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

New York Practice Outline – Fall 2013
Professor Michael Gugig
1)      Civil Practice Law and Rules (“CPLR”): The CPLR governs civil practice in every court in the state of New York.
a)      Court Acts: Some lower level courts have their own Court Acts that prescribes the courts subject matter jurisdiction of each court and regulations that govern practice.
                                                        i.            Four Specific Court Acts: There are four specific court acts that govern four of the lower courts in the State of New York:
a)      NYC Civil Court Act: This governs the practice for civil court in NYC
b)      Uniform District Court Act: Governs the practice in District Court
c)      Uniform City Court Act: Governs practice in city courts
d)     NYC Village Act: Governs practice in Town and Village Courts
                                                      ii.            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).
b)      Exception To Where CPLR Will Not Govern: 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.
c)      Article 2 of Court Acts: Article 2 identifies subject matter jurisdiction for the courts and states the types of cases the courts can hear
                                                        i.            Lacking SMJ: If a court lacks SMJ, the court is constitutionally or statutorily unable to hear a case and the judgment is null and void.
d)     Article Name: The article name is found after dropping the last two digits
2)      CPLR Basics:
a)      CPLR § 103: One Form of Civil Judicial Proceedings
                                                        i.            Only One Form of Civil Action: Section (a) does away with the distinction between courts of equity and law in NY.  There is only one form of civil action.
a)      Key Difference Between NY and NJ: This is a key difference between NY and NJ, which has a Chancery (equity) and Law Division.
                                                      ii.            Difference Between Action and Special Proceeding Under (b):
a)      Action: An Action is what you think of as a civil lawsuit.
b)      Special Proceeding: A “Special Proceeding” is a subset of actions that short-circuit the litigation process.  It is a summary type of action.
i.                    Example: 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. 
ii.                  Article 78 Motions: All Article 78 motions are special proceedings. **
c)      General Rule: 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.
b)      CPLR § 104:  Liberal Construction
                                                        i.            Liberal Construction: CPLR 104 Requires that the CPLR and its rules be “liberally construed to secure the just, speedy and inexpensive determination of every civil action.”
                                                      ii.            Means Not an End: 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.
c)      CPLR § 2004:  Extensions of Time
                                                        i.            Extension 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.
                                                      ii.            No Extension for Statute of Limitations: Things like filings, etc. can be extended, but the statute of limitations rule says that no court may extend it. 
                                                    iii.            Sua Sponte Extension: 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 is done ex parte (only the movant and judge are present)).
a)      Strategy: If an adversary asks for more time, you should agree b/c you want the favor extended to you too.
Subject Matter Jurisdiction
1)      Generally
a.       Definition: 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.
                                                              i.      SMJ defines the types of cases a Court is permitted to hear.
b.      Source of Power: In NY, SMJ is conferred either by
                                                              i.      Statute: statute (Court Acts) or
                                                            ii.      State Constitution: by the state constitution.
c.       No Stipulation or Court Rule: Parties cannot stipulate to expand it.  Nor can a court rule expand its own SMJ.
d.      Defense Can Be Raised Any Time: Lack of SMJ can be raised at any time, whether before an initial verdict, or even for the first time on appeal.
                                                              i.      Appeal: SMJ is the only time something can be brought up on appeal.
e.       No Waiver: SMJ cannot be waived (unlike PJ).
2)      Court Structure and Subject Matter Jurisdiction
a.      Generally
b.      Two Types of Courts: LIKELY EXAM QUESTION (#1): There are two types of courts in New York:
                                                              i.      Limited Jurisdiction
1.      Power: A court of limited jurisdiction is vested with 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).
2.      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.      General Jurisdiction
1.      Power: 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.
2.      Supreme Court: In NY, the Supreme Court is the only court of general jurisdiction.
a.       Federal Issues: NY courts can hear federal issues.
Court Structure
1)      Court of Appeals, Appellate Division, Supreme Court, and Appellate Term
a.       Court of Appeals: The Court of Appeals is the Highest Court
                                                              i.      Issues of Law: The Court of Appeals can only decide issues of law. 
1.      Exceptions: There are two exceptions:
a.       Death Penalty Cases: appeal from criminal judgment where the death penalty is imposed. The intermediate court is bypassed and you can go straight to the Court of Appeals. (Supreme Court à Court of Appeals).
b.      Reversal on a Factual Point: If you have a reversal on a factual point on the intermediate appellate court, the COA can review the factual matters.
                                                            ii.      Advisory Opinions: LIKELY EXAM QUESTION (#2) The Court of Appeals is the only court in NY that is permitted to issue Adv

ad is transferred to the appropriate court.  It’s a venue issue, not a jurisdiction issue (in Federal courts, if you bring a lawsuit in the wrong district, it will be dismissed b/c of lack of subject matter jurisdiction).
d.      Appellate Term of the Supreme Court:
                                                              i.      Only in the 1st and 2nd Departments: Currently exists only in the 1st and 2nd Judicial Departments. 
                                                            ii.      Not Constitutionally Required: NY Constitution does not require that the appellate term exists
                                                          iii.      Appeals From Lower Courts of Limited Jurisdiction: It’s an appellate court that hears appeals from lower courts of limited jurisdiction (the NYC civil and criminal courts; or city, town and village courts, county courts) within these Judicial Departments only.
                                                          iv.      Where Appeals Go: Appeals from the Appellate Term go to the Appellate Division for discretionary review.  Otherwise, appeals from courts of limited jurisdiction outside these two judicial districts (i.e. the 3rd and 4th) go directly to the Appellate Division.***
1.      Appeals: Appeals from certain lower courts (NY Civil Court, County Court, District Court, and Village Town) go to the appellate term and not the appellate division.
a.       Courts Below the Supreme Court: Courts below the supreme court go to the appellate term
                                                            v.      Board Court Membership: The appellate term is a panel of Supreme Court justices who sit and hear appeals from the lower courts in the First and Second Departments. Board court consists of 3-5 justices from the Supreme Court.
2)      Court of Claims
a.      Jurisdiction: ***Has exclusive jurisdiction over claims brought against the State, or by the State against a claimant. This is in fact all they hear.****
                                                              i.      Problem: The problem with this is when there is a suit with multiple parties.  In the court of claims, only the state of NY can be sued and the rest must be sued in the Supreme Court This leads to inconsistent decisions.
b.      Appointment of Judges: Judges in the court of claims are appointed by the NY Legislature.
c.       Appeals: Appeals from the Court of Claims go directly to the Appellate Division to whatever county the Court of Claims sits.
                                                              i.      Unified Court Systems: In NY, both the Supreme Court and Court of Claims are unified court systems, thus wherever the court house is or wherever the judge is sitting, that’s where you go.
1.      Each County and Transfer: It is a statewide system, and each county has a Court of Claims.  Like the Supreme Court, cases brought in the wrong county will be transferred, not dismissed.
d.      Multi-Party Claims:  Where you have a multiparty claim and one of the defendants is the state of New York, you must file separate claims (Court of Claims suit against the state)!!!   Includes counterclaims.  This creates a danger of inconsistent verdicts for a π.  One party will often just blame the other that is in a different court.***