NEW YORK CIVIL PRACTICE MINI REVIEW 2/11/2012 I. II. III. IV. V.

. Subject Matter Jurisdiction: Courts power over the particular type of civil action Personal Jurisdiction: Valid basis of power over defendant Service of Process: Proper notice/service of process on defendant Venue Motions to Dismiss

PROBLEM 1: Ultimate goal behind civil action is to get a judgment. We want a valid judgment in New York and take it to the other states. The only way to get that is to get proper jurisdiction. 1. COMMENCEMENT OF ACTION: What court are we going to specify in our summons and complaint? NY Supreme Court Court of original subject matter jurisdiction o NY: New York Supreme Court any type of action can be brought here General, original subject matter jurisdiction Doesnt matter where claim arose Doesnt matter where the parties are from Supreme Court can grant any type of relief Only court able to give full equity relief o Other courts: Limited subject matter jurisdiction (NOT ON BAR EXAM) o Supreme Courts in each of the 62 counties: The particular county is a venue issue; venue is not jurisdictional If any SC in the state has jurisdiction, then all Supreme Courts in the state have jurisdiction over the exact same matter What kind of paperwork to commence action? Initiatory papers/Process o Summons and complaint OR o Summons with notice Complaint Ps pleading to set forth formal, written allegations of Ps cause of action spelling out all essential elements of cause of action Notice Abbreviated complaint; Brief statement of nature of the action How is the action to be commenced? File process with clerk of court Act of filing process marks commencement of action Filing process is the act by which we measure compliance with the statute of limitations Serve process no later than 120 days from date of filing 2. PERSONAL JURISDICTION: Basis + Proper Service of Process Basis of personal jurisdiction

General Personal Jurisdiction: If any of these 3, doesnt matter where claim arose. Cause of action does not have to be related to anything that happened in NY> o Presence in New York: Personal delivery to D while D is physically present in New York Corporations: Domestic (Incorporated in NY): Always deemed to be present in New York (doesnt matter where claim arose) Foreign: Deemed always present in NY if foreign corporation has become authorized/licensed to do business in NY o Unlicensed: Actually doing business in New York (see below) o Doing business in New York: If, at time action is commenced, the corporation maintains an office or other facility in New York in which the corporations employees or agents are engaging its systematic and continuous/ongoing business on behalf of the corporation (boots on the ground) Not enough that corporation is advertising or soliciting business in NY Not enough that corporations products are being sold in New York through independent retailers Service of process can occur anywhere. The basis must exist in NY. o Domicile in New York: Domicile: One residence at which a person intends to remain indefinitely; treated by person as principal home (Physical + Subjective component) Residence: Where person lives for a fair amount of time with a degree of permanency; person can have multiple residences Specific Jurisdiction: If any of these 3, the cause of action must be related to New York or must come out of a K specifying litigation in New York. o Long-arm jurisdiction: (CPLR 302) D and claim have a specific relation to NY based on these acts that D has committed related to NY Cause of action arises out of related NY activities: Ds transaction of business in New York o 1 single business transaction can be enough to allow for PJ o Transaction of business is different than doing business: Words matter Contract made outside of NY in which D agreed to supply goods or services in NY Limited to Tort Claims: o Arises from Ds commission of a tortuous act in act in NY o Tortuous act committed outside of NY which causes injury within in NY + Additional link between D and NY (doesnt rise to level of doing business)

D is regularly soliciting business in NY OR D is deriving substantial revenue from G&S being sold in NY OR D is deriving substantial revenue from interstate commerce, making purposeful effort to participate in NY market o In either tort claims, the defamation claim cannot be sued upon. Excluded from coverage: If you want to sue, find some other basis than the tort acts under longarm jurisdiction like doing business in NY OR defamation arises out of transaction of business in NY Ds ownership, use, or possession of real property located in NY Get Points: Facts fit in one or more of the LAJ categories Indicate NY has different categories of long-arm jurisdiction End essay with a few words about constitutional due process: In context of LAJ, due process is satisfied if Ps claim arises out of conduct by D, conduct is that so purposefully directed at NY that D reasonably should anticipate being sued in NY o Non-resident motorist statute: Out-of-state driver or owner of a motor vehicle for a claim arising from an accident that takes place in NY Quirk: It means non-domiciliary Maybe redundant with LAJ, but 2 unique elements: Service of Process: P may serve one copy NY Secretary of State and second copy on D himself by certified mail to D at Ds OOS residence Jurisdiction over the non-domiciliary owner if owner gave permission to driver o Contractual consent: 2 parties to a K agreeing in advance that certain matters that arise as a dispute can be litigated in courts of NY (forum selection clause) DEVIN (driver of other car): 1. Lives in Boston: No presence in NY, no domiciliary, no business in NY; we have LAJ commission of tort act (negligently driving car in NY); send process server in Boston OR nonresident motorist statute (lot cheaper to serve process); easily satisfies DP because Devin purposefully engaged in an act in NY MEGA MOTORS (manufacturer) 1. Foreign corp not licensed in NY not doing business in NY, cars being sold in NY, mere sales in NY does not qualify as doing business. Mere fact that MM is advertising in NY is not enough to be doing business in NY either. MM has not office or facility in NY with employees engaging in regular activities. BUT LAJ over MM. Cause of action arising out of tort act arising out of state that caused injury within NY. Car accident in NY. MMs tort act took place in Michigan. Tort act outside of state + additional linkage (MM is deriving revenue from sales of

its cars in NY; regularly soliciting in NY) TRI STATE (NJ Corporations) 1. Doing business in NY YES; Doesnt matter where claim arose, but here it did arise in NY. Get extra points by mentioning there could also be LAJ sale of defective car in Connecticut in Reno, caused injury in NY. RENO: Tort act outside state which caused injury in NY; no additional linkage between Reno and NY (not advertising, not selling); Yes, Reno is engaged in interstate commerce but not enough has to be interstate commerce in which D is purposefully participating in NY market. DR. PAIN: Committed tort in NY: Can serve in Virginia through LAJ 3. SERVICE OF PROCESS Who is a proper process server? Any person over the age of 18 who is not a party to the action (Ps lawyer, Ps relative, but not P herself) Methods of serving process: On natural persons: o Personal delivery: Complete upon tender; when complete, Ds response time starts to run o Leave and mail: Process server delivers to a person of suitable age and discretion at the Ds actual dwelling place or actual place of business + Mail a copy by first class mail to actual dwelling place or actual place of business Delivery and mailing does not have to be the same place as long as both steps are done Serve process no later than 120 days from after you file process o Affix and mail: Affix process to the door of either Ds actual dwelling or actual place of business + mail a copy Serve process no later than 120 days from after you file process Prerequisite: Before affixing it to door, the process server must use diligent efforts to either make personal delivery or to suitable person of age or discretion (Due Diligence reasonableness under the circumstances; more than 1 attempt look for multiple attempts at different days of the week at different times) o Applies to both above methods: Service complete when proof of service is filed with clerk of court affidavit of process server of date and time of method + description of person who got the service Service is complete 10 days after proof of service is filed. Ds response time runs from time service is complete. Proof of service does not have to be filed within 120 days. Okay to be filed after 120 days. All that matters is that the two service steps are performed in 120 days. o Expedient Service/Court-Ordered Service: Situation where neither D can be found nor his or her dwelling place or place of business can be found.

Make ex parte motion to the court improvised method of service demonstrating to court that other methods are not practicable; D has vanished and inquiry has been made Cant improvise on your own: Must get court order o Delivery of process to an agent who was specifically designated by D as an agent for service of process o For serving process out of state, use NY methods of service. Type of process servers allowed for OOS service: Any NY resident at least 18 years not a party to the action Anyone authorized to serve process under the law of the place where process is served Anyone licensed to practice law in that state Corporations o Personal Delivery On anyone of the following corporate representatives (nobody else): Officer Director Designated agent Managing agent: has supervisory responsibility Can be made anywhere in the world if you have basis of jurisdiction o If domestic corp or a foreign corp that is licensed in NY, deliver two copies of process to NY Secretary of State. SoS will mail one copy by certified mail to corporate Ds headquarters. o If unlicensed, but jurisdiction with doing business or LAJ, deliver 1 copy to SoS and P mails second copy to corporation by certified mail.

4. VENUE Venue rules govern particular county. Proper county in NY for trial of Supreme Court action. Plaintiff gets to choose venue, but P must choose one based on rules: In an action in which judgment will affect title or possession of real property, proper venue is where real property is located. In all other actions, proper venue is any county in NY in which anyone of the parties resided at time action is commenced. If none of the parties reside in NY, then any county chosen by P. If put in wrong venue, on motion of a party, transfers to proper county. Discretionary Ground for Change in Venue based on convenience of material witnesses: Either party can make a motion for change of venue to a county that would be most convenient. Depends on discretion of court. 5. DISPOSITIVE MOTIONS, APPEARANCES, AND APPEALS Pleadings: Ds Response Answer: o Deny

o Affirmative Defenses SoL Lack of jurisdiction Merits After process served, all other papers are interlocutory. Can all be served by first class mail. Service of these papers are made upon mailing, not receipt. Time Limits on Ds response to Ps service of process: o Serve an answer to Ps complaint If service of summons and complaints was made by personal delivery on D in state of NY, D must serve answer within 20 days of personal delivery of S&C. (8/1, must serve by 8/21) If D was served on any other circumstances, D must serve answer within 30 days. CPLR 3211: 8 Affirmative Defenses on Motion to Dismiss - DOWNFALL o D: Documentary evidence Legally operative document (K, deed, terms of document provides defense) o O: Other action pending between parties on same cause of action Redundacy o W: Want of capacity Ps lack of capacity to sue o M: Non-joinder of a necessary party o F: Failure to state a cause of action No right to recover o A: Additional affirmative defenses SPARERIBS S: Statute of Limitations P: Payment (D paid it) A: Arbitration award (dispute already resolved through arb) R: Release (P gave D release from further litigation) E: Estoppel R: Res Judicata I: Infancy B: Bankruptcy discharged S: Statute of Frauds o L: Lack of PJ Lack of basis of jurisdiction Improper service of process Jurisdictionational defect in form of summons o L: Lack of SMJ Procedural Points: Time Limit: On or before the last date for service of Ds answer Making the 3211 M2D is optional: If D has any of those affirmative defenses is not required to raise them. o may save them and put them in the answer instead o or could raise all of them, in good faith, in a motion to dismiss

o may make only 1 pre-answer motion to dismiss; but may make motion on alternative grounds o If you make pre-answer motion to dismiss, automatically extends time to serve answer Waiver: D makes pre-answer motion to dismiss on only one of the defenses and loses the motion. Now he has to serve answer. By making motion on 1 ground, has he waived any other defenses so that he cant raise in the answer? o RULE: Pre-answer motion to dismiss on any of the grounds listed in 3211 does not preclude any of the other grounds in the answer except lack of PJ. o How does a D preserve a lack of PJ as a defense? Before serving an answer, make a 3211 motion to dismiss and include lack of PJ as one of the defenses in the motion OR Make no 3211 motion at all: Instead when D serves the answer, include lack of PJ in answer. Failure to follow in either one results in waiver of lack of PJ. What if P started off with summons with notice? No complaint yet, so D cant respond with an answer. Demand for complaint Notice of appearance Do either to avoid default and puts burden on P to serve complaint. Both pieces of paper have same effect. Time Limit: 20 days after service of process if personal delivery or 30 days if summons with notice was served under any other circumstances Now P has to serve complaint once D completes his part: P has 20 days from service of demand or notice of appearance Now P has served complaint, D has to either serve an answer or make a preanswer motion to dismiss. Regardless whether D served demand for complaint or notice of appearance, D does not thereby waive PJ defenses. D may still object to lack of PJ either in answer to complaint in either answer or motion to dismiss.