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New York Practice
SUNY Buffalo Law School
Gresens, James W.

NY Practice outline
New York Courts, Transfers and Forum Non-Conviens
2.   Liberal construction – CPLR 104, 2001, 2004 & 2005
§ CPLR 104: the civil practice and rules shall be liberally construed to secure the just, speedy, and inexpensive trial.
§ CPLR 2001: mistakes, omission, defects and irregularities
(1) The court may permit any mistakes including failure to purchase index number to be corrected in any stage; if substantial right is not prejudiced; such mistakes are disregarded with appropriate fee if applicable.
§ CPLR 2004: Extension of time is granted before or after time fixed if shown good and just cause.
§ CPLR 2005: Excusable delay or default-the court shall not be precluded from exercising its discretion in the interest of justice to excuse delay or default resulting from law office failure.
3.   Transfers between courts – CPLR 325: Ground for removal
§ By SC for mistake in choice of court
§ From court of limited jurisdiction
§ CPLR 325©: On consent to court of limited jurisdiction-if the damage amount is less than demanded, and a lower court would have jurisdiction but for the damage demanded, the court may remove it to the lower court upon reduction of the damage amount.
§ CPLR 325(d): Without consent to court of limited jurisdiction: the amount of damages sustained may be less than demanded, the lower court would have jurisdiction but for the amount of damages subjected.
4.   Forum non-conviens – CPLR 327
§ It is discretionary & court has great latitude and discretion to decide the case.
§ CPLR 327: Forum Non-convenience Statute: The domicile or residence in this state of any party shall not preclude the court from staying or dismissing the action.
o   CPLR 327(a) In the interest of substantial justice the action should be heard in another forum, court, on the motion of any party, may stay or dismiss the action. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.
§ Exception (b): the action arises out of a contract, agreement or undertaking pursuant to GOL 5-1402 & parties agreed not to remove it.
·         Corporations and forum non-conviens – BCL 1312 & 1314: refer to Siegel.
o   BCL 1312: Action by unauthorized foreign corporation: You can’t maintain any proceeding unless you’re authorized and paid fees.
o   BCL 1314: Action against foreign corporation can be maintained by
§ (a) a resident of this state or by a domestic corporation
§ (b) Another foreign corporation in the following cases
·         1. Damage for the breach of K made within this state
·         2. SM of the litigation is situated in this state
·         3. Cause of action arose within this state
·         4. A non-domiciliary is subject to the PJ of the court pursuant to 302 of CPLR
·         5. D is a foreign corporation doing business or authorized to do business in this state.
 
Removal to federal court: 28 U.S.C. § 1446(b)
Federal jurisdiction
People from different states (diversity jurisdiction)
Federal question
Condition Precedent to Suit: only against municipality
Where a notice of claim is required by Law;
·         GML 50-e/50-i
                                         i.    50-e: Any claim based on tort (only tort claims), a notice of claim has to be filed within 90 days after the claim arises.
1.   Service by mail shall be completed upon deposit of the notice of claim
2.   Upon application, the court can grant extension of time, which shall not exceed SOL. (1 year & 90 days) –show the delay did not substantially prejudiced the public corporation & had personal knowledge about it.
                                       ii.    GML 50-e(7): Condition precedent must be filed in state court
                                      iii.    GML 50-e(8): not applicable for workers compensation, firefighters law etc.
                                      iv.    50-i: The action should commence within 1 year and 90 days.
·         County Laws 52
·         City Charters
·         Town Law 55
·         CPLR 9802-villages: notice of claim shall have been made and served in compliance with section 50-e of GML
·         Education law 3813: School district
·         Public Authorities law
Notice of claim requirement under GML 50-e: defect of street, snow, ice.
·         50-e (4); notice of defective condition of streets & liability of damage, failure or negligence to repair after the receipt of a notice. There is no other CP.
 
GML 50-e(2): Form of a notice: A sworn, written statement of notice is required
·         Name/post office address of each claimant
·         Nature of a claim
·         Time/place/manner of a claim aro

laim must be filed pursuant to GML, Education Law, or local or general law.
CPLR 214-c(4):where the discovery of the cause of injury is alleged to have occurred less than 5 years after discovery of the injury, action may be commenced or a claim filed within 1 year of such discovery of the cause of the injury.
CPLR 214-c(5): this provision is NOT applicable for medical/dental malpractice.
Warranty Cases:UCC 2-725- SOL in Contracts for Sale starts to accrue at the date of tender of delivery
2-725(1): An action for breach of K must be commenced within 4 years after the cause of action accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.
2-725(2): A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.
Warranty case: SOL can be reduced by an agreement but cannot be extended
Ø Medical Malpractice – CPLR 214-a: Action for medical/dental/podiatric malpractice
o   Must be commenced within 2 years and 6 months
o   Where the action is based on the discovery of a foreign object in the body of the patient, it must be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.
Continuous Treatment-can extend SOL and applies only to professionals (doctors, lawyers, accountants)-SOL starts to accrue on the date of termination of treatment/service
CPLR 214-a: SOL is 2 years and 6 months except if a foreign object is inserted in the body of the patient (1 more year after discovery)
A pacemaker was inserted and was done incorrectly, you have COA against doctors. However, if it dysfunctions, you have COA against manufactures.
 
Estoppel Cases
CRD is limited to professionals but Estoppel can be applicable to everyone.