can't be enforced against infants)


8) **BANKRUPTCY discharge

9) STATUTE of frauds.

Procedural aspects of pre-answer motion to dismiss

(1) The motion is made BEFORE service of the answer. (On or before the last day of prescribed time limit for service of the answer.)

(2) Making the motion extends Δ's time to answer. If the motion is denied, Δ must then serve the answer within 10 days.





(3) NO.  3211 motion is D's OPTION --> D not required to raise any of the DOWNFALL defenses by pre-answer motion.  D can save them and include in the ANSWER as affirmative defenses.

- Rule:  You can only make ONE 3211 motion to dismiss --> must/can make the motion on MULTIPLE GROUNDS.


Rules on Waiver of affirmative defenses

a) general rule that affirmative defenses not raised in the answer are waived.

- A motion to dismiss on any ground in 3211 (DOWNFALL) does NOT preclude raising any other 3211 ground in the ANSWER. 
 - ****EXCEPT "lack of personal jurisdiction." (any of the 3 defects)


b) EXCEPTION: 3 defenses are never waived,

1) NONJOINDER of necessary party

2) failure to state a cause of action



note: how to preserve "lack of personal jurisdiction" AF:

1) Before serving answer, make a 3211 MTD that includes "lack of personal jurisdiction"; OR

2) Make no 3211 motion on any ground, instead put "lack of personal jurisdiction" as an affirmative defense in the ANSWER (note 60-day rule if pleading improper service).

***WARNING: Although pleading "improper service of process" as a defense in the answer is a proper --> will still be waived if D does not make a follow-up motion for summary judgment on that ground no later than: 60 DAYS after serving the answer.

- NOTE that the 60-day follow-up rule does NOTapply to the defense that court lacks a basis of personal jurisdiction (only for the methodology of service of process ("improper service of process")).






Assume Δ makes a pre-answer motion to dismiss on the ground of lack of personal jurisdiction and loses. His subsequently-served answer contains only denials and the affirmative defense of the S/L. Could Δ thereafter properly move to dismiss on the ground of:


1) Release?


2) Failure to state a cause of action?


1) No.  That affirmative defense has been WAIVED.  [***don't forget general rule on pleadings:  "a defense that is NOT raised in the answer is WAIVED."***]
 - D's remedy would be to make a motion to amend the answer.


2) Yes.  Failure to state a cause of action is one of the three defenses that are never waived.

Responses to Summons with Notice

Δ's goals: (1) avoid default, and (2) force π to serve the complaint. How to accomplish:


1) Serve a DEMAND for the complaint; or a NOTICE OF APPEARANCE.


2) both have the effect of requiring π to serve the complaint within 20 days of Δ's service.


3) If P timely serves the complaint, D has 20 days from such service to either:


    1. serve an ANSWER; or
    2. make pre-answer MOTION to dismiss.



4) If P fails to meet the 20-day time limit to serve the complaint, D may move to dismiss the action based on P's noncompliance.

- to defend: P must show a REASONABLE EXCUSE for the delay; and make an EVIDENTIARY "showing of MERIT" ("affidavit of merit") to the plaintiff's cause of action (by P or W's with personal knowledge).

5) *****NOTE:  There is NO WAIVER of personal jurisdiction defenses by serving demand or notice of appearance (D can still raise it either in the answer or pre-answer motion to dismiss).





Amendments of Pleadings

1) Each party is entitled to amend her pleading once as a matter of right (no need for judicial permission) Within 20 DAYS after defendant serves the ANSWER.


- can put anything into the pleading that could have been in the original


2) When the period for the amendment as of right has expired, or the party has already used up her amendment as of right, a motion for leave to amend is required. (decision lies in the court's discretion).

- The standard on a motion for leave to amend: granted if the opponent will suffer no INCURABLE PREJUDICE.

- opposing party must show a "detrimental change of position" as a result of the delay (or that proposed amendment has no merit.).

examples of "prejudice":

1) Loss of documentary evidence (so much time has passed and I didn't know these documents would be relevant); or
2) Key witness has died or disappeared




May Δ raise an omitted personal jurisdiction objection by means of an amendment of right to
the answer?
Yes, PROVIDED 2 things:
 1) D made no pre-answer motion to dismiss; and
 2) D adds this jurisdictional amendment to the answer no later than 20 DAYS after serving the ORIGINAL ANSWER.
Third-Party Practice (Impleader)


a) Impleader: is a procedural device used by Δ to join another party alleged to be liable in whole or in part to Δ for damages that Δ may have to pay π.

- ussually for indemnity or contribution claims by Δ for reimbursement arising out of the same transaction or occurrence.


- enables Δ to join the other party as a third-party Δ (TPD).


b) mechanics: Δ does not need a court order (no need to make a motion).  Δ may implead TPD at any time after Δ serves the answer to the complaint.


- steps for joining TPD: 

(1) D must: 1) FILE a SUMMONS and 3RD-PARTY COMPLAINT; and

2) SERVE within 120 days of the filing --> defendant SERVES a copy of 3rd-party summons/complaint on the 3rd-party defendant. (Plaintiff is also entitled to a copy of all papers served on TPD)


(2) TPD must serve a third-party answer on D, P and all other parties who have appeared in the action.

 - TPD'stime limit for answering is the same that would apply to an ordinary D  (20/30 days depending on where/how TPD served)

(3) P v. TPD:


- After TPD joined, π may amend her complaint to assert claim directly against TPD (within 20 days after π served longer w/ court's permission).

- must comply with SOL (see other card)














How should the S/L be applied with respect to πp's newly added claim against TPD?


a) GENERAL RULE FOR MEASURING COMPLIANCE WITH S/L FOR CLAIM IN AMENDED COMPLAINT:  Go by the date of amendment (to see whether you comply w/ S/L).


b) ***EXCEPTION: RELATION-BACK BENEFIT FOR IMPLEADER-RELATED CLAIMS:  For S/L purposes, P's added claim against TPD will be deemed interposed on the date TPD was impleaded (when D filed the impleader papers) PROVIDED:

(a) P's claim based on the "same transaction or occurrence" as the impleader claim; AND

(b) would have been timely on the date of the impleader.


- Thus, regardless of when π actually asserts his related claim against TPD, the amendment will RELATE BACK FOR S/L PURPOSES TO THE DATE THAT Δ IMPLEADED TPD.





Assume cars driven by Ari, Drama and Turtle collided at a film festival on June 1, 2009. Ari sues Drama for his injuries on April 1, 2012, and Drama impleads Turtle for contribution on May 1, 2012. On August 1, 2012, Ari seeks permission to amend his complaint to assert a claim for his injuries against Turtle. Is Ari's claim against Turtle time-barred?




No, it is not time-barred.  Ari's claim against Turtle "relates back" to the date that Turtle was impleaded (5/1/12).

1) Ari's direct claim against turtle was based on same transaction/occurrence as impleader claim; and

2) Ari's claim against Turtle would have been timely on date of the impleader.  (5/1/12 was w/in 3 years of the accident --> so all elements are present here and Ari gets the relation-back benefit)

- Notice how there is not real prejudice to Turtle because he was put on notice about the suit (about the accident) when he was impleaded, and as soon as he started defending himself against impleader he was indirectly defending himself against P's claim --> so fits w/in rationale of S/L.









2 types?


allows one party to shift 100% of the responsibility to another party.


1) By contract: E.g., in construction contract, subcontractor may agree to indemnify general contractor for any losses that contractor has to pay as a result of subcontractor's inadequate performance


2) **Implied-in-law indemnity:

 1. Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.

2. Vicarious liability situations: E.g., in New York, owner of car is vicariously liable for damages caused by negligent driving of any person to whom owner has given permission to drive the car. Owner who pays victim as result of vicarious liability is entitled to indemnity from driver.





INTENTIONAL tortfeasor - Contribution available?



MBE rule:  No.  Contribution is NOT available when the liability is based on INTENTIONAL wrongdoing.

NY rule:  Yes.  Contribution is available in ALL tort cases (including intentional torts).





Joint/several liability?


NY Dist?




- general rule [**NY and MBE rule]:  Each tortfeasor can be held liable to P for the FULL AMOUNT of P's damages, without regard to the individual tortfeasor's percentage of fault


***NY DIST: CPLR ARTICLE 16  [NY only] (modifiesJ/S liability):

- RULE: (Subject to certain exclusions) in a personal injury claim, when a joint tortfeasor is 50% or LESS at fault of the total liability; the joint tortfeasor can only be required to pay her own share of P's NON-ECONOMIC damages.

- tortfeasor found 51% (or more) liable for the total liability is J/S liable for 100% of all economic/noneconomic damages.


NOTE: Article 16 does not apply to a wrongful-death claim or property-damage claim because the damages in such cases, under NY law, are limited solely to economic losses.


- Non-economic damages consist of 1) pain and suffering, 2) mental anguish, and 3) loss of consortium.

- Economic damages consist of out-of-pocket monetary losses, including lost income and medical expenses.







Contribution/Indemnity SOL?

Statute of limitations: Contribution/Indemnity has a six-year statute of limitations that runs from the date of payment of the judgment for which contribution is sought (also applicable to indemnity).

(regardless of the SOL for underlying tort)




Equal Shares Formula



Equal Shares Formula of Contribution - minority view [*MBE only]- the contribution shares are always equal in amount (percentages of fault irrelevant).

[**tip] On MBE -- only use if specifically told you are in an equal shares jurisdiction --> if not, apply the majority approach (comparative degrees of fault).

Hypo:  Assume Mike sues all three drivers, and the jury finds the following percentages of fault: Vinny 45%, Pauly 35% and Snooki 20%. If Vinny pays the full amount of a $100,000 judgment and seeks contribution from Pauly and Snooki in a jurisdiction that uses an equal shares formula, to what amount would Vinny be entitled from each of the other tortfeasors?

$33,333 (1/3 each from Pauly and Snooki -- equal shares)




Comparative Degrees of Fault [NY/majority]



basic rule: The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share (percentage) of the judgment.



A party from whom contribution is sought cannot be required to pay more than her equitable share.



The rules of contribution do not change π's right to impose joint and several liability on any one of the defendants.  (contribution only relates to reimbursement rights among the tortfeasors -- doesn't affect P's rights at all)







Substantive Law Rule for Contribution:

Hypo:  π, a building owner, installed a fire alarm system manufactured by A. π also entered into a written contract with B for fire monitoring services. The contract with B limited B's liability to gross negligence (no liability to π for ordinary negligence). In a fire at π's building, the alarm system failed, and B negligently reported it too late to avoid catastrophic damages. π sues A in products liability (bad alarm system), and A impleads B for contribution based on B's negligence. Even though B is not liable to π because of the exculpatory clause in the monitoring contract, can B be held liable to A in contribution?





general rule is that a right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which Δ may be held liable to π.

***Thus, Δ may seek contribution from TPD even if the injured π has no right of recovery against TPD.

answer: Yes, because of broad substantive law of contribution.  Key fact is that B's negligence aggravated the damages for which A can be held liable to the P.  (that's enough to sustain A's claim for contribution against B for negligence)






(with NY DIST)




Rationale: To minimize contribution and indemnity liability of employers.



Background on workers' comp (torts stuff):

- If an employee is injured on the job, she cannot sue her employer, regardless of fault on the part of the employer, because of the Workers' Compensation Law. (The trade-off is that employees are entitled to recover fixed compensation amounts from the employer's insurer on a no-fault basis.)


- However, the employee can still sue a third person who is partially at fault for the accident, e.g., the manufacturer of a product that the employee was using at the workplace when she was injured.



***In these circumstances may the third person seek contribution or indemnity from π 's employer?


MS:  No, 3rd person has no right of contribution/indemnity from the plaintiff's employer.


NY:  the 3rd person has no right of contribution/indemnity from the plantiff's employer UNLESS the P sustained a "grave injury."











Rule:  Under the law of “successive tort liability,” Vinny is liable to Mike for all injuries that proximately flow from the accident, including the subsequent malpractice inflicted by Dr. House, the successive tortfeasor. Since Dr. House's conduct aggravated the damages for which Vinny can be liable, there is a substantive-law basis for a contribution claim by Vinny against Dr. House.







The law prohibits excess recovery for π, so any judgment for π against a non-settling tortfeasor will have to be reduced to take account of the settlement.

- THE REDUCTION FORMULA: Any judgment for π against a non-settling tortfeasor must be reduced by EITHER:  (whichever is larger)

(1) the amount of the settlement, OR

(2) the settling tortfeasor's equitable share of the fault.






Assume that, following Mike's $30,000 settlement with Pauly, the case against Snooki goes to trial. The jury finds in Mike's favor, assessing damages at $100,000 and apportioning fault at 10% for Pauly and 90% for Snooki. What is the proper judgment to be entered by Mike against Snooki?



What if Pauly (the settling party) was found to have been 40% at fault?




a) The $100k judgment against Snooki will be REDUCED by Pauly's $30k settlement --> Snooki's judgment reduced to $70k.  (Pauly's $30k settlement is larger than his percentage of fault (only 10%) --> so reduce by $30k).


b) Judgment against Snooki reduced by $40k (larger than the settlement amount of $30k).  Judgment against Snooki is $60k.  P gets screwed but that's OK.






Effect of settlement on CONTRIBUTION claims?



Effect of settlement on INDEMNITY claims?




a)A party who settles CANNOT SUE or BE SUED for CONTRIBUTION.

- rule intended to encourage settlement because the settling party is assured that he cannot thereafter be sued for contribution. But the settling party also forfeits his own contribution rights.

b)A party who settles CAN sue, and be sued, for INDEMNITY.




***NY DIST: CPLR ARTICLE 16  [NY only]




***NY DIST: CPLR ARTICLE 16  [NY only] (modifiesJ/S liability):

- RULE: (Subject to certain exclusions) in a personal injury claim, when a joint tortfeasor is 50% or LESS at fault of the total liability; the joint tortfeasor can only be required to pay her own share of P's NON-ECONOMIC damages.

- tortfeasor found 51% (or more) liable for the total liability is J/S liable for 100% of all economic/noneconomic damages.


NOTE: Article 16 does not apply to a wrongful-death claim or property-damage claim because the damages in such cases, under NY law, are limited solely to economic losses.


- exclusions:

1) Tortfeasors who acted with intent or reckless disregard for the safety of others.

2) Tortfeasors who released a hazardous substance into the environment.

3)****Drivers and owners of motor vehicles other than police and fire vehicles.  (most common tortfeasor)





- Non-economic damages consist of 1) pain and suffering, 2) mental anguish, and 3) loss of consortium.

- Economic damages consist of out-of-pocket monetary losses, including lost income and medical expenses.



Assume that on the way to the NYC premiere of his newest movie, actor Vincent Chase was injured in a 2-car accident involving some of the members of his entourage: Ari was negligently driving a car defectively manufactured by HBO Motors. Turtle, a passenger in Ari's car, was negligently distracting Ari. The other vehicle was an NYC police car negligently driven by Officer Monk who was clearing off a speck of dust from his rear-view mirror. Which of the tortfeasors are potentially eligible for the reduced-judgment benefits of Article 16?



1) Ari:  NOT eligible for A16 --> 100% liability.

2) HBO motors:  ELIGIBLE:  manufacturers are eligible (not a driver/owner)

3) Turtle:  ELIGIBLE:  not a driver/owner of the car

4) Monk and/or City of NY:  both ELIGIBLE:  because Monk was driving police car; City was owner of police car.



Motions on Notice


a) Service?


b) When is the motion "made"?


c) "return date"?


d) How much advance notice must be given to the opponent?


e) Order to Show Cause?


a) What papers are served on the other party?

1) "Notice of Motion":  piece of paper that advises opponent of NATURE of motion (dismiss, change venue, etc.) and specify a RETURN DATE.

2) Affidavits of Fact:  written statements under oath, showing the court why the motion should be granted.

3) Memorandum of law:  setting fort the LEGAL ARGUMENTS in support of the motion.


b) When is the motion "made"?

When the motion papers are SERVED on the OTHER PARTY.


c) The day upon which the motion papers are presented to the court is called the "return date" A/K/A
"hearing date" of the motion.  All motion papers, those of the moving party as well as the opposing papers, must be filed with the
court no later than the return date.


d) The moving party must serve the motion
papers on the opponent at least 8 DAYS before the return date.


e) Order to Show Cause: an alternative way to make a motion on notice.

 - preliminary order, signed ex parte by a judge, directing the adversary to "show cause," (on a date specified by the judge) why the motion should not be granted. The judge, rather than the party, is giving the notice of motion.


Order to Show Cause


3 possible reasons for moving by order to show cause rather than the ordinary notice of motion?



Order to Show Cause:  alternative way to make a motion on notice. (The judge, rather than the party, is giving the notice of motion)



1) accelerating the return date:  where exigent circumstances make the usual 8-day advance notice too long to wait for judicial assistance. In signing the order to show cause, the judge can specify a return date that is sooner than the 8-day minimum that would otherwise apply.


2) Judge can grant immediate stay of the proceedings or a temporary restraining order ("TRO").


3) The statute which governs the particular motion may require it.


The Deciding Order







After the return date of a motion on notice, the court's decision must be embodied in a written ORDER
signed by the court and entered with the clerk. The prevailing party (whether it be the moving party or
the opponent) serves a copy of the order on the losing party with notice of entry of the order (even if court already gave them a copy).


two effects of service of the copy of the order?

1) Service of the order is necessary to GIVE EFFECT of the order.  (order has no effect until served).

2) Service of the order starts the running of a 30-DAY time limit to APPEAL from the order.


1) In New York State courts, a party can appeal from most interlocutory orders.

  - "interlocutory order" is an order that awards some relief to a party, but does not finally determine all matters in controversy in the action (e.g., order upholding jurisdiction, amending the complaint, or changing venue). An action is concluded with a final judgment.  [**bar loves to test on this b/c different from federal

- In Federal practice --> you CANNOT appeal until a FINAL JUDGMENT


2) To appeal from an interlocutory order or judgment, a party must FILE and SERVE a notice of appeal within 30 DAYS from service of the order or judgment, with notice of entry.  (otherwise can wait and appeal from final judgment)





Ex Parte Motion






a motion in which no advance notice is given to the adversary, i.e., without giving any opportunity to be
heard in opposition. The moving party goes straight to the court with the motion papers and requests an order
granting the relief sought.  (NOT appealable)


circumstances (rare):  not permitted unless there is "express statutory authorization" for doing so.

ex: 1) motion for expedient service of process (specific statutory authority)
2) request for extension of time to serve process


NOTE: Assume a motion must be made on notice, unless a statute provides otherwise.


remedy:  Aggrieved party makes a "motion on notice" to vacate the ex parte order.  If motion to vacate denied, then aggrieved party can appeal from the denial of the motion to vacate.  (ex parte order itself NOT appealable)




a) standard?


b) timing?



Standard: there is "no genuine issue of material fact" requiring a trial.

- The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to
judgment as a matter of law.

***QTIP: Remember to discuss the elements of the underlying cause of action.



-a) After service of the answer, any party - π or Δ - can move for summary judgment with respect to any claim or defense asserted in the pleadings.

b) No later than 120 days from the filing of a note of issue.  (document that puts the case onto court's trial calendar)

- Exception: Motion may be permitted after expiration of 120 days from filing of note of issue if moving party
shows “good cause” (procedural excuse, such as law office failure or delayed service of discovery
documents until after the filing of the note of issue may constitute “good cause”; the strength of the motion on the merits does not qualify as good cause).






Moving party has the burden of showing that there are no material issues of fact requiring a trial, and
that she is entitled to judgment as a matter of law.  How is this burden satisfied?


Moving party must submit evidence in the form of AFFIDAVITS; also any relevant documents or discovery materials (transcripts of depositions or interrogatory interviews)


Affidavits must be submitted by persons with ACTUAL KNOWLEDGE of the facts (such as the parties themselves or eye-witnesses)



***Opponent CANNOT simply rely on the allegations of the PLEADINGS (to show triable issue of fact).  (pleadings are not "evidence")



Opponent:  By producing and presenting CONTRARY EVIDENCE showing that a triable issue of fact DOES EXIST.  (using same type of evidence that moving party must use)

- If the opponent establishes with an affidavit that he is not yet able, through no fault of his own, to
produce opposing evidence, the court can either deny summary judgment or grant a continuance
(adjournment) to permit additional evidence to be obtained.




Searching the Record


"Boomerang Effect"


A motion for summary judgment "searches the record,” meaning that the court reviews all of the
evidence in the record, regardless of which side submitted it. If the court concludes that the opponent,
rather than the moving party, is entitled to summary judgment on an issue addressed by the parties, the
court may grant summary judgment to the opponent even if the opponent did not make a cross- motion for
such relief.

“Boomerang Effect”: Δ moves for summary judgment attempting to show the absence of any
negligence by Δ. π 's evidence in opposition, which seeks merely to show an issue of fact as to Δ's
negligence, is determined by the court to be so strong that it justifies summary judgment for π.

Pre-Answer Motions for Summary Judgment

In two situations, summary judgment is permitted prior to service of the answer:


1) Conversion of Motion to Dismiss for Failure to State a Cause of Action (thereby allowing for decision on the basis of evidence rather than on the face of the pleadings)


(1) at least 1 of the parties has submitted FACTUAL AFFIDAVITS in connection with the MTD.

(2) the court must give NOTICE TO THE PARTIES of the conversion (in order to give them opportunity to submit additional evidence)


2) Motion for Summary Judgment in Lieu of a Complaint:

In two types of actions, P may move for SJ at the same
time she serves process by accompanying the summons with motion papers for summary judgment


(1) an action on an INSTRUMENT for the PAYMENT OF MONEY ONLY. (means an instrument with D's "UNCONDITIONAL PROMISE" to pay money (very rare -- typically a promissory note))


(2) an action on an OUT OF STATE JUDGMENT.


procedure:  minimum advance
notice for the return date in these circumstances =
at least be equivalent to the time limit for defendant's
appearance in the action (20 days if personal delivery; 30 if any other way)


5 provisional remedies


(and which one does NOT require court order)


(1) Attachment

(2) Preliminary Injunction

(3) Temporary Receivership

(4) Order to Seize Chattel in an action to recover the chattel (replevin)

(5) Notice of Pendency (lis pendens) (does NOT require court order)







method (real property, personal property)?






Concept: π obtains an order of attachment from the court and gives it to a NY sheriff who levies upon
Δ's property in NY. The levy imposes a lien on the property pending the outcome of the action. This
gives πp a security interest in the property that is superior to that of any subsequent lien holder.


Method of sheriff's levy on real property: Sheriff files the order of attachment with the county clerk of the county of NY in which the property is located.


Method of sheriff's levy on personal property:  Sheriff delivers the order of attachment to the person in NY HOLDING the D's personal property interest.
 - can be D himself or garnishee (ex: if car is in his garage); or a garnishee (bank).
 - the DELIVERY by the sheriff AUTOMATICALLY imposes a LIEN on the personal property and serves as an INJUNCTION against transfer of the property pending the outcome of the action.
 - give P priority (puts a "freeze" on it)




Types of actions


π must be seeking money damages (OK to join other claims seeking equitable relief) AND D is one of 2 types of "security risk":

(1) Δ is an unlicensed foreign corporation or a non-domiciliary residing outside of NY; OR

(2) Δ is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate
the enforcement of a judgment.






a. π must make a motion (on notice or ex parte) for an order of attachment.

b. What are the requirements of the motion?


1) the affidavits in support of the motion must show 1 of the 2 types of action for attachment; and


2) the affidavits in support of the motion must show a probability of success on the merits of the P's underlying cause of action; and


3) P must provide an UNDERTAKING (a "bond") to indemnify the D for any damages/expenses caused by the attachment.


c. extra req for ex parte motion: 


1) DUE PROCESS requires that D have an opportunity for a "PROMPT HEARING" after the levy on his property, so D can CONTEST the attachment.


2) After the sheriff levies on defendant's property, plaintiff must make a follow-up a MOTION on NOTICE to confirm the ex parte order.  The motion to confirm must be made by ORDER TO SHOW CAUSE (so there will be an ACCELERATED return date). (or else order automatically void)


- Two separate time limits apply for the making of the motion to confirm:


(1) (attachment category #1) If Δ is an unlicensed foreign corporation or a non-domiciliary residing outside of NY, the motion to confirm must be served on Δ no later than 10 DAYS after the LEVY.


(2) (attachment category #2) If Δ is fraudulently moving assets, the motion must be served
on D no later than 5 DAYS after the LEVY.


Preliminary Injunction




Types of actions?


1. A preliminary injunction is used to maintain the status quo while an equity action is pending.

2. Types of actions in which preliminary injunction may be used:  An EQUITY action in which π's complaint seeks EITHER:


(1) a PERMANENT injunction; or


(2) (more generally) the D "threatens to harm the P's interest in the subject matter of the action."


INJUNCTION. E.g., π sues Δ for nonpayment of a $80,000 debt. Prior to judgment, π cannot enjoin Δ
from transferring assets or spending money. π's only possible remedy in a purely money action is

In the Carmela-Tony HYPO (suit seeking rescission based on Tony's fraud and threatened transfer of
stock to Silvio), does Carmela have sufficient grounds for a preliminary injunction restraining Tony from
selling the stock?
1) P's 2nd claim was EQUITY claim (rescission of transaction to Tony in order to reaquire her stock) --> so stock itself is the "subject matter of the action;" and
2) Tony has "threatened to harm P's interest in the subject matter" (the stock) by selling it to Silvio.







a) The motion for a preliminary injunction must be made ON NOTICE.


b) The motion papers can be served with, or after, the summons.


c) Requirements for the motion:


1) P's affidavits must show the grounds for equitable relief, including the threat of irreparable injury.


2) P's affidavits must show probability of success on the merits of P's underlying claim.


3) P must provide an UNDERTAKING to indemnify D for damages if it is later determined that the preliminary injunction should not have been granted.


“TRO” (Temporary Restraining Order)






with a TRO:  in a case involving a threat of immediate injury, P can ask court to grant TRO ex parte.


 - purpose of TRO is to maintain the status quo for brief period during which the preliminary injunction is litigated.


- procedure: Make the motion for preliminary injunction by ORDER TO SHOW CAUSE.  (go directly to court and get judge to sign O2SC that includes a TRO. 

- Judge will set an early return date for the hearing on the preliminary injunction, TRO provides immediate injunctionary relief for the mean time.


Any ex parte application for a TRO must contain an affidavit demonstrating that there will be
“significant prejudice” to the party seeking the TRO if notice is provided to the adversary


Temporary Receivership


(not tested often)


Person appointed by the court to MANAGE PROPERTY in the defendant's possession (takes over management of D's property).


2. Type of action in which available:
1) π must be asserting an equity claim in which specific property is the subject matter of the action, AND
2) There is a danger that Δ will injure or destroy the value of the property while the action is pending.


NOTE: If an action seeks solely money damages, a temporary receivership is not available.


3. procedure: The appointment of a temporary receiver requires the making of a motion on notice.


Seizure of a Chattel


a) type of action?


b) function?


c) procedure?


a) An action that seeks to recover possession of a chattel (any personal property).  (common law called it "Replevin")


b) The function of the order of seizure is to ensure enforcement of a judgment awarding possession of the
chattel to π. The sheriff, who seizes the chattel, will retain custody of the chattel ("impoundment").
Otherwise, if the chattel is lost or destroyed while the action is pending, the judgment will be limited to
the monetary value of the chattel.


c) Procedure:


What are the requirements for the motion for an order of seizure?

1) P's affidavits must show a probability of success on the merits of the underlying cause of action; and

2) P must provide an UNDERTAKING to indemnify D for damages if seizure turns out to be wrongful.


The motion can be made on notice or ex parte. What are the additional requirements for an ex parte

1) P must show threat of "IMMEDIATE LOSS" of the chattel; and

2) (to satisfy due process) P must make a follow-up motion on notice, within 5 DAYS of the seizure, to confirm the ex parte order (lets D get his "prompt hearing")


Notice of Pendency


a) concept?


b) types of actions?


c) procedure?


d) duration?


a) In an equity action in which the judgment will have a direct effect on real property, the filing of a notice
of pendency gives record notice to any potential buyers or mortgagees that any interest they acquire
in the property will be subordinate to that of the π.


b) An equity action in which the judgment will have a direct effect on title, possession or use of real
property, e.g., specific performance, ejectment.

- In a mortgage foreclosure, the filing of a notice of
pendency is statutorily required.


c) Procedure: P files a notice of pendency with the County Clerk of the county in NY in which the real
property is located. This is what gives record notice of the pendency of π's action.

- filing does NOT require A COURT ORDER.

- P is not required to file a bond.


d) remedy does Δ have if a notice is improperly filed?  D must make a "motion to cancel" the notice of pendency.


e) duration:  notice of pendency is effective for three
years after filing.

- π can move for a three-year extension of a notice of pendency, but must make the motion for extension prior to the expiration of the original three-year period.

- no motion to extend:

(1) The notice of pendency becomes void and has no further effect, AND

(2) π cannot obtain another notice of pendency on the same property for the same cause of action.


Exception: In a mortgage foreclosure action, the court may grant a motion for a new notice of
pendency even though the original notice expired without renewal.


How does a party who is entitled to a jury obtain it:


a) Party who files note of issue?


b) Other parties?


a) can make a DEMAND for jury trial in the note of issue.
 - if filing party does not make this demand --> that party WAIVES right to jury trial.


b) can file its own separate DEMAND for jury trial (if he doesn't see one in the other party's note of issue)


When does a party in a civil action have a RIGHT TO TRIAL BY JURY?


(5 actions)


1) action seeking SOLELY MONEY DAMAGES


2) action of REPLEVIN (action to recover a chattel)


3) claim to REAL PROPERTY


4) ANNULMENTS of a marriage


5) a DIVORCE action, on the GROUNDS for divorce (ex:  adultery)  (note:  no jury on the issue of money or child custody)

Must the verdict be unanimous?
No, 5/6 vote is sufficient for a verdict.  (5 jurors agree is enough)
Res Judicata (Claim Preclusion)

purpose: avoidance and prevention of re-litigation of the same claim.


NY uses the "transactional approach" to claim preclusion:


When a claim against a particular defendant has been brought to a final judgment on the merits, all
other claims by the plaintiff against that defendant are barred if: those other claims arise out of the SAME TRANSACTION OR OCCURRENCE (even if based on different theories or seeking different remedies).


Policy exception to transactional approach in matrimonial disputes: allow abuse issues tried separately from divorce (even if abuse was issue in divorce).


a) S-1 v. S-2 for divorce based on cruel and unusual treatment, including assaultive conduct.
Judgment for divorce granted.

b) S-1 v. S-2 for personal injuries arising out of the assaults that occurred during the marriage.

Is the second lawsuit barred by claim preclusion / res judicata? NO - don't want to force spouse to include personal injury abuse claim during divorce dispute --> policy to allow divorce to finish (including child custody, etc.) then abuse suit.

Collateral Estoppel (Issue Preclusion)

Issue preclusion avoids (and prevents) the need for re-litigation of specific fact issues that were
decided in a prior proceeding upon a 3-part showing:


1) identical issue: the ISSUE in former proceeding and current proceeding is IDENTICAL (same fact issue);


2) the issue was actually litigated and decided (in the former proceeding)


3) identical parties: the PARTY against whom issue preclusion is asserted, had FULL and FAIR opportunity to litigate the issue in the former proceeding (had her day in court).

(Issue preclusion CANNOT be used against someone who was NOT A PARTY)








A special proceeding is a speedy, streamlined procedure, akin to motion practice, the purpose of which is to
obtain a judgment as a final resolution of a dispute.


Pursuit of a remedy by means of a special proceeding requires specific statutory authorization.


E.g., probate of a will; election disputes; summary proceeding by a landlord for eviction; dissolution of a
corporation; habeas corpus; enforcement of an arbitration agreement; CPLR Article 78 proceeding.


When a mistake is made in the form of a proceeding, the court has the authority to CONVERT the special proceeding into an ACTION (and vice versa if P sued in action and should have used special proceeding) [court doesn't just dismiss it because error in filing]






1. To commence a special proceeding, the PETITIONER (the party with the grievance) files:

1) the PETITION ("petition" is analogous to "complaint") (the filing of the petition is the COMMENCEMENT of the proceeding); and
2) NOTICE of petition (analogous to "summons")


2. Next, the petition and notice of petition must be served on the RESPONDENT (the person from whom
relief is sought.)  (usual methods of service)


3) The notice of petition advises the respondent to serve an answer and to appear on the specified return
date for the hearing (no sooner than 8 DAYS (same as motion practice)).


If the petitioner needs an accelerated return date: Petitioner can initiate the special proceeding by ORDER TO SHOW CAUSE, instead of "notice of petition."


4) Affidavits are usually served in support of, and in opposition to, the petition. All pleadings and
affidavits are submitted to the court on the return date for decision by the court. The dispute is decided
in the same manner as summary judgment. 




Two major characteristics




Two major characteristics:


(1) Arbitrators are not bound by the substantive law or the rules of evidence.
They may do justice as they see fit.


(2) The scope of judicial review is extremely narrow.


PUBLIC POLICY OF NY: FAVORS arbitration.  [**remember this]

The courts are guided by this principle when deciding whether particular disputes are arbitrable.




5 threshold issues


5 threshold issues


1. Did the parties agree to arbitrate?

a. agreement must be in WRITING;

b. agreement must be CLEAR, EXPRESS, and UNEQUIVOCAL;

c. right to arbitrate NEED NOT be MUTUAL (can say only 1 party has right to demand arbitration)


2. Is the dispute within the scope of the arbitration clause?

Example of broad clause: “All disputes or claims arising out of or in connection with this contract shall
be resolved by arbitration.”

If that type of ("BROAD") arbitration clause --> very few issues the court can decide (arbitrator will decide virtually everything).
 -ex of more narrow clauses:  arbitrator will decide only issues of damages.


3. Is the arbitration clause valid?

Arbitration clause is invalid (therefore unenforceable) only if:
 1) the arb clause was induced by fraud, duress, or coercion; OR
 2) if it involves a matter contrary to public policy.
- presumptively valid unless strong showing of above.

- The validity of an arbitration clause is determined pursuant to the doctrine of severability.


4. Is there an express condition precedent to arbitration, and has it been complied with?

 ex: in a construction K, an arbitration clause saying "the K must first be submitted to the architect before going to arbitration."  [not tested often]  Court will decide if there is a condition precedent and whether it has been complied with.


5. Statute of Limitations

doctrine of severability

The validity of an arbitration clause is determined pursuant to the doctrine of severability


The VALIDITY of an arbitration clause is DETERMINED SEPARATELY from the validity of the overall contract in which the arbitration clause appears.
 - so you have to show that the arb clause ITSELF was induced by fraud/duress/coercion (clause itself can be valid even if the overall contract was induced this way)  [what??]


Assume Leno sues Letterman for damages for fraud and breach of a written contract in which they agreed to
share their jokes. Letterman moves for an order to stay the action and compel arbitration on the ground that
the agreement between them contained an arbitration clause requiring that any dispute arising from the
contract must be submitted to arbitration. Leno asserts that the agreement to arbitrate is unenforceable
because the overall contract was induced by fraud.


How should the court rule?

Leno's argument must be rejected -- because we apply the doctrine of severability:  so long as the arbitration  clause itself is valid --> the contractual duty to arbitrate is VALID (enforceable) separate and apart from the remainder of the contract. (so it will be decided by the arbitrator)
 - only way out is if Leno can show the arbitration clause itself was induced by fraud/duress/coercion.
 - include in answer:  "NY public policy favors arbitration."

ARBITRATION procedure:


How to Bring Threshold Issues to the Court


1. In pending action:  D makes a MOTION to COMPEL arbitration and to STAY the action.


2. If no action is yet pending, the proponent of arbitration typically seeks to invoke arbitration by
serving the opponent with a "notice of intention to arbitrate." (Service of the notice must be made in the
same manner as a summons or by certified mail.) The opponent may then commence a special
proceeding for a stay of arbitration. 

- In the special proceeding for the stay of arbitration, the arbitrational opponent can raise ANY of the 5 threshold issues (but must do so w/in time limit).


- opponent's time limit to commence special proceeding:  No later than 20 DAYS from the RECEIPT of the "notice of intention to arbitrate."  (otherwise, threshold issues WAIVED)  [because "NY public policy favors arbitration"]


Judicial Review of Arbitration Awards


What 3 grounds provide a basis for vacating an arbitration award?


1. if there was CORRUPTION, FRAUD, or MISCONDUCT in the arbitration proceeding;


2. if there was BIAS on the part of the arbitrator who was CHOSEN to be NEUTRAL (sometimes they are not chosen to be neutral);


3. if the arbitrator has EXCEEDED his POWERS (rare, arbitrator has virtually unlimited powers (unless language to contrary))






Article 78 of the CPLR authorizes a special proceeding for judicial review of action (or inaction) by state and
local governmental or quasi-governmental officers or bodies of any kind. The respondent is usually a local
government entity or officer.


For mandamus purposes, a corporation traditionally qualifies as a quasigovernment entity because a corporation's privilege of existence comes from the state

4 grounds for an
Article 78 proceeding













hypo: Assume that the president of a corporation of which S is a shareholder has refused to convene
an annual meeting of shareholders. Could S bring a mandamus proceeding against the
president and/or the corporation?


MANDAMUS TO COMPEL: To compel the performance of an act required by law―an act as
to which no discretion is involved.


Examples: election official refuses to issue absentee ballot;
city clerk refuses to issue a marriage license.


hypo answer:  Yes.  Corps (for mandamus purposes) is a quasi-government body or officer (because corp gets its right to exist from the state).


PROHIBITION: A proceeding to stop a judicial officer from exercising power that exceeds the
officer's lawful jurisdiction. The excess must be "gross" in nature.

Examples of "gross excess" of the exercise of jurisdiction: (1) In a criminal matter, Δ gets a
verdict of “not guilty” by the jury, but the judge grants the prosecutor's request to commence a
second trial against the same Δ for the same crime. Such violation of double jeopardy would
provide the basis for a prohibition proceeding against the judge. (2) A judge orders the
opposing lawyers in a case to take depositions of witnesses that neither party wishes to


CERTIORARI: A proceeding to challenge the results of a "trial-type" hearing conducted by an
administrative agency. A "trial-type" hearing is one in which testimony was taken under oath
with a right of cross-examination. Persons with a vested property or quasi-property right, such
as license-holders or tenured civil service employees, are entitled to a trial-type hearing prior
to divestiture or discharge. After the agency's final determination of a trial-type hearing, the
form of judicial review is called certiorari.


b. The standard for the court's review of the results of an agency's trial-type hearing: the court must uphold the results of the agency's determination if it was supported by SUBSTANTIAL EVIDENCE.


a. Examples: (1) A liquor store owner challenges the State Liquor Authority's revocation of
his license to sell alcoholic beverages. (2) A tenured public school teacher challenges
the school board's decision to discharge him.


MANDAMUS TO REVIEW: A proceeding to review any type of administrative action not
covered by categories 1-3. Most often, mandamus to review is used to challenge an agency
determination that was made without a trial-type hearing, as, for example, where vested rights
are not at stake.


b. The standard for the court's review: the court must uphold the agency's determination unless it was ARBITRARY and CAPRICIOUS.

a. Examples: (1) A probationary public employee was discharged from her position. (2) A
homeowner applied for a zoning variance that was denied by the local zoning board.
(3) Rambo applied for renewal of his gun permit, which was denied. (Agencies may
determine such matters by investigation without a trial-type hearing because no vested
rights are at stake.)


Article 78 proceeding:  Procedure






Return Date?


Type of relief that may be sought?


1) EXCLUSIVELY in the SUPREME COURT (even if the respondent is the State of NY or a state agency)
 - because its not a case in tort or breach of contract damages --> its a judicial review of state administrative action.


2) FOUR (4) MONTHS from the date that the agency action is final and binding  (short because respondent is the government)


3) SOL: The papers in an Article 78 proceeding must be served twenty days before the return


4) Type of relief that may be sought in an Article 78 proceeding:

1. DECLARATORY relief (ex: to anull an agency's determination (ex: environmental impact review)).


2. INJUNCTIVE relief (ex: get civil servant's job back).


3. DAMAGES -- IF damages are INCIDENTAL to the main declaratory/injunctive relief sought (MAIN relief sought must be declaratory/injunctive)

Officer Monk, a long-term state police officer, was discharged for obsessive behavior following a
hearing by the state police disciplinary committee. Monk claims his discharge lacked merit and seeks
your advice on how to obtain reinstatement to his job, together with back pay for the weeks he has
been out of work.

1) Monk's remedy is an Article 78 proceeding in the Supreme Court, to be brought within 4 months of the final order of his discharge.

2) This is a proceeding in teh nature of CERTIORARI because he was a tenured employee --> so it was a TRIAL-TYPE proceeding.

3) The standard of review for the certiorari proceeding is whether the agency's determination supported by SUBSTANTIAL EVIDENCE.

4) If he wins (getting his job back) he can also get INCIDENTAL DAMAGES for his back pay (because the main relief is injunctive (reinstatement to his job).

5) Even though respondent is the State of NY, the Supreme Court is the proper court because it has exclusive jurisdiction over Article 78 proceedings.

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