New York Practice
Asarch
Fall 2011
Intro to NY Practice “Safety Nets”.
I. CPLR 101: Governs procedure in civil proceeding (§105, not crim.)
II. CPLR 103 Form of civil judicial proceedings:
a. (a) Only 1 form of action – no longer divide b/t law & equity
b. (b) Unless designated a special proceeding (SP), it is an action.
c. (c) If ct has jurisdiction, proceeding not dismissed b/c not brought in proper form. Ct may do w/e is req’d. to fix non jurisdictional defect, unless real prejudice.
III. 2101 Form of papers:
a. (a) Quality, size, & legibility of forms
b. (b) If in foreign language translation MUST be attached & aff. from translator.
c. (c) Caption: Order
IV. CPLR 2102: Papers must be filed w/clerk where action tried. In Sup/Cnty Ct. papers filed w /clerk of county where proceeding brought.
V. CPLR 2103 Service of papers:
VI. CPLR 104: CPLR construed to secure just, speedy & inexpensive determination.
VII. CPLR 105: Definitions
a. CPLR) Any person not party & at least 18 yrs old
b. (b) In pending action, serve party’s attorney
c. (c) If no attorney, serve party.
VIII. CPLR 2103-A: Sit. where ct keeps address of P secret. Clerk makes sure P gets docs
Article 20 – Safety Net Provisions:
I. CPLR 2001 Mistake/Omissions: Ct may permit if error non-prejudicial. Can’t be used to extend SOL or if jurisdictional issue exists.
II. CPLR 2004 Extension of time, generally: Ct may extend time stated in any statute/rule/order as long as it is just & good cause shown.
a. This DOES NOT APPLY to SOL or notices of appeal.
b. Nunc pro tunc order – Late filing & make seem like filed on time.
III. CPLR 2005 Excusable delay/default: A showing of a meritorious defense/CoA & good reason/cause will excuse default.
a. Law office failure can be a reason to excuse default (Biggest safety net).
b. To be excused, must satisfy elements of 3012(d) or 5015(a).
SUBJECT MATTER JURISDICTION (SMJ)
I. SMJ: Competence of ct to decide issue in front of them. Not if they do it right or wrong, but can they entertain this application.
a. SMJ non-waivable & can be raised by ct itself.
b. Stacking: If I have distinct CoAs in a ct of limited jurisdiction, if they are each below limit of ct, that’s ok, even though if stacked add up to more than limit of ct.
i. Must be distinct CoAs. Ex: 12K for camera, 15K breach of K – that’s ok.
1. But if its separate claims arising from same transaction. Not ok
II. Various Cts:
a. Supreme Ct: Ct. of original/general jurisdiction. Have competence to deal w/almost anything. Doesn't mean keep case, but can bring action.
i. Doesn’t handle anything exclusively federal (CR & Bankruptcy)
b. City ct: 15K limit for civil
i. Only 2 cities on long island (Glen Cove, Long beach)
c. District ct: 15K limit
i. Territorial jurisdiction: Nassau County
ii. Doesn’t exist w/in NYC
1. Civil ct for NYC takes its place (25K limit)
d. Justice cts/magistrates/village ct
i. Limit is $3K. Counter claims also limited to $3K
e. Family ct:
i. SMJ: Custody/support issues (support/maintenance), juvenile delinquency, person in need of supervision, abuse & neglect cases (Order of protection)
f. Surrogates ct
i. SMJ: Adoptions, accountings, contested probates, decedents estates
g. County Cts:
i. Every county has one except NYC
ii. SMJ: Up to 25K.
h. The Appellate Term: Part of sup ct – 3 Judges
i. Appellate division: 4-5 Judges
j. Ct of claim (CoCs)
i. Sue the state. Can't sue state w/o permission
ii. Biggest diff b/t CoC & Supreme Ct:
1. If state allows suit NO jury trials in ct of claims
k. Ct of Appeals – Highest ct in NY, 7 Justices
l. Wrong choice where brought action:
i. SOL hasn’t run, no big deal. SOL has run, too bad.
REMOVAL & VENUE:
I. CPLR 325 Grounds For Removal: (a) & (b) are 2 ways of getting case up to proper ct. (c) & (d) reduce monetary relief, can’t be used for equity. Venue: Must be same county, unless do 325 transfer motion & motion to change venue.
a. (a) Brought in wrong ct that doesn’t have jurisdiction. Supreme ct upon motion may remove it upward to ct w/jurisdiction.
i. Make motion in SC to reach down to DC & pull up to county. DC doesn’t have power to kick case. Only SC can pull case upwards.
ii. In constitution cts can remove case w/o consent (Art 6 of NYS cons. §19)
b. (b) Didn’t screw up, case worth more than thought (no jurisdiction over relief b/c amt too high) ct w/jurisdiction can remove upon motion.
c. (c) Ct thinks damages less then demanded so remove to lower ct w/jurisdiction. Consenting to being sent down & getting stuck w/limit of lower ct
i. Don’t use 325c, use 325d!!
d. (d) Same as 325c but no consent. Not bound by monetary limit of lower ct. keep monetary limit of upper ct.
i. Judge can use constitutional provision avoiding 325 & binding party to lower monetary jurisdiction.
II. Venue:
a. Definition: place of trial
i. SMJ deals w/what ct you’re in, venue is where trial occurs
b. Venue is waivable. If don't ask to change, venue stays. If objection must raise w/in certain timetables or else waived.
c. Setting Venue:
i. P picks venue.
ii. Don't set venue by where lawyer's office is
d. CPLR §503 venue based on residence:
i. Re
(3) Convenience of Ws
1. Where X is proper county but all Ws are in another county.
a. Must present affs that Ws have something tangible to offer
j. CPLR 327 Forum non conveniens:
i. (a) Even if ct has jurisdiction, ct on motion can dismiss if no subs. connection b/t what suing for & NY.
1. Party having domicile/residence in NY doesn’t stop ct from staying/dismissing action. Residence not determinative where no other connection (Silver).
2. Cts look at two things:
a. What is the connection?
b. If case dismissed, what conditions will the ct impose?
3. Conditional dismissal: Won't take case, if P agree to following, & varies from case to case
4. Cts look if P has another forum to try in if give up jurisdiction.
ii. (b) Forum non-conveniens will not override Ks to set venue
COMMENCING THE ACTION
I. 3 elements that have to be considered
a. 1. Summons: lets ct take PJ over D.
i. Don't need summons to acquire jurisdiction over D in sup, civil, or district cts b/c PJ is waivable by D
1. Summons is part of PJ
2. PJ is different from SMJ, b/c waivable.
3. D can make an appearance even w/o being served
b. 2. Giving notice to D: Notice tells D what they must do. Starting action not enough to give D notice, must personally serve.
c. 3. What ties does D have w/NY, so that NY should take case
i. If NY has PJ, go back to 327 & make argument NY shouldn’t take jurisdiction
d. §305(a) contents of summons
i. Summons shall specify basis of venue designated. (Residence, RP, CCT)
ii. Specify P's address
1. If danger in revealing P's address, use clerk's office.
iii. Index # & date of filing
1. UCA 400(3): Curing defect may be done by stipulation, asking for leave of ct. Ex: no index number
iv. Look at uniform ct rules of area in to see what should be included. Ex:
1. Serve an answer, or make a motion.
2. If don't tell D what to do, don't expect default judgment.
3. Rules for specific trial ct tell what goes in summons
v. Caption: All parties MUST be listed on summons.
1. Add party later on by stipulation/order of ct.
