New York Cplroutline - Summary New York Civil Procedure PDF

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New york civil procedure note on regulations, concepts, and case law...

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I. Jurisdiction A. The New York Courts 1. CPLR Laws and Rules: core civil procedure law in NY. §s can be amended by legislation only where as rules can be amended by either legislation or the judges. 2. General principles: a. Stipulation, R-2104: an agreement b/t parties or their attorneys relating to any matter in an action, other than one made b/t counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his lawyer or reduced to the form of an order and entered. There are 3 ways to stipulate: 1) On the record in an open court – in front of a judge 2) In writing signed by the party or his lawyer 3) Writing reduced to a form of an order entered by the clerk of the court b. Free to chart litigation: parties are free to chart their court of litigation through stipulation unless there is some sort of statutory prohibition – parties can rewrite the CPLR through stipulation. c. CPLR 2005: Excusable delay or default: the court should have the discretion in the interest of justice to excuse delay or default resulting from law office failure. 1) The party must demonstrate 2 things: a) An acceptable excuse; and b) A demonstration of the merits of the claim or to the defense – which requires the factual force of the claim or defense has to be demonstrated w/ the same sort of showing that would be accepted at trial. You can make this showing by: A) Affidavits – by someone who can testify to the facts contained in the affidavit B) Not affirmations – Zuckerman v. City of NY – if you are going to submit an affidavit or an affirmation, it has to be signed by someone who is a competent witness. But a lawyer’s affirmation is usually NFG. This is useless by a lawyer, this does not satisfy the requirement of merit 2) Barash v. Miccucci – cook out, propane gas tank explodes and clear liability. But the  didn’t serve the complaint w/in 20 days after the  requested it, case dismissed. Then the legislature enacted CPLR 2005 which gives the court discretion to excuse delays and defaults. d. Structure of the courts, p. 190: there are 62 counties in the State of NY and are grouped into judicial districts, and State of NY is divided into 4 depts. 1) Courts below the Supreme Court: these courts have limited subject mater jurisdiction – and they are usually limited by the amount of the claim. 2) Supreme Court: this is the court of general jurisdiction. On the same level as the Supreme Court include the Family Court, the Surrogate’s Court, the County Court 3) Appellate division: intermediate level 4) Court of Appeals: court of last resort e. Application of the CPLR: all the courts at the same level as the Supreme Court or lower are first governed by specific court rules, then the CPLR fills in the gap. The primary focus of the CPLR is its used in the Supreme Court, the CPLR is the only statute that governs procedures in the Supreme Court. B. Jurisdiction over the  1. General rules: 1) There is no juris unless a state statute confers juris 2) Personal juris can be waived, SMJ cannot be waived – you cannot stipulate to get a case b/f a court that doesn’t have SMJ 2. Constitutional considerations: what is required by the due process clause is: Basis + Notice = Jurisdiction. Under the FRCP, the first requirement is allegation of jurisdiction – that the court has subject matter jurisdiction. In NY Supreme Court, the assumption is that a court has subject

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matter juris, thus, it is unnecessary in the pleadings to allege that the Supreme Court has juris. a. Basis: 1) Shaffer v. Heitner, Supreme Court of the US, 1977. If a court’s jurisdiction is based on its authority over the ’s person, the action and judgment are in personam. If the court’s juris is based on its the court’s power over property w/in its territory, the action is in rem or quasi in rem – the judgment is limited to the property that supports juris and does not impose a personal liability on the property owner. a) Std: The std for determining whether an exercise of juris over the interests of persons is consistent with the Due Process Clause is the minimum contacts std, Int’l Shoe. There must be ties b/t the State, the , and the litigation in order for a court to have a basis for exercising juris over the . b) Rule: Due process clause requires there be a triangular relationship b/t the state, the , and the particular lawsuit, so that the exercise of juris can be said to be foreseeable from the ’s perspective – that he expects to be haled into a NY court, so that juris does not offend traditional notions of fair play and substantial justice. A) ’s perspective:  should reasonably anticipate being hailed into the juris. 2) Waivable: this aspect of being haled into a court under the due process clause can be waived by the . Note that this is not the case for SMJ – which is not waivable 3) Timing: note that basis must exist at the time of service b. Notice (service) – general rule: what the due process requires is that the notice must be reasonably calculated, under all circumstances, to apprise the  of the pendency of the lawsuit and give him enough time to come and make a defense, Mullane. 1) In Greene v. Lindsey – the Supreme Court held that posting the service of process on the door of the  is constitutionally acceptable means of service. However, the statute didn’t require the servers to go more than once and the area frequently have kids that remove the notice, thus the court held that in this instance, the posting of process does not provide such notice under the due process clause. c. Due process clause as the floor: note that the due process clause is just the floor, most of the time, we wouldn’t deal with this at all. We ordinary would identify NY statute that tells us that the particular relationship b/t the  and the state that will support the exercise of the juris of the state over the . If state requirements is not met, we don’t need to address the constitutional issue at all. 3. The state rules for exercise of juris: a. General principles: In order for a court to exercise juris, 2 requirements must be met: SMJ and juris over the . But even if these 2 requirements are met, the court may still decline to exercise juris if in the interest of substantial justice the action should be heard in another forum, CPLR 327. 1) Two kinds of juris basis: a) General juris: if the  is present w/in the state when the summons is served – the court can entertain a cause of action regardless of whether it arises out of the ’s activities in the state. b) Specific juris: juris over a  who is not present in the state when the summons is served, this is limited to claims arising from the ’s contacts, ties or relations with the state. 2) Power over ’s person v. property: a) In personam juris: power over the ’s person, the court can impose a personal obligation on the  in favor of the . A) Basis for juris: presence, domicile, consent, contacts or long arm, property in the state, family relationships b) In rem or quasi in rem: power over the person’s property within the state’s territory. The judgment is limited to the property that supports juris and doesn’t impose a personal liability on the property owner

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b. Presence – Natural persons: 1) Burnham, US Supreme Court, 1990.  was served with divorce papers in CA while he was there visiting. The court held that physical presence in the state constitutes an adequate basis of the exercise of juris over the . This is true even if you are passing through for business briefly, so long as you are in the state, that’s enough for the courts to exercise juris over you. 2) Exceptions to physical presence as the basis for exercise of juris: physical presence in the state generally is sufficient to support the exercise of juris. However, there are circumstances where the exercise of juris may violate the due process clause (fairness): a) Driving through: traveling from point A to B, passing NY – this may not be enough for NY to exercise juris b) Fraud, duress, or coercion: if the  was lured into the state solely as a result of the fraud or duress aimed to get the  into the state to be served, then there is no basis for exercise of juris. If the physical presence was voluntary or the intent of coming into the state was negotiation, then exercise of juris is okay. Inviting  to a show and then serving him is no good. Enticement is no good. c) Intent: this plays a big part in determining whether the service is effective d) CL immunity exception: this is another exception to physical presence as a predicate for exercise of juris. If the  is not otherwise subject to NY juris, comes to NY as a witness or for trial in NY state or federal proceeding, the state will not allow his physical presence to be used as the basis of the exercise of juris. A) Other grounds: if there are other grounds for the exercise of juris, such as long arm or domiciliary, then exercise of juris okay. Ex: Fred comes to NY as a witness, but he also committed a tort in NY, he would be subject to NY juris under the long arm statute b/c he committed the tort in the state, thus exercise of juris is appropriate. Or if  was in NY for vacation and participates in a lawsuit, he is not immune b/c there is independent ground for his presence in NY B) Reasonable time only: this immunity only lasts for a reasonable time b/f and after the event for which the  came to NY occurs c. Presence – Corporations: 1) Types of corporations: a) Domestic Corporations: these are corps formed in NY and are subject to the unlimited personal juris of NY (regardless of where the claim arises) b) Foreign corporations: formed in the laws of another state or country. This is divided into 2 classes: A) Foreign corporations authorized to do business in NY – these corps consent and are subject to the unlimited juris of NY as part of doing business here. It has designated the Secretary of State as its agent for the service of process B) Foreign corporations not authorized to do business in NY – these corps do not want to have anything to do with NY. 2) 3 ways to exercise juris over foreign corporation not authorized to do business in NY: although this kind of corps are not subject to the unlimited juris of NY, there are 3 ways to have basis over this kind of corporation: a) Corporate presence (doing business): Tauza – unauthorized foreign corporation sued in NY for a claim that arose in Ohio, but  had an office in NY. Court held that  was subject to NY juris b/c the foreign corporation was doing business in this state, which is equivalent to being physically present here. The corporation must be doing business in NY regularly, systematically, and continuously though. Usually, where the  has some fixed facility, that’s sufficient as basis A) Ex: having an airline counter in NY is enough for doing business. But mere solicitation for business, w/o more, is not enough presence in NY (LL Bean). B) Subsidiaries: Taca -  is an English corporation with a sub that owned a sub in

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NY. Court held that the activities of the sub was sufficient to establish doing business in NY of the parent b/c there was one balance sheet, the directors were the same, thus it was simply a division of the English company. Note that the parent must have control over the sub such that it’s more like a dept of the parent. C) Affiliates: Frummer -  is a UK hotel corporation,  slipped and fell in a hotel in NY.  sued in NY when he saw the reservation service in NY. The court held that this is sufficient to serve as juris basis b/c the activities carried by the reservation service was sufficiently to give rise to an inference of an agency relationship. D) Independent corp entities: Delagi -  was a German corporation, it ships goods to a sub in NJ, then distributor from NY would go there to pick up the products and distribute it throughout the tri-state area. The distributor in NY is owned by US investors that are unrelated to the sub or the target. The NY Court of Appeals here refused to allow the sub’s local activities be attributed to the target  corporation b/c there is no connection b/t the distributor and the sub or target, thus there is no agency relationship. E) Solicitation: Lauger – the court held although solicitation alone is insufficient as basis for the exercise of juris, the fact that  had its employees walking all over in NY constitutes doing business in NY. Cf. Miller where the court held that solicitation by independent contractor did not constitute doing business in NY. The general rule is that solicitation (sending catalogs and advertising) w/o more, doesn’t constitute doing business. F) Agents: Abkco – Ringo Starr was held to be doing business in NY thus subject to NY juris b/c he had an account and lawyer in NY. He was treated like a corporation and the activities carried by his agents in NY is enough to subject him to the personal juris of NY. b) Consent: see below c) Long arm statute: see below, CPLR 302 d. Domicile: 1) CPLR 313: A person domiciled in the state may be served with the summons outside the NY, the same way service is made in NY, by anyone authorized to make service w/in the state who is a resident of the state or by any person authorized to make service service by the laws of ht estate. 2) In personam juris: according to CPLR 313, a domiciliary is subject to in personam juris on any claim, regardless of where the claim arose and regardless of where the  is served. If a person is a domiciliary of NY, you are subject to the juris of NY, even if you were a resident at the time of service. You don’t need to be served in NY if you are a domiciliary 3) Defined: domicile is defined as having 2 requirements: 1) physical presence in the state; and 2) an intention to make the state permanent home. 4) Residents not included: note that residents of NY are not subject to the juris of NY the same way a domiciliary is 5) Matrimonial actions: ordinarily, it is the domicile of the  that is relevant to juris over him, but in actions affecting matrimonial status, the domicile of the  alone can be sufficient for the court to assert juris over the status of the marriage, Carr v. Carr. Thus the state of either the H or W’s domiciliary has personal juris over the other. e. Consent: a person or entity may consent to be sued in NY even if not otherwise subject to the state’s juris. 1) Forum selection clause: often this is drafted into the contract where both parties would consent to a forum for suit. 2) Carnival Cruise – the court held that a forum selection clause printed on the back of a

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cruise ticket on a take it or leave it basis is enforceable. 3) CPLR 303: if a person that is not ordinarily subject to NY juris sues another in NY, he is subject to NY juris, but only for the claims against him by the other parties to the suit, so the lawyer should always ask whether there are other claims that the potential s may have b/c they might be localized against the  in NY. This includes counterclaims or claims separate from the orig lawsuit 4) Waiver, CPLR 3211(e): the defense of lack of juris is use it or lose it, it must be raised in the preanswer motion or the earliest available time. Otherwise, it has the same effect as consent. Long Arm, CPLR 302 – personal juris over nondomiciliaries based on specific contacts with the state: this is to be distinguished from the doing business or domicile. In International Shoe, the Supreme Court recognized that due process considerations will support a sliding scale of jurisdictability. Where the  has nothing to do with the state, then the state has no juris, even where the lawsuit would have repercussions against the state. But if the contact is great enough, the state can exercise juris over the  regardless of the claim or whether  is in the state. 1) Specific personal juris only: This confers specific juris to the NY courts, and if  makes an appearance under a long arm suit, and the only exercise of personal juris is long arm, then NY court doesn’t have juris over actions not arising out of one of the long arm acts. 2) Old long arm statute: old long arm statute said only transacts business in person or through an agent, commits a tortious act. Feathers v. McLucas - shortfall of the statute. 3) Statute  CPLR 302, Personal Juris by Acts of Non-Domiciliaries: a) This allows the court to exercise personal juris over any nondomiciliary, his executor or administrator, if he in person or through an agent: A) (1) Transacts business w/in the state or contracts anywhere to supply goods or services in the state; or B) (2) Commits a tortious act w/in the state, but excluding defamation of character; or C) (3) commits a tortious act not w/in the state but causing injury to person or property w/in the state (not including defamation), if he: i. regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in the state; or ii. expects or reasonably expect the act to have consequences in the satte and derives substantial revenue from interstate or international commerce; or D) (4) owns, uses or possesses any real property situated w/in the state b) Matrimonial actions – see below c) Effect of appearance: If personal juris is based on this section (302), an apeparnace doesn’t give juris to causes of action not arising from an act enumerated in this section. 4) Federal statute distinguished: note that the NY statute doesn’t go to the outer limit of what the US Constitution due process clause permits. 5) Transacts business in NY, CPLR 302(a)(1): a court may exercise personal juris over any nondomiciliary, or his executor or administrator, who in person or through an agent transacts any business in NY, provided that the suit arises out of the in-state transaction. This applies to both natural persons and corporations, Simmons. The issue here is whether the activity transacted in NY is significant enough – which depends on the context. a) Doing business distinguished: doing business gives unlimited personal juris, where as transacts business can be limited to just certain claims that arose of the activities in NY. To be doing business under 301,  must be conducting continuous,

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systematic business so as to be present. To be transacting business under 302(a), in order for juris, there must be nexus b/t cause of action and the business transaction that gave rise to the claim (can be single action). Transacting is less than doing. Purposefully avail: the  must have purposefully availed himself within the forum state in order to be subject to the juris of that state, Hanson v. Denckla. But note that the unilateral activity of the  in the forum state doesn’t satisfy the exercise of long arm juris (prof sued in NY for payment arguing he was an agent that worked in NY for ) -  acted in NY is not enough, Haar Haar v. Darris Corp , unilateral activity not enough – Harvard professor represented DE corporation to participate in urban renewal project in NY. pro sues in NY under 302(a)(1) for his fees, arguing that he was the agent of the corporation that was transacting business in NY. Court rejects this argument, stating that the ’s unilateral action alone are insufficient to support the exercise of juris over the Darris corporation under the long arm statute. Park Bernet, auction agent enough. Franklin, Cal, gets copy of Park Burnett, NY, auction catalog. Franklin agreed to enter into the auction by telephone. Franklin was the successful bidder on 2 items and did not pay. Park Burnett sued Franklin. The court held that the guy on the phone was the agent of Franklin, thus he transacted business and is subject to long arm jurisdiction. The court held that Franklin himself transacted business in NY in person , even though he was in CA. Thus transacting business, the ct distinguished Katz by saying that it was only an isolated phone call Katz v. Coriale, degree of contact determining. Coriale, NJ, made a requests to Katz' business, NY. Coriale did not pay. K sues in NY, but C was in NJ when he placed the order.  argued that C is subject to NY juris under Park ...