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New York Practice
Rutgers University, Newark School of Law
Gugig, Michael S.


CHAPTER 1: Introduction

· Civil Practice Law and Rules (CPLR) governs in all courts of civil jurisdiction except to extent that an inconsistent statute governs.

· Contains both statutes (§) and Rules (R); both are law as long as they don’t conflict. If they do conflict, presumably the statute controls. The designation between which provisions are statutes and which are rules are often arbitrary.

· Supreme Court and county courts governed exclusively by CPLR.

· CPLR 103: Does away with the difference between actions at law and equitable actions; Same judges hear every kind of case; no distinction between courts of law and courts of equity.

· CPLR 104: The CPLR shall be liberally construed (basically, the intent of the provision should govern; Critically important provision.

· CPLR 2004: With certain exceptions (statute of limitations) it allows judge to extend period of time in the interest of justice – Lawyer’s “Get out of Jail Free Card” when you blow a deadline, ask for a 2004.

· There are 4 Uniform Court Acts that govern lower courts in NY: New York City Civil Court Act; Uniform District Court Act; Uniform City Court Act; Uniform Justice Court Act.

· Article 2 of each Act sets forth the jurisdiction of each court – tells what kind of cases the court can hear.

· In addition, each category of court has its own set of Uniform Rules.

· CPLR governs in both actions and special proceedings:

action – plenary prosecution of a right, seeking final judgment

special proceeding – as plenary as an action in that it seeks the vindication of a right in a final judgment but is brought on with the procedure and speed of a motion – available only when a statute specifically prescribes it (ex: Article 78 proceeding, summary proceeding to recover possession of real property; whether a case is arbitable)

CHAPTER 2: The Courts and Their Jurisdiction


· Subject Matter Jurisdiction: Authority of the court to hear a specific case; Outer limits of court’s authority; Conferred either by statute or the Constitution itself. Parties cannot agree to waive subject matter jurisdiction – even if parties go ahead and litigate case can be thrown out at any time for lack of jurisdiction. Defense of lack of subject matter jurisdiction can be raised at any stage of the litigation; even on appeal.

· New York Supreme Court is state’s only court of general jurisdiction: all the jurisdiction that a court of original instance can have. All other courts in NY state system both original and appellate are courts of limited jurisdiction – subject matter jurisdiction is limited due to monetary amount, type of case (civil or criminal) etc.

Court System

§ NY is divided into four judicial departments, each of which is subdivided into judicial districts consisting of counties – Venue in Supreme Court actions is based on a county nexus.

Court of Appeals

o Highest court of State – court of last resort

o Has both civil and criminal jurisdiction

o Reviews only questions of law, EXCEPT in two instances:

on appeal from criminal judgment imposing death penalty

on appeal from appellate decisions reversing or modifying a judgment, finding new facts, and directing that a final judgment be entered on the new facts (It is NY policy to have at least one appellate review of facts)

o Can issue advisory opinions when requested by a federal court or Supreme Court of another State

o Most appeals come from appellate division but in some narrow cases direct appeal from a lower court is allowed

o Appoints and oversees Board of Law Examiners and promulgates rules for admission of attorneys to practice.

Appellate Division

o One appellate division in each of four judicial departments

o Justices are elected members of Supreme Court who governor designated to sit on appellate division

o Panel consists of 5 judges

o Reviews both law and facts

o Court has some original jurisdiction – predominantly over the admission and supervision of attorneys, and also where facts are not in dispute, and Article 78 proceeding sought against a Supreme Court justice.

o Decision of one department is binding on trial courts in that department but only persuasive authority over trial courts in other departments

o Interlocutory Appeals are allowed in NY!!

Appellate Term

Exists only in First and Second Departments

Exists at pleasure of Appellate Division

Can hear appeal from county courts and lower courts

No more than 3 justices may sit as a panel

Appeals from appellate term go to Appellate Division

Justices are Supreme Court judges temporarily assigned

County Courts

One in each county outside of NYC

Has criminal and substantial civil jurisdiction

Has jurisdiction of money actions up to $25,000

Can hear counterclaims unlimited in amount

Can hear all actions relating to real property located in t hat county

Can hear replevin actions under $25,000

Can hear summary proceedings to recover real property, irrespective of value

Can hear competency proceedings involving county residents

Appeals go to Appellate Division (Except in Second Department which go to Appellate Term)

Has no equitable powers

Surrogate’s Court

o One in each county

o Handles all matters concerning decedent’s estates

o Each court has at least one judge (the surrogate)

o Court’s process servable anywhere in State

o Appeals go to Appellate Division

Family Court

One in each county

At least one judge on each family court

Has jurisdiction over all family matters, whether traditionally civil or criminal

Appeals go to Appellate Division

Process servable statewide

Ironically, matrimonial action is in exclusive jurisdiction of Supreme Court

Court of Claims

o Can hear claims against State

o Appeals are to Appellate Division for Department that Court of Claims sits in

o Process servable statewide

o Court is statewide but divided into districts for administrative purposes

o Multiple Parties (state/non-State) are problematic – Judicial inefficiency be damned!!!

o May have jurisdiction over certain State agencies, if considered “arm of state”

New York City Criminal Court

o Exists only in New York City and has only criminal jurisdiction

o Handles misdemeanors and lesser offenses

o Appeals go to Appellate Term

New York City Civil Court

o Very much like County Courts

o Monetary jurisdiction up to $25,000

o Counterclaims with no monetary limit

o Replevin less than $25,000

o Summary proceedings with no monetary limit

o No equitable powers

o Unlike county courts: real property actions limited to $25,0

tice – it takes a motion by a party to invoke the doctrine, court cannot invoke it sua sponte

· There is no set time limit on when the motion can be made

· Primarily a feature of Supreme Court practice, but occasionally seen in lower courts

Conditions Precedent to Suit

Can’t service process without filing a NOTICE OF CLAIM: Requirement that potential defendant be notified of the existence of the claim within a given period after the claim arises.

General Municipality Law § 50-e: When a party wants to bring a tort claim against a municipality it must submit notice of claim to the municipality within 90 days

Notice of claim informs municipality of the nature of the claim and the injuries sustained. If the notice of claim misdescribes the incident it is a nullity!!

Notice of claim should be sent to same person that process would be served on

Court has discretion to extend the 90 day period up to the length of the statute of limitations, but this happens very rarely and the reason must be valid

If service of the notice of claim is not proper, the defect can be waived if:

municipality deposed the plaintiff; OR

municipality sends back the defective notice of claim within 30 days, describes the defect and allows the plaintiff to cure the defect within 10 days.

Notice of Claim also required in context of insurance policy: most notify insurer as soon as possible after occurrence; failure to do so will absolve insurer from providing coverage.

CHAPTER 3: The Statute of Limitations

Statute of Limitations was enacted to afford protection to defendants against defending state claims after a reasonable period of time had elapsed during which a person of ordinary intelligence would bring an action.

The limitations periods are arbitrary – they represent what the legislature deems a sufficient period in a particular kind of case.

CPLR 201: Judges may not extend Statute of Limitations for any reason (this is an exception to CPLR 2004: Extensions of Time Generally)

CPLR 211: 20 year period for enforcing judgments

CPLR 212: 10 year period for adverse possession

CPLR 213(2): 6 year period for actions based on express/implied K –non UCC; includes indemnification or contribution; doesn’t begin to run until after judgment is entered

CPLR 213(8): 6 year period for fraud

CPLR 214: 3 year period for unintentional torts

CPLR 214 (a): 21/2 year period for medical malpractice – only misconduct

CPLR 215(3): 1 year period for intentional torts

2 year period for wrongful death action – runs from date of death

1 year/90 day period for tort action against municipality

4 year period on action for breach of contract for sale of goods – UCC

4 month period on Article 78 proceedings