2020 NYP Exam review notes and outline PDF

Preview

Summary

Outline for New York Practice course from Pieper book...

Description

Monetary Jurisdiction of the Courts  County Court - $25,000 o Judiciary Law 190 (3)  No small claims court jurisdiction  Jurisdiction to hear misdemeanor and felony cases  No county courts in the city of NY  Unlimited jurisdiction in counter claims  New York City Civil Court - $25,000  District Courts - $15,000 o Nassau and Western Suffolk  City Courts - $15,000, but not monetary limit on counter claims or LL/tenant cases involving unpaid rent o Outside NYC  Small Claims part – This jurisdiction is granted to district courts, NYC civil court, city courts outside the city of NY where the small claims monetary jurisdiction is $5K, but small claims matters commenced in the justice courts have a $3K limitation  Town and Village Courts – Must not exceed $3,000 Court of Claims  A notice of claim called “notice of intent to sue” must be served on the clerk of the court of claims and the NY AG within: o 6 months for a b/k claim; or o 90 days in a tort action (similar to a tort claim against a municipality under 50(i)(e) of the general municipal law which must be served within 90 days)  The SOL on a claim against the state is 2 years for negligence, wrongful death, or b/K, but is only 1 year for intentional tort Court of Claims Act §10(2) & (3) Appeals  An appeal from the Supreme Court is taken to the Appellate division  A party appeal from any court has 30 days to take an appeal from either an order or final judgment o If you make a motion to dismiss and it is denied, you can immediately appeal that o The 30 days does not begin to run until the order or judgment is served by one of the party’s attorneys. Service of the paper by the court will not start the 30-day period running. o In order for the 30-day period to run, the document served must contain “notice of entry” by the clerk of the court CPLR § 5513  Do not confuse “taking an appeal” with “perfecting the appeal” where the briefs and record on appeal are filed with the appellate court o Taking an appeal – file notice of appeal o In the 1st department the appeal must be perfected within 9 months o In the 2nd department the appeal must be perfected within 6 months o 22 NYC RR §601.11 and §670.8 (Court Rules)  If the notice of appeal is sent by mail, then under §2103(b)(2) and CPLR 5513 (e), the appellant will have 35 days to file and serve a notice of appeal if the order or judgment was served by overnight mail, one day is added to the time period (31 days)  Under §2103 whenever a time period is measured from the service of papers between attorneys, then 5 days shall be added to the prescribed period if service is by mail and 1 day shall be added to the time period if service is by overnight courier

Appellate Division of the Supreme Court  The State is broken into 4 depts. and each has an appellate division (See Siegel P.13/14)  The 1st department is only the Bronx and Manhattan o 2nd department is Suffolk, Nassau, Queens, Kings, Richmond, Westchester, Orange, Duchess, and Rockland County  2nd dept. hears more appeals than the 1st, 3rd rd o 3 department covers from Albany to Syracuse and Ithaca o 4th department covers Buffalo and Rochester Appellate Term of the Supreme Court  These courts are located only in the 1st and 2nd departments o In the 1st department (Man./Bronx), it hears appeals from NYC civil and criminal courts o In the 2nd department, it hears appeals from the district courts only in Nassau and Suffolk counties, city courts, village courts, and from NYC civil and criminal courts. It also hears appeals from the county court.  Appeals from the appellate term are taken to the appellate division Article 2: Limitations of Time   

A COA is interposed for SOL purposes on the date the index number is purchased in the county clerk’s office when process is filed with the clerk of the court, measure between these 2 dates to determine whether the action was timely. Under judiciary law 282 and general construction law §20, compute the SOL by counting from the day after the complained of event. FINAL: If the last day of the SOL period falls on a Saturday, a Sunday or a public holiday then the P has until the next business day to timely interpose the claim. General Construction Law § 25(A) (a)

10 year SOL 1. An ejectment action against a trespasser 2. Claims for adverse possessor except for realty owned by 3. A lien on real property for a period of 10 years created by a judgment creditor filing a money judgment in the county where the judgment debtor owns real property. The 10 year period is measured from when that judgment was first entered in the clerk’s records in the court where the judgment was awarded and the 10 years is not measured from when the judgment was filed in the county where the judgment debtor owned real property. The lien can be extended for a second 10year period but only during the 9th and 10th year of the first lien by commencing an action on the judgment and obtaining a new judgment from the court. 51 A.D.3d 196  CPLR 5203 & 5014  Rule: If that judgment debtor declares bankruptcy then it will wipe out the judgment debt but it will not affect the lien on the real property.  Rule: If the judgment lien is foreclosed by the sheriff and the property is sold then under NY’s homestead exemption the first $50K of equity in the judgment debtor’s residence is exempt from the judgment lien CPLR 5206. This $50K homestead exemption does not apply to mortgage foreclosures.

Rule: A filed money judgment has no effect on the debtor’s personal property. In order to affect a judgment debtor’s personal property the sheriff must seize that property.  Rule: 10% of judgment debtor’s wages or trust income can be garnished by the sheriff, but only after judgment 4. A convict has 10 years for certain “specified crimes” running from the date of the D’s conviction or on other crimes, 7 years and that SOL runs from the date of the crime and not the conviction. CPLR 213-b and Executive Law 621 “specified crimes” include:  All violent and sexual crimes  All B felonies  Most 1st degree crimes committed in NY or in another jurisdiction  When a crime victim sues the convicted D, she can obtain an order of attachment under CPLR 6214 to secure the enforcement of her ultimate judgment  A crime victim also has a 3-year SOL that runs from the date of discovery “any funds or assets” owned by a convicted felon during the period he is still in jail or on parole.  If the D is convicted of the crime then a subsequent civil suit, the crime victim (P) can move for summary judgment on the liability issue based on the doctrine of collateral estoppel (IF) o I – issues are identical in both the civil and criminal cases. Here, the civil court will examine the accusatory instrument (indictment) as well as the D’s plea allocution to determine if the issues in both cases are identical o F – the party against whom collateral estoppel is being asserted (the criminal D) previously had a full and fair opportunity to litigate the issue  If the criminal D is not convicted, P has at least 1 year after termination of the criminal proceeding to commence a civil action (5 years from termination if the acts involved rape, child abuse, or sexual abuse) 

6 Year SOL (SCARF CRIME) CPLR 213  S – Specific performance of a K  C – Breach of K actions including real property Ks, construction Ks, or employment Ks. However, if the breached K involved the sale of goods, then under UCC 2-725, the SOL is 4 years. o If a loan of money is made without any specific time of repayment, then it is deemed a demand loan and the SOL starts to run on the date the loan was 1st made. UCC 3-108 o The SOL for a construction K begins to run from when performance has been completed. 63 A.D.3d 717 at 718 (2d Dep’t 2009). However, where a construction flaw causes PERSONAL INJURY and not economic damage then the personal injury claim (3 years) does not begin to run until the date of the P’s personal injury.  Problem: 15 years after completing construction of a school a pipe bursts b/c of the contractor’s negligence damaging the school’s library. The school sued the contractor for $1 million, but the claim was barred by the 6year SOL since the action was for damages to the structure or the property therein where the SOL started to run when the structure was completed  A – Actions recognized by courts at common law, but where the legislature does not proscribe a SOL CPLR 213(1). o Examples:  Commercial bribery  Falsely notarizing a signature  Maintenance and child support arrears accruing on a judgment or order rendered prior to 8/7/87

 

 

 

 Equitable actions (constructive trust, accounting)  Arbitration proceedings o Under 214(2), statutes that create new civil claims for wrongs that were unknown at common law and which the legislature has not proscribed a SOL have a 3 year SOL (A SOFT RAIN) R – Reformation of a K, the SOL starts to run from the date of the alleged error F – Fraud, deceit, or misrepresentation including fraud in a K for the sale of goods CPLR 213(8) and 203 (g). On these claims, the SOL is either 6 years from the fraud or 2 years from when the fraud was discovered or with reasonable diligence could have been discovered. 12 N.Y.3d 527 (2009) o The extra 2 years from discovery does not apply to:  Fraud involving Ks for the sale of goods (UCC and 282 A.D.2d 527)  Constructive fraud which arises when a debtor transfers assets for less than full and fair consideration and is rendered insolvent or where she believes that she will have debts in the future and because of the transfer she will not be able to pay those debts. o Every conveyance made without full consideration where the person making the conveyance has been named as a D in a lawsuit or a judgment has been obtained against him, is deemed fraudulent without regard to the mental element of intent. Debtor and Creditor Law 273-a and CPLR 5202(a)(1) o If the P can prove an actual intent to defraud creditors, she can recover attorney’s fees to be paid by the debtor o When the debtor denies an intent to defraud creditors then there are certain “badges of fraud” that are so commonly associated with a fraudulent transfer that all or some of their presence gives rise to an inference of an intent to defraud. (SHIFTS)  S – Secretly done  H – Hastily done  I – Inadequacy or absence of consideration  F – Made to the benefit of a family member or close friend  T – The transferor continues to control the property  S – Scienter (knowledge) of the creditor’s claim and an inability to pay that claim after the transfer o Commence a special proceeding under CPLR 5225(b) to recover the assets fraudulently transferred. The court frequently looks to see if the same attorney represented the transferor and the transferee C – A corporate derivative action R – Recission of K, except recission of nuptial or pre-nuptial agreement which is governed by a 3 year SOL and the 3 years does not begin to run until 1. A spouse is served with divorce papers; or 2. A spouse dies I – Indemnification or contribution. o 6 years does not begin to run until the P has paid more than she should have or when the judgment is paid M – Mortgage foreclosures o E – Other Equitable claims such as unjust enrichment, constructive trusts (February 2009), or a claim for breach of fiduciary duty where the P is seeking equitable relief.

4 year SOL (UCC 2-725)



 

An action for breach of K involving the sale of goods is 4 years running from the date the K was breached o Example: Seller sues the buyer for non-payment of goods On a breach of warranty COA, the 4 years starts to run from the date the defective good was tendered by that D is the vertical chain of privity despite the P’s lack of knowledge of that breach An exception to the warranties SOL is where the warranty expressly extends to future performance of the goods o Example: A roofer expressly warrants a newly installed roof for 8 years. Here, the 4year SOL would be measured from when the warranty was breached during the 8 year period

5 year SOL  Rule: An action for divorce or separation cannot be maintained more than 5 years after the complaint of the event. DRL 210  Rule: The grounds for divorce in the state of NY are (A PAIN) o A – Adultery – from when P first discovered Adultery o P – Prison – after 3 consecutive years – tolled during balance of imprisonment o A – Abandonment for 1 year or more – continuous SOL for everyday after the 1st year o I – Cruel and inhuman treatment by the D o N – No fault conversion divorce in which the parties have lived separate and apart for 1 continuous year and the P has substantially complied with the terms of that judgment or agreement – continuing SOL for every day after 1st year 3 Year SOL CPLR 214  A – Actions which did not exist at common law, but were created solely by statute and the legislature did not provide a SOL  S – Strict products liability (DIM) o D – Defective design o I – Inadequate warning o M – Manufacturing flaw which was unintended by the manufacturer  O – Misappropriation of a corporate or partnership opportunity. (Essay 3 February 2007)  F – A fiduciary relationship arises between two people where one of them is in a position of trust and confidence as well as a position of dominance and control. This relationship imposes a duty to act for the other in good faith. o Example: Attorney client or escrow agent and client o Rule: If the P seeks solely money damages then the SOL is 3 years. However, if the P seeks equitable relief then the SOL is 6 years even though the complaint also demands $ damages.  T – Damages for trespass to the P’s land  R – Replevin or conversion and the 3 years for either claim begins to run depending on whether the chattel was: 1. Wrongfully taken by the D (a thief); or 2. Was obtained in good faith  Example: It was purchased from a thief in good faith or originally involved a bailment  A claim against a thief starts to run from when the chattel was stolen, but a claim against a good faith possessor does not begin to run until the P makes the demand for return of the chattel

Even though replevin is an action at law the doctrine of laches can be used by a D being sued for replevin 77 N.Y.2d 311 A – annulment of a marriage based on fraud, is three years from discovering the fraud. (just like ordinary fraud) o Bill meets Suzy, I wont marry you unless I get a lot of kids, he also wants a lot of kids. He says, I forgot to tell you I have had a vasectomy. He can get out based on …. I – Tortious Interference with another persons contractual rights. o Plaintiff must establish  K – D knew of the enforceable K.  I – Intentionally procured (NO CLUE WHAT THIS WORD WAS) contract  D – Breach proximately caused defendant damages. N – Negligence and professional malpractice. Except for med/mal, which is 2.5 years. o When suing professional for malpractice, the SOL is 3 years regardless of whether the underlying theory of the malpractice claim is based in tort or contract. CPLR 214(6)  Which overrules 96 NY2.d 20.  SOL 3 years whether tort or K when client is suing. o Malpractice claim accrues on the date the malpractice is committed and NOT when the client first discovers it. o Professional malpractice:  Architects  Engineers  Accountants  Lawyers – negligence by attorney rendering legal services  NOT insurance brokers/agents o Client convicted of a crime cannot successful assert a legal malpractice claim against her attorney unless a claim can plead and prove her innocence.  Public policy requires that in order for a client to sue for malpractice. She must be able to establish that the criminal conviction was due solely to the attorney’s malpractice and was not due to the client’s guilt. As long as the criminal conviction remains undisturbed, the client cannot assert legal malpractice b/c she will be unable to show that the sole proximate cause of her conviction was the attorney’s legal malpractice. 95 NY2d 443.  Harsh rule grounded in PP. I fail to suppress an illegal search and seizure and b/c of that evidence she is convicted. If I had exercised due care he would not have been convicted. But it cannot be overturned so he is fuct… o 3 years of malpractice runs from the injury and not later when the plaintiff first discovers the injury.  EXCEPTION: NY plaintiff sues for a latent injury hidden to a person or property caused from ingesting or being exposed to a toxic substance.  3 years here does not begin to run until the P discovers the primary condition on which her claim is based. That is, the date when the symptoms first become apparent. “Exposure” means contact inhaling or an injection. CPLR 214-C. o If P can prove that medical scientific or had not been developed to ascertain the cause of those symptoms when they first became apparent, than the P has an additional 2 years to determine the cause and one year thereafter to timely sue the D.  P’s asbestos exposure was 13 years ago but P did not discover the symptoms until 2007, he has until 2010 to sue the D.  If P was married in 2002, could W, P’s wife sue for loss of consortium? 







COA said NO b/c injury was inflicted prior to the marriage and NOT during the marriage. So W has NO claim for loss of consortium. Loss of consortium claims arise out of an injury to one spouse that proximately causes injury to the marital relationship. This claim allows the non-injured spouse to sue the tort-feasor for loss of the injured spouses services and loss of conjugal fellowship.  15 years ago I am injured – my children are all young  I used to drop them off and do homework and cut grass etc…NOW WIFE DOES IT ALL o this is loss of services.  This claim MUST BE JOINED with the injured spouse’s personal injury claim. IF NOT , the claim is barred. 90 NY2.d 210.  Settle claim quickly from car accident…within underlying SOL is the loss of consortium claim. o settle for 250K – year later sued, COA said that is a derivative claim…so must join. 

o

Wrongful Death Actions EPTL §5-4.1  Recovery of the wrongful death award is distributed directly to intestate distributes who suffer the loss, and the money is not awarded to the decedent’s estate.  The Personal injury award is paid to the estate and is subject to the claims of the decedent’s creditors and will be distributed according to the decedent’s will or will pass under the laws of intestacy. So wrongful death claim passes directly and not subject to creditors.  A wrongful death claim arises only if at the moment of death, the tort claim was unsettled and was not barred by the SOL.  Must be able to show on date of death, underlying personal injury claim was not barred by SOL. o The 2 year SOL for wrongful death is applied only if prior to death, the plaintiff had not commenced a tort action against the D. However if when the P died because of the injuries, the P’s claim against the D was pending, than the wrongful death claim is not governed by a 2 year SOL and the plaintiff’s complaint alleging the tort claim can be amended at any time after death to add the wrongful death claim. (COA case was 5 years after and still allowed)  reasoning of COA – whenever a D is sued in tort for PI, the D is on notice that those injuries can proximately cause the P’s death. So they are on notice of possibility of wrongful death claim. o In September of 2005, P was injured because of D’s negligence. In May of 2008, (almost 3 years after the negligence occurred), P died b/c of his injuries. In October of 2009, P’s estate commenced an action against D, alleging negligence and wrongful death. D moved to dismiss both claims. Asserting the SOL.  4 months short of SOL he dies and a year later commenced action. D moves to dismiss. Court correctly dismissed claim b/c not within A SOFT RAIN pneumonic 3 year SOL. (or within 1 year from date of P death).  208 says if when P dies is less than year to go on SOL, than that SOL is automatically extended by 12 months from date of death. o Wrongful death cause of action was timely b/c it was commenced within two years of P death. AND at the moment of death the P’s negligence claim had not been settled a...