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New York Practice
Rutgers University, Newark School of Law
Gugig, Mike


I. Overview

The Civil Practice Law and Rules (“CPLR”) governs civil practice in every court in the state of New York.

Some lower level courts have their own Court Acts that prescribes the courts subject matter jurisdiction of each court and regulations that govern practice.

Example: New York City Civil Court (New York City Civil Court Act, governs civil court for New York City); Nassau and Suffolk County District Courts (Uniform District Court Act – these are the only two counties that have district courts); All City Courts (Uniform City Court Act, governing civil practice in all 61 city courts outside New York City); Town and Village Courts (Uniform Justice Court Act, governing civil practice in all of the town and village courts of the state).

CPLR § 101: But the only time the CPLR will not govern is where there is a specific rule in a Court Act that directly conflicts with the CPLR.

CPLR Basics:

CPLR § 103: One Form of Civil Judicial Proceedings

(a) Does away with the distinction between courts of equity and law in NY. There is only one form of civil action. *This is a key difference between NY and NJ, which has a Chancery (equity) and Law Division.

(b) Action vs. Special Proceeding – An Action is what you think of as a lawsuit. A “Special Proceeding” is a subset of actions that short-circuit the litigation process. E.g., no discovery in special proceedings, π (called petitioner) commences the action by briefing an issue (normally pure questions of law) as soon as the petition is filed, Δ (called “respondent”) opposes and the court rules. All Article 78 motions are special proceedings. ** The general rule is that all judicial proceedings shall be prosecuted in the form of an action, except where the law specifically authorizes a special proceeding.

CPLR § 104: Liberal Construction

Requires that the CPLR and its rules be “liberally construed to secure the just, speedy and inexpensive determination of every civil action.”

It’s supposed to mean that the CPLR and the rules therein are not designed to be an end unto themselves, but merely a means of getting to an end. However, if you know procedure better than your opponent, you will win more cases than “justice” would otherwise direct.

CPLR § 2004: Extensions of Time

Where a time limit is placed on a particular act, a court can change the time limit unless a statute says that a court can not, like a prescribed statute of limitation.

Things like filings, etc. can be extended, but the statute of limitations rule says that no court may extend it. The rule says a court may extend time “upon such terms as may be just and upon good cause shown.” (Known as an “Order to Show Cause.” This done ex parte (only the movant and judge are present)).

If an adversary asks for more time, you should agree b/c you want the favor extended to you too.

II. Subject Matter Jurisdiction

A. Generally

· Subject Matter Jurisdiction (“SMJ”) concerns whether a court is allowed to consider a topic – the outer limits of a court’s authority to hear a particular case or controversy.

o SMJ defines the types of cases a Court is permitted to hear.

· In NY, SMJ is conferred either by (a) statute (Court Acts) or (b) by the state constitution. Parties cannot stipulate to expand it. Nor can a court rule expand its own SMJ.

· Lack of SMJ can be raised at any time, whether before an initial verdict, or even for the first time on appeal. SMJ is the only time something can be brought up on appeal.

· SMJ cannot be waived (unlike PJ).

B. Court Structure and Subject Matter Jurisdiction

i. Generally

· LIKELY EXAM QUESTION (#1): There are two types of courts in New York: (1) limited jurisdiction; and (2) general jurisdiction.

o A court of general jurisdiction can hear any type of case, with very limited exceptions. It has all the subject matter jurisdiction that it is permitted to have. It is pretty close to unlimited. Jurisdiction in these courts is presumed.

§ In NY, the Supreme Court is the only court of general jurisdiction.

· NY courts can hear federal issues.

o A court of limited jurisdiction is vested w/ less than the full jurisdiction it is permitted to have. The jurisdiction of these courts, if challenged, must be specifically demonstrated (it must be shown that the claim is within the provision conferring jurisdiction).

§ Example: federal district courts are courts of limited jurisdiction. There is no federal court of general jurisdiction. In NY, eg, City Civil Courts can only hear claims of limited monetary value; Family Ct; NY Ct. of Appeals; NY Appellate Div; etc. (see below).

ii. Court Structure & SMJ

a) Highest Court – Court of Appeals

· The Court of Appeals can only decide issues of law. Two exceptions: (1) appeal from criminal judgment where the death penalty is imposed (appeal goes right to Court of Appeals and facts can be considered; and (2) appeal from an appellate decision that reversed or modified a trial court decision, finding new facts b/c trial court erred.

· LIKELY EXAM QUESTION (#2) The Court of Appeals is the only court in NY that is permitted to issue Advisory Opinions (where there is no case or controversy). This occurs only when:

· ****When a question of New York Law is certified and presented to the Court of Appeals by (1) the highest court of another state or (2) by any federal appellate court (which includes any federal court of appeals or the U.S. Supreme Court), the court of appeals can issue an advisory opinion (at its discretion). ****

o The Court of appeals will not reach out to the courts, they will wait to be asked.

o Note: among those allowed to certify a question for an advisory opinion is not a Legislature.

· Appeals from the appellate division go to the court of appeals. Review is discretionary. The court is more likely to accept review if there were 2 dissents in a 5 person panel or if the appellate divisions disagree.

b) Intermediate Court – Appellate Division

· All appeals by the Supreme Court go to one of four appellate division judicial departments

o 1st Judicial Dept.: covers Manhattan and the Bronx.

o 2nd Judicial Dept.: covers Staten Island, Queens, Brooklyn, Long Island, Westchester County, Rockland, Orange, Puntnam.

o 3rd Judicial Dept: covers Eastern New York.

o 4th Judicial Dept.: covers Western NY.

· Possible Exam Question (#3) – Decisions by Appellate Division Judicial Departments are binding on the trial courts within each respective department. Example: NY County not bound by 4th Judicial Dept. Decisions. Decisions by outside judicial depts. are, however, persuasive authority.

· Appellate Division jurisdiction is primarily appellate except for the limited situation where it has original jurisdiction over admission and supervision (including discipline) of attorneys. The court hears appeals from the supreme court, county courts, family court, the court of claims, and appellate terms of the supreme court.

· Appellate Division courts review issues of law and fact.

c) Trial Court – The Supreme Court

· The Supreme Court is the only court of general jurisdiction in the state of NY (Possible Exam Question)

· There are two broad categories of original jurisdiction that the Supreme Court lacks: (1) where the U.S. Congress has conferred exclusive jurisdiction to federal courts (e.g., patent claims, ERISA actions, etc.); and (2) Claims brought against the state of NY, which must be brought in the Court of Claims. Possible Exam Question (#4).

· Otherwise, the Supreme Court can hear any type of case! (including lawsuits alleging a violation of federal law where there is dual jurisdiction for bot

emeanors and lesser offenses.

· Appeals go to county court unless Appellate Term is established.

City Courts: One in each of the 61 cities outside NYC.

· Monetary jurisdiction limited to $15,000 (money & replevin claims).

· Appeals go to county court unless Appellate Term is established

Town & Village Courts: Local level courts in respective counties. Town Court known as “justice of the peace” and village court as “village police justice”

· Monetary jurisdiction up to $3,000.

· Criminal jurisdiction of misdemeanors or below.

· Appeals to County Court.

C. Transfer Between Courts

i. Mistake in Choice of Court

· If a case is brought in the “wrong court” (ie, a court that lacks subject matter jurisdiction) it need not be dismissed. Instead it should be transferred to the court that does have jurisdiction.

· CPLR § 325(a): If a court lacks SMJ, it has two optionsà(1) If a mistake was made in the choice of court, the Supreme Court, may, upon motion, remove the case to the proper court; as an alternative, (2) the incorrect civil court can sua sponte transfer the case up to the right court. (Example: Complaint for $50k filed in NYC Civil Court).

o The NY State Constitution allows this.

· Transfer Up for More Relief – CPLR § 325(b): When an action is brought in a court that does have jurisdiction, but the plaintiff now wants more or different relief than the court can grant (eg, if π learns that the case is worth more $), this § 325(b) allows π to make a transfer motion to the correct court (where transfer is sought) (ie, the next highest court locally available that does have jurisdiction).

o File a motion and motion should contain motion for relief to amend the complaint to change the amount sought.

o Whether the court allows the transfer is entirely discretionary, taking into account how well π justifies the greater relief and the excuses for delay in obtaining the evidence that supports it.

· Transfer Down on Consent – CPLR § 325(c): When the action is brought in the correct court (Supreme Court), but π later determines that the need for damages is less and the case can fit into the jurisdiction of a lower court, a motion may be made in the court in which the action is pending to (1) amend the complaint (to lower damages to amount w/in jurisdiction of lower court) and (2) for transfer down to appropriate court.

o The Plaintiff may want to keep this in the Supreme Court (which does have jurisdiction). Also, Plaintiff’s attorney may not want to admit that the amount they demanded is too high. Therefore, the court may do this sua sponte.

o Why would π ever do this? Speedy results for lawyer and the client. Supreme court judgments take up to 4 or 5 years.

o If Δ has counter-claimed, π must obtain consent of Δ in order to transfer down. If the lower court would not have personal jurisdiction over Δ, then transfer is precluded.

This rarely happens voluntarily, but often judges will deny a case a general preference (meaning it gets put on the back burner – never gets put in que when the case is ready to go) until π motions to transfer down. It’s like a death knell to the case.