1. A court must have it to hear a case brought before it.
1. A court of general, original subject matter jurisdiction is a trial court
1. The Supreme Court in NY.
1. it is the only court which has full equity jurisdiction
2. The fact that the parties are not resident and that the events occurred outside the state is irrelevant for subject matter jurisdiction.
2. Exceptions:
1. Cases as to which federal law confers exclusive jurisdiction on fed courts
1. Claims for money damages in tort or contract against the state of NY
1. It goes in the court of Claims.
1. A county is not the state; it can be sued in the Supreme Court.
3. The supreme court has original jurisdiction over
1. Matrimonial actions:
1. Divorce, separation, annulment, declaration of validity of a marriage.
2. CPLR Article 78 proceedings
3. Declaratory judgment actions
1. legality of a statute
2. settle the rights before breach occurs
2. All other courts are characterized by limited amount jurisdiction
1. $25000-$3000

1. General concepts
1. It is an affirmative defense
2. It begins when the event occurs
1. Personal injury: upon the impact
2. Breach of contract: the date of the breach
3. Awareness of the P is irrelevant
4. Exception
1. when the injury is made to the fetus, it starts when the baby is born
3. The action must be commenced no later than the last day of the prescribed period of limitations
4. To compute S/L and any other time period in the CPLR, exclude the day triggering the event.
5. Periods
1. 20 years: action on judgment
2. 10 years: action to recover realty ( adverse possession)
3. 7 years: action by crime victim against the convicted defendant (period runs from date of crime.)
4. 6 years
1. contracts, express or oral ( other than UCC article 2)
2. indemnity and contribution
3. fraud
4. equity actions
5. 4 years: contracts governed by UCC article 2
6. 3 years
1. personal injury based on negligence and strict products liability
2. property damage, including replevin and conversion
3. professional malpractice, other medical
7. 2 and ½ years: medical, dental and podiatric malpractice
8. 2 years: wrongful death
9. 1 year: intentional torts to the person
10. 4 months: article 78 proceedings.
2. Medical malpractice:
1. 2 and ½ years applicable to doctors, dentists, podiatrists, nurses and hospitals.
2. 2 exceptions
1. Continuous treatment rule:
1. P gets 2 ½ years from the termination of the treatment.
2. The continuous treatment must relate to the same original condition that gave rise to the malpractice.
2. The foreign object rule
1. 2 ½ from the date of operation
2. 1 year from the date P discovers the object
1. actual discovery
2. should have known with reasonable diligence
3. NOT foreign objects
1. chemical substance
2. fixation device
3. Prosthetic device.
3. Other malpractice
1. 3 years
1. Architect when the building is finished.
2. Lawyer: when the work product is delivered.
3. Breach of contract is not available by statute.
2. When personal injuries occur, P can sue the tortfeasor up to 3 years after the injury occurs regardless of the date of the completion of the building
1. Procedural safeguards for architect in personal injuries.
1. If after 10 years
2. 90 days advance notice
3. P may obtain discovery from D
4. D can make the motion to dismiss and the P must show that there is a substantial basis to believe that D’s negligence was the proximate cause of the injuries.
4. Products liability
1. Three possible causes of action
1. negligence:
1. 3 years from the date of the injuries as against all of the Ds.
2. strict product liability
1. 3 years from the date of the injury as against all Ds.
3. Breach of warranty: UCC 4 years and it runs against the particular D who sold or made delivery of the product.
2. Indemnity and contribution
1. 6 years from the date of the actual payment of the judgment
3. Discovery rule in cases of exposure to toxic substances.
1. A toxic substance is anything that has latent or slows showing effects.
2. the S/L begins to run on the date the P discovered the injury
3. This does not apply to medical malpractice.
5. Tolls and extensions
1. Tolls for D’s absence
1. If D not here when the cause of action accrues, the S/L does not run until he comes back
2. If he leaves for at least months then it then it will start after he comes back
3. Unless the P has a basis for personal jurisdiction outside the State over the absent D such that process could be served validly outside the state, the toll does not apply.
2. P’s infancy and insanity
1. An infant is under 18
2. Insanity: any mental disorder that causes an overall inability to function in society.
3. An insane or an infant can sue within the S/L through a competent adult.
4. If P is insane or infant at the time it accrues, the S/L is tolled until it is over.
5. How much does he have after the disability ends
1. if original S/L was 3 or over:
1. P gets the remaining time or 3 years from the disability ends whichever is longer
2. if less than 3 years, P will be given the period of the original period S/L
6. Outside limit of 10 years for commencement of action in 2 situations:
1. Infant's claim for medical malpractice must be commenced no later than tem years after time of accrual when relying on toll for infancy.
2. Claims of insane Ps, regardless of nature of cause of action, become time-barred after ten years from date of accrual.
3. Tolls for death
1. Potential plaintiffs
1. Survival claim is any cause of action P herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by p prior to death
2. Wrongful death cause of action is a tort claim for the pecuniary damages of D’s statutory distributees.
3. Wrongful death cause of action:
1. 2 years from death, it must also be shown at the time of death that decedent’s underlying personal injury claim could be timely
4. survival claims
1. the time remaining of the original S/L or one year from the date of death which ever is longer
2. Potential Ds:
1. if he dies at any time before the S/L runs out, 18 months are added to the original S/L
1. 6 month grace period
2. If a NY action is timely commenced, but is thereafter dismissed before trial, And at the time of dismissal the S/L has expired or there is less than 6 months left, P gets 6 month from date of dismissal to re-file the same action and serve process on same D.
3. It is not applicable to
1. prior dismissal on the merits
2. voluntary discontinuance by P
3. neglect to prosecute by P
4. dismissal for lack of personal jurisdiction
6. Borrowing statute
1. If the cause of action arises outside of NY, a choice of law problem is presented if the S/L is different from than of NY. The borrowing statute is intended to prevent forum shopping by non-resident P’s seeking a longer S/L in NY.
1. If P is a non resident when the outside state claim arose, NY will apply the S/L of the other state if it is shorter
2. If P was a resident of NY, then NY will apply the NY S/L regardless the period is longer or shorter.

1. Overview
1. Proper commencement of the action
2. Proper service of process on defendant
3. Proper basis of jurisdiction over the person or property involved in the action.
2. Commencement procedures
1. In the lower civil courts:
1. Process must be served on the D.
2. In the Supreme Court and county court, filing process with the court clerk commences an action. The filing must be accompanied by payment of a fee for the purchase of an index number; this is followed by service of process on the D. This is valid commencement provided that process is served within 120 days after filing in the court. The discretion has discretion to extend for another 120 days in case of difficulties ( good cause shown)
3. If D wants to challenge the timeliness of process, he can move to dismiss for untimely process.
3. Forms of process ( the initiatory papers that invoke the court’s jurisdiction)
1. Summons and Complaint Or
2. Summons with notice
1. It is an abbreviate complaint:
1. a brief statement of the nature of the action
2. the nature of the relief sought
3. If damages, specify the amount of damages unless medical malpractice where the P MUST NOT state the amount.
3. Naked summons:
1. Defect in personal jurisdiction.
4. Methods of serving process
1. Basic points
1. Any one over 18 can serve process except the P.
2. On any day except Sundays or any Sabbath if P knows about the observance.
3. Served in an authorized manner: defective process is ground for dismissal.
2. Natural persons: traditional methods
1. Personal delivery
1. It is complete when it is tendered to the D.
2. Leave and mail
1. process server may deliver process to person of suitable age and discretion at D’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to D at D’s place of business or last known residence
2. The two steps must be performed within 20 days of each other.
1. it does not matter which way it is done
3. When you have multiple defendants, multiple copies of process, each D is entitled his own process at the time of delivery.
3. Affixing and mailing
1. Affixing
2. Mailing
3. within 20 days of each other
4. But the process server must first exercise due diligence in attempting to serve D directly or leave process with a person of suitable age and discretion
5. For both leave and mail and nail and mail, service is complete 10 days after proof of service is filed.
4. Expedient methods
1. P can make an ex-parte motion; the court will come up with improvised methods. The P must show that the other methods are impracticable.
5. Agent specifically designated by D to receive process.
1. in written commercial contract
6. Infants and the mentally incapacitated:
1. When D’s an infant, his name is on the summons but process is served on a competent adult: parent, guardian.
1. if the infant is over 14, you serve the adult and the infant
2. If mentally incapacitated: guardian and incapacitated if appointment, if no appointment you serve process on D, and the court will appoint someone.
7. Service outside the state
1. The same methods that are used to serve D within the state when D is located outside NY.
8. Who may serve?
1. anyone authorized by NY
2. anyone authorized by law of the state
3. Any licensed attorney in the jurisdiction where service is served.
3. Corporations: traditional methods
1. Personal delivery to any one of the following:
1. Officer
2. Director
3. designated agent
4. managing agent
2. Leave and mail and nail and mail are not permitted for corporation's defendants.
3. Service on the NY secretary of State
1. For a domestic corporation or a foreign corporation that is authorized to do business in NY.
1. deliver 2 copies of process to the NY secretary of State
2. for unlicensed foreign corporation
1. Deliver one copy to secretary of state PLUS mail one copy to the corporation by certified mail.
4. Non traditional method: SERVICE BY FIRST CLASS MAIL + ACKNOWLEDGMENT.
1. Mail process to D by first mail class, enclosing a statutory acknowledgment form, plus return envelope, postage prepaid, addressed to sender.
2. Service will be effective only if D signs and returns the form to P within 30 days after D receives the mailed process. Service is complete upon D’s posting of the signed form
3. If D does not send the form, P must serve through the traditional method.
1. It can be used regardless of whether D is within or outside NY.
2. Service by this method is available to all types of D except infants and mentally incapacitated for whom guardians have been appointed,
3. It is not a concession that there is jurisdiction.
5. Bases of jurisdiction over D’s person or property
1. Personal jurisdiction
1. Personal delivery to D while D is physically present in NY
1. It does not matter where the cause of action arose.
2. Doing business in NY
1. A domestic corporation is subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world the claim arose. The same applies to a foreign corporation that has become authorized to do business in NY.
2. Unlicensed foreign corporation is said to be present in NY if doing business in NY:
1. Continuous, regular, systematic and on-going activity by D’s employees.
1. the mere sale of products does not amount to doing business, the same for advertising in NY media
2. this standard of doing business only applies when the action arose outside NY because the long arm probably applies
2. it can probably be used for individuals and partnerships
3. Domicile
1. Domiciliary at the time action is commenced; he can e served anywhere in the US regardless of where it arose.
3. Long arm jurisdiction: CPLR 302
1. here it is important where the claim arose
2. Transaction of business in NY.
1. One single transaction is enough. Even if contract is signed outside NY, there will be jurisdiction; it is sufficient that there was substantial negotiations.
2. Contract made outside NY to supply goods or services in NY.
1. the contract must be economically significant
2. one telephone call is not enough
3. A contract to pay money is not a contract to supply goods or services.
3. P’s claim arises from D’s commission of a tortious ac within NY.
4. P’s claim arises from D’s tortious act outside NY which causes injury in NY, PLUS there exists some additional link between D and NY
5. D’s regulatory soliciting business in NY
1. D is deriving substantial revenue from goods used or services rendered in NY
1. D could expect the tortious act to have consequences in NY plus deriving substantial revenue from interstate/ international commerce such commerce purposefully includes NY
2. The injury must originate in NY.
1. Commercial injury: NY is the situs of the injury if P suffers direct financial effects in NY.
6. Defamation is excluded from 4 and 5.
1. The P must find some other basis than the tortious act to get jurisdiction.
7. use or possession of real property in NY
8. General points about the long arm statute
1. it’s applicable to all types of defendants
2. The acts giving rise to jurisdiction can be performed by D herself or by her agent or employee. Also, the agent’s acts in NY will subject the agent herself to jurisdiction
3. Even if D dies, decedent’s estate representative can be served outside NY.
4. Serving process: P must use the same methods of service on D outside NY as would be used for service inside NY.
5. Essay question:
1. discuss whether the facts of P’s case fall within one or more of the long arm categories
2. briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional due process
3. If the claim arises out of the conduct purposefully directed to NY such that D should have reasonably anticipated being dues.
4. Non resident motorist statute
1. The so-called non-motorist statute confers personal jurisdiction over an accident claim arising from a nondomiciliary motorist’s use of an auto on a NY road.
1. P served process on D by serving one copy on the NY secretary of State Plus mailing second copy to D by certified mail to D’s out of state residence.
2. The long arm statute does not apply, this statute applies: jurisdiction over the car’s owner if the car is driven in NY with permission of owner.
5. Consent
1. Parties to a contract may consent in advance to personal jurisdiction in NY in a forum selection clause.
2. It is enforceable absent fraud, overreaching, or unreasonableness.
2. In Rem jurisdiction
1. It allows for out of state service on nondomiciliary D where D’s property, located in NY, is the subject matter of P’s cause of action. If D defaults, court’s power is limited to altering D’s interest in the property; no personal liability attaches to D.
2. In most cases, the long arm statute will apply but this is limited to real property. Thus if it’s personal property, there will only in rem jurisdiction.
3. Quasi in rem
1. Court ordered attachment of nondomiciliary D’s property in NY in a case in which the property is not the subject matter of P’s cause of action. But the presence of the property is used as a NY connection to help justify out of state service for a claim for money damages.
2. Attachment ( levy) must precede service of process,
1. The judgment in quasi in rem jurisdiction is always limited to the value of the property attached.
2. The mere presence of the property is not enough for quasi in rem, the claim must arise out of activity purposefully directed toward to NY by D.
4. Matrimonial jurisdiction ( and related issues)
1. The supreme court has subject matter jurisdiction.
2. Having personal jurisdiction is not required; all that you need is that the P spouse is a Domiciliary (in rem jurisdiction) to get personal jurisdiction.
1. the marital status is in NY
1. for monetary support, you need personal jurisdiction
3. Matrimonial long arm statute
1. where P is a resident of NY, the long arm jurisdiction can be acquired over D-spouse of
1. NY was the matrimonial domicile of P and D prior to their separation Or
2. D abandoned P in NY or
3. D’s monetary obligation accrued under an agreement executed in NY Or
4. D’s monetary obligation accrued under the law of NY
2. You cannot use leave and mail or nail and mail service of process without a court order.
3. durational requirement
1. They are not a jurisdictional element but they always show up in jurisdiction essay.
1. P’s complaint must one of the 3 following:
1. if both parties are NY residents at the time of the action is commenced and the grounds for the matrimonial action arose in NY
2. if either party has been a NY resident for a continuous period of at least one year immediately prior to the action and NY has a prior link to the marriage
3. if either party has been a resident for a continuous period of at least 2 years immediately prior to the action
4. the proper defense if P failed to allege any of these:
1. Failure to state a cause of action.
1. The durational requirement does not apply if action for monetary relief.

1. Basic concept"
1. An appearance is a form of response by D to P’s service of process. It indicates D’s willingness to litigate the action in NY, at least as to preliminary matters. It consists of D’s service of certain papers
2. Effects
1. Avoids default
2. Entitles the appearing party to receive copies of all papers that are served in the action
3. Requires D to timely raise jurisdiction objections in the NY action
1. If D does not appear, he can later collaterally attacked the judgment for lack of jurisdiction.
3. Appearance in response to summons and complaint.
1. Serve an answer to the P’s complaint
2. It is the D’s pleadings:
1. Admits/denies the allegation of the complaint.
2. Make a motion which has the effect of extending D’s time to answer the complaint:
3. corrective motion
4. clean up the complaint
5. Motion to dismiss under CPLR 3211.
6. DOWNFALL
4. Time limits
1. If D was served with process by personal delivery within the state of NY
1. He must appear within 20 days.
2. If D was served with process by first class mail plus acknowledgment, D’s return of the form (within 30 days of receipt) is merely a notification of D’s receipt of the process. It is not an appearance in the action. D’s time limit to appear in this situation, regardless of whether process was mailed to D within or outside NY is
1. 20 days after D mailed the form
3. If D was served with process under any other circumstances
1. Within 30 days after service is complete
5. Preserving objections to court’s jurisdiction:
1. The only concern is lack of personal, in rem, or quasi in rem jurisdiction, due either to lack of basis, improper method of service or defective for of summons. Defects of subject matter jurisdiction is NEVER waived.
6. NY has abolished the so called special appearance, which was the only way at CL that D could object to jurisdiction.
7. Failure to follow on or the other of these sequences will result in a waiver of jurisdictional objections:
1. Before serving the answer include the lack of jurisdiction in a motion under CPLR 3211.
2. Make no CPLR 3211 motion on any ground and include lack of jurisdiction as an affirmative defense in the answer.
3. Pleading improper service of process in the answer is the proper way to do it; it will be waived in not followed by a motion for summary judgment.
4. Response to Summons with notice
1. There is no complaint, so you don’t serve an answer.
5. Notice of appearance
1. This is an appearance.
6. Serve a demand for the complaint.
1. This is not an appearance but it avoids default and it postpones appearance.
2. D’s time limit for serving either the notice of a demand for the complaint is the same as in C:
1. 20 days or 30 days
1. the effect of the notice or the demand is that P must serve the complaint within 20 days, the D can make a motion to dismiss if not done within 20 days:
1. For neglect to prosecute.
2. To avoid a dismissal, P must show a reasonable excuse for the delay and make an evidentiary showing that there is a merit to the action:
1. affidavit of merits
2. If P serves within the 20 days:
1. The D has 20 days to serve the answer
0. to make a 3211 CPLR motion to dismiss
0. corrective motion
0. D can still object to the jurisdiction
0. Neither the notice nor the demand is a waiver.
7. After P serves the complaint, How (and in what forum) may D raise jurisdictional objections?
1. If D’s initial response was a notice of appearance
1. he can object but he must do so in the NY action:
1. defense in the answer/ pre-answer 3211 CPLR motion to dismiss
2. Demand for the complaint
3. He can raise the objection in the answer or in the pre-answer 3211 CPLR motion to dismiss.
4. after D receives the complaint, he may withdraw from the NY action and when P gets a default judgment and seeks enforcement in another state, D can collaterally attacked for lack of jurisdiction

1. Rules of venue regulate the proper country in NY for the trial of a supreme court action.
1. In an action in which he judgment would affect title or possession of real property
1. Where the property is located.
2. In all other actions:
1. In any country where one of the parties resides at the time the action is commenced
2. If nobody resides in NY, in any county.
2. Improper venue
1. It is not a jurisdictional defect. Thus it is not aground for dismissal
2. Remedy
1. Serve a demand for change of venue to the proper county with or before service of the answer.
2. If P concedes, it will be automatic
3. If P does not respond, D will have to make a motion for change of venue, it is then automatic if P chose the improper venue.
1. Where the accident occurred is irrelevant to venue issues.
2. Distinction between discretion and entitlement
1. The court has discretion to change venue on a motion for change of venue for the convenience of material witness for instance.

1. Mandatory Joinder
1. If a party who is a necessary party has been omitted or who is beyond the reach of the jurisdiction, then dismissal is warranted
1. Necessary
1. Joint obligors
2. Joint obligees
3. A corporation in a derivative suit
4. An absent party claiming ownership of property sought to be recovered by P,
5. A member of a joint venture not joined in a suit by another joint venturer against a third to impress a trust on assets allegedly belonging to the venture
6. Beneficiaries of a trust in an action by other beneficiaries against the trust seeking an accounting.
2. Permissive joinder,
1. Dismissal never permitted.
2. P or D may join or be joined if there is a common question of law or fact which will arise out of the same transaction or series of transactions
3. Class action
1. Ten factors to determine if the action will be allowed
1. Number in the class
2. Common questions of law or fact
3. Fair and adequate representation of class members
4. Typicality of the representative’s claim or defenses
5. Superiority of the class action
6. Individual member’s interest in individual control of separate action, if any.
7. Impracticability of inefficiency of separate actions
8. Nature and extent of other relevant pending litigation
9. Desirability of concentrating the litigation in one court and
10. Manageability of the class action
3. Third party practice ( impleader)
1. Basic concept:
1. Procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P. the usual claim in these circumstances is for indemnity or contribution. Rather than forcing D to wait until after she has paid judgment to P, impleader enables D to join another party as a third party defendant. In relation to the third party defendant, D technically is referred to as a third party plaintiff.
2. Mechanics
1. D does not need a court order; D may implead TPD at any time after D serves the answer to the complaint.
2. Steps:
1. Summons and third party complaint with the court.
2. Within 120 days, D must serve the summons, the 1/3 party complaint and all the pleadings on the third party defendant and copies to P.
1. The TPD must serve a third party answer on D, P and all other parties who have appeared in the action. TPD’s time limit for answering is the same that would apply to an ordinary defendant (20 days or 30 days).
3. After TPD is joined, P may amend her complaint to assert a claim directly against TPD, thereby making the TPD an additional defendant in P’s action. P can make this amendment without need to obtain judicial permission if she does so within 20 days after P was served with the third party answer. If p waits beyond 20 days, P must make a motion to get the court’s permission for such amendment.
4. S/L matters
1. It relates back to the time the party was impleaded in the action. No prejudice.
1. P gets the benefit of a relation back concept. For S/L purposes, P’s added claim TPD will be deemed interposed on the date that D filed the impleader papers with the court provided P’s claim is based on the same facts as the impleader claim.
4. Indemnity
1. It allows one party to shift 100% of the responsibility to another party.
1. By contract
2. Implied in law indemnity
3. Products liability:
1. Retailer held liable for selling defective product is entitled to indemnity from manufacturer.
2. Vicarious liability situations:
5. Contribution
1. Contribution involves sharing of the loss among multiple tortfeasors who are all actual participants in the tort.
2. Each tortfeasor is liable for the full amount regardless of the amount of fault.
3. Joint and several
1. It can be cured by contribution
2. Intentional tortious act
3. MBE rule:
4. contribution is not available when it is involves an intentional wrongdoing
1. NY rule: it allows contribution in all tort cases including intentional torts.
4. Pro rate formula for contribution MBE
5. A minority of states use a pro rate approach: the contribution shares are always equal in amount.
1. Individual percentage of fault is irrelevant.
2. They will say in the MBE if it is a pro rata jurisdiction, if not apply NY rule.
6. Comparative degrees of fault
1. excess actually paid by him over and above his equitable share if the judgment
1. The party from whom contribution is sought cannot be compelled to pay more than her own equitable share.
2. you only pay your own share,
3. If all but one defendants are insolvent, the P can require the one to pay the full amount.
4. Contribution does not affect the P’s rights.
7. Substantive law rule for contribution
1. In NY, the general rule is that a right to contribution exists whenever TPD breached duty in tort which contributed to or aggravated the damages for which D may be held liable to P. thus, a TPD may be held for contribution even if TPD has no direct liability to P.
2. Exception in worker’s comp cases:
1. If an employee is injured on the job and then sues a third person who is partially at fault for the accident, the third person is barred from seeking contribution from P’s employer’s UNLESS the P sustained a grave injury.
8. Ways to assert claims for contribution
1. If P originally joined the tortfeasor as co-D, they can assert cross claims against each other.
1. If P omits a tortfeasor, a D can implead the outsider as a TPD.
2. Tortfeasor may sue the TPD in a separate action.
9. Settlements in cases involving multiple tortfeasors
1. Settlements do not extinguish the claim if partial satisfaction against other tortfeasor.
2. Release
1. The action against the other must be reduced by the amount of the release.
3. Effect of settlement on contribution claim
1. The settling tortfeasor cannot ask for contribution because it extinguishes contribution by and against the settling tortfeasor.
1. no one can sue him for contribution
2. he cannot sue for contribution
4. Effect on indemnity claims
1. It does not extinguish claims for indemnification by or against the settling tortfeasor.
10. CPLR article 16
1. It modifies the law of joint and several tort liability to the following extent.
1. In a personal injury case:
1. A joint tortfeasor whose fault is found to be 50% or less cannot be required to pay P more than his share for non economic damages.
1. 50% or more: joint and several
2. Art 16 only applies to personal injury cases.
1. It does not apply in a wrongful death.
2. Exclusions from article 16:
1. Tortfeasors who acted with intent or reckless disregard for the safety of others
2. Tortfeasors who are liable for releasing a hazardous substance into the environment.
3. Drivers and owners of motor vehicle other than police and fire vehicles.

1. The two basic pleadings are P’s complaint and D’s answer.
1. What is the standard for stating a cause of action
1. General statement of fact of the transaction
2. statement of the relief being sought
2. Fair notice.
2. Answer
1. Denials
2. Affirmative defenses
1. S/L
2. Lack of jurisdiction
3. Contributory negligence
4. Those not raised are waived.
3. Counterclaim:
1. In the answer.
2. Reply
3. Answer to the counterclaim
4. If there is no counterclaim, P is not allowed to serve a reply
1. Denials and affirmative defenses.
4. Cross-claims
1. When there are multiple D
1. You put the cross -claim in the answer to the complaint.
2. In NY, a cross claim can be any claim against a D even if it is not related to P’s cause of action.
1. Serve pleadings on all parties.
5. Verification
1. As a general matter, pleadings need not be verified (signed and sworn as to its truthfulness) if a party chooses to verify her pleadings, all subsequent pleadings of all parties in the action must be verified.
2. The signature rule
1. Every litigation paper must be signed by the attorney who serves it in a civil case.
2. It constitutes a certification that the paper does not assert a frivolous position
6. Amendments of pleadings
1. You can amend once as a matter of right.
2. The party can put anything in it.
3. At anytime before the opponent’s responsive pleading is due
4. Within 20 days after the answer is served.
5. A motion for leave to amend is then required. The decision to permit an amendment lies with the court’s discretion.
1. Standard
1. It will be allowed so long as the other party suffers no incurable prejudice.
2. Detrimental change of position as a result of the delay.

1. It is to amplify the allegations of the pleadings
1. Any party with the burden of proof on an issue can require upon service of proper demand to provide a bill of particulars
2. A plaintiff can ask for counter-claim and affirmative defenses.
2. Procedure:
1. The party who wants a bill of particulars must serve a demand, indicating the particulars that are desired.
3. Responding party’s obligations:
1. Within 30 days from the service of the demand
2. If objection: she can omit and state reasons for objections
4. Failure of responding
1. Motion to compel compliance
1. If it was willful, a court can grant an order of preclusion
2. No evidence can be entered on those matters as to which particulars were not provided.

1. Difference
1. Initiatory papers are used in serving process: the summons and any papers served at the same time as the summons
2. Interlocutory papers are all papers other than initiatory papers.
3. The service of interlocutory papers is governed by a different set of rules from that which applies to service of process.
4. If a party is represented by an attorney, interlocutory papers are to be served on the attorney
5. Copies of them must be served on all parties who have appeared in the action
2. The methods of serving interlocutory paper are:
1. Personal delivery
2. 1^st class mail
3. Fax
4. Overnight courier.
3. Service by mail
1. Service is deemed to be made when it is mailed.
2. If a recipient has a time limit, if the paper was served by mail he gets 5 extra days
1. A defendant never gets the extra days if it is service of process because it involves initiatory papers.
4. By fax
1. You need consent
2. Mail a confirmation copy
3. No extra time
5. Overnight courier
1. One extra day
2. Delivery when given to the courier

1. Motions on notice:
1. What papers are served on the other party?
2. The notice of motion
1. Affidavits to support it.
1. It is made when it is served on the other party
2. It must specify the return date or a hearing date.
3. That the date the motion will be submitted to the court for decision
4. The opponent must be given sufficient advance notice so that he has an opportunity to oppose.
5. The minimum is 8 days from service of the motion
6. 13 days if served by mail
7. All the motion papers must be filed with the court no later than the return date.
3. Order to show case:
1. This is an alternative way to make a motion on notice. The order to show cause is a preliminary order, signed by the 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 the motion
1. 3 possible reasons for moving by order to show cause
1. the statute which governs the particular motion may require it
2. it is a means of accelerating the return date where exigent circumstances make the usual 8 day advance notice too long to wait for judicial assistance. The judge can specify a return date that is sooner than the 8 day.
3. judge can grant an immediate stay of the proceedings or TRO.
2. The procedure
1. the moving party drafts the order to show cause and submits it to a judge, along with the supporting affidavits for the underlying motion. The judge will set a return date in the order and will specify the method of service on the adversary. When the order to show cause is signed, the order and the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.
4. The deciding order
1. After the return date of a motion on notice, the court’s decision must be embodied in a written order signed by the court. The prevailing party serves a copy of the order on the losing party
2. 2 effects of service of the copy:
1. Service is necessary for the order to take effect
1. It starts the clock running on the time to appeal the order.
2. Ex-parte motions:
1. What type?
1. Only those pursuant to express statutory permission
2. Remedy
3. Ex-parte orders are not appealable. The remedy is to make a motion on notice to vacate the ex-parte order. If the motion is denied, the losing party can appeal the denial.
3. Dispositive motions
1. Motion to dismiss CPLR 3211.
1. 8 grounds DOWNFALL
1. Documentary evidence as the basis of the defenses
2. Other action pending between the same parties on the same issue.
3. Want of capacity
4. Non joinder of a necessary party
5. Failure to state a cause of action
6. substantive insufficiency of the complain
1. standard
1. the P is entitled to every favorable inference that can be drawn and the motion should be denied if there is any relief under the substantive law.
7. Affirmative defenses
8. Lack of personal, in rem and quasi in rem jurisdiction
1. lack of basis of jurisdiction
2. defective form of the summons
9. Lack of subject matter jurisdiction.
2. The affirmative defenses: SABERSRIP
1. S/L
2. Arbitration and award
3. Bankruptcy
4. Estoppel
5. Res judicata
6. Statute of frauds
7. Release
8. Infancy of D
9. Payment
4. Procedural aspects of pre-answer motion to dismiss:
1. the motion is made before service of the answer
1. making the motion extends D’s time to answer. If the motion is denied D must then serve the answer within 10 days
2. If d has one or more of the defenses in CPLR 3211, it is at his discretion to raise them in a motion or in the answer as affirmative defenses.
3. a pre-answer motion to dismiss on any ground does not preclude raising any other on the answer except for lack of personal, in rem or quasi in rem jurisdiction.
2. 3 defenses are never waived:
1. Non joinder of a necessary party
2. failure to state a cause of action
3. lack of subject matter jurisdiction.
5. Motion for summary judgment
1. There is no genuine issue of material requiring a trial
2. A motion for summary judgment may be made by any party after the issue has been joined ( service of answer or reply)
1. Any party can move for summary judgment with respect to any claim or defense asserted in the pleadings.
3. Exception for the triable issue being fatal to the motion
1. CPLR 3211 a and b: it goes to trial immediately to decide any issue raised in the motion
4. Burden of proof
1. the moving party bears the burden of establishing there is no triable issue
1. evidentiary proof in admissible form.
1. Defeat of the motion
2. affidavits of people with knowledge of the facts
3. If the opponent is not yet able, through no fault of his own, to produce opposing evidence, the court can either deny the motion or order a continuance ( adjournment ) to permit additional evidence to be obtained.
4. If the court concludes upon searching the record, that the opponent rather the movant, is entitled to summary judgment, the court may grant such relief even if the movant did not make a cross-motion.
5. If the motion is denied:
1. there is a triable issue of material fact.
2. if the only issue is damages, the court can grant summary judgment as to liability and order an immediate trial for damages: an inquest.
6. Pre-answers motion for summary judgment
1. D’s pre-answer motion to dismiss for failure to state a cause of action can e converted by the court into summary judgment, the court can go to the facts
1. factual affidavits in connection with the motion
1. the court must give advance notice of the conversion
7. Motion for summary judgment in lieu of complaint
1. P make a motion for summary judgment at the same time she serves the complaint
1. an action based on an instrument for the payment of money only
2. an action on out of state judgment.
2. Procedure
1. after filing process with court, P must serve on D, with the summons, a notice of motion for summary judgment with supporting documentation and affidavits
2. minimum advance notice for a return date
1. no sooner than the appearance
2. 20/ 30 days

1. Basic concepts
1. Provisional remedies provide a measure of security for the ultimate enforcement of a potential judgment.
2. No except of pendency
3. Court apply a rule of strict construction with respect to provisional remedies because of their potentially drastic nature. P must comply fully with all procedural requirements.
2. Attachments
1. Purposes
2. Acquiring quasi in rem jurisdiction
3. Regardless of the jurisdictional basis, it can be used for the security of enforcement of a money judgment.
4. Concept:
1. P obtains an order of attachment form the court and gives it to a NY sheriff who levies the property of D in NY. The levy imposes a lien on the property pending the outcome of the action. This gives P a security interest in the property that is superior to that of any subsequent lienholder.
1. On real property
1. the sheriff files the order with the county clerk in the county where the real property is located.
2. Personal property
1. a car
2. intangible property: a debt owed to D. a garnishee in the person who owes the debt.
3. The sheriff delivers the order of attachment to the garnishee : lien on the property and serves as an injunction against the transfer of the D’s interest in the property.
5. Types of action
1. P must be seeking money damages AND
1. D is an unlicensed corporation or a non Domiciliary in NY.
2. D is a NY resident who cannot be served with due diligence
3. the D is about to conceal or remove the asset with the intent to defraud
4. P is suing on an out of state judgment
5. D is a convicted felon who earned profits from the crime.
6. Procedure
1. Motion before or after the summons have been served. The summons must be served within 60 days if order is granted.
2. Requirements: the affidavits must show
1. the P must show a probable success on the merits of her cause of action
3. he has to provide an undertaking
1. indemnify the D for any damages or expenses caused by the attachment.
4. It can be made on notice or ex-parte.
1. ex-parte
1. a hearing promptly after the seizure of the property so that D can contest the attachment
1. after the sheriff levies, P must make a motion on notice to confirm the ex-parte order of attachment. The motion to confirm must be made by order to show cause so that there can be an accelerated return date.
2. When an order of attachment is obtained ex-parte, the ex-parte order will become automatically void if P fails to make a follow-up motion to confirm within the proper number of days after the levy on D’s property.
1. if D is unlicensed corporation or a non Domiciliary of NY, the motion to confirm must be served on D no later than 10 days after the levy for the others:
1. no later than 5 days after the levy
3. Preliminary injunction
1. A preliminary injunction is used to maintain the status quo while an action is pending.
2. Types of action:
1. It has to be an action in equity where the D seeks
2. a permanent injunction
1. D threatens to harm P’s interest in the subject matter of the action
2. a claim that seeks solely money damages cannot be joined with a preliminary injunction
3. Procedure
1. Must be made on notice
1. P’s affidavits must show the grounds for equitable relief including irreparable harm
2. Probability of success on the merits of the cause of action
3. P must provide an undertaking to indemnify the D for damages if its later determined that the preliminary injunction should not have been granted.
4. TRO
1. In a case of threat of imminent injury, the P can request a TRO ex-parte. The function is to maintain the status quo while the motion for preliminary injunction is pending.
2. Make the motion for the preliminary injunction by order to show cause.
3. In the order to show cause, the judge can accelerate the return date of the motion and include a TRO.
4. Temporary receivership
1. What is it?
1. A receiver is a person appointed by court pending an equity action
2. Type of action
1. Where the property is the subject matter of the action and there is a danger the D will destroy the property
2. The appointment of a temporary receiver requires the making of a motion on notice.
5. Seizure of chattel
1. Type of action
1. An action to recover the possession of a chattel: replevin
2. The function of the order of seizure is to insure enforcement of a judgment awarding possession of the chattel to P. 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.
2. Procedure
1. P’s affidavits must show that he will probably win on the merits
2. He must take an undertaking to the D
3. It can be on notice or ex-parte
1. if ex-parte
1. a threat of immediate loss of the chattel
2. If the ex-parte is granted, P must make a follow-up motion by order to show cause within 5 days of the seizure to confirm the ex-parte order.
6. Notice of pendency
1. Concept
1. The judgment will have a direct effect on the property: notice to the buyers that their interest is subordinated.
2. Type of actions
1. Equity action which judgment will have a direct effect on the possession. In a foreclosure of a mortgage, the filing is compulsory by statute.
3. Procedure
1. P files a notice of pendency with the country clerk of the county in NY in which the real property is located. This is what gives record notice of the pendency of P’s action and gives P a lien on the real property.
2. You can file without a court order.
3. P doesn’t have to take an undertaking.
4. Timing
1. before or after the summons are served.
1. but if before service of process, the summons must be served no later than 30 days after the filing of the notice of pendency. If not done, it loses its effect
5. Remedy by D:
1. File a motion to cancel the pendency
1. The court can order to elect between the provisional remedies.

1. Default judgment
1. D’s non appearance in an action will entitle P to entry of a default judgment if P seeks entry within one year of default.
2. The default judgment may be entered by the clerk, if the damages are for a sum certain, such as the amount due on a promissory note
1. If the damages are for an unliquidated amount, P must apply to a judge for entry of judgment
2. Because there must be a hearing on the issue of the damages. Default constitutes admission of liability but damages must be proven. D has a right to present opposing evidence even though he is in default.
2. Vacating default judgment
1. You can’t appeal
2. Motion to vacate the default judgment, if it is denied, then you can appeal the denial.
3. Grounds
1. If the court lacked jurisdiction
2. any defect
3. If the default was caused by excusable neglect: ill, lost the summons, law office failure.
1. The excuse must be reasonable. The D must also show the grounds for a meritorious defense.
3. P’s neglect to prosecute
1. 2 prerequisites
1. D cannot make the motion until at least one year has passed since all pleadings have been served. AND
2. Before making the motion, D must serve a demand on P to resume prosecution of the action and file a notice of issue within 90 days ( filing the notice of issue means putting the case on the court’s trial schedule)
1. If P files the notice of issue
1. D cannot move to dismiss for neglect to prosecute.
2. If P does not comply
3. D is entitled to move to dismiss,
4. Burden of proof is on P
1. reasonable excuse for the delay
2. the cause of action has merits.

1. The scope
1. Any info that will assist in preparation for trial, not limited to materials admissible at trial
2. Areas of immunity from discovery
1. Evidentiary privileges: attorney/client, patient/physician, and spouses.
2. Litigation materials that are uniquely the product of a lawyer learning and professional skills.
3. Material prepared in anticipation of litigation
1. They are qualifiedly immune.
2. it does not have to be prepared by the attorney
3. the opponent can get it if
1. a substantial need for it.
2. inability to get it by any other way
3. undue hardship
1. Exclusions
1. as of right:
1. names and addresses of witnesses
2. accident reports made in the normal course of business
3. photograph, tapes of a party to the action.
4. Rules governing discovery concerning experts
1. Expert witness upon demand, a party must disclose the following information about nay expert who the party expects to call as an expert witness at trial.
2. summary of the expert’s opinion and proposed testimony
3. expert’s qualifications
4. expert’s identity
5. but in medical malpractice action, the expert witness’ identity may be withheld.
6. Consulting experts: their identity and opinions are treated like any other material in anticipation of litigation: immune in the absence of need and hardship.
3. Oral deposition ( EBT) examination before trial
1. Parties:
1. To take the deposition of a party, a notice of deposition is served on the party 20 days in advance, advising her of the time and place.
2. In a multiple party case, copies must be sent to all parties because it is an interlocutory paper and parties have a right to attend the deposition and to cross-examine the witness. A P is not allowed to schedule a deposition of D until after D served his answer to the complaint.
2. Non parties:
1. To take a deposition of a non party, a subpoena must be served on the non party 20 days in advance, and a notice of deposition must be served on all parties
2. In the notice of deposition and/or the subpoena, the witness can be required to bring relevant documents to the deposition and the deposing party may use the documents in connection with questioning of the witness during the deposition.
3. Objections:
1. Motion for a protective order
4. Motion to compel if the witness is not cooperative.
3. How can it be used at trial?
1. If any deponent takes the stand
1. you can use the deposition on cross-examination to impeach credibility.
2. The deposition of an adverse party can be used as evidence in chief against the party
3. The deposition of a non party or a party’s own deposition can be used as evidence in chief only if the deponent is unavoidably, unavailable at trial.
4. The deposition of physician can be used as evidence in chief.
4. Discovery and inspection
1. Basic concept
1. Either party may inspect, copy, test or photograph any relevant object land and document.
2. If the item is the possession of a party:
1. You serve a notice for discovery and inspection 20 days in advance, advising the party as to time, place.
3. Objections
1. written objection no later than 20 days after the service of the notice
2. contest the objection
3. make a motion to compel
4. If the item is in the possession of a non party make the motion on notice for discovery and inspection.
1. This is pre-trial discovery, you don’t need a subpoena.
5. Notice to admit
1. Either party may serve on the other party a notice to admit the genuineness of documents, the accuracy of photos, or any other fact as to which there should be no substantial dispute
2. A response, in the form of a denial or admission, is due within 20 days of service of the notice.
3. Failure to respond
1. admission of the fact as to which the notice was addressed.
4. Effect of admission
5. Binding and conclusive for purposes of the issue.
6. An unreasonable denial results of costs in favor of the party who proves the matter at issue
6. Physical or mental examination
1. P has to submit if suing for personal injury
1. If a party affirmatively puts his physical condition in controversy, she can be required to submit to a doctor’s examination
2. Notice 20 days in advance
3. A court order is not necessary
4. When P is suing for personal injuries, he waives the physician/ patient privilege, the D can P’s hospital records.
7. Interrogatories
1. Basic concept:
1. Written questions to a party requiring written answers under oath.
2. A response, in the form of answers to the questions or written objections, is due within 20 days after service of the interrogatories.
2. If the demanding party does not get satisfactory answers or wishes to contest the objections
1. Motion to compel
2. They can only be served on parties
3. Exception
1. in matrimonial actions
1. you can serve a non party to get the financial status about the other spouse.
2. Exclusions
1. You can’t serve a bill of particulars and interrogatories at the same time except in matrimonial actions
2. In negligence
1. you can’t use both deposition and interrogatories
2. if negligence is not the only theory, the you can use both.

1. When the discovery is completed ad the case is ready for trial, either party can file a note of issue with the court and serves a copy to the other.
2. Jury
1. If it is the party who files the note of issue, he makes a demand
1. If no demand, he waives his right
2. Other parties:
1. Separately file his own separate demand for the jury and serves copies.
3. Right to a jury
1. Either party
1. An action seeking solely money damages
2. An action for replevin
3. A claim in real property
4. Annulment of marriage
5. In a divorce action, you can get a jury on the issue on the grounds of the divorce
6. Civil jury: 6 jurors, the verdict need not be unanimous.
7. If a party object to instruction, it must be done before the jury deliberates.
3. Res judicata and collateral estoppel
1. Res judicata
1. When a claim is brought to a final conclusion on the merits, all other claims by P against the D are barred if they arise out of the same transaction even if different theories/ remedies
2. Collateral estoppel
1. Same issue in the former and current proceedings
2. The issue was actually litigated and decided in the former proceeding

The party against whom an issue preclusion is asserted had a full and fair opportunity to litigate in the former proceeding.

1. Procedure: taking the appeal
1. Time limit
1. 30 days from the service of the copy of the judgment or order being appealed
2. It applies to appellate division and court of appeals.
3. If mailed you get 5 extra days.
2. As a matter of right
1. Appellant files notice of appeal in the lower court, from which the appeal is take. Copies must be served on all parties.
3. Permission: appellant must make a motion on notice for permission to appeal. The motion papers must be served no later than the 30^th day after service of the judgment or order being appealed.
2. Appealability
1. From supreme court to the appellate division
1. Appeal from any final judgment
1. review:
1. all orders made during litigation that had an effect on the judgment
2. you can appeal immediately, as a matter of right, virtually all interlocutory orders from motions on notice.
2. From the appellate division to the Court of appeals
1. Most appeals are as permission
2. As a matter of right
1. the determination of the appellate division must be a final order
2. the appeal must involve either
1. a constitutional questions under State Constitution or US constitution
2. if there was a 2 judge dissent in the appellate division on a question of law.
3. Permission
1. if the appeal is requested from a final order, permission can be obtained from either the appellate division or the court of appeals.
2. if the appeal is requested from a non final order, permission can be granted only from the appellate division.

1. Basic concept:
1. it is a speedy, stream lined procedure, akin to motion practice, the purpose of which is to obtain a judgment as a final resolution of a dispute
2. Pursuit of a remedy by means of a special proceeding required specific statutory authorization
1. If erroneous, the court will convert the special proceeding in the normal action
3. Procedure
1. The petitioner files two documents with the court
1. A petition ( analogous to a complaint)
2. A notice of petition ( analogous to a summons)
2. Serve on respondent: same methods as service of process because jurisdiction must be there.
3. Respondent must serve and appear on the specified date for the hearing.
1. The return date can be no sooner than 8 days from the service of process. If accelerated date you can initiate the special proceeding by order to show cause
4. In article 78 proceeding
5. the return date cannot be sooner than 20 days
6. Affidavits are usually serves 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.

1. It is a procedure for the private, binding resolution of disputes. Two parties may agree to submit any existing or future dispute to arbitration.
2. How to enforce
1. In writing doesn’t have to be signed
2. The dispute must fall in the scope of the arbitration
3. NY has a strong public policy favoring arbitration
4. A court cannot decide on the merits but courts can determine if
1. The dispute fall within the scope
2. S/L
3. Non performance of an express condition precedent to arbitration
4. Claims for punitive damages are NON arbitrable ( different from federal arbitration)
5. Fraud in the inducement of the clause ( not the whole contract, it has to be specific)
3. How is it invoked
1. The party can commence a special proceeding against the other to compel arbitration
1. Serve on the party a notice of intent to arbitrate. If there is defense the other party must move for a stay in the arbitration
2. Time limit to start a stay: 20 days
3. Motion in pending action for a stay of pending action and direct the other to arbitrate
4. The party who commences the action in court instead of arbitration, waives arbitration, if the other party submits to the judicial system, he also waives the right to arbitration
4. Judicial review
1. 3 grounds to vacate the decision of the arbitrator
1. Corruption, fraud or misconduct in the arbitration proceeding
2. Partiality or bias of an arbitrator who was to be neutral
3. If arbitrator has exceeded his powers
2. Arbitrators are not bound by substantive law, or by evidence. He can grant anything, equitable relief as well.

1. Article 78 authorizes a special proceeding for judicial review of action ( inaction) by governmental or quasi governmental officers or bodies of any kind
1. The right to relief in an article 78 depends upon a showing that the petitioner’s case would been subject to review under one of the common law prerogative writs. Thus, there 4 grounds
2. Mandamus to compel
1. To compel the performance of an act required by law - an act as to which no discretion is involved.
2. a corporation is considered a quasi govt. body for mandamus to compel
3. Prohibition: a proceeding to stop a judicial officer from exercising power that exceeds the officer’s lawful jurisdiction
1. Gross excesses of jurisdiction.
4. Certiorari
1. A proceeding to challenge the result of a trial type hearing conducted by an administrative agency,
1. in which testimony has been taken under oath with a right to cross examine
2. Standard to review
1. was the agency’s determination supported by substantial evidence
5. Mandamus to review
1. A proceeding to review any type of administrative action not covered in 1-3. Most often, this is the form of review used to challenge an agency determination that was made without a trial type hearing
2. Standard
1. was the agency’s determination arbitrary and capricious
6. Procedure
1. In the supreme court
1. S/L
1. 4 months from the receipt of the notice of the act being challenged
2. Relief
1. Declaratory
2. Injunctive

1. Money judgments
1. Property subject to enforcement
1. Against any debt that is past due or that is yet to become due. Etc..
2. Personal property exemptions
1. Household exemption
2. Damages from injured exempt property
3. For one year after collection
4. Trust corpus
5. Security deposits
6. Income limits
7. 90% of income tax from a trust
8. 90% of the earnings of the judgment debtor
9. Armed forces
3. Waiver
4. Homestead exemption
5. Judgment against the state
6. Contempt
7. Restraining notice
8. Payment or delivery of debtor’s property
2. Judgment awarding possession of real property or chattel
1. Execution by describing specifically the property
3. Pre-verdict interest
1. Property damage and contract
1. Interest accumulates from the date arose at 9% ( statutory interest)
2. Personal injury
1. Interest does not accumulate
3. Wrongful death
4. Interest accumulates from the date of the death
4. Post-verdict
1. Any money damages, interest runs from date of verdict to the date of payment, it includes all claims