CPLR Outline
Intro to CPLR
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CPLR 101- CPLR 101(b)- CPLR governs all civil proceeding in NY State courts except
where regulated by inconsistent state statute.
CPLR 102- Any rule in the CPLR may be amended, rescinded, or adopted, not
inconsistent with the constitution, or violating any substantive right of the parties.
CPLR 103- There is only one form of civil action. No distinction between actions at law
and suits in equity. (b) All civil judicial proceedings shall be prosecuted in the form of
an action, except where prosecution in the form of a special proceeding is authorized.
Except where otherwise prescribed by law, procedure in special proceedings shall be the
same as in actions, and the provisions of the civil practice law and rules applicable to
actions shall be applicable to special proceedings. (c) Improper form. If a court has
obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely
because it is not brought in the proper form, but the court shall make whatever order is required
for its proper prosecution. If the court finds it appropriate in the interests of justice, it may
convert a motion into a special proceeding, or vice-versa, upon such terms as may be just,
including the payment of fees and costs.
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CPLR 104- CPLR shall be liberally construed to secure the just, speedy and inexpensive
determination of every civil judicial proceeding.
CPLR 105(b)- Action and Special Proceeding. Action includes special proceeding; P and
D include petitioner and respondent; S + C include notice of petition and petition
Examples of Special Proceedings: CPLR Art. 78- proceeding against a body or officer;
CPLR Art. 77- proceeding related to express trust; CPLR 7503- application to
compel/stay arbitration; Civil Rights Law Sec. 60-63- change of name; all proceedings in
Surrogates Court; DCL Sec. 3-22- assignment for benefit of creditors; summary
proceeding to recover real property
Secondary sources: Seigel, NY Practice 5th Edition; McKinney’s Consol. Law of NY
Ann.
CPLR 105(c)- Attorney- The word attorney means a party prosecuting or defending an
action in person.
Why sue in NY? P is a NY resident; can ger PJ in NY; real or personal property in NY;
Marital “res” is in NY for a matrimonial action; high verdicts in some counties; favorable
substantive or procedural law; forum selection clause in contract; NY choice of law;
attorney is familiar with NY law; desirability of Judge who specializes in commercial
law; don’t like the way US courts interpret NY law; office is in NY.
The Field Code (1848)- preceded CPLR; abolished distinctions between actions at law
and suits at equity; Throop Code was enacted in 1877; Civil Practice Act in 1920
CPLR was created in 1963 and embodies both due process and fundamental fairness; 72
articles; Art. 2 is Statute of Limitations; Art. 3 is Jurisdiction; Art. 31 is Disclosure; Art.
32 is Accelerated Judgment
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NY Constitution Art. 6: establishes the unified court system; defines SMJ; judicial
selection; judicial discipline; creates a chief judicial administrator
NY Judiciary Law- Amplifies Art. 6 of NY Constitution; powers and duties of judges;
attorneys, court officers; Code of Professional Responsibility
NYBCL; EPTL; VTL; GML
Court Acts; CPLR; NYCRR; Judges’ Rules
CPLR 101(a)- This article shall be known as the Civil Practice Law and Rules, and may
be cited as “CPLR”
CPLR 101(c)- You may refer to a CPLR provisions without indicating whether it is a rule
or a section.
CPLR 105(h)- A domestic corporation is one “created by or under the laws of the
state” or “a corporation located in the state and created by or under the law of the United
States.” A foreign corporation is any corporation that is not a Domestic Corporation.
CPLR 105(j)- Infant. A person who has not attained the age of eighteen years. The word
infancy means the state of being an infant.
CPLR 105(k)- Judgment. Judgment means a final or interlocutory judgment.
CPLR 105(p)- Matrimonial Action. The term matrimonial action means an action for
separation; action of annulment or dissolution of a marriage; action of divorce; action for
declaration of the validity or nullity of a foreign judgment of divorce; action for a
declaration of the validity or nullity of a marriage; or one or more of the five separate
claims.
CPLR 105(u)- A verified pleading may be utilized as an affidavit whenever the
latter is required.
Names of NY Courts: Court name + Location: 1st Dept.; Appellate Term; Supreme
Queens; Civil Court; County Court; Surrogate’s Court; Family Court; District Court;
Criminal Court; Justice (Town and Village) Courts
CPLR 2001- Mistakes. At any stage of an action, including filing of a summons and
complaint or petition to commence an action, the court may permit a mistake,
omission defect, or irregularity, including the failure to purchase and acquire an
index number or other mistake in the filing process, to be corrected, upon such
terms as may be just or, if a substantial right of a party is not prejudiced, the
mistake, omission, defect or irregularity shall be disregarded, provided that any
applicable fees shall be paid.
Matter of United Servs. Auto Assn.- R: CPLR 2001 was expressly enacted to fully
foreclose dismissal of technical…non-prejudicial defects in commencement… regardless
of whether the defendant objected in a timely and proper manner.
Examples of excusable mistakes: Failure to pay or obtain an index number; failure to file
proof of service is a procedural irregularity (Discover Bank); timely mailing of a notice
of appeal outside NY is not a fatal jurisdictional defect; notarization of out-of-state expert
affidavit in non-compliance with CPLR 2309(c) is an irregularity. If an oath is given,
authentications of authority can be secured later and given nunc pro tunc effect (Matapos
Technology Ltd.; unauthorized person, in violation of CPLR 313, served process; lack of
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authorization; submitting an affirmation, rather than an affirmation, of a partner; service
of a cross-motion by USPS mail rather than first-class mail; complaint not verified
First class mail- letters, post-cards, flats (large envelopes, newspapers, magazines) with
stamp and green slip.
CPLR 2309(c)- Oaths and affirmations taken without the state. An oath or affirmation
taken without the state shall be treated as taken within the state if it is accompanied by
such certificate(s) as would be required to entitle a deed acknowledged without the state
to be recorded within the state…
Fatal mistakes/ Exceptions to CPLR 2001: No PJ or SMJ; Statute of Limitations (but
see CPLR 203(e) and CPLR 205); Must file notice of appeal within 30 days from the date
of service.
Goldenberg: P purchased an index # and commenced a special proceeding to file a late
NOC and attached a copy of the proposed complaint; the petition was granted; P served
D with the NOC and S+C w/o the new index #; nothing was filed before service; the SOL
expired and there is no personal jurisdiction; P’s S+C is not the functional equivalent of
filing
MacLeod: P filed a NOC within 90 days, purchased an index # and filed a S+C; later P
was informed the index number was invalid, P purchased a new index # and filed an
identical S+C; P moved to deem the date of original filing to be the actual date of filing;
SC Nassau denied the motion but 2nd Dept. reversed, applying 2001 “the granting of such
relief will not prejudice a substantial right of the County and the granting of such relief is
necessary to ensure that Ps suffer no adverse consequences from their technical
mistakes.”
Other errors that can be forgiven: CPLR 103- “Special proceeding” brought as an
“action;” CPLR 305(c)- correction of non-prejudicial defects in a process or with respect
to proof of service; CPLR 1003- nonjoinder or misjoinder of parties; CPLR 325- action
brought in the wrong NY state court and removal sought in the correct court;
CPLR 2004- Extensions of Time- Except where otherwise expressly prescribed by the
law, the court may extend the time fixed by any statute, rule or order for doing any act,
upon such terms as may be just and upon good cause shown, whether the application
for extension is made before or after the expiration of the time fixed.
3 exceptions to CPLR 2004- Where extensions of time are prohibited by another law
CPLR 201- SOL; CPLR 5514(c)- time to appeal; CPLR 7503(c)- time to stay
arbitration
Subject Matter Jurisdiction
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SMJ is derived from the NYS Constitution and laws; the statutory or constitutional
capacity to adjudicate particular types of suits
Supreme Court is a court of original and unlimited jurisdiction or general jurisdiction
Parties cannot confer SMJ upon a court by stipulation
If no SMJ, any judgment is void and can be collaterally attacked in another forum
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CPLR 5015(a)(4)- Relief from judgment or order (a) On motion. The court which
rendered a judgment or order may relieve a party from it upon such terms as may
be just, on motion of any interested person with such notice as the court may direct,
upon the ground of: (1) excusable default; (2) newly discovered evidence; (3) fraud,
misrepresentation or other misconduct… (4) lack of jurisdiction to render the
judgment or order; (5) reversal, modification of vacatur of a prior judgment or
order upon which it is based.
Lacks v. Lacks- A judgment rendered without SMJ is void but in this case, the failure to
comply with a statutory residency requirement, such as DRL Sec. 230, does not deprive
the court of SMJ, as residency is an element and goes to the substance of the cause of
action; Lacks involves a collateral attack on jurisdiction, an indirect attack when a prior
judgment is used as the basis for a new claim or defense to a claim in a different court
and the opposing party argues that the prior judgment is invalid.
Special Term- the litigated motion part of SC as opposed to Trial Term.
Federal courts are courts of limited jurisdiction and can only adjudicate those matters
authorized by Congress, by an Act and must be specifically shown.
SMJ cannot be waived and can be raised at any stage of a proceeding, by a party or
sua sponte.
Personal Jurisdiction CAN be waived.
Financial Indus. Reg. Auh., Inc.- Ct. of App. reversed because Federal courts have
exclusive jurisdiction over violations of the 1934 Securities and Exchange Act
Burke v. Aspland- Summary proceeding in Justice Court for back rent on a commercial
lease; judgment against defendant Burke; Burke appealed and won because the court had
no SMJ, the property was outside Kingsbury’s limits.
Darthmouth Outdoor Sports- The judgment must be vacated because of NYBCL 1314(b).
Foreign corporation- Any corporation that is not a domestic corporation; interaction
between CPLR 105(h) and NYBCL 1314(b).
CPLR 105(h)- domestic corporation- Any corporation created by or under the law
of the state OR a corporation located in the state and created by or under the laws
of the United States.
NYBCL 1314(b)- Except as otherwise provided in this article, an action or special
proceeding against a foreign corporation may be maintained by another foreign
corporation of any type or kind or by a non-resident in the following cases only: (1)
where suit is brought to recover damages for the breach of a contract made or to be
performed within the state, or relating to property situated within this state at the time of
the making of the contract; (2) where the subject matter of the litigation is situated within
the state; (3) where the cause of action arose within this state, except where the object of
the action or special proceeding is to affect title of real property situated outside this
state; (4) Where… a non-domiciliary would be subject to the personal jurisdiction of the
courts; (5) Where the defendant is a foreign corporation doing business or authorized to
do business in this state.
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NYBCL 1314(c)- paragraph (b) does not apply to any corporation formed under the laws
of the United States and which maintains an office in this state.
NYBCL 1314(a)- An action against a foreign corporation may be maintained by a
resident of this state or domestic corporation of any type or kind for any cause of action.
A choice-of-law clause cannot convey subject matter jurisdiction.
Gen. Obl. Law 5-1402(1)- Choice of Forum. Notwithstanding any act which limits or
affects the right of a person to maintain an action or proceeding, including, but not
limited to, NYBCL 1314(b) and NY Banking Law 200-b, any proceeding may maintain
an action or proceeding against foreign corporation, non-resident or foreign state where
the action or proceeding arises out of or relates to any contract, agreement or undertaking
for which a New York choice of law has been made in whole or in part pursuant to Sec.
5-1401 and which (a) is a contract, agreement or undertaking, contingent or otherwise, in
consideration of, or relating to any obligation arising out of a transaction covering in the
aggregate, not less than one million dollars and (b) which contains a provision(s)
whereby such foreign corporation or non-resident agrees to submit to the jurisdiction of
the courts of this state.
3 Requirements of Gen. Ob. Law 5-1402- foreign corporations/ non-residents can
sue in New York if (1) the contract has a NY choice of law; (2) the contract contains
NY choice of forum and (3) the contract involves a total transaction of 1 million or
more.
NYBCL 1312(a)- Actions by Unauthorized Foreign Corporations- An unauthorized
foreign corporation “doing business” in NY CANNOT sue in state court until such
corporation becomes authorized by paying all taxes and fees; (b) the failure of any
corporation to do business in this state shall not impair the validity of any contract or act
of the foreign corporation or the right of any other party to the contract to maintain any
action or special proceeding thereon, and shall not prevent the foreign corporation from
defending any action or special proceeding in this state.
NYBCL 1314 is a SMJ statute NOT a forum non conveniens statute; SMJ dismissals
are not discretionary while forum non-conveniens dismissals are.
IBR- Brasil Resseguros, S.A.- Does NY choice of law include NY conflict of law
principles? NO- if there is a conflict between NY law and foreign law, a choice of law
must be made BUT NY conflict of laws principles play no part; Under the Restatement,
the parties’ decision to apply NY law to their contract results in the application of NY
substantive law not NY’s conflict principles.
Overview of NY Courts
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May 1991 the Assembly of the NY Colony passed an act which established the SC of
Judicature; originally there was 2 associate (puisne) justices and a Chief Justice; it was
the highest court of common law in NY with both original and appellate jurisdiction; civil
actions involving 20 pounds or more
Supreme Court of the State of NY- A single court of state-wide jurisdiction; a branch in
each county; process can be served within the state and without the state; NY’s only court
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of general jurisdiction; SC generally has concurrent jurisdiction; SC may sua sponte
transfer matters to other courts such as family or surrogate’s court; under CPLR 5701,
appeals are taken to the applicable appellate division; eight counties have a commercial
division with a limit of 500k and a 50k-150k monetary threshold
Sohn- When a statute vests authority to decide a dispute in an administrative agency, the
courts have no jurisdiction to determine the issue except by reviewing the agency’s
decision.
Declaratory judgment- a judgment that will merely declare the rights of the parties
in respect of the matter in controversy, without coercive enforcement.
Court of Appeals- The highest court in NY state; has appellate jurisdiction and limited
jurisdiction; chief judge and six associates, five needed for a quorum and four for a
majority; mostly reviews questions of law unless 1) death penalty or 2) decisions
reversing or modifying a judgment, finding new facts and directing entry of final
judgment on the new facts; the Court of Appeals may render an advisory opinion certified
to it by the Supreme Court, a federal court of appeals or the highest court in the state (NY
Const. Art VI); trial court under Court of Appeals- determines only whether a state or
federal statute violates the NY or US Constitution; CPLR 5601(b)- appeal as of right.
1st Dept.- NY County and Bronx; 2nd Dept.- Dutchess, Kings, Queens, Putnam, Nassau,
Orange, Rockland, Westchester, Suffolk, Richmond
Appellate Division- A panel cannot exceed 5 judges, 4 needed for quorum and 3 for a
majority; scope of review includes questions of both law and fact under CPLR 5501(b);
hears appeals from SC, family, surrogate, Court of Claims and Appellate Term; has
original jurisdiction for admission and supervision of attorneys; Art. 78 proceeding if it
involves a SC justice; CPLR 3222(b)- Actions where only questions of law are to be
decided; other special proceedings designated by the legislature
Appellate Term- 1st and 2nd Departments only; hears appeals from NYC Civil and
Criminal courts; 2nd dept. also hears appeals from county (not felonies), district, city,
town and village courts; appeals to the App. Div.
County Courts- real prop. Actions where the property is located in the county;
foreclosing a lien upon chattel where the lien is less than 25k; enforcing a judgment;
money actions up to 25k; no residency requirement; actions where all defendants at the
time of the action, reside in the county; criminal and civil jurisdiction; actions where the
defendant has an office in the county and the cause of action arose in the county; action
against a foreign corp. where the cause of action arose in the county and the claim is 25k
or less; action to recover chattel where the aggregate value does not exceed 25k; no
monetary limit for counter claims; appeals go to App. Div. except in 2nd Dept. they go to
the App. Term; 3rd and 4th dept. county courts hear appeals from city, town and village
courts
NYC Civil Court- 25k limit per cause of action; no general equity jurisdiction; real
property in the City not exceeding a 25k claim; unlimited in summary proceedings to
recover possession of real property in NYC; counterclaims regardless of amount;
judgments on rent due with 25k limit;
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Yellowstone Shopping Center, Inc.- Commercial L-T dispute over who should install a
sprinkler system per NYFD order; R: A commercial tenant, faced with a notice of default,
a notice to cure, or a threat of termination of the lease, will seek a Yellowstone injunction
to obtain a stay tolling the running of the cure period so that, after a determination of the
merits; the tenant may cure the defect and avoid a forfeiture of the leasehold.
Removal- CPLR 325, CPLR 326
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4 reasons for removal: (a) removal because of mistake; (b) removal because of limited
jurisdiction chosen, a ct. having jurisdiction may remove the case to itself; (c) removal
based on consent to a ct. of lower jurisdiction, where damages sustained are less than
those demanded, a court may remove the case to a lower court; (d) removal without
consent to a court of limited jurisdiction, in the court’s discretion, damages may be less
than demanded.
CPLR 325(a)- By SC for mistake in choice of court. Where a mistake was made in the
choice of the court in which the action is commenced, the SC, upon motion may remove
the action to the proper court, upon such terms as may be just. (ex. P sues D in Civil
Queens for 100k damages, ct. has a monetary limit of 25k and therefore, no SMJ, P can
move in SC to transfer the case there pursuant to 325(a) or move in Civil to transfer it to
SC pursuant to NY Const. Art. VI, Sec. 19)
NY Const. Art. VI Sec. 19 only gives the power to transfer out to county courts,
NYC civil and criminal and surrogate’s courts. (can’t use it to move a City Court
claim to SC)
Ex. Where P moved in Sup. Suffolk to remove up from Dist. Ct. and amend complaint to
increase damages and add causes of action for unjust enrichment and specific
performance, the motion was denied because the P failed to demonstrate that the action
was “mistakenly” commenced in Dist. Ct. (CPLR 325(a)) or that the P was entitled to
money damages in excess of that which the Dist. Ct. was without jurisdiction to award.
R: While transfer applies to trial courts, it has also been held to apply to transfer to the
Appellate Division.
CPLR 325(g)- If there has been no mistake in the choice of court but a judge in the city,
town or village court is incapable of acting, the judge of the county court may transfer to
one of the lower courts, as long as the lower court has PJ and SMJ.
CPLR 325(b)- Removal from a court of limited jurisdiction- Where the court in
which an action is pending does not have jurisdiction to grant the relief to which
the parties are entitled, a court having such jurisdiction may remove the action may
remove the action to itself upon motion. A waiver of jury trial in the first court is
inoperative after the removal. (Ex. P sues for a broken thumb for 25k in Civil NY but
the thumb develops gangrene and is amputated, P may move pursuant to CPLR 325(b) to
remove to Supreme NY.
CPLR 325(b)- The motion must be made in the court with the proper jurisdiction; for
example, if the original action was in Dist. Ct. Nassau for 5k, P would move in County
court Nassau or Supreme Nassau; part of the motion to remove up is the request for
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leave to amend the amount of damages demanded, allowing the amendment is
discretionary.
Matter of Sealy- P sued in Civil Queens for a MVA PI, moved in Supreme Queens to
remove up but the motion was denied because the P’s doctor’s affidavit failed to show
that her increased injuries for her lower back were causally related to the subject MVA,
P had injured her lower back in prior MVA injuries.
CPLR 325(c)- On consent to court of limited jurisdiction- Where it appears that the
amt. of damages sustained are less than demanded, and a lower court would have
had jurisdiction but for the amount of damages demanded… the court where the
action is pending may remove to a lower court if the damages are reduced to
jurisdiction of lower court AND upon consent of all parties, other than a D who has
interposed no counterclaim and over whom the lower court would have jurisdiction
if the action had originally been commenced there. Jury waiver in the first court is
inoperative.
CPLR 325(c)- consent is almost never given; any motion is made in the court where the
action is pending; if D counterclaimed, consent is needed; there can be no transfer down
if the lower court would have SMJ; P can appeal if a judge improperly urges removal
down.
CPLR 325(d)- Removal without Consent to a court of limited jurisdiction- The
App. Div., if it determines that the calendar conditions in a lower court so permit,
may, by rule, provide that a court in which an action is pending may, in its
discretion, remove such an action without consent to such lower court where it
appears that the amount of damages sustained may be less than demanded, and the
lower court would have jurisdiction but for the amount of damages demanded.
CPLR 325(d)- If the action is removed then the verdict or judgment shall be limited to
the amt. of damages is subject to the limitation of monetary jurisdiction of the court
where the action was ORIGINALLY COMMENCED; waiver of jury trial in the first
court is inoperative after the removal.
CPLR 325(d) removal down does not mean the case is subject to the monetary
jurisdiction of the lower court. (ex. P sued D for 500k, judge orders removal to Civil
Kings believing damages to be only 15k, P goes to trial and jury awards 200k, verdict
and award affirmed on appeal.
CPLR 326(c)- Stay of proceedings- An order to stay proceedings for the purpose of
moving for removal may be made by the court in which the action is pending or the court
to which removal is sought.
CPLR 325(a)- Removal because of mistake; CPLR 325(b)- Removal because of limited
jurisdiction but no mistake; CPLR 325(c)- Removal based on consent, damages lower
than demanded; CPLR 325(d)- Removal without consent, damages lower than
demanded.
NYCRR 202.13- Cases can be removed from the 1st, 2nd, 11th and 12th judicial districts
to the Civil Court of the City of New York; from Nassau County court to Nassau District
Court; from Albany County Court to the City Court of Albany; for most other judicial
district Supreme Courts to the respective county or city court.
Forum Non-Conveniens- CPLR 327; Gen. Ob. Law 5-1401 and 5-1402
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Forum non Conveniens- A common law doctrine which gives a court the discretion to
dismiss or stay a case in the interest of substantial justice when the action should be
heard in another forum (ie, another state or country)
Prerequisites for a forum non Conveniens analysis: must have PJ, SMJ and another
proper forum anywhere in the world
Example of a weak forum non Conveniens state: Delaware where: decedent and entire
family is in Ohio, all medical treatment in Ohio, decedent worked in Ohio and
Oklahoma, all 31 depositions were in states other than Delaware, depositions noticed in
Delaware were 0.
CPLR 327(a)- When the court finds that in the interest of substantial justice the
action should be heard in another forum, the court, upon motion of any party, may
stay or dismiss the action in whole or in part on any conditions that may be just.
The domicile or residence in this state of any party to the action shall not preclude
the court from staying or dismissing the action.
R: Substantial justice is intended to include the criteria of fairness, justice and
convenience (Silver).
Viking Global Equities LP- D’s forum non Conveniens motion was granted where there
was NO SUBSTANTIAL NEXUS with NY, few connections between the action and
NY, events of the underlying transaction occurred in an entirely foreign jurisdiction,
most Ps are not NY residents, VW stock is only traded on foreign exchanges, many
witness and documents were in Germany which stated its interest in the underlying
events and provides an adequate alternative forum, D met its heavy burden to establish
that NY is an inconvenient forum.
On motion of any party means any P, D, third party Plaintiff or Fourth Party Plaintiff but
not sua sponte
May stay or dismiss in whole or in part- includes conditional dismissal
Matter of OxyContin II- 246-plaintiffs’ class action was dismissed because there was
no out of state subpoena power and NY would have to apply conflict of law principles to
every plaintiff, who were nonresidents. However, the dismissal was conditional upon Ds
accepting service for all causes of action in another forum, waiver of any defenses not
available in NY, depositions of all defense company witnesses may be used in all cases.
CPLR 327(b)- Notwithstanding the provisions of subdivision (a) of this rule, the court
shall not stay or dismiss any action on the ground of inconvenient forum, where the
actions arises out of or relates to a contract, agreement or undertaking to which Gen. Ob.
Law 5-1402 applies (forum selection clause), and the parties to the contract have agreed
that the law of this state shall govern their rights or duties in whole or in part (choice of
law clause).
Martin v. Meith- Where all the incidents and report relating to an accident occurred in
NY, Mr. Penhollow, the property owner where the accident occurred, an important NY
witness, was not subject to a subpoena in Canada.
There should be a substantial nexus with NY and the D must waive the SOL
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Nevader- forum non Conveniens motion denied where the decedent driver and one of the
Ds was from NY, the defective tire was not purchased, manufactured or affixed in
Quebec, several witnesses were NY residents and several from Quebec said they would
come to NY, the forum was a short drive for those in Quebec.
Elson- Motion denied where D failed to show why impleader of Idaho DOT would be
sought and why testimony of responding Idaho POs would be necessary or unavailable.
Belachew- Dismissal based on forum non Conveniens grounds was granted where there
existed a suitable forum in PA, there would be hardship to D because of unavailability of
joint tortfeasors in PA, and one P had extensive medical treatment in PA. Presumption in
favor of NY plaintiffs is not conclusive.
Greenberg- While issues concerning the internal affairs of a corporation and the
conduct of its directors are governed by the laws of the state of incorporation, N.Y.
may retain jurisdiction if a majority of other factors indicate that N.Y. is an
appropriate forum.
Nasser- P and D, Brazilians, entered into a prenuptial agreement in Brazil with a choice
of law in Belgium; P sued in NY to enforce orders regarding NY marital assets; P is a
temporary NY resident; the court dismissed because while temporary residence may be
considered, court looked to: burden on NY courts, hardship to D, availability of an
alternative forum (Brazil) and the applicability of foreign law.
Brewers- UK was the better forum where the injuries occurred in UK and UK was the
place of mfr. distribution and testing of the drug which caused the injury, P could not
bring the action in NY.
International comity- When courts defer to the laws or interests of a foreign
country and decline to exercise jurisdiction that is otherwise properly asserted
(allows one nation to consider the legislative, executive, or judicial acts of another
nation; gives due regard to international duty and convenience of other nations and the
rights of its own citizens an those who are under the protection of its laws.
GOL 5-1402- Choice of Law- parties to any non-consumer contract, if it covers in the
aggregate, not less than 250k, may agree that NY law governs rights and obligations,
even if the contract has no reasonable relation to NY; not applicable to labor or personal
services contracts.
GOL 5-1402- Choice of Forum- P can sue a foreign corporation, non-resident or
foreign state if it is a non-consumer contract, choice of law is NY, the contract is at least
$1 million, and D agrees to submit to the jurisdiction of NY courts.
Tegra- The forum non conveniens motion was granted where the subject agreement, for
the sale of a $20 million aircraft built in Quebec, had a NY choice of law provision but
not a forum selection clause for NY.
Venue- Article 5
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Venue- The proper situs of a proceeding; the court and the location where the
lawsuit in issue is filed.
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In NYS Supreme Court, venue (place of trial) of a lawsuit must be set in a proper county
based upon the CPLR, other statutes and the rules of the court. If there is SMJ and PJ
and the state is a convenient forum, there will be a place for the trial.
R: A defect in venue, except in consumer credit transactions, is not a ground for
dismissal in NY. Improper venue is not a jurisdictional defect.
The basis for venue is stated on the right-hand side of the summons.
CPLR 513(a)- Misplacement of venue in consumer credit transactions- In an action
arising out of a consumer credit transaction, the clerk shall not accept a summons for
filing when it appears upon its face that the proper venue is a county other than the
county where such summons is offered for filing.
NY State and the Federal venue statutes are similar but not the same
28 U.S.C. 1391(b) provides that venue is based upon either the judicial district where
any defendant resides or a substantial part of the events or omissions giving rise to the
claim occurred or if there is no proper district, in any district where a defendant is
subject to PJ.
Differences: In federal court, improper venue is a grounds for dismissal but not in state
court; in NY venue will be proper under 503(a) or 502 (residence of any party); if D
fails to move to change venue, the case will be tried in a court with improper venue
(CPLR 509).
CPLR 509- Venue in County Designated- Notwithstanding trial of an action shall be
in the county designated by the plaintiff, unless the place of trial is changed to another
county by order upon motion, or by consent as provided in CPLR 511(b).
Change of venue= transfer in state; forum non Conveniens= transfer out of state
CPLR 507- Local venue, Real Property- situs of the property is the county where the
action or trial will be held. (affects title, use possession and enjoyment of real property;
includes actions for nuisance, waste, trespass and leasehold; based on Field and Throop
Code)
CPLR 508- Local venue, Personal Property- Replevin of personal property (action to
recover personal property or chattel); venue may be determined by the location of the
personal property, but venue is not mandatory in a replevin action.
CPLR 503(a)- Venue based on Residence- Generally. Except where otherwise
prescribed by law, the place of trial shall be in the county in which one of the parties
resided when it was commenced; the county in which a substantial part of the events
occurred; or, if none of the parties then resided in the state, in any county designated by
the plaintiff (but remember forum non Conveniens!) A party resident in more than one
county shall be deemed a resident of each such county.
Matter of Newcomb- Residence means living in a particular locality but domicile
means living in the locality coupled with the intent to make it a fixed and permanent
residence.
Residence- persons removed to hospitals or other facilities for treatment do not gain or
lose residence because they are away from home; a nursing home county is proper
venue; the crucial point for determining venue is the date the action was commenced
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CPLR 503(b)- Venue based on residence- An executor, admisistrator, trustee,
committee, conservator, general or testamentary guardian or receiver shall be deemed a
resident of the county of his appointment as well as the county in which he actually
resides.
CPLR 503(c)- Venue based on residence- A domestic corporation, or a foreign
corporation authorized to transact business in the state, shall be deemed a resident of the
county in which its principal office is located; except that such a corporation, if a
railroad or other common carrier, shall also be deemed a resident of the county where
the cause of action arose.
Where can an unauthorized foreign corporation be sued? Another party’s county of
residence; the county where a substantial part of the events occurred; or where the P
chooses. (Ex. P, a resident of Ontario, is walking across a street in Buffalo, NY or Erie
County; if P is hit by a car driven by D, from PA, and owned by D Inc., of Ohio, P can
sue D and D Inc. in any county in New York State since no party is a NYS resident.)
Ex. cont. from above- there is PJ over D and D Inc. under VTL and if P chooses Bronx
county for example, D and D Inc. can make a forum non Conveniens motion to move to
Ontario or PA. D and D Inc. can also make a change of venue motion based on witness
convenience.
CPLR 503(d)- Venue based on residence- A president or treasurer of an
unincorporated association, suing or being sued on behalf of the association, shall be
deemed a resident of any county in which the association has its principal office, as
well as the county in which he actually resides. A partnership or an individuallyowned business shall be deemed a resident of any county in which it has its principal
office, as well as the county in which the partner or individual owner suing or
being sued actually resides. (Ex. P sues D, a baker and single proprietor, for not paying
his flour bill. The bakery is in Bedford, Westchester County, P resides in NJ and D
resides in Putnam County; P may sue D in Westchester County (place of business) or in
Putnam County (D’s residence).
CPLR 503(f)- Venue based on residence- consumer credit transactions. In an action
arising out of consumer credit transaction where a purchaser, borrower or debtor is a
defendant, the place of trial shall be the residence of the defendant, if one resides within
the state or the county where the transaction took place, if it is within the state or, in
other cases, as set forth in subdivision (a).
There is an express legislative preference for actions to be tried in proper counties
(Saxe).
Change of venue motions- A motion is required; grant of motion is within the court’s
discretion, usually upheld unless there is an abuse of discretion; improper venue can be
waived; improper venue is not a grounds for dismissal.
CPLR 510- The court, upon motion, may change the place of trial or an action
where (1) the county designated for that purpose is not a proper county, (2) there is
reason to believe that an impartial trial cannot be had in the proper county; (3) or
the convenience of material witnesses or ends of justice will be promoted by the
change.
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Is the Plaintiff’s venue choice a proper county? Look to CPLR 503(a)- is any party
a resident at the time of commencement? Has a substantial pert of the events or
omissions giving rise to the claim occurred in the county? If yes (if it is a proper
county), then look to CPLR 511 (demand for change of venue: must be served with
the answer or before the answer and the motion must be made within 15 days after
such service unless plaintiff serves a written consent within five days of such
service)
If no (if it is not the proper county), make a CPLR 510(1) motion.
CPLR 511(a)- time for demand- A demand under 511(b) for change of place of trial
on the ground that the county designated for that purpose is not a proper county shall be
served with the answer or before the answer is served
Waiver of change of venue motion- If you do not serve a demand to change venue
before you serve the answer, you have waived your right to make a CPLR 510(1)
motion.
CPLR 511(b) and CPLR 2103(b)- A 5 day extension allows for service by mail CPLR
2103(b)(2) and applies to the 15 day period in 511(b) so D is allowed 20 days after
service by mail to serve a motion for change of venue.
Day 1= day that D demands that P change venue (can be either the day that D answers
or anytime after service of the complaint but before the answer is served)
Ex. day 1= D serves by hand or email the demand to change venue; Day 6= last day for
P to consent; Day 16= last day for D to move to change venue as of right (D can still
move on other grounds)
Ex. Day 1= D serves demand to change venue by mail; Day 11= last day for P to
consent; Day 21= last day for D to move to change venue as of right.
After service of the demand, P can consent, ignore the demand, or serve an affidavit
pursuant to CPLR 511(b) showing that the current county is proper or that the proposed
county is improper.
511(b)- D may notice such motion to be heard as if the action were pending in the
county he specified, unless P within 5 days after service of the demand serves an
affidavit showing either that the county specified by the D is not proper of that the
designated county is proper.
An amended answer restarts the time to make a venue motion based on improper
county; failure of D to move for change of venue pursuant to CPLR 510(1) is not a
waiver if an amended answer is served as of right along with the demand to change
venue.
CPLR 510(2) and (3)- A motion made pursuant to CPLR 510(2) or (3) must be
made in a reasonable time and in the original court; can’t use improper venue
grounds, those have been waived 510(1); anyone can move pursuant to 510(2)/(3)
including P or third-party D; the court may exercise discretion even where venue is
proper in the first instance ; ct. may exercise discretion even where the new county
would not have been proper in the first instance.
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Blaine- class action alleging that IBM released toxic chemicals; IBM moved on 510(2)
grounds that an impartial trial cannot be had because at least one juror will be related to
one of the Ps; trial ct. and Third Dept. denied the motion because the jury panel is not
selected at random, jury questionnaires and voir dire will filer out any relatives within
six degrees of consanguinity
CPLR 510(3)- Convenience of material witnesses: most frequently invoked; doesn’t
matter is the action is local or transitory; venue is prescribed by special statute or county
specified by agreement pursuant to 501; if P believes that the proper county is improper,
P should place venue in the proper county and then move pursuant to 510(2) or (3);
detailed witness affidavits needed; liability witnesses are given greater weight; little or
no weight given to expert witnesses and employees of parties.
Seguin- med. mal. action in Erie county; D moved for change of venue because of
inconvenience of traveling to Erie county 4th dept.; D submitted 14 non-party affidavits
of MDs who treated P in Genesee county; SC found for P but 4th Dept. reversed it as an
abuse of discretion- the sole basis for venue in Erie county was P’s wife and Ps failed to
demonstrate any other consideration that would favor Erie county as the proper venue of
the action.
Personal Jurisdiction- CPLR 301, 302, 303, 310, 313, 318, 1025, 1501, 1502, 2104, 5201(b)
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Personal jurisdiction- The power of a court to make binding decisions on the persons or
entities involved. Exercising PJ involves comporting with the principles of Due Process.
General jurisdiction- CPLR 301; Specific jurisdiction- CPLR 302
Broad requirements of Due Process- (1) Notice of the lawsuit (service of processTopic 10); (2) Opportunity for the defendant to be heard; (3) A jurisdictional basis,
a nexus between the state, the defendant and the case (CPLR 301 and 302(a)).
R: Due process requires certain minimum contacts with the forum State such that
the maintenance of the suit does not offend traditional notions of fair play and
substantial justice. (International shoe) Whether a D’s conduct and connection with
the forum state is such that it should reasonably anticipate being halted into court
there. (World-Wide Volkswagen)
R: A non-domiciliary tortfeasor has minimum contacts with the forum state if it
purposefully avails itself of the privilege of conducting activities in the forum state.
BUT minimum contacts alone do not satisfy the test, the prospect of defending the
suit must comport with the traditional notions of fair play and substantial justice
(Burger King).
The test for fair play and substantial justice/ reasonableness involves considering
the following factors: the burden on the defendant; the interests of the forum state;
the plaintiff’s interest in obtaining relief. It should also consider the interstate
judicial system’s interest in obtaining efficient resolution of controversies and the
shared interest of the several states in furthering fundamental substantive social
policies.
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Is there personal jurisdiction? First determine whether the state’s relationship with the
defendant falls under CPLR 301 or 302(a) and then determine if the exercise of
jurisdiction comports with due process. CPLR 301 or 302(a) + Due Process= Personal
Jurisdiction.
If (a) CPLR 301 or 302(a), (b) proper notice given by proper service, and (c)
defendant has been given an opportunity to be heard= due process met
CPLR 302(a)(3)- no cause of action for defamation.
CPLR 301- General Jurisdiction- A court may exercise such jurisdiction over
persons, property or status as might have been exercised heretofore. (presence,
consent or domicile)
General or all-purpose jurisdiction- When the D is “present” within the state at the time
of service, proper service allows the “person” to be sued for anything, even if the cause of
action arose outside the state.
Even where a state is not the principal place of business or place of incorporation of
a foreign corporation, if the corporation’s operations are so substantial and of such
a nature as to render the corporation at home in that state, general jurisdiction may
be found (rare).
Specific jurisdiction- depends on the affiliation between the forum and the D’s activity
that takes place in the forum state and therefore, subject to the State’s regulation
(Goodyear Dunlop); it focuses on the relationship between the D, the forum and the
litigation (Walden); the suit must arise out of D’s contacts with the forum (Daimler AG)
Specific jurisdiction ex. Where Cali. SC found specific jurisdiction without identifying
any adequate link between the State and nonresidents; the mere fact that other Ps were
prescribed, obtained and ingested Plavix in Cali. does not allow the State to assert
specific jurisdiction over the nonresidents’ claims, what is needed is a connection
between the forum and the specific claims at issue. CPLR 302 does not supersede or
operate as a limitation on CPLR 301.
The “doing business” test has been eliminated in NY
Presence: effective for domicillaries, non-domicillaries (natural persons), corporations,
government entities (non-natural persons); R: personal jursidiction is acquired over
the D when he is personally served with process while present in the state
Ex. (presence)- Where NY Ps were injured in a motor vehicle accident in NJ and Ds
were lured in NY by fraud or deceit, service of process was held invalid and no PJ.
CPLR 2104- stipulation- An agreement between parties or their attorneys relating to any
matter in an action…is not binding upon a party unless it is in writing subscribed by him
or his attorney or reduced to the form of an order and entered. With respect to stipulations
of settlement…the terms of such stipulation shall be filed by the D with the county clerk.
NY Gen. Bus. Law Sec. 11 and 13- Service of process on Sunday is prohibited and void,
except in criminal proceedings; maliciously serving process on a Saturday to anyone who
observes it as a holy day is a misdemeanor.
Price Waterhouse LLP- A partnership is a voluntary association of two or more persons
doing business for profit; where there was large-scale bank fraud, Ps sued Price, the
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auditors and the Court found that service on PW-UK was proper because acting through
an affiliated partnership, PW-US, it was doing business in NY (no longer a good test),
PW-UK was not a separate entity but a partnership with no separate existence. A
partnership is served with process pursuant to CPLR 310.
CPLR 310- Personal Service Upon a Partnership- Personal service upon persons
conducting a business as a partnership may be made by personally serving the
summons on any one of them. (service and personal jurisdiction becomes a single
inquiry)
NYBCL 304- (a) The secretary of state shall be the agent of every domestic corporation
and every unauthorized foreign corporation upon whom process against the corporation
may be served. (b) No domestic or foreign corporation may be formed or authorized to do
business in this state under this chapter unless in its certificate of incorporation…it
designates the secretary of state as such agent.
Consent: consent by agent; consent by lawsuit; VTL 253
CPLR 318- Consent by agent- Anyone may formally appoint an agent by a writing,
executed and acknowledged like a deed and filed with the County Clerk; the agency is
effective for three years from filing unless revoked by death, incompetency or legal
termination.
CPLR 303- Consent by Lawsuit- If a P not subject to PJ in NY, sues in NY, the P’s
lawyer is designated as agent for service during the lawsuit on any claim that would be
permitted as a counterclaim if the action had been brought in SC.
VTL Sec. 253- Use or operation of a vehicle by a non-resident, in the business of a
non-resident, owned by a non-resident if used or operated with permission (statute
deems the non-resident owner or driver as having appointed the secretary of state for
service of process in a lawsuit involving a NY accident; applies to individuals as well as
corporate entities)
NYBCL 1314 (a)(6)- Authorized Foreign Corporation Consent to Service- The
application of a foreign corporation to do business in NY must contain (6) a designation
of the secretary of state as its agent upon whom process against it may be served and the
post office address…to which the secretary of state shall mail a copy of any process
against it served upon him.
NY Banking Law Sec. 200- Consent to Serve- A foreign bank with a NY office must
appoint the superintendent of banking as its attorney upon whom all process in any action
or proceeding against it on a cause of action arising out of a transaction with a NY
branch.
Other forms of consent: NYBCL 304, naming the secretary of state; designating an agent;
short form power of attorney
LONG-ARM PERSONAL JURISDICTION (CPLR 302(a))
Pennoyer v. Neff- A state could not assert power over a non-domiciliary unless he or she
was served or arrested within that state; state sovereignty
Milliken- Out-of-state service of process was permitted for a state domiciliary.
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CPLR 302- (a) Acts which are the basis of jurisdiction. As to a cause of action
arising from any of the acts enumerated in this section, a court may exercise
personal jurisdiction over any non-domiciliary, or his executor or administrator,
who in person or through an agent:
(1) transacts any business within the state or contracts anywhere to supply goods or
services in the state; or
(2) commits a tortious act within the state, except as to a cause of action for
defamation of character arising from the act; or
(3) commits a tortious act without the state causing injury to persons or property
within the state, except as to a cause of action for defamation of character arising
from the act, IF HE (i) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods used or
consumed or services rendered, in the state OR (ii) expects or should reasonably
expect the act to have consequences in the state and derives substantial revenue
from interstate or international commerce; or
(4) owns, uses or possesses any real property situated within the state.
General applicability of CPLR 302(a)- applies to corporations, partnerships, individuals,
trustees, executors, or any other non-domiciliary persons; act from which a cause of
action arises can be done by an agent; applies in NY state a federal courts; applicable to a
former NY domiciliary who is now a non-domiciliary; theories lie on contract,
commercial, tort (but not defamation), ownership, use or possession of real property
Approach: if no general jurisdiction then, (1) is the D a non-domiciliary? (2) is there a
qualified specific act? (3) Does the cause of action arise from the specific act?
CPLR 302(a)(1) examples: Fishbarg (where D, a non-resident, telephoned and hired P,
a NY lawyer but then refused to pay fees, the court found jurisdiction under 302(a)(1)
because although not all purposeful activity is a transaction of business, D’s purposeful
attempt to engage in an attorney-client relationship with P in NY and participation in it
via calls, faxes and e-mails was sufficient), OR where there was an email exchange to
acquire Pennzoil but D broke the deal, CPLR 302(a) is a single act statute and proof of
one NY transaction is sufficient, it is unnecessary for D to enter NY, so long as the
activities were purposeful and there is a substantial relationship between the transaction
and the claim asserted- where D a sophisticated trader entered the state electronically,
negotiated and concluded the transaction, it is within the embrace of the long-arm statute.
R: Repeated, deliberate use that is approved by the foreign bank on behalf and for
the benefit of the customer…demonstrates volitional activity constituting
transaction of business (Rushaid).
R: A non-domiciliary transacts business within the state when on his/her own
initiative, the non-domiciliary projects him or herself into the state to engage in a
sustained and substantial transaction of business; purposeful availment occurs
where the D seeks out and initiates contact with NY, solicits business in NU and
establishes a continuing relationship…transacting business is not enough, P’s claim
must have a substantial relationship with the transaction of business in NY.
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Does the transaction amount to a purposeful availment? Does the claim arise out of the
transaction?
Passive websites will not rise to the level of purposeful availment (Zippo).
(active websites) R: If the D enters into contracts with residents of a foreign
(websites that do little more than convey information) jurisdiction that involve knowing
and repeated transmission of computer files, PJ is proper (Grimaldi). (sales,
downloads of print order forms, etc.)
CPLR 302(a)(2)- Examples of tortious acts in NY: MVA in Nassau county; defective
product mfr. in Suffolk county, marketed in Queens county and sold in the Bronx;
fraudulent conveyance in Erie county; trademark infringing product sold in Yates county.
VTL 253- Non-resident vehicle owners and drivers involved in MVA in NY are subject
to PJ by service on the NY secretary of state.
VTL 254- NY residents who depart the state post-accident and remain absent for 30 days
continuously, are also subject to PJ by service on the NY secretary of state.
Tortious acts NOT in NY: fraud and deceit on NY resident in FL; refusal of a FL director
of P corporation to act in NY; P a NY resident buys a truck from D in NM and is injured
in Ohio; Courts will look to where the tortious act itself occurred.
CPLR 302(a)(3)(ii)- 5 LaMarca elements: (1) D committed a tortious act without the
state; (2) the cause of action arose from that; (3) the tortious act caused injury to a person
or property in NY; (4) D expected or reasonably should have expected the act to have
consequences in NY; (5) D derived substantial revenue from interstate or international
commerce. (Ex. where there was an asbestos leak, D was not subject to PJ even though
302(a)(3) factors were met because of due process considerations; there was no indication
that D made an effort to target NY.
In Rem and Quasi In Rem Jurisdiction (CPLR 301 but NOT general jurisdiction)
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CPLR 301- A court may exercise such jurisdiction over… property or status as
might have been exercised heretofore.
In rem jurisdiction depends on the presence of a rem (A thing, matter, affair) within the
State of New York; only resort to in rem jurisdiction when personal or specific
jurisdiction cannot be obtained; recall CPLR 302(a)(4); in rem jurisdiction may give a
judgment to P only to the extent of the res, P cannot obtain money damages; allows
P to get possession or establish ownership rights or other interests in the res, exclude the
D from all or some interest in the res; res can include real property, personal
property and intangible property (shares, license agreement, promissory note);
produces a judgment that is binding upon those who have been named as parties and
given proper notice in compliance with DP; examples include replevin, ejectment,
foreclosures, specific performance to convey real property, partition of land; pursuant to
state sovereignty, a state has control over the property within its limits but only to the
extent of that property. (In Rem jurisdiction is rarely used)
In rem v. CPLR 302(a)(4)- In rem does not give personal jurisdiction, adjudication
is limited to subject res but CPLR 302(a)(4) gives PJ over non-domicillaries; in rem
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does not allow for a money judgment but the latter does; in rem can be used for
both real and personal property but CPLR 302(a)(4) is limited to real property.
CPLR 314- When a judgment is demanded…otherwise affecting title to such property,
including an action of interpleader or defensive interpleader in an in rem action, service
of summons outside of NY is permitted by using any method permissible to serve within
the state per CPLR 313. Such service does not give the court PJ over D unless there is an
independent basis for it, such as CPLR 302(a).
Quasi In Rem: does not affect interests in real and personal property; used when P
wants a money judgment but cannot get PJ but D has property in NY that can be
seized to enforce some or all of a judgment (attachment); must meet the requirements
of fundamental fairness and minimum contacts; sufficient nexus between the D, forum
and litigation;
Ex. Where P, an Italian bank with a representative in NY loaned 15 million to D, a
Bahamian bank, quasi in rem jurisdiction was proper and D’s accounts in NY banks
were attachable; relationship between D, the litigation and NY is sufficient; the “contact”
was D’s bank account Artoc and its corresponding bank account BB; it was not an
isolated transaction, D regularly uses the bank account to accomplish its international
business; the relationship between the cause of action and the property, the activates to
be performed in NY under the parties’ agreement and Artoc’s other ties in NY combine
to render quasi-in-rem jurisdiction appropriate.
Use quasi in rem (money judgments) if no general or specific jurisdiction, no in rem
jurisdiction, minimum contacts are present, D has property in NY and P wants a
money judgment.
Most common example: a foreign D has engaged in a business deal with a NY person
without performing activities that fit under 302(a)(1), transacting business within the
state or contracting to supply goods or services in NY.
Matrimonial Jurisdiction (In Personam and In Rem)
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In rem- seeking to alter the marital status (the res); in personam- seeking to compel action
or affect D’s property
CPLR 302(b)- PJ in matrimonial action over non-resident D (if you want money or
property from a non-domiciliary spouse).
CPLR 105(p)- A matrimonial action is any action for a separation, annulment or
dissolution of a marriage, for a divorce, for the declaration of the nullity of a void
marriage, an action for the declaration of the validity or nullity of a foreign
judgment of divorce, an action for the declaration for the validity or nullity of a
marriage.
R: Marital res ceases to have any vitality or legal substance after the death of either
husband or wife…the only issues to be litigated are those concerning property rights
(Carr).
DLR Sec. 230 (not jurisdictional)- An action to annul a marriage, or to declare the
nullity of a void marriage, or for divorce or separation may be maintained when: (1)
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the parties were married in the state and either party is a resident thereof and has
been a resident for a continuous period of one year immediately preceding, or (2)
the parties have resided in this state as husband and wife and either party is a
resident thereof when the action is commenced and has been a resident for a
continuous period of one year immediately preceding, or (3) the cause of action
occurred in NY and either party lived in NY for one year or more prior to filing, or
(4) the cause of action occurred in NY and both parties are residents of NY at the
time of filing, or (5) either party has lived in NY for at least two years or more prior
to filing.
In Personam actions for monetary relief: alimony, support, maintenance, distribution of
property, counsel fees
Assuming the domicile requirement of DLR Sec. 230 are met, as an element of the
cause of action, if P serves process pursuant to CPLR 308 (personal service upon a
natural person), the court will have PJ as well as in rem jurisdiction to adjudicate
the marital status.
Defendant spouse outside of NY: If P serves D pursuant to CPLR 314(1) or 313, the
court does not have PJ over the D only in rem jurisdiction over the marital res; in order
to get PJ, service must be pursuant to CPLR 302(b).
CPLR 302(b)- gives NY courts long-arm jurisdiction in matrimonial actions and in
certain family court proceedings where alimony, support, maintenance or distributive
awards are being sought; if the lawsuit only involves matrimonial action and no
monetary relief then CPLR 302(b) does not apply; the statute is gender neutral and
applies to all spouses
CPLR 302(b) requirements: P must be a NY domiciliary or resident at the time of
filing; D does not have to be a NY domiciliary or resident; ONE of the following: NY
was the matrimonial domicile before the parties separated; or D abandoned the P in
NY; or the claim accrued under NY law; or the claim accrued under an agreement
executed in NY. (Ex. where the parties maintained dual residences in NY and FL and
filed joint returns stating their address was in FL, the evidence was insufficient to show
that the matrimonial domicile was in NY)
One way to get around CPLR 302(b) is by executing a separation agreement in NY
thus, engaging in a transaction of business under 301(a)(1), sufficient to obtain PJ.
CPLR 314(1)- Service may be made without the state by any person authorized
under 313 in the same manner as service is made within the state: in a matrimonial
action (in rem).
Where the matrimonial action is substantially in rem and the marital status is the res,
substituted service by publication is sufficient notice to comport with due process.
Kulko- Violation of due process where husband was served in CA while visiting his
children.
Lieb- “before the parties separated” means sometime in the recent past or just before the
separation.
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Babu- Where the husband moved back to IL and refused to reconcile, the wife’s suit for
divorce was dismissed because there was no long-arm jurisdiction pursuant to 302(b) and
the husband did not have minimum contacts with NY.
Commencement of a Lawsuit
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CPLR 304(a)- An action is commenced by filing a S+C or a Summons with Notice in
accordance with 2102. A special proceeding is commenced by filing a petition in
accordance with 2100. (not for justice and village courts) Where a court finds that
circumstances prevent immediate filing, the signing of an order requiring the
subsequent filing at a specific time and date not later than five days thereafter shall
commence the action. (5-day extension if for example, SOL is about to run)
CPLR 305(b)- Summons and notice- If the complaint is not served with the summons,
the summons shall contain or have attached thereto a notice stating the nature of the
action and the relief sought, and, except in an action for medical malpractice, the sum of
money for which judgment may be taken in case of default.
A summons with inappropriate notice is jurisdictionally defective; must state nature of
claim, relief sought, and sum of money demanded. (ex. this is a PI action for damages in
the amount of 3 million) however, some courts have held that the absence of a specific
dollar amount will not render the summons jurisdictionally defective.
CPLR 3017(c)- In a PI or wrongful death action, a pleading (a summons with notice
is not a pleading) shall not state the damages amount, although in a Sup. Ct. action
the pleader shall state that the amount is sufficient to exceed the jurisdictional limits
of the lower courts.
D waives noncompliance with CPLR 305(b), objection to summons with notice, by
appearing in the action, answering the complaint and litigating the merits of the action
without raising objection.
If there is a defective Summons with Notice, the D can: (1) demand a complaint and
move to dismiss pursuant to CPLR 3211(a)(8), lack of PJ OR (2) answer asserting lack of
jurisdiction and move to dismiss within 60 days.
CPLR 205- If an action is timely commenced and is dismissed in any other manner than
by a voluntary discontinuance, a failure to obtain PJ over the D, a dismissal of the
complaint for neglect to prosecute the action, or a final judgment upon the merits, the P,
or, if the P dies, his or her executor or administrator may commence a new action upon
the same transaction or occurrence or series of transactions or occurrences within six
months after the termination provided that the new action would have been timely
commenced …and that service upon the D is effected within such six-month period.
Where dismissal is one for neglect to prosecute the action…the judge shall set forth on
the record the specific conduct constituting the neglect, which conduct shall delay the
general pattern of delay in proceeding with the litigation. (applies in NY federal court; if
prior action is in a non-NY court, CPLR 205(a) is inapplicable; the section only applies to
P not a parent company and dismissal for lack of SMJ is not on the merits)
CPLR 8018(a)- the filing fee is $210
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CPLR 306(a)- Upon filing the S+C, summons with notice or petition in an action or
proceeding commenced in supreme or county court, an index number shall be
assigned, and the fee required by…CPLR 8018 shall be paid.
CPLR 306(b)- Service of process must be made within 120 days of filing, unless the
SOL is four months or less, in which case service shall be made not later than 15
days after the SOL expires. If service is not made within the time provided, a good
cause extension may be granted by the court, but the court may also dismiss the
action without prejudice. (no automatic dismissal with prejudice for failure to serve
within 120 days; P may move for extension based on good cause or in the interests of
justice.
CPLR 305(a)- (strict compliance required)- A summons shall specify the basis of the
venue designated and if based upon the residence of the P it shall specify the P’s
address, and also shall bear the index number assigned and the date of filing with
the clerk of the court. (not naming the court or using a prior index number are not
curable defects but index number assigned by the court and incorrect date of filing the
S+C with the court clerk have been held to be curable defects) In a consumer credit
action, the summons shall so state, if the purchaser, borrower or debtor is a D who is a
NY resident the county of residence of D shall be set forth.
Amended summons v. supplemental summons- an amended summons is used to cure a
non-prejudicial defect and always requires a motion; a supplemental summons is used to
add a new party.
CPLR 1003 provides that a party may be added, at any time, as of right, once,
within 20 days of service of the original or at anytime before the period for
answering expires or within 20 days after service of the answer of the last answer
from a D.
CPLR 2101(c)- Each paper served or filed shall begin with a caption setting forth
the name of the court, the venue, the title of the action, the nature of the action if
one has been assigned. In a summons, a complaint or a judgment, the title shall
include all the names of the parties…
CPLR 305(c)- Amendment. At any time, in its discretion and upon such terms as it
deems just, the court may allow any summons or proof of service of a summons to
be amended, if a substantial right of a party against whom the summons is issued is
not prejudiced. (A court must have PJ over D before it can amend the summons; is a
substantial right of D is violated, a court will find the defect jurisdictional as opposed to a
mere irregularity, and it will deny the motion to amend; an erroneous first name, spelling
mistake, name reversal are not jurisdictional defects; where real parties in interest are
actually served but the trade name is used in summons, not a jurisdictional defect; note
however, where the trade name is used and the real party in interest is not served, it is a
jurisdictional defect. Omission of the name of the court and county is jurisdictional.
You cannot misname a business entity- Gen. Bus. Law Sec. 130
CPLR 1024- When the name or identity of D is unknown to P, P may still bring the
action but must designate so much of the name and identity as is known; use of a
fictitious name is not needed and can be misleading; P must show that timely efforts to
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identify the correct party before the SOL expires have been made; as soon as the correct
name is known, P can amend without leave; the description should be complete enough
to identify the Ds and must satisfy due process.
CPLR 2013(a)- Except where otherwise prescribed by law or order of the court, paper
may be served by any person not a party over the age of eighteen years or over. State of
residency is irrelevant. (note, Sunday service and Saturday service may result in a
misdemeanor)
CPLR 308- Serving a Natural Person- delivery of summons to a human D within NYS;
no requirement to file proof of service
CPLR 308(b)- Serving a Natural Person- Substituted service (leave and mail); substituted
service on a natural person of suitable age and discretion at D’s actual place of business,
D’s dwelling place, D’s usual place of abode AND mailing first class to D’s last known
residence or mailing first class to D’s actual place of business with envelope labeled
“personal and confidential” AND filing proof of service within 20 days.
CPLR 308(2)- Delivering to a Person of Suitable Age and Discretion and Mailing
CPLR 308(3)- Serving an agent of the natural person in NY designated under CPLR 318.
(applies to a person, corporation or partnership; valid for 3 years)
CPLR 308(4)- Affix (Nail) and Mail- similar to leave and mail. (paper MUST be affixed,
eg. Taped or nailed)
No leave and mail or nail and mail in matrimonial actions without a court order
Both leave and mail and nail and mail must be done within 20 days of each other (either
can be done first)
CPLR 308(5)- If P cannot deliver process in the state, and cannot use substituted service,
then the court, on motion without notice (ex parte), directs.
CPLR 309- Personal service upon an infant, incompetent or conservatee- (a) Serving,
within NY, the parent, guardian, legal custodian or if the infant is married, upon an adult
spouse with whom the infant resides; if none of the above is in NY, upon any person with
whom the infant resides or by whom he/she is employed; if the infant is 14 or older,
personally serve the infant as well. (b) personal service upon a person judicially declared
to be incompetent…shall be made by personally serving the summons within the state
upon the committee and upon the incompetent, but the court may dispense with service
upon the incompetent. (c) personal service on a person for whom a conservator has been
appointed shall be made by personally serving the summons within the state upon the
conservator and the conservatee, but the court may dispense with service upon the
conservatee.
CPLR 313- Service without the state giving personal jurisdiction- A person domiciled in
the state or subject to jurisdiction of the courts of the state under 301 or 302, or his
executor or administrator, may be served with the summons without the state, in the same
manner as service is made within the state, by any person authorized to make service
within the state who is a resident of the state or by any person authorized to make service
by the laws of the state, territory, possession or country in which service is made or by
any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.
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CPLR 313 summary: Who can be served outside the state? Any NY domiciliary, anyone
over whom there is general or long-arm jurisdiction under CPLR 301 or 302,
respectively, anyone’s executor or administrator, same service methods outside the state
as inside the state.
Hague Service Convention- Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, opened for signature Nov. 15,
1965.
Service pursuant to VTL 253- Mail or personally deliver S+C to the Secretary of State;
Second, personally serve the D or send certified or registered mail, return receipt
requested; if the letter is refused, send by ordinary mail; if unclaimed, make a second
mailing; proof of service must be filed within 30 days after P receives the return receipt;
service is then complete.
CPLR 315- Service by Publication- The court, upon motion without notice (ex parte),
shall order service of a summons by publication in an action described in section 314 if
service cannot be made by another prescribed method with due diligence.
Other statutes that may permit service by publication: CPLR 308(5); CPLR 310(e)partnerships; CPLR 311(b)- corporations
Electronic service is now permitted for the most part; a chief concern with service of
process by email is the reliability of the email address to which process is directed, and
thus whether there is a reasonable chance the email would reach the party to be served.
Service by FB was authorized in an action seeking to modify child support where P made
diligent effort and service by other methods was impracticable.
Personal Service on Corporations: CPLR 311(a)(1)- all corporations; NYBCL 306
(domestic and authorized corporations); NYBCL 307 (unauthorized foreign corporations)
CPLR 311(a)(1)- Service on an officer, director, managing or general agent or cashier or
assistant cashier or any other agent authorized by appointment or by law to receive
service.
NYBCL 306- Service on a domestic or authorized foreign corporation- Serve the
Secretary of State with two copies and pay $40 fee per corporation; Secretary will serve a
copy on the corporation by certified mail
NYBCL 307- Service on Unauthorized Foreign Corporation- Serve the Secretary with a
copy of the S+C, pay fee, and serve the foreign corporation outside the state in
accordance with that state’s laws or send papers via registered mail at the address
designated in the state of incorporation or last known address and file an affidavit of
service within 30 days of receipt of the return receipt.
CPLR 310- Personal Service on Partnerships- Serve human partner within the state
under CPLR 308(1), or if outside the state, under CPLR 313, serve a corporate partner
under CPLR 311(a)(1) or NYBCL 306 or 307; (b) serve a managing agent or general
agent or person in charge of the office within the state and mail to partner, first class, at
last known residence, or place of business of the partnership AND file proof of service
within 20 days, service is complete 10 days after filing; (c) you can nail and mail, after
due diligence, by affixing to the door of the actual place of business of the partnership
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and mailing first class to a partner at the last known residence; (d) serve a designated
agent or employee under CPLR 308; or any manner that the court may direct.
Other service statutes: CPLR 310-a (service on limited partnerships); CPLR 311(a)(2)-(8)
Service on NYS and local government entities; CPLR 311-a (LLCs); CPLR 312 (court,
board or commission)
Proof of Service burden is always on P unless a default judgment has been granted; leave
and mail and nail and mail require filing proof of service with 20 days of completion; for
unauthorized corporations and under VTL 253, proof of service must be filed in 30 days,
service is complete 10 days after proof is filed; failure to file proof of service is not
sanctionable nor a jurisdictional defect but time within which D must appear will not
begin to run.
Appearance, by answering or moving without objection, by D, waives proof of service
issues.
Appearance of the Defendant
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Appearance is a kind of participation in something.
Summons with Notice- After service of a summons with notice pursuant to CPLR
3012(b), D may serve Notice of Appearance and Demand for Complaint; Notice for
Appearance only; Demand for Complaint only.
CPLR 3012(b)- If the complaint is not served with the summons, the D may serve a
written demand for the complaint … a demand or motion under this subdivision does not
constitute an appearance in the action. Service of the demand shall extend the time to
appear until twenty days after service of the complaint.” The court upon motion may
dismiss the action if service of the complaint is not made as provided in this subdivision.
(d) Upon the application of a party, the court may extend the time to appear or plead, or
compel the acceptance of a pleading untimely served, upon a showing of reasonable
excuse for delay or default.
CPLR 320(a)- Where P serves a demand for complaint within 20 days, if personal
service is made in NY, or within 30 days after service is complete, if another method of
service is used. (Counting statutory time, excludes day of service- Gen. Con. Law 20)
Ex. If a contract requires notice of non-conformity within two days of delivery. Delivery
on Monday, July 3rd. July 4th is a holiday. Notice must be given by July 6th.
CPLR 320(a)- Summons with notice served March 1st. D must serve demand by March
21st.
Example 2- D uses leave and mail service, files proof of service on March 23rd, service
should be complete on April 2nd but April 2nd is a Sunday so service is deemed complete
on April 3rd (10 days after mailing); D mist serve a demand by May 3rd (30 days after
service is complete)
CPLR 320(a)- The D appears by serving an answer or a notice of appearance or making
a motion which has the effect of extending the time to answer.
Motions that extend the time to answer: motion to extend the time to appear or plead;
motion to correct pleading, CPLR 3024; motion to dismiss, CPLR 3211. The last two
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motions constitute an appearance. Usually, service is complete when mailed; A properly
executed affidavit of service raises a presumption that a proper mailing occurred.
In an answer you can deny, deny upon information and belief, or admit, or any three.
Affirmative Defenses: Lack of PJ; lack of SMJ, SOF, SOL, comparative fault, duress.
CPLR 3211(e)- Objection based on lack of PJ is waived if a party moves to dismiss on
any other grounds under CPLR 3211(a) without also asserting lack of PJ, or, if no motion
is made, it is not raised in the responsive pleading.
Gager v. White- Consonant with the common law’s policy assumptions, a change in
decisional law usually will be applied retrospectively to all cases still in the normal
litigating process.
When a D has asserted an affirmative defense of lack of PJ, the 60-day rule of CPLR
3211(e) does not apply and D may file a motion for SJ pursuant to CPLR 3212.
If there is no PJ and the sole basis of quasi in rem jurisdiction is money in NY
related to the lawsuit, D is allowed a “limited appearance” and may defend without
the consequences of PJ.
If D defaults or defends and loses, the judgment and subsequent execution is effective
only to the extent of the property previously attached. CPLR 320(c)(1).
In rem jurisdiction is controlled by CPLR 320(c)(2), and an appearance creates PJ, even
though no PJ existed before; if D makes a CPLR 3211(a)(9) motion and wins, case is
over; if D loses, he can withdraw and P wins by default or D remains in the action and
wins on the merits, submitting himself to PJ; also deals with matrimonial actions.
CPLR 320(c)- Limited Appearance- Where PJ is based solely on long-arm jurisdiction,
an appearance is limited to the long-arm issue from which jurisdiction arises out of.
When D files an unrelated counterclaim, a defense of lack of PJ is waived, only related
counterclaims are permissible.
Informal appearance- where D participates in a way relating to the merits of the case
without formally appearing (ex. Where participation by D’s counsel in EBTs regarding
the merits is an appearance.) However, where the activity which would normally
constitute an informal appearance occurred before D’s time to answer expired, there is no
waiver by such informal appearance and D can still object to PJ based on improper
service; Where a D moved to vacate default judgment without objection to PJ, any
jurisdictional objection is waived and may not be raised subsequently.
CPLR 321(c)- Death, Removal or Disability of an Attorney- If an attorney dies or
becomes incapacitated, no action can be taken without leave of court until 30 days after
notice to appoint another attorney is served.
Statute of Limitations
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SOL- CPLR Article 2
CPLR 201- An action, including one brought in the name or for the benefit of the state,
must be commenced within the time specified in this article unless a different time is
prescribed by law or a shorter time is prescribed by written agreement. No court shall
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extend the time limited by law for the commencement of the action. (An SOL defense
must be raised or it is deemed waived)
CPLR 2004, Extension of time generally doesn’t apply to CPLR 201.
CPLR 211- 20 years- Action on a bond; action on a money judgment; action by the state
for real property (adverse possession); action by a grantee of the state for real property;
actions to enforce orders of support, maintenance, alimony
CPLR 212- 10 years- Recovery of real property (adverse possession); annulment of
letters patent; redeem property from a mortgage; recover under an affidavit of support of
an alien.
CPLR 213- Six years- Action for which no limitation is specified; express or implied
contract, except where set forth in other statutes such as UCC; action on a sealed
instrument; action on a mortgage bond or note; action based on spoilage or
misappropriation of public property; action based on mistake; shareholder derivative
action; action based on actual fraud
UCC 2-725- 4 years- Action to be commenced within four years for the first wholesale
of the product or goods
CPLR 214- 3 years- action against a sheriff for non-payment of money collected on
execution; negligence per se, except as to limitations specified in statute; replevin;
property damage, including conversion except latent property damage; PI except latent
injuries from Agent Orange or intentional torts; malpractice regardless of whether
underlying theory is in contract or tort, except medical malpractice
Malpractice against health care professionals- 2.5 years;
Professionals are individuals who have specialized training, standards of conduct or
discipline and a continuing duty to advise the client. (Insurance brokers are not
professionals; surveyors, engineers, architects, accounts and dentists are professionals)
EPTL 5-4.1- two years- A wrongful death action must be commenced within 2 years of
the decedent’s date of death.
GML 50-i- SOL to commence an action is 1 year and 90 days; must file NOC within 90
days of the claim’s accrual
CPLR 215- 1 year- assault; battery; false imprisonment; slander; libel; violation of the
right to privacy; malicious prosecution
Article 78- 4 months against a body or officer
CPLR 203(a)- Accrual of a cause of actionMalpractice- malpractice is the negligence of a professional toward the person for whom
he or she renders a service… the wrongful conduct of a professional in rendering services
to a client that results in an injury to a party outside the client relationship is simple
negligence.
CPLR 203(a)- Accrual of a cause of action- The time within which an action must be
commenced, except as otherwise expressly prescribed, shall be computed from the time
cause of action accrued to the time the claim is interposed.
Accrual of a right to indemnity and contribution does not accrue until payment has
been made.
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A right to subrogation begins to run from the date of the wrong.
Any client bringing a PI action, property damage or wrongful death claim against a
licensed architect, engineer, land surveyor or landscape architect involving malpractice
occurring 10 years or more prior to the date of claim must give 90 days written notice.
CPLR 205(a)- relation back doctrine- Six-month extension to file a second action,
based on the same transaction, if the first was timely, and not terminated on the merits, by
a voluntary discontinuance, neglect to prosecute or lack or personal jurisdiction over the
defendant. (usually if P dies)
CPLR214-c- the discovery rule- 3-year extension for the discovery of injury or the
date injury should have been discovered; requires latent exposure to any substance
or combination of substances. Doesn’t apply to wrongful death; a substance may be a
drug, medical device, or machine (emitting radiation); exposure means contact, ingestion,
inhalation, implantation, injection
Products liability cases- ex. The proper rule in RSI cases is that the cause of action
accrues against the mfr. upon the onset of symptoms or the last-use of the injuryproducing device
Medical malpractice- cause of action accrues from the act, omission or failure
complained of OR the last treatment where there is continuous treatment for the same
illness, injury or condition which gave rise to the said act, omission or failure. (only
objects temporarily used in the course of surgery qualify as foreign objects; foreign
object does not include a fixation device, prosthetic aid or device or a chemical
compound; if it is any of the latter, the discovery rule does not apply)
Radiologists, psychologists, and optometrists are not MDs; malpractice means its is
outside the common knowledge and experience of an ordinary juror.
Continuous treatment doctrine- does not toll derivative claim but tolls the running of the
SOL: policy is that it is wrong to require a patient to interrupt corrective efforts by
bringing a suit; burden on P to show proof of continuous treatment; the doctrine does not
delay the accrual of the SOL which accrues at the time of the act.
Other malpractice (legal malpractice)- 3 years; action may be tolled until continuous
representation has terminated; may be tolled until both parties to the relationship
understand that the professional services giving rise to the harm has terminated; tolls
SOL where there is a mutual understanding of the need for further representation on the
specific subject matter underlying the malpractice claim (doesn’t apply to actuaries); Ex.
No continuous representation where the CPA’s retention was for individual annual audits.
Where MD fraudulently concealed P’s claim despite the running of the SOL, MD was
barred from asserting a SOL defense.
CPLR 213(8)- Actual Fraud- Where the D has actual knowledge of his representations,
the SOL is 6 years from the date the fraud was committed or 2 years from the date the
fraud should reasonably have been discovered, whichever period is longer. (ex. Act of
fraud occurs Jan. 2007, Discovery occurs July 2014; SOL runs Jan 2013, SOL with
discovery rule runs July 2016.)
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Constructive fraud (a fiduciary relationship exists, no willful or bad faith required)6-year SOL.
Wrongful death and survival actions- 2 year SOL from the time of death; can be
asserted only if D would have been liable to decedent had the decedent been alive; is
SOL for the underlying claim is valid (survival action) then so is the wrongful death
claim; survival action- decedent’s claim for PI or PD; if survival action is barred so is
wrongful death action.
CPLR 215(3)- Defamation- 1 year from publication, cause of action accrues from the
time of first publication;
GLO 17-101- An agreement to waive the SOL, signed by the party, regarding an express
or implied contract, made after the accrual of the claim will be enforced.
CPLR 203(c)- Claim in a complaint where an action is commenced by filing, a claim in
the complaint is interposed against the D or co-D united in interest with such D when
such action is commenced.
CPLR 203(a)- accrual of the cause of action and interposing the claim- The time within
which the action must be commenced, except as otherwise prescribed, shall be computed
from the time the cause of action accrues to the time the claim is interposed; (f) A claim
asserted in an amended pleading is deemed to have been interposed at the time the claims
in the original pleading were interposed, unless the original pleading does not give notice
of the transactions…to be proved pursuant to the amended pleading.
There is no relation-back doctrine where the P lacked capacity to sue, no preexisting
action.
For service on a new D to relate back to service of the original complaint: the claim must
stem from the same transaction or occurrence; new party is chargeable with knowledge or
notice (so no prejudice); new party should have known but for mistake and should have
been joined in the original action;
Tolls suspend the running of the SOL for a given period or start the statute running anew
from a point in time.
CPLR 207- Absence toll- toll when D is absent or hiding in NY under a false name;
rare; burden of proof on P to show absence; doesn’t apply if D can be served by available
methods; applied to residents and nonresidents.
CPLR 208- Tolls for infancy (doesn’t apply to med. Mal)- If the SOL is less than 3
years, the entire disability period (infancy) is a tolling period; if 3 years or more, the P
has 3 years to sue from the time the disability ends.
Maximum insanity toll is 10 years from the time the claim accrues; where the insanirt
results from the accident, the toll applies or where it is the subject of the lawsuit; burden
on P.
The maximum toll for med. malpractice for infancy is 10 years from the date of
accrual
Toll doesn’t apply to personal representatives for infants; wrongful death action is tolled
until a guardian is appointed or the infant becomes an adult.
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CPLR 210(a)- toll for death of P- If P dies before SOL expires, the estate may sue
one year after the death or before the SOL expires; (b) if D dies, there is a true toll
for 18 months (claim must have matured before death).
CPLR 202- Borrowing statute- Applies only if P is a nonresident; action accrued
outside of NY; the shorted SOL applies but cannot apply if either SOL has expired;
time of interposition and stopping of the running of SOL determined under NY law;
accrued where the injury is sustained;
Conditions Precedent- abolishes the substantive right unlike SOL; element of the cause
of action; burden on P; dismissal is a dismissal on the merits; GML 50-e, notice of claim
within 90 days is a condition precedent; GML 50-e factors (actual knowledge of facts;
infancy; mental or physical capacity; death of claimant; misidentification of public corp.,
substantial prejudice to D)
Joinder of Claims and Joinder of Parties
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CPLR 601(a)- Joinder of Claims- Ps in a claim, or Ds in an answer with crossclaims,
may join as many claims as they have against adverse parties.
CPLR 603- Severance of Claims- Severance and separate trials- In furtherance of
convenience and to avoid prejudice the court may order a severance of claims, or may
order a separate trial of any claim, or of any separate issue. The court may order the trial
of any claim or other issue prior to the trial of others.
CPLR 1002(a)- Ps- Persons who assert right to relief jointly, severally or in the
alternative arising out of the same transaction, occurrence or series of transactions and
occurrences may join in one action as plaintiffs if any common question of law or fact
would arise.
CPLR 1002(b)- Ds- Persons against whom there is asserted any right to relief jointly,
severally or in the alternative, arising out of the same transaction, occurrence or series of
transactions or occurrences, may be joined in once actions as defendants if any common
question of law or fact would arise.
Joint trial= separate judgments; consolidated trial= one judgment
Consolidation achieves the same result as joinder
CPLR 602(b)- SC or county court may remove an action pending in another court
to itself and consolidate or order joint trial. (persons who ought to be parties)
CPLR 1001- Compulsory joinder- Parties who should be joined- Persons who ought to
be parties if complete relief is to be accorded between the persons who are parties to the
action or who may be inequitably affected by a judgment in the action shall be made
plaintiffs or defendants. When a person who should be made a party refuses to join the
person may be made a defendant. If jurisdiction cannot be obtained by consent or
appearance, the court may allow the case to proceed when justice requires.
Nonjoinder is grounds for dismissal without prejudice but misjoinder is not a grounds for
dismissal.
CPLR 1003- Nonjoinder- Parties may be dropped by the court upon motion or sua
sponte at any stage upon such terms as may be just.
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CPLR 1006- Interpleader- A device which enables a “stakeholder” who is or may be
exposed to multiple liability as a result of adverse claims to bring the adverse claims in
front of a court to resolve the underlying dispute between the stakeholder and the adverse
claimants.
CPLR 1012- Intervention as of Right- Intervention is permitted when representation of
the person’s interests by the parties is or may be inadequate and the person is or may be
bound by the judgment; must be based on an interest in property, real or personal.
CPLR 1013- Intervention by Permission- Upon timely motion, anyone may seek to
intervene in an action when the claim or defense and the main action has a common
question of law or fact, the court may grant in its discretion.
Calendar Practice and Dismissal
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Must file a note of issue and certificate of readiness when discovery is complete;
note puts the case on the calendar;
CPLR 3116- Dismissal for Want of Prosecution- 90-days-notice must be served
asking for note of issue and certificate of readiness.
Appeals- Article 55-57
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30 days from service of judgment to appeal as of right; 30 days to permission to
appeal
10 days for an adverse party served with an appeal to appeal on its own
Can appeal final judgments and interlocutory judgments but appeals to Court of
Appeals is only for review of law, not facts unless abuse of discretion.
Third Party Practice- Impleader; Indemnity and Contribution
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Where impleader sought recovery for defamation, IIED but not contribution or
indemnification, the third party action was properly dismissed; avoids multiple litigation;
CPLR 1007-Impleader- must serve third-party D with copies of all prior pleadings
within 120 days; no NOC for municipal TPD; not granted if it will be too prejudicial to P
or TPD;
CPLR 1008- TPD shall answer or move and may make any cross-claims or
counterclaims as well as assert any defenses against P except as to improper service or no
PJ
CPLR 1009- Within 20 days of service of TPD’s answer, plaintiff may amend complaint
as of right to assert any claim P has against TPD; if D and TPD are united in interest,
claim relates back.