Term
| amendment as of course: general/time periods |
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Definition
-amendment of pleadings as of right
-you get one as of right without leave of court
-3 times periods: 20 days after serving pleading; within adverse party's time to respond (20/30 days of service of complaint) (only applies to pleading requiring response); within 20 days of responsive pleading (only applies to pleading requiring response)
-if time period lapses, must seek leave |
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Term
| amendment as of course: PAMTD |
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Definition
-if D makes PAMTD instead of answering, time to answer extended to 10 days after denial
-extends time to amend as of right as well
-P should wait to see PAMTD then amend as of right |
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Term
| amendment as of course: content |
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Definition
-can include anything that could have been in original pleading
-exception: if PJ based on long-arm, cannot pile on non-long-arm claims; if summons w/ mere notice, cannot add something to complaint not referred to in notice |
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Term
| amendment as of course: other authority |
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Definition
-impleader: allows P to amend as of right to directly sure 3d party D; within 20 days of service of X's answer on P; amended relates back to original so original must have been within SOL
-joinder: allows to add a D (20 days; court order; stipulation) |
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Term
| amendment as of course: response |
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Definition
-D has 20 days to serve new answer to amended complaint
-P need not respond to amended answer unless counterclaim added |
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Term
| amendment by leave: general |
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Definition
-granted so long as no prejudice to other side (discretionary but most often granted)
-must be served on all parties; track changes to show amended material
-NO time limit
-NO limit on number |
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Term
| amendment by leave: prejudice |
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Definition
-opposition to leave has burden to show
-right lost, change in position, or trouble could have been avoided
-e.g., SOL lapsed in interim; loss of evidence |
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Term
| amendment by leave: supplement |
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Definition
-adds something that came into existence after filing and service
-e.g., more rent becoming due to landlord |
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Term
| amendment by leave: conditional order |
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Definition
-court can allow amendment conditionally
-e.g., making party pay more or allow further discovery
-can be used to allay prejudice |
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Term
| amendment by leave: merits |
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Definition
| -merits of amendment NOT assessed unless clearly no merit |
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Term
| amendment by leave: ad damnum |
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Definition
| -claim for damages amenable, but PI and WD actions cannot claim amount of damages |
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Term
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Definition
-amended pleading relates back to original if original gave opponent notice
-if no notice, goes by service of amendment |
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Term
| bill of particulars: general |
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Definition
-amplification of pleadings
-P must particularize allegations in complaint |
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Term
| bill of particulars: burden |
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Definition
-party must particularize whatever they have burden of proof for at trial
-for Ds: counterclaims, affirmative defenses, cross-claims |
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Term
| bill of particulars: evidence |
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Definition
-BP is NOT evidence; cannot be used to get evidence (that's for disclosure)
-pleading then BP then disclosure
-but, improper BP can result in preclusion of evidence if something not specified in BP |
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Term
| bill of particulars: personal injury action |
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Definition
-statute specifies what's needed
-date and time; location; statement of acts constituting negligence; actual or constructive notice when required (to whom and when); specifics of serious injury; time incapacitated; special damages for doctors, etc. |
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Term
| bill of particulars: verification |
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Definition
-if pleading is verified, BP must be verified
-in negligence, BP must always be verified |
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Term
| bill of particulars: improper |
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Definition
| -if party fails to properly particularize, opponent can move to dismiss |
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Term
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Definition
-process begins with demand from seeker
-demand must be written and specify items
-can be made w/ or after joinder of issue (service of answer) |
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Term
| BP procedures: response time |
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Definition
-receiving party has 30 days after demand is served to respond-->all responses and objections
-5 day add-on for mailing applies |
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Term
| BP procedures: stipulation and extension |
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Definition
| -3 ways to get extension: writing signed by parties to be bound; court ordered stipulation; motion made in open court |
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Term
|
Definition
-if no BP returned in response to demand, seeker can make motion to compel
-if compulsion not complied w/ can lead to dismissal |
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Term
|
Definition
-get one amendment as of right so long as made before note of issue
-applies to any party; NO time limit |
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Term
|
Definition
-can be supplemented when new stuff arises
-must take place at least 30 days before trial |
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Term
|
Definition
-if seeker thinks BP inadequate, remedy is motion to compel
-if conduct willful, can move for sanctions |
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Term
| BP remedies: penalties against receiver |
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Definition
-court can impose penalties it deems just
-can grant summary judgment for violation of conditional preclusion order |
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Term
| BP remedies: penalties against seeker |
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Definition
| -can be imposed if court finds demand improper or unduly burdensome |
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Term
|
Definition
-all motions based on BP must be accompanied by affirmation that parties tried to resolve
-moving party must show good faith effort
-only get penalties for willful conduct |
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Term
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Definition
-generally, evidence trumps BP
-but, can object if seeker can show BP misled and was prejudiced
-curing variance: amendment or supplement; evidence turned over in disclosure |
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Term
|
Definition
-motion: application for an order; if granted gives rise to interlocutory orders; can be made by any interested party
-orders: device for courts to manage litigation and resolve various disputes |
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Term
| motions: completed service |
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Definition
-mail: when dropped in mailbox; 5 day add-on
-ex parte: when motion made to court
-personal: physical service |
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Term
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Definition
-written: preferable so can appeal
-oral |
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|
Term
|
Definition
-judges will have special rules
-if no judge yet, motion must be accompanied by RJI
-judge cannot refuse to entertain properly made motion |
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Term
| ex parte motions: general |
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Definition
-getting relief w/o other party knowing
-e.g., TRO; order devising method of service
-appropriate if urgent and over a weekend
-only permissible if specific statutory authority |
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Term
| ex parte motions: requirements |
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Definition
-papers must attest to whether this or similar relief sought before and if so what new facts justify this one
-must demonstrate why notice to other side would prejudice moving party in affidavit
-lawyers must notify court of all facts, even those adverse |
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Term
|
Definition
-NOT appealable because not aggrieved
-can move to vacate and then appeal denial or move ex parte to vacate to that judge or app div |
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Term
| ex parte motions: assigned judge |
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Definition
-must make to judge assigned but urgency might allow another to hear
-if 1st motion, must be accompanied by RJI |
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Term
|
Definition
| -all motions must be made to assigned judge except for emergencies where ex parte can be made to any supreme court judge |
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Term
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Definition
-consist of notice of motion and supporting papers on which the motion relies
-technically, deemed served once notice of motion served, but UR requires service of all motion papers at same time
-copies must be provided to court
-need RJI if no judge yet |
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Term
| motion papers: notice of motion |
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Definition
| -specifies time and place of hearing, supporting papers, relief demanded, and grounds for the relief |
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Term
| motion papers: affidavits |
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Definition
-main supporting papers; typically from the parties themselves
-must be from someone w/ personal knowledge
-motions on BP or disclosure require attorney attesting to good faith effort |
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Term
| motion papers: memo of law |
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Definition
| -contains the legal arguments |
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Term
| making a motion: return date |
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Definition
-moving party fixes
-date motion will be heard |
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Term
| making a motion: notice requirements of return date |
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Definition
-regular: earliest date if 8 days after personal service; answering papers must be served at least 2 days before-->8-2 (personal); 13-2 (regular mail); 9-2 (overnight mail)
-special: if movant gives at least 16 (or 21 by mail) days notice, can require adverse party to serve answering papers no later than 7 days before return date, and then reply affidavit only needs to be served 1 day before return date; 16-7-1 (or 21) |
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Term
|
Definition
-must serve on all parties
-always include affidavit of service |
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Term
| making a motion: insufficient notice |
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Definition
-failure to give any notice invalidates motion
-if party responds on merits, objections waived |
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Term
| making a motion: withdrawal |
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Definition
-can withdraw up until return date (should give notice to all parties)
-after, need court permission or stipulation from all parties |
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Term
| order to show cause: general |
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Definition
-2d way to make motion; substitute for notice of motion
-can shorten notice time to less than 8 days
-presented to court ex parte
-court determines time and place of return, whom to serve, method of service, can stay proceedings or enjoin conduct (e.g., TRO)
-relief usually temporary; maintains status quo
-mandatory if "with such notice as the court may direct" |
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Term
| OTSC: contents and procedures |
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Definition
-filled out in part by attorney in part by court
-after judge approves, he signs
-after signed, must be served on nonmovant along w/ supporting affidavits and memo of law
-made when served (NOT when signed) |
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Term
|
Definition
-motion made against a moving party
-requires less notice
-should be made returnable same day as original motion
-deemed made when served |
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Term
|
Definition
| -may be made as late as 3 days before return date including regular mail; but, if 16-7-1, moving party can require cross-motions 7 days before; if by mail 7 becomes 10 days overnight becomes 8-->3 days or 16-7 or 16-10 |
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Term
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Definition
| -any relief can be sought; does NOT need to be related to relief in movant's motion |
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Term
|
Definition
| -can rely on papers in main motion if related |
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Term
| cross-motion: answering papers |
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Definition
| -nothing in CPLR; most judges have specific rules on response |
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Term
| deciding the motion: decision |
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Definition
| -court has 60 days from submission of motion to decide; 20 days if seeking provisional remedy; decision after is still valid |
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Term
| deciding the motion: order |
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Definition
-must be in writing and conform to decision; contains decision and papers submitted and relied upon
-if does not conform, correct by motion to resettle the order
-order must be filed w/ court and served on opposing party along w/ notice of entry
-appeal must be taken within 30 days of service of notice of entry (service starts clock) |
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Term
| deciding the motion: filing |
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Definition
-even if court files order for prevailing and copies losing, prevailing must still serve order on opponent w/ notice of entry
-winner should make sure order is entered w/ clerk and served on loser w/ notice of entry
-order NOT enforceable until entered and served w/ notice of entry |
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Term
| deciding the motion: culmination of order |
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Definition
3 scenarios: order filed-order decided and entered by court, needs to be served; submit order-winner must submit proposed order to judge within 60 days of signing/filing of decision (if on notice, must copy adversary); settle order-proposed order must be drafted by both parties within 60 days
-failure to timely submit deemed abandonment of motion; time can be extended for good cause |
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Term
| trial of issue of fact arising on motion |
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Definition
-can be tried separately (except MSJ)
-typically only seen for motion to dismiss for lack of jurisdiction (whole case riding on the issue) |
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Term
| motion affecting prior order |
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Definition
-if motion affects prior order, must be made to judge who decided original order
-obsolete because of IAS |
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Term
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Definition
-basis: court overlooked or misapprehended info
-NOT court was wrong-->in that case appeal to app div
-if granted, appealable and court can stick w/ original decision
-if denied, NOT appealable
-must be made within 30 days of notice of entry |
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Term
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Definition
-basis: new facts or change in law
-movant must show reasonable justification for not presenting in original motion and that motion to renew made in reasonable time
-appealable whether granted or denied
-mislabeling reargue or renew ignored and treated properly |
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Term
|
Definition
-suspension of case or designated step in it
-contempt of court if violated
-can move to vacate |
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Term
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Definition
-contemplate possibility of disposing case or significant part without trying merits
-e.g., motion to dismiss, MSJ, default judgment |
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Term
| motion to dismiss: general |
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Definition
-allows D to move to dismiss whole complaint or single cause of action
-can be used to dismiss counterclaim, cross-claim, or 3d party action
-3211(a): for defending party
-3211(b): used to move to strike affirmative defense |
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Term
|
Definition
-any evidence can be used
-e.g., affidavits, depositions, documents, even mere attorney's affidavit |
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Term
| MTD: 3211(d) time out provision |
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Definition
-at PAMTD, no disclosure yet
-used when facts unavailable to nonmoving party
-judge can deny motion without prejudice or adjourn motion until more disclosure done |
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Term
|
Definition
-3211: 11 grounds
-also, forum non conveniens, failure to serve demanded complaint, failure to submit to disclosure, neglect to prosecute |
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Term
| defense based on documentary evidence |
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Definition
-when defense based on a document that in its four corners defeats the claim
-cannot be supplemented by affidavits or other extrinsic evidence (except bare bones affidavit)
-if other evidence needed, just answer w/ affirmative defense and MSJ |
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Term
| defense based on documentary evidence |
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Definition
-when defense based on a document that in its four corners defeats the claim
-cannot be supplemented by affidavits or other extrinsic evidence (except bare bones affidavit)
-if other evidence needed, just answer w/ affirmative defense and MSJ |
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Term
| subject matter jurisdiction |
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Definition
| -can be raised any time, by any party, or sua sponte |
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Term
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Definition
-used when a party does NOT have proper capacity
-e.g., infants or trustee in bankruptcy (bankrupt individual lacks capacity to sue over those assets) |
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Term
|
Definition
-used to avoid duplicitous litigation
-usually motion to dismiss second action
-first action can be anywhere in US (fed or state) (if foreign, motion to stay is proper route)
-most show causes of action are essentially the same (definitely same parties)
-if relief is different but could have been the same, ok
-e.g., D counterclaims then brings separate action |
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Term
| MTD: affirmative defenses |
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Definition
-arbitration and award; collateral estoppel; discharge in bankruptcy; infancy/disability of moving party; payment; release; res judicate; SOL; SOF
-exceptions: comparative negligence; illegality; fraud |
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Term
| non-interposable counterclaim |
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Definition
| -counterclaim may only be interposed by or against party in their capacity in present case (e.g., individuals vs partnership) |
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Term
| failure to state a cause of action |
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Definition
-can use if pleading is defective on its face or lacks merit
-if lacks merit, court can treat as MSJ
-if D challenges entire complaint but there is one valid claim, motion will be dismissed (so move to dismiss each claim individually) |
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Term
| lack of personal jurisdiction |
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Definition
-improper commencement; improper service; or lack of basis for personal jurisdiction
-attack whole complain on improper commencement/service; can attack individual claims that lack basis (e.g., no long-arm)
-can be asserted in PAMTD or in answer
-dismissal for LOPJ does NOT get the 6 months
-if MTD does NOT have LOPJ and denied, cannot raise as defense in answer |
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Term
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Definition
-e.g., location of res, failure of attachment, defect in summons, lack of summons service
-if denied, D should ask court to specify what jurisdiction was sustained |
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Term
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Definition
-any defense can be attacked on any ground
-grounds: defense not stated or has no merit
-prevents lapse of SOL if PJ lacking
-but, P should NOT move to strike affirmative defense for failure to state cause of action because could result in dispositive motion
-searching the record: court can look at the pleading that affirmative defense is answering and dismiss without D cross moving |
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Term
|
Definition
-can be done even before joinder of issue
-court must give notice to all parties if it decides to do this so they can submit proof
-if D wants this, must answer and make MSJ |
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Term
| MTD: immediate trial of fact issue |
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Definition
-court can order immediate trial of an issue of fact arising out of MTD
-only used when trial has potential to end litigation (e.g., contesting proper service)
-known as traverse hearing
-if underlying claim would be triable by jury, this must be tried by jury |
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Term
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Definition
-20/30 days (same as time for responding to S+C)
-exception: failure to state cause of action, SMJ, failure to join necessary party--can all be made anytime
-stipulation: if P grants extension to answer, also extends PAMTD unless specifically only for pleadings
-counterclaim: P has 20 days from service of answer (same as time to reply); can also raise in reply as affirmative defense
-NO time limit for moving to dismiss a defense |
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Term
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Definition
-movant gets one shot w/ PAMTD, so all grounds should be specified
-if denied, D must answer
-exception: failure to state COA, SMJ, joinder (but usually 2d comes as MSJ)
-if 2 pleadings, D can make 2
-if denied, D must answer but can raise defenses and MSJ on these
-amendment: P can amend as of right after PAMTD points out deficiency in pleading within 20 days |
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Term
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Definition
| -if LOPJ is in answer and ground is improper service, D must MTD within 60 days of service of the answer |
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Term
|
Definition
-repleading allows P to correct problem in pleading after PAMTD granted
-nonmovant can ask court to replead
-should use affidavits to prove veracity of claim |
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Term
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Definition
-granted 3211 motion is NOT res judicata for entire case, but is for whatever is determined making it law of the case
-if ends case, it is res judicata for entire case and remedy is to appeal
-if granted for failure to state COA, exact complaint can't be made again
-if denied, D cannot raise again in answer because law of the case |
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Term
| MTD: extends responding time |
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Definition
-if D makes MTD, extends answering time if timely
-if P prevails, copy of order must be served on D and D has 10 days to answer
-extends answering time for entire complaint
-MTD also suspends all disclosure (except MTD for improper service) |
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Term
| summary judgment: general |
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Definition
-allows court to render judgment without trial because no issue of fact
-drastic remedy; defeated by showing of issue of fact
-affidavits used for proof; must be from people w/ personal knowledge
-sui generis: no standard |
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Term
| summary judgment: partial |
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Definition
-can be granted for liability and then damages will be tried
-often leads to settlement
-starts accrual of interest |
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Term
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Definition
-earliest time for MSJ is with or after answer (joinder of issue) (except when court treats MTD as MSJ)
-latest time for MSJ is 120 days from filing of note of issue (NOT service); judge can mandate latest point but must give 30 days from filing of note of issue
-showing of good cause can extend time to move
-multiple MSJ can be made but frowned upon
-MSJ suspend disclosure until motion determined or court orders otherwise |
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Term
| summary judgment: actions |
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Definition
-any party on any claim can MSJ; not automatic if nonmovant defaults (movant must still show entitled to it)
-difficult for P to win MSJ in negligence, but D could implicate self in deposition or clear evidence that D was negligent
-sometimes court will allow MSJ based on a not pleaded defense, but better to make 2 part motion to amend answer and plead MSJ |
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Term
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Definition
-any type of evidence can be used to support; usually affidavits from people w/ personal knowledge; other documents from disclosure and deposition testimony
-party opposing should use ALL available proof
-court construes evidence in light most favorable to nonmoving party
-proof to support must be admissible at trial but proof to defeat MSJ does not necessarily need to be admissible
-3212(f) used when party needs more time for disclosure to oppose MSJ; court would likely stay |
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Term
| summary judgment: searching the record |
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Definition
-court looks at papers of both parties to determine whether movant's papers are sufficient
-but, court will not grant summary judgment sua sponte |
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Term
| summary judgment: MTD ground |
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Definition
-court can treat any MTD grounds as MSJ
-once ground is asserted in asnwer, D can MSJ on it
-note: dismissal on LOPJ does NOT get 6 months |
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Term
| summary judgment: immediate trial of issue of fact |
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Definition
-partial: if liability established, damages will be tried immediately
-if jury trial required on full trial, jury required for this partial trial if resolution of this issue might end the case |
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Term
|
Definition
-court can grant partial on single COA in case or one of many COA
-counterclaim will slow MSJ process, but assertion of counterclaim does NOT mean MSJ should be denied |
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Term
| summary judgment: counterclaim |
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Definition
| -court can stay enforcement of main claim until resolved; award balance of main claim until resolved; allow enforcement of main claim if P is solvent so no need to protect D; allow entry of main claim but stay enforcement; if claims independent court can enforce on before the other is resolved |
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Term
| summary judgment: salvage from abortive motion |
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Definition
| -if only granted/denied in part, court may determine whether any of facts involved are established for all purposes of the case |
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Term
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Definition
-denial has NO effect on case; denial does NOT preclude another MSJ if new facts arise
-grant operates as adjudication on the merits; if granted on narrow grounds, only res judicata to that particular ground (e.g., MSJ based on LOPJ granted, P may bring new action w/ PJ perfected) |
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Term
|
Definition
-used when on face of action there should be a judgment as a matter of law
-commenced w/ summons and MSJ (notice of motion, affidavits, memo of law, and RJI)
-if granted, NO complaint ever filed
-ONLY 2 claims: based on instrument for payment of money only and claim based on a previous judgment |
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Term
| MSJ in lieu of complaint: money instrument |
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Definition
| -2 things must be shown: instrument itself and proof of nonpayment |
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Term
| MSJ in lieu of complaint: previous judgment |
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Definition
-any judgment qualifies including other states, fed, and foreign
-judgment need NOT be for money
-alternative: article 54 registration for other state and fed judgments; NOT for foreign, other state default, or other state confession of judgment |
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Term
| MSJ in lieu of complaint: procedure |
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Definition
-P must pick return date; earliest can be 20/30 days from completion of service
-P can add up to 10 days to return date, forcing D to serve answering papers in advance that many days
-should use personal service
-NO OTSC
-must include RJI |
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Term
| MSJ in lieu of complaint: denial |
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Definition
-if denied, court can award SJ for D or simply deny and treat as regular action
-here, moving papers act as complaint and answering papers act as answer
-if not appropriate, court can just convert to regular action
-counterclaims slow SJ process but court can sever or allow for judgment and stay enforcement |
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Term
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Definition
| -most common reason if failure to appear; D can also fail to show up to trial, P can fail to plead after complaint demanded |
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Term
| default judgment: application |
|
Definition
-an be made to clerk or court
-if for sum certain, can be made to clerk (e.g., liquidated K, judgment)
-if damages need to be determined, must be made to court (e.g., personal injury); inquest hearing will be held to ascertain damages P is entitled to |
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Term
| default judgment: liability |
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Definition
| -if D defaults by not appearing, only concedes liability and can still contest damages in inquest hearing |
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Term
|
Definition
-P limited to amount state in complaint
-but, in PI and WD where damages cannot be stated in complaint examined in inquest hearing |
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Term
| default judgment: vacating |
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Definition
| -motion to vacate default requires: reasonable excuse and affidavit or merits of defense |
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Term
| default judgment: res judicata |
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Definition
-can have res judicata and collateral estoppel effects
-if D concedes liability through default, cannot contest liability in related case |
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Term
| default judgment: appealability |
|
Definition
-default cannot be appealed
-must make motion to vacate, then can appeal denial |
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Term
| default application: timing |
|
Definition
-P has one year from time of default to apply for judgment
-default occurs moment answer was due
-if P does NOT move within one year, P defaults himself and default can be dismissed as abandoned; this would constitute neglect to prosecute so NO 6 months
-court can excuse lateness for good cause
-other Ds not defaulting does NOT affect one year period for defaulting D
-if 3d party defendant defaults, D cannot do anything against 3d party D until underlying claim is resolved
-one year applies when P defaults, too |
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Term
| default application: papers |
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Definition
| -3 papers required: proof of service; proof of claim (affidavit of actual party or verified pleadings); proof of default (affidavit from P's attorney) |
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Term
| default application: notice |
|
Definition
-if there was an appearance then subsequent default, P must give 5 days notice; also applies if P moves after one year period runs; does NOT apply if D does not show up when case called for trial
-ALL Ds must be served w/ notice even those that didn't default
-D may serve demand that notice of damages hearing be served on D, in which case P must give D 5 days notice of any trial on damages |
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Term
| voluntary discontinuance: methods |
|
Definition
-notice: serve notice on D, file with proof of service w/ clerk; must be done before D answers because D's answer cuts off P's right here
-stipulation: can be filed w/ court anytime before case submitted to trier of fact; must be filed within 20 days of its execution
-court order: if time for notice expired and all parties will not stipulate, court can allow any time before case has been submitted to trier of fact |
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|
Term
| voluntary discontinuance: effect |
|
Definition
-NO res judicata effect, but court can invoke if "w/ prejudice"
-NO 6 months
-but, res judicata if discontinued once by any method and second time by notice |
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|
Term
| confession of judgment: general |
|
Definition
-dispenses adversarial proceeding and allows creditor to file judgment against debtor
-primarily for K actions
-cannot use for transactions less than 1500 or purchases of personal goods |
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Term
| confession of judgment: affidavit |
|
Definition
-can only be entered w/ affidavit executed by debtor
-must state sum of debt, authorization to enter judgment, and D's county of residence where entry will take place
-must state detailed facts of transaction |
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|
Term
| confession of judgment: filing, enforcement, effect |
|
Definition
-affidavit and COJ must be filed within 3 years of execution (SOL)
-filing/entry must take place in D's county of residence; if nonresident, county that affidavit states
-NO enforcement until something is due, but judgment may be filed before anything due in order to become senior creditor |
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Term
| confession of judgment: vacating |
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Definition
-reasons: judgment has been entered in violation of terms of affidavit; transaction is bad (e.g., fraud)
-procedure: application to vacate; if sought by another creditor motion is enough; if debtor seeks it motion works if violation of affidavit but need full action if extrinsic factor (e.g., fraud) |
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Term
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Definition
-tender: allows D in K claim to deposit sum D deems sufficient to satisfy claim in court; if P rejects and gets nothing higher at court, P forfeits interest and costs
-offer to liquidate damages conditionally: D disputes liability not damages; limited to K claims; D offers to pay specified sum if P proves liability at trial and P gets that amount if P prevails; if P denies offer and gets no more at trial P must pay D's costs for trying the liability
-offer to compromise: available in all cases other than matrimonial; enables D to offer P judgment for specific sum; if P accepts this is the judgment and case is over; if P rejects and does not better at trial P loses costs from time and must pay D's costs |
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Term
| action on submitted facts |
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Definition
-adversaries agree on facts and only disagree on legal implications
-parties draw up submission of controversy that states agreed facts
-NO summons, pleading, BP, disclosure, or delay
-can be used in all types of actions except matrimonial as ell as provisional remedies
-NO extrinsic testimony or affidavits but legal instrument may be attached
-submission should state judgment each party if seeking |
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Term
| provisional remedies: general |
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Definition
-afford P security or protection while action is pending but do NOT effect any permanent divestiture against D
-grant deemed to commence action for SOL purposes (summons must be served within 30 days [60 for attachment])
-P must elect among available provisional remedies if more than one qualify
-D can cross-claim for one
-attachment, sequestration, and seizure give jurisdiction
-all available in supreme court; seizure of chattel available in all lower courts; attachment and lis pendens available in civil, district, and city courts |
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Term
| provisional remedies: types |
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Definition
-attachment: seizes D's property and prevents use during pendency of money action unless D discharges w/ bond
-preliminary injunction: requires D to maintain a specified status quo
-receivership: takes possession of designated property of D to protect
-lis pendens: paper filed w/ court that puts world on notice that P has a claim to a parcel of real property (encumbrance)
-court order needed for all except lis pendens
-seizure of chattel (for replevin) and sequestration (seizure in matrimonial) are similar |
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Term
| provisional remedies: constitutional requirements |
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Definition
-due process requires hearing before garnishment of D's wages
-due process requires opportunity to be heard before D's property can be seized (except for jurisdiction or public interest)
-ex parte sale of chattel to implement lien cannot be done without first giving owner opportunity to be heard (lis pendens ok though) |
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Term
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Definition
-P effects a seizure of D's property and allows the sheriff to take constructive or actual hold of it
-for security AND quasi in rem jurisdiction
-can be for real OR personal property
-deprives D of free use, including ability to sell or encumber
-constitutes lien but subject to any prior liens
-discretionary even if appropriate |
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Term
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Definition
-must be at least in part for money action
-P must show D is non-domiciliary AND nonresident or foreign corp not qualified to do business in NY; D is NY domiciliary or resident but cannot be properly served despite diligent effort; D has shown intent to defraud creditors |
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Term
| attachment: applying for by ex parte motion |
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Definition
| -ex parte: P can obtain order and levy against D before D is heard, but P must move to confirm (generally within 5 days except for quasi in rem is 10 days; court can extend to 10 days also) |
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Term
| attachment: applying for by motion on notice |
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Definition
-P can obtain ex parte TRO to be served on garnishee pending return of motion, enjoining any transfer of property by G in interim
-court can require P to give undertaking if granted |
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Term
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Definition
| -any person or corp who owers a debt to D or who has in its possession or custody any property in which D has an interest |
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Term
| attachment: application timing |
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Definition
-application made before or after service of summons and anytime before final judgment
-if made after summons service, probably for security
-to obtain quasi in rem must be made and granted before summons service and levy must also be made before summons service |
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Term
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Definition
-P must furnish an undertaking w/ motion to attach
-bond must be at least 500
-conditions that P will pay D all costs and damages if D wins on merits or determined that P was not entitled to attachment (even if P wins) |
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Term
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Definition
-supplied in affidavits from people w/ personal knowledge
-must establish money COA, probability of success, and grounds
-must show that amount claimed will defeat any counterclaims
-burden always on P (never shifts)
-higher standard than for pleading |
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Term
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Definition
-must specify amount that attachment is allowed for (e.g., interest, costs, sheriff fees)
-directed to the sheriff of county or NYC and directs sheriff to levy any of D's property within jurisdiction |
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Term
| attachment: confirmation procedure |
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Definition
-only required when an attachment order is granted ex parte; should be done by OTSC
-time begins to run after sheriff levies
-must be made within 5 days if attachment based on...or 10 days for...
-P has to move to confirm within applicable period, otherwise order and levy become void |
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Term
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Definition
-one day: after levy made D may serve demand on P requiring service of papers
-10 days: if attachment granted, P must file it and its underlying papers w/ clerk
60 days: applies only when attachment granted before service of summons (jurisdictional purpose)-->summons must be served within 60 days of granting
-90 days: relevant when personal rather than real property is levied upon; runs from moment of levy (moment sheriff serves copy of order on G); P must ensure levy is perfected within 90 |
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Term
| attachment: summon service within 60 days |
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Definition
-if attachment granted before service of summons, summons must be served within 60 days (summons service must be within 120 days of filing)
-court can extend but not more than additional 60 days |
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Term
| attachment: 60 days and levy |
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Definition
-security purpose: can be made anytime before final judgment
jurisdictional purpose: must precede service of the summons |
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Term
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Definition
-P should deliver order of attachment to sheriff of county in which property is located
-real property: sheriff files notice w/ county clerk; clerk records notice
-personal: actual or constructive seizure
-attachment only keeps D away; does NOT give P right to possess |
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Term
| attachment: perfecting the levy |
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Definition
-only concerns personal (constructive seizure)
-must be perfected within 90 days
-3 ways: G delivers property to sheriff or paper promising to hold if too big; P commences special proceeding by filing within 90 days of levy; have 90 days extended (doesn't actually perfect just keeps levy from becoming void) |
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Term
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Definition
-vacating or modifying attachment: move to vacate challenging any grounds (e.g., attachment unnecessary to security)
-discharging attachment: D can substitute an undertaking committing to pay whatever judgment P recovers in the action
-annulling attachment: D wins on merits or action dismissed/discontinued
-action on P's undertaking: D can go after bond if D wins or improper attachment; D can recover damages for costs and attorney's fees |
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Term
| preliminary injunction: grounds |
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Definition
| -2 situations: appears that D threatens or is about to do an act violating P's rights; any action where P has demanded and would be entitled to permanent injunction |
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Term
| preliminary injunction: general |
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Definition
-keeps status quo while action is pending; TRO keeps status quo while motion is brought on for PI
-discretionary for court |
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Term
| preliminary action: category of actions |
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Definition
-cannot be used in action for money judgment (that's for attachment)
-e.g., ejectment, replevin, specific performance
-but, action partly for money partly for property ok |
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Term
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Definition
-convincing evidence: must show PI proper (2 categories); likely success on merits; irreparable damage if not granted before trial
-D's burden: must show more than issue of fact; legal remedy is plain, adequate, and complete |
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Term
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Definition
-negative: prevents party from doing something
-mandatory: forces party to do something
-court NOT supposed to grant mandatory |
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Term
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Definition
-motion must be made on notice (NO ex parte)
-motion can be made w/ or after summons service
-P must put forth proof in affidavits
-use OTSC for TRO to lock up D until motion for PI granted or denied |
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Term
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Definition
-mandatory bond requirement
-NO minimum amount; set by court
-covers any damages caused by PI |
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Term
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Definition
-capped at amount of bond (unlike attachment where damages can go over 500 bond)
-D can get attorney's fees for litigating PI |
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Term
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Definition
-standard: P must show immediate and irreparable injury will result unless D restrained until hearing for PI
-use OTSC; ex parte
-contents of OTSC: time and place of hearing for PI, who will be served w/ order, how and when for service, why P would be prejudiced if D given notice
-can be applied for anytime after action commenced
-undertaking not required (discretionary) |
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Term
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Definition
-receiver: person appointed by court to preserve property during litigation; can be any disinterested person; authorized to take and hold real and personal property and go after debts and claims by court direction; gets 5% of sums or at least 100
-must have specific and identifiable property as subject matter of action; NOT for money (that's for attachment) except trusts |
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Term
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Definition
-P must demonstrate danger that property will be removed from state or lost, materially injured, or destroyed
-drastic remedy so court has lots of discretion |
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Term
| receivership: application |
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Definition
-temp receiver appoint by motion on notice made by any person having apparent interest in the property
-nonparty becomes a party after moving
-affidavits make out COA
-motion can be made anytime after commencement |
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Term
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Definition
-aka notice of pendency
-paper that may be used in real property action affecting title to, possession, or use and enjoyment
-cannot be used where P does NOT claim right, title, or interest in the property |
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Term
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Definition
-filed w/ county clerk w/ summons and complaint
-NO court order necessary
-places world on notice of P's potential rights
-underlying action can be pending in NY or fed court
-generally optional, but mandatory if foreclosure on mortgage/lien (must be filed within 20 days of judgment)
-must state names, object of action, describe property |
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Term
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Definition
-effective for 3 years from filing
-may be extended but each extension must be applied for on showing of good cause within the 3 years
-if prior period expired, extension no longer available and LP becomes void
-if expired, cannot file another except in foreclosure |
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Term
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Definition
-NO court order needed to file
-summons service: if LP filed before summons served, summons must be served within 30 days after filing; if summons has been served LP may be filed anytime up to judgment
-complaint should be filed w/ LP if not filed yet |
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Term
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Definition
-stipulation or court order
-court order: summons not served in 30 days after filing, P loses on the merits, 3 years expires, or action settled |
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Term
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Definition
| -NO undertaking required for P to file, but D can put up bond to get LP lifted |
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Term
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Definition
-used for replevin (recovery of chattel)
-order of seizure: device sheriff uses to seize before judgment |
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Term
| seizure of chattel: application |
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Definition
-done by motion generally on notice (can be ex parte if probable that chattel will become unavailable)
-affidavit must ID chattel (w/ value), show P entitled to it, and D is wrongfully withholding
-if granted, P gives sheriff order, undertaking, papers and S+C
-procedures should be complete before service of summons |
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Term
| seizure of chattel: undertaking |
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Definition
| -at least twice the value of the chattel to be seized |
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Term
| seizure of chattel: confirmation |
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Definition
-if ex parte without TRO, seizure preceds hearing but P obliged to make follow up motion confirming order of seizure
-must be made no more than 5 days after seizure |
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