New York Practice
I. CPLR and Acts OVERVIEW
a. Only time CPLR does not govern is where there’s another Act that governs and there’s a conflict with the CPLR, otherwise, it governs every court in NY.
b. Uniform Court Acts – Act 2 of each act sets forth the juris. of the ct. (what kind of cases it can hear)
i. NYCCCA – civil cts. only in NYC (5 boroughs (Richmond, Kings, Queens, Bronx, NY counties)), all other counties have a county court (CPLR).
ii. Unif. Dist. Ct. Act – only applies to district cts…only exist in Nassau and Suffolk.
iii. Unif. City Ct. Act – city cts. around the state
iv. Unif. Justice Act – village and town cts.
c. CPLR 100 – either statutes (“§”) or rules (“R”) in CPLR, distinction not real though b/c effectively only legislature can change anyway.
d. CPLR 103 – does away with actions at law vs. equity à one form of action…but, there are equitable defenses to suits “in equity”
e. Action vs. Special Proceeding – Action is by motion for some sort of interlocutory relief, special proceeding is like a motion but it is an action in itself…ex. art. 78 proceeding, proceeding to get fax # and email of unknown timeshare buyer saying he is a bank (“order to show cause”), or whether case is subject to mandatory arbitration.
f. CPLR 104 – “Shall be liberally construed,” intent of provision should govern effecting the purpose behind the CPLR, supposed to be a means to an end and not an end in itself…in practice, sometimes it is.
g. CPLR 2004 – with certain exceptions (s.o.l.’s), where there are limits, the judge can discretionarily increase time in the interests of justice…lawyer’s “get out of jail free card” once or twice during the case…adversary asks for it? say “yes.”
II. Subject Matter Jurisdiction (Chapters 1 and 2)
a. Authority of the ct. to hear the case, outer limits of ct.’s authority; conferred in NY by (a) Ct. Acts, or (b) Constitution of NY…parties cannot agree to waive, can be raised at any stage (even for 1st time on appeal).
i. Courts of limited jurisdiction (NYC Civil Ct., NYC Crim. Ct., $$$ limits) vs. general jurisdiction (Supreme Court). (questions 1 and 2 on exam)
1. Supreme Court is only court with general jurisdiction…can hear any case. Does much of what other lower cts. can do as well (so might transfer (see below)). Statewide service for Supreme Court.
a. Exception: federal statute preempts ct. from hearing a type of case.
b. Exception: suits against state à ct. of claims.
b. THE COURTS:
i. Court of Appealsà HIGHEST CT.
1. 7 Justices, appointed for 14 yrs.
2. Questions of Law ONLY.
a. Exception: death penalty case (can review facts and even issue new findings b/c app. div. is bypassed)
b. Exception: when App. Div. reverses trial ct. finding different facts than trial ct. that erred
3. Advisory opinions – no case or controversy – important questions of state law w/ no binding precedent…legislature can ask for it, so can U.S. Supreme Court, other state’s highest court, and federal appeals ct….federal cts. can not issue advisory opinions.
ii. Appellate Division – 4 judicial departments (INTERMEDIATE APPELLATE CT.)
1. Decisions are binding on the Supreme Courts within the department
a. 1st Dept. – NY County and Bronx County.
b. 2nd Dept. – Richmond (S.I.), Kings, Queens, Suffolk, Nassau, Westchester, Putnam, etc.
2. Can review issues of law and fact
3. Original jurisdiction for
a. Admission of attorneys or supervision.
b. Where the decision of only questions of law
c. Art. 78 proceedings: where prohibition or mandamus against supreme court justices
4. Hears appeals from:
a. Supreme Court
b. County Courts
c. Family Courts
d. Surrogate’s court
e. Court of Claims
f. And appellate terms of the supreme court
iii. Appellate Term of Supreme Court –
1. only in 1st and 2nd Dept.’s
2. Hear appeals from (1) NYC Civil Ct., (2) NYC Criminal Ct., and (3) NYC District Courts
3. Appeals from appellate term then go to App. Div.
iv. Court of Claims
1. Claims against the state, state agencies or unit of the state (some unclear if agencies such as PANY/NJ)…Supreme Court can’t hear.
2. Statewide Ct., service of process statewide.
3. Appeals go to App. Div. of Dept. it sits in (ex. Albany Ct. of Claims à 3rd Dept. App. Div.
4. Hypo: injured in rented boat in state park, want to sue manufacturer and state and person who hit you…bring where? Two separate lawsuits!!!: state in ct. of claims and all the rest in Supreme Court…judicial efficiency does not exist. Might get inconsistent verdicts (state says it was other D’s fault, other D’
ion to Supreme Court to transfer up.
2. Hypo #2: Suffolk County Dist. Ct. has a $15K limit but Suffolk County County Ct. has a $25K limit…bringing an action for $12.5K in Dist. Ct., find out it’s worth $20K à motion to county court, it has jurisdiction to transfer.
iii. CPLR 325(c) – TRANSFER DOWN – hypo: $20 million claim in supreme court and later realize it’s worth $20K
1. Motion to Supreme Court (motion to ct. where transfer is pending!).
2. If D asserted counter-claim, must obtain consent to remove to lower court.
3. D has to have been within the personal jurisdiction of the lower court had the action been brought there.
a. ex. $20 million case in NYC Supreme Court (statewide service), served D in Rockland County, can’t transfer down to NYC civil ct. when you realize it’s worth $20K even w/ consent b/c service not effective to transfer down (NYC civil ct. – city-wide service only).
4. In reality, judge recommends 325(c) transfer down to P. P might not want to but if don’t, judge will deny a “general preference” (goes to the bottom of the calendar). P’s only recourse is to appeal denial of general preference but it is an extremely high standard.
iv. CPLR 325(d) – TRANSFER DOWN W/O CONSENT – if it appears to supreme court justice that it could have been brought in civil court, then it will be transferred down.
1. If this happens, civil ct. monetary limit doesn’t matter.
a. Distinction from 325(c) voluntary transfer is that you’d have to reduce your demand to $25K to transfer, where, here, the judge can order transfer w/o reducing demand.
b. ex. $100K claim, supreme court sends it down, monetary limit of lower ct. is increased to $100K. Again, Civil ct. needs to have juris. to start with (ex. Rockland D service not subject to 325(d)). Also, no equitable jurisdiction (if that’s what you’re seeking).
