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

Michael Gugig
New York Practice, Fall 2012
The CPLR rules all courts in the state of New York; individual court rules will prevail over the CPLR. The CPLR, however, governs all New York Supreme Courts.
There are four acts:
The NYC Civil Court Act
The Uniform District Court Act (only exist in Nassau and Suffolk counties on LI)
The Uniform City Court Act
The Uniform Justice Act (town and village courts)
If you are in any of these courts, you must look at their individual acts, particularly article 2, which will govern the subject matter jurisdiction of the court (maximum monetary amounts, etc.).
This class focuses on the Supreme Court of New York.
The CPLR is divided into articles. Each article governs a particular area; in court attorneys refer to the articles by number.
The Supreme Court can hear any kind of action; law suits in equity, criminal law, etc. This is like the Federal system whereas Jersey has a Court of Chancery and a Criminal Court.
An “action” in NY is a civil lawsuit. Within this there is a “special proceeding” which is a short way, i.e., sans discovery and motion practice, to resolve the issue. The most common is an article 78 special proceeding, which is against a body or officer.
CPLR 104
The construction of a provision should be interpreted as to the intent of the rule, not interpreted how lawyers say the rule should be construed.
Siegel: The CPLR is provided to litigants as a means to an end. The rules are not the be all and end all in and of themselves. Guggig: “Bullshit. You can win cases on procedural grounds alone.”
For class action suits, the questions that address the entire class override those that pertain to named plaintiffs.
If alleging fraud, the fraud must be alleged with particularity in NY, just as it is in Federal Court.
Two ways to answer a complaint: Move to Dismiss or Answer.
There is no fiduciary duty between an insurer and an insured, except under certain very narrow circumstances (facts and circumstances). It’s an individualized case, which under the CPLR means that the issue cannot be certified as a class.
Ethical obligation is only to reveal only controlling cases in oral argument. You should, however, be sure to include them in your briefs so you can present your point of view on contradictory cases (making them not directly on point).
CPLR 2004
The Court in its discretion can increase CPLR time limits for litigants (just not statutes of limitations).
Talk turned to about what to do when an adversary asks for extra time to produce an answer. Professional courtesy somewhat demands that it should be granted after consulting with your Client, but if the request is denied, an attorney can make an ex parte motion to obtain a delay, raising a motion to call a judge and then have the judge give your adversary an enormous delay.
Subject Matter Jurisdiction
The topics a Court is allowed to hear. There are courts of limited jurisdiction (by subject matter, amount, etc.) . Only the Supreme Court is a court of general jurisdiction in New York.
Jurisdiction is conferred either by statute or state Constitution. Parties cannot waive subject matter jurisdiction.
Subject matter jurisdiction can be raised at any time, even on appeal. It is one of the few items you can raise on appeal that was not raised below.
A court of general jurisdiction is vested with all of the subject matter jurisdiction a court can have.
There are only two types of cases the Supreme Court cannot hear:
Suits against the state of New York, which must be heard in the Court of Claims
Claims which Congress have granted exclusive jurisdiction to federal courts (ERISA, bankruptcy, etc.)
A court of limited jurisdiction is limited, such as to maximum monetary amounts, criminal jurisdiction, etc. The NY Court of Appeals is of limited jurisdiction, and is governed by statute and the NY Constitution.
See p14 of Siegel for a flow chart of NY court flows.
NY Court of Appeals
With two exceptions, the NY Court of Appeals only hears questions of law, not fact except:
When the death penalty is imposed (these go directly from Supreme Court to the Court of Appeals and the facts can be examined)
On appeal from the Appellate Division, if the Appellate Division finds the Supreme Court got the facts wrong, then the Court of Appeals can re-examine the facts.
The Court of Appeals can issue an advisory opinion when the question is certified by the SCOTUS, any Federal Circuit Court, or from the highest court of any other state, and the issue is a question of NY law.
Appellate Division of NY
There are four departments of appellate courts:
Manhattan and the Bronx
Other three NYC Boroughs, some LI and local counties
Eastern half of upstate NY (sits in Albany)
Western half of NY
Decisions entered in those departments are binding on the Supreme Courts in that department; they are persuasive in other departments.
Jurisdiction is almost always appellate, very rarely is it in original jurisdiction (except for attorney admission to the bar).
Cases only where a question of law is at issue can begin at this level, but it rarely happens.
Supreme Court of NY
A court of general jurisdiction and original jurisdiction. It can hear cases that should have been heard in some other court, such as one that does not meet the monetary claim requirements (e.g., less than $25K).
Each Supreme Court can create it’s own Appellate Term, only the 1st and the 2nd departments have created these.
Court of Claims
Exclusive jurisdiction over claims made by the state against an individual, or claims by an individual against the state. Each county has a Court of Claims.
Problem with the Court of Claims: If there are multiple defendants in a civil case, the state needs to be sued in the Court of Claims, and a

nically exists but parties have little or no relationship to the state of NY. Typically applies only to tort claims, but can apply to contract, property, commercial, and non-commercial claims. The state of residence of the parties is not dispositive.
The Standard: There are numerous competing interests at which the court will look, here are 6 (list is non-exhaustive):
1)      The availability of an adequate alternative forum to hear the case; if it’s another state, the NY Court will likely defer, if it’s a foreign country (read: a corrupt foreign country), the NY Court may keep the case.
2)      Hardship to the defendant having to defend the case in NY (a fairness question)
3)      Location of the evidence
4)      Location of the witnesses
5)      Whether or not the parties have contractually agreed to New York as a forum.
6)      Burden on the court to hear the case (how easy/complex is the case?)
CPLR 327(b) Inconvenient forum Governs where parties enter a contract containing a clause the NY Courts will have jurisdiction over any disputes arising from the contract. If a commercial transaction is worth $1 million or more and parties agree in the contract that the forum will be the courts of New York and New York law governs, forum non conveniens does not apply. This is because New York Courts want to interpret NY law, and NY is the world’s financial center and NY Courts want to create the law nationally.
Plaintiff protections: The Court may stay the action rather than dismiss entirely, and have an option to create a conditional grant of the forum non conveniens motion, in which the defendant will stipulate to jurisdiction of NY courts, and also will have the defendant stipulate to having served process and filed the case in the foreign jurisdiction at the time the claim was filed in the state of NY (protecting from possibly shorter statute of limitations claims by defendant).
Conditions Precedent to Suit
The most common type of condition precedent to filing suit in NY is notice. For example, when filing a claim against an insurer, you must timely serve notice on the defendant prior to filing suit. This often arises when filing a claim against a municipality. A plaintiff must file a notice of claim with the municipality for any tort suit against said municipality within 90 days after the cause of action arises.