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

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)
·         NYCCCA – civil cts. only in NYC (5 boroughs (Richmond, Kings, Queens, Bronx, NY counties)), all other counties have a county court (CPLR).
·         Unif. Dist. Ct. Act – only applies to district cts…only exist in Nassau and Suffolk.
·         Unif. City Ct. Act – city cts. around the state
·         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.”
 
 
Subject Matter Jurisdiction (Chapters 1 and 2)
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).
Courts of limited jurisdiction (NYC Civil Ct., NYC Crim. Ct., $$$ limits) vs. general jurisdiction (Supreme Court). (questions 1 and 2 on exam)
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.
THE COURTS
 
Court of Appeals à HIGHEST CT.
·         7 Justices, appointed for 14 yrs.
·         Questions of Law ONLY.
Exception: death penalty case (can review facts and even issue new findings b/c app. div. is bypassed)
Exception: when App. Div. reverses trial ct. finding different facts than trial ct. that erred
·         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. cannot issue advisory opinions.
Appellate Division – 4 judicial departments (INTERMEDIATE APPELLATE CT.)
·         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.
·         Can review issues of law and fact
 
·         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
·         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
Appellate Term of Supreme Court –
·         Only in 1st and 2nd Dept.’s 
·         Hear appeals from (1) NYC Civil Ct., (2) NYC Criminal Ct., and (3) NYC District Courts
·         Appeals from appellate term then go to App. Div.
Court of Claims
·         Claims against the state, state agencies or unit of the state (some unclear if agencies such as PANY/NJ)…Supreme Court can’t hear.
·         Statewide Ct., service of process statewide.
·         Appeals go to App. Div. of Dept. it sits in (ex. Albany Ct. of Claims à 3rd Dept. App. Div.
·         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’s say it was the state…and neither is there to rebut) and contribution problems.
·         Hypo: you want to sue state and employee of the state à two separate cts. again.
·         ***when state is D in ct. of claims, it cannot implead a potential indemnitor or contributor…hypo: state sues Gugig in Supreme Ct., Gugig cannot counter-claim!!! – must bring separate claim in ct. of claims.
County Courts – every county outside NYC has one, both civil and criminal jurisdiction
·         Appeals go to App. Div. Exception: Nassau & Suffolk are part of the 2nd Dept. & to Appellate Term
·         Money actions up to $25K, but counter-claims unlimited in amount.
a.       NO AGGREGATION permitted in county courts (unlike NYC Civil Court). Hypo: 4 K actions for $10K/each cannot be brought together.
·         Piece of real property in the county – can hear all actions pertaining no matter the value.
·         Replevin (personal prop.) if in county and worth less than $25K.
·         Summary proceedings regardless of value (ex. dispossess tenant even if owes $1 million in rent).
·         Incompetency proceedings of residents of the county.
·         NO EQUITABLE POWERS (no injunctions).
NYC Criminal Ct.
·         Exists only in 5 NYC boroughs
·         MISDEMEANORS ONLY…felonies in supreme ct.
·         Appeals to Appellate Term.
NYC Civil Ct.
·         One in each of 5 counties. Civil jurisdiction. 
·         Appeals to Appellate Term.
·         NO EQUITABLE POWERS (no injunctions).
·         Service of process valid only within NYC.
·         Money actions up to $25K, but counter-claims unlimited in amount.
a.       Aggregation is permitted: Hypo: 4K’s each worth $10K, can sue in NYC Civil Ct. on all claims at once.
·         Real property actions of less than $25K value (different than county ct.).
·         Replevin (personal prop.) if in county and worth less than $25K.
District Courts of Nassau and Suffolk
·         Money actions up to $15K, process limited to county
Other courts:
·         Family cts. – one in each county.
·         Towns and village cts. – up to $3K for claims.
TRANSFERRING BTW COURTS
CPLR 325(a) – Action brought in the wrong crt.
·         Make motion Supr Crt to transfer (Supreme Ct. b/c lower ct. likely does not have jurisdiction to decide)
·         ex. P brings case in Supreme Ct., D makes motion to Supreme Ct. to transfer to lower ct. or other ct. (family ct. maybe).
CPLR 325(b) – TRANSFER UP
·         Motion to next highest court with jurisdiction (where transfer is sought!)…that ct. has jurisdiction to transfer the case to itself.
·         Difference from 325(a) is that under 325(a) it was brought in the wrong ct. to begin with, whereas, 325(b) it was the right court to begin with but now seeking more recovery.Hypo: $20K action in NYC Civil Ct., realize later it’s worth more ($100K) à motion to Supreme Court to transfer up.
·         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.
CPLR 325(c) – TRANSFER DOWN – hypo: $20 million claim in supreme court and later realize it’s worth $20K
·         Motion to Supreme Court (motion to ct. where transfer is pending!).
·         If D asserted counter-claim, must obtain consent to remove to lower court.
·         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).
·         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.
CPLR 325(d) – TRANSFER DOWN W/O CONSENT
                                      

does not have these facts then it may be found void from its inception.
·         Either by registered mail (effective upon posting) or personal delivery…regular mail (effective upon receipt).
·         Serve on same person in town that you would serve w/ process (look to town rules).
·         Improper service of notice of claim à can be waived if P agrees to deposition by municipality, or, returned to P within 30 days w/ 10 days allowed to cure defect.
·         If notice of claim describes claim wrong, it is a nullity.
·         Ct. discretion to extend notice period on motion to s.o.l.’s time (up to 1 yr., 90 days),…but, don’t count on it, need valid reason). This is very rare. 
·         §10 of Ct. of Claims Act – 90 days notice on state as well.
Statute of Limitations (Chapter 3)
Time after which a plaintiff loses the right to bring a claim for remedy. It extinguishes time for remedy but it does not extinguish the claim. Of course, these are the same. 
Overview:
·         Bars remedy for claims not brought in time, almost all fall within Art. 2 of CPLR.
·         It is an affirmative defense to be pleaded and proven by D!
·         If it is a condition precedent type of suit, complaint must state you complied with condition precedent (P’s burden to prove, substantive part of the P’s action).
·         Why have SOL? availability of witnesses and evidence, expectations of D to “not have to look over his shoulder” (repose)
·         CPLR 2004 does not apply to s.o.l.’s à judges may not extend s.o.l.’s for any reason! (CPLR 201).
·         As an atty, always protect yourself and if you are not taking case, let the party know in writing that they have a certain amount of time in which to file a suit. Or else get sued.
·         Why is it important that the cause of action not be extinguished but just the remedy be extinguished? Must a ¶ allege that they were within the SOL? No, we leave it to the ∆. What does it mean that there is an affirmative defense? Defendant carries burden of SOL as an affirmative defense and must be proved by ∆. A notice of claim is a condition precedent and ¶’s burden. In theory, if the Sol distinguished the claim, then it would be a condition precedent and plaintiff would have burden to show compliance so SOL does not distinguish claim. 
Applicable Periods
Don’t assume that the SOL has not changed; always double check cause you don’t want to get sued; go online and check on westlaw/lexis to assure that the deadline has not passed. 
·         CPLR 211 – 20 Year Period (LONGEST) for action on an already rendered judgment (enforcing a judgment) à after 20 years, irrebutable presumption judgment is satisfied (absolute bar to suit). This abolishes the right and not just the remedy; it is the only rule that abolishes the right. 
·         CPLR 212 – 10 Year Period – possession of real property (adverse possession)
·         CPLR 213 – 6 Year Period:
·         Contract Claim (express or implied)…NOT FOR THE SALE OF GOODS
a.       Installment K – new 6 yrs. starts for each payment for installments.
·         Indemnification or contribution…runs after judgment has been paid!
·         Sale of realty or services (ex. breach of warranty in lease).
·         Fraud…(discovery rule applies (see below))
·         Catch-all period – for any cause of action with no s.o.l.’s provided
a.       Including: many equity actions not identified (accounting, injunction, reformation).
UCC-governed sales – Ks FOR THE SALE OF GOODS: 4 Year Period (CPLR defers to §2-725) (ex. breach of