NY Practice Outline Proff Centone PDF

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NEW YORK PRACTICE OUTLINE

KEIGHLY & MARC 

NY COURT SYSTEM/SUBJ. MATTER JURISDICTION

State Supreme Court    

General, unlimited jurisdiction Most cases original here Appeals to Appellate Division Limits on jurisdiction o 1) Federal court actions  federal court o 2) Tort/contract actions against NY state  Court of Claims o 3) Statutory restrictions – ex. BCL §1314(b) o 4) Concurrent jurisdiction with another court o 5) Administrative agencies/tribunals  Certain specialized matters  Ex. Planning Board, Zoning Board, Workman’s Comp.

NEW YORK PRACTICE OUTLINE KEIGHLY & MARC   Article 78 Review = SC can hear case once administrative options are exhausted o 6) Removal  Most common in city/boroughs  Ex. CPLR §325(c) – SC judge remands to lower court w/ party consent  Ex. CPLR §324(d) – SC judge remands to lower court w/o party consent Family Court

ALL family-related suits except divorce (heard by Supreme Court) Appeals  Appellate Division

Surrogates Court

Estate and trust matters Appeals  Appellate Division

NY Civil Court

Limited jurisdiction for suits up to $25,000 No equitable jurisdiction (ex. can’t grant injunction) Small Claims Part: disputes not exceeding $5,000

City Courts

Suits up to $15,000 Appeals  County Court EXCEPT Appeals from 2d Dept.  Appellate Term

Village and Town

Suits up to $3,000 Appeals  County Court

County Court

Court in every county except NYC Limited jurisdiction for claims up to $25,000

Court of Claims

ALL suits against state No jury Appeals  Appellate Division

District Court

ONLY in Nassau and Suffolk Suits up to $15,000 Appeals  Appellate Division

Court of Appeals

Highest court Least SMJ b/c only decides cases on appeal or issues of law

Subject Matter Jurisdiction LACKS V. LACKS  H filed for separation, W said H didn’t meet residential requirements of NY DRL, so SC had no SMJ to grant divorce  NY Constitution: Supreme Court’s jurisdiction includes any proceeding not recognized at common law  Judgment rendered w/o SMJ is void and such a defect can be raised at any time by any party  Failure to comply w/ filing requirements does NOT raise SMJ  DRL deals w/ personal jurisdiction which was waived

KAGEN V. KAGEN  Couple got divorce, W filed for child support, H said SC didn’t have SMJ to hear child support issue  NY Constitution: Art. VI, §7(a) intended to increase court’s jurisdiction even regarding classes of actions and proceedings recognized at the time of the amendment’s adoption  SC has SMJ over child support claims

NEW YORK PRACTICE OUTLINE

KEIGHLY & MARC 

SOHN V. CALDERON  Rent-controlled apt. tenants (π) sued LL (∆) to make repairs after fire; ∆ sued πs in SC to demolish building  Legislature created administrative agency to hear LL/tenant disputes but LL ∆ bypassed this and filed in SC  When legislature creates administrative agency, parties must FIRST go through administrative processes and then appeal to Supreme Court under Art. 78  Legislature can confer exclusive original jurisdiction on agency for administration of statutory regulation

J.A. MENNELLA FOODS CORP. V. NEPTUNES  Corporation ∆ rented building and trashed it before moving back to CT; LL π wanted to file against ∆ in county court  Judiciary Law states corporation must be resident of NY at time action is commenced  Tenant ∆ no longer resident of NY  LL π should have brought action in Supreme Court instead of county court

Removal 

CPLR §325 – Ground for Removal o (a) By Supreme Court for mistake in choice of court  Upon motion  Upon such terms as may be just o (b) Court where action pending does NOT have jurisdiction to grant relief  Proper court may remove action to itself  Upon motion  Waive of jury trial in first court ≠ waiver after removal o (c) Damages are actually less than demanded amount  Can be removed to lower court  Consent of parties  Monetary limitation of lower court applies o (d) Damages are actually less than demanded amount  Can be removed to lower court  Without consent of parties  Monetary limitation of lower court is waived OFFNER V. ROTHSCHILD  Π fell on sidewalk w/ no permanent damage, claimed $250 damages; filed in SC and claimed damages of $100,000  When π refused to transfer to civil court, judge lowered damages and removed despite CPLR §325(c) & (d)  Judge said Article VI of constitution allowed him to do that sua sponte

PERSONAL JURISDICTION NOTICE

BASIS

SUBJECT MATTER

NEW YORK PRACTICE OUTLINE

KEIGHLY & MARC 

1) Basis  General = court has jurisdiction over ∆ for any and all claims π has against ∆, regardless of whether or not claim stems from ∆’s presence in the forum o ∆ voluntarily w/in forum + properly served w/in forum = general jurisdiction o Exception: fraudulent inducement  BUT once ∆ voluntarily within forum, jurisdiction can be valid  Trickery can be used to serve once ∆ voluntarily w/in forum o Pennoyer v. Neff: state court can only exercise jurisdiction over people/things in state boundaries o CPLR §301  Specific = π can only sue ∆ for action related to jurisdiction o ∆ outside forum o International Shoe: under certain circumstances, a state court can reach outside boundaries o CPLR §302 2) Notice/Service of Process BURNHAM V. SUPERIOR COURT OF CALIFORNIA (SCOTUS)  H & W separate, W takes kids to CA; H visits kids/does business in CA where W served H w/ divorce papers  H returns to NJ and seeks to quash service b/c doesn’t meet 14th Am. DP  If the ∆ comes into the state voluntarily and remains there for whatever period of time, he is subject to service and state courts have jurisdiction over him  NY RULE: When ∆ enters jurisdiction voluntarily, he is subject to be ing served there if there is a claim against him  Ex. Grace v. MacCarthy: ∆ served on airplane over Arkansas airspace (extreme example)

HAMMON V. HAMMON  Separated H moves to couple’s house in Philly, while he’s gone W files for spousal support  H briefly returns to NY and is served, argues he was tricked by W’s phone call trying to persuade him to end affair and reconcile (W says she didn’t request him to come, but he said he was staying in NY hotel w/ mistress)  If the ∆ comes into the state voluntarily and there is no evidence of fraudulent inducement, he is subject to jurisdiction of the state court  H didn’t specifically deny he was coming to NY voluntarily, just that he didn’t tell W that  It’s not like he didn’t have an intention to come to NY until W asked him – he was voluntarily in state  Dissent: shouldn’t be served on Sunday + hold Traverse hearing to determine jurisdiction  Notes: o Good faith negotiations  when ∆ comes to jurisdiction for settlement negotiations, he must be given opportunity to leave (federal rule)

MERGIONE V. SEABOARD CAPITAL CORP.  NJ ∆ comes to NY for Traverse hearing, wins hearing and service invalidated on that issue  As ∆ exits courthouse, he’s served for the same action; argues immune from service if voluntarily in state to testify  Immunity rule does not apply where ∆ is already subject to service of process outside NY  CPLR §303: file action in NY and counterclaim served  can be served on ∆’s attorney b/c he already voluntarily filed action in NY

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Partnerships FIRST AMERICAN CORP. V. PRICE WATERHOUSE, LLP.  PW-UK & PW-US = separate, general p’ships w/ partners jointly/severally liable for p’ship; acquired by BCCI  First subpoenas PWs – improper b/c two independent entities, not agents of each other  First then serves general partner of PW-UK working on assignment in NYC w/ PW-US  CPLR §310 = can serve general p’ship by serving one of the partners o Each partner subject to service just like each responsible for obligations of p’ship o Rule applies even if partner is non-resident or non-domiciliary o Service doesn’t need to be made in the state if NY already has basis for jurisdiction over p’ship itself  Domestic and authorized foreign corporations o All formed by registering w/ NY state and subject to same PJ rules o Must designate NY Secretary of State as agent for service  Foreign unauthorized corporations  must show entity present w/in state to obtain basis PJ

Foreign Unauthorized Corporations GOODYEAR DUNLOP TIRES OPERATIONS, S.A. V. BROWN.  Paris bus accident kills two North Carolina boys, family sue Goodyear but Turkish subsidiary made actual tires  No long-arm b/c tortious act/injuries sustained outside NY  πs relied on presence of parent company in NC (not agent for Turkish Goodyear) + some tires sold by Turkish company ended up in NC  Sale of Turkish tires + presence of parent corporation ≠ continuous and systematic business to deem foreign corporation present w/in forum for general jurisdiction purposes

TAUZA V. SUSQUEHANNA COAL CO.  Tauza wants to sue ∆ (foreign unauthorized doing business in NY w/ PPB in PA)  Π files in NY based on general jurisdiction over ∆ branch office in NY that had NO involvement in breach claim  Branch office in state that systematically and regularly obtained orders that resulted in shipments from PA to NY was enough to establish continuous, systematic business that subjected ∆ to general jurisdiction  Didn’t mater that branch office was not involve w/ contract claim  branch was agent and direct office of ∆  Corporate activity determines the location of the corporation

BRYANT V. FINNISH NATIONAL AIRLINE  Stewardess π (NY) injured walking on to tarmac in Paris; π alleges negligence by Finnish Airline  No long-arm b/c tortious act and injuries occurred in Paris  An unauthorized foreign corporation located in NY with a degree of permanency that also has a corporate presence is subject to general jurisdiction  ∆ didn’t fly planes in NY but had branch office to facilitate travelers who wanted to use airline while in Europe o Office had staff of three, bank account, made reservations for travelers, transmit info. o = enough to subject it to jurisdiction  Tauza + Bryant: physical presence + corporate activity on systematic and regular business w/ state = general jurisdiction (π can sue for any and all claims against ∆) o Ex. Company president comes into NY and is served ≠ general jurisdiction  Need basis + proper service  Must show corporation is present not just the president  President would be acceptable person to serve IF there were basis for jurisdiction

DELAGI V. VOLKSWAGENWEK AG OF WOLFSBURG, GERMANY  Π sues VWAG in NY after car crash in Germany but VWAG not present in NY

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 VWoA is NJ subsidiary of VWAG that imports cars into NJ for distributors – ex. WWV: independent NY distributor  Π tried to claim VWAG was present in NY via WWV  Where the parent company pulls all the strings of the subsidiary, the parent/subsidiary relationship constitutes agency sufficient to justify jurisdiction over parent  Control over subsidiary must be so complete that subsidiary is merely a department of the parent  Dealership specifying uniforms, showroom layout, etc. ≠ sufficient control  VWAG manufactured cars that end up in NY and cause injury = long-arm, but not general

MILLER V. SURF PROPS  NY Π injured in FL hotel, returns to NY, wants to sue hotel, but tortious act/injures not in state = no long-arm  A parent-subsidiary relationship in which the parent exercises a sufficient degree of control over the subsidiary can be a basis for jurisdiction  Π argued FL hotel’s presence established by agency over independently owned/operated NY reservation service  NY co. worked for FL hotel and other companies by taking info from customers and making reservations  NO parent-subsidiary relationship and NO sufficient degree of control = no jurisdiction

FRUMMER V. HILTON HOTELS  NY π injured in London hotel, returns to NY, wants to sue hotel but tortious act/injures not in state = no long-arm  Where a foreign corporation exercises complete control over the domestic entity, jurisdiction is established  Hilton UK reservations made through Hilton Reservation System = both owned by Hilton  HRS could do same business that Hilton UK could do if it were in NY  interconnectivity not present in Miller  Notes: o Weewah v. World Dutch Petroleum: agency relationship b/w two int’l oil companies  Agency must go beyond solicitation  Must be services corporation could perform itself

LAUFER V. OSTROW  Π = Laufer (NY), ∆s = Mt. Olive (NJ distributor), Ostrow (NJ Mt. Olive president), Penkey (NC manufacturer)  Π is sales rep for Mt. O, solicits business for Mt. O in and out of NY, Mt. O sells furniture in NY  All sales approved by Mt. O in NJ and sent to Penkey who ships/sends products to NY; π quits and sues  Solicitation alone ≠ general jurisdiction (Penkey = NO jurisdiction)  Solicitation + other systematic/continuous factors – ex. servicing = general jurisdiction  Solicitation = advertises, attempts to sell, or sells products into NY  Long-arm statute could apply for specific transaction of selling into NY but NOT for general jurisdiction  Mt. O had other sales reps engaged in systematic/continuous activities w/ NY = general jurisdiction  Ostrow protected by fiduciary shield b/c acts were for benefit of corporation = NO jurisdiction  No set location, address, regular staff/payroll, office, etc.  but there was activity w/in state = presence  Notes: o ABCO v. Lennon: Ringo Starr subject to NY jurisdiction based on agents acting on his behalf in NY o Chevron Corp. v. Naranjo: CoA/2nd Circuit assume CPLR applies to natural persons doing business

LANDOIL RESOURCES CORP. V. ALEXANDER & ALEXANDER SERVICES, INC.  Alexander insurance broker creates Syndicate 317 through Lloyds to provide political risk insurance for Landoil  Landoil makes claim but 317 doesn’t pay so they arbitrate but award doesn’t cover damage  Landoil sues Alexander b/c it provided insufficient insurance and Alexander brings 3rd party claim against 317  No jurisdiction over 317 b/c there is a lack of connection b/w 317 and FMSG (separate branch of Lloyds) and FMSG not physically located in NY  Alexander’s arguments that 317 connected to FMSG and ATF trust fund (both in or doing business in NY)

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KEIGHLY & MARC  1) 317 doing business in NY b/c Lloyd’s policies sold in NY  solicitation, but no purposeful activity = not enough for general jurisdiction 2) 317 has sufficient interest in ATF  FMSG controls ATF = no basis for jurisdiction over 317 3) FMSG agent of 317 and FMSG located in NY  but FMSG not located in NY + no agency

o o Notes: o Georgia Pacific Corp. v. Multimark’s International: factors for jurisdiction over foreign related corp:  1) Common ownership (essential factor)  2) Financial dependency of subsidiary on parent  3) Degree to which parent interferes in selection and assignment of subsidiary’s executive personnel and fails to observe corporate formalities  4) Degree of control over marketing and operational policies of subsidiary’s exercised by parent

Domicile 

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Can only have one domicile by law o NY courts always have general jurisdiction over NY domiciliary o Domiciliary does NOT have to be present w/in forum when served Resident = in forum temporarily or w/ no degree of permanency o Resident MUST be served w/in forum

Consent Jurisdiction 

CPLR §318: Designation of Agent for Service of Process o Can be done by natural person (or corporation, but they automatically designate Sec. of State)  Individual designates agent w/in forum for service  + written acknowledgement filed w/ county clerk where agent located  = creation of agent for service of process o Consent jurisdiction = agent can be served on behalf of principle (express, not implied agency)

BOSS V. AMERICAN EXPRESS FINANCIAL ADVISORS, INC.  Π financial advisors sues AmEx for Labor Law claim in NY but employment K had Minnesota forum/law clause  All forum selection clauses are prima facie valid  Conflict of law issue that Minnesota court should decide  Πs argued that NY law is involved in the dispute and that should trump consent clause  NO

CARNIVAL CRUISE LINES V. SHUTE  Π injured on cruise off coast of FL, files claim in WA but forum selection on ticket says they must file in FL (HQ)  All forum selection clauses are prima facie valid  Reasonable to ensure all claims brought in one forum so they don’t have to defend in 50 states  Reasonable to include such a clause when they enter into contracts  clause is enforceable

BROOKE GROUP LTD. V. JCH SYNDICATE  Clause: ∆ agreed it would submit to jurisdiction of court w/in US at request of π  Permissive service of suit clauses can be overcome by showing other factors  Service of suit clause (obligates one party to submit to jurisdiction of particular court) NOT forum selection  Clause was merely passive NOT mandatory  ∆ could move to dismiss NY action for forum non conveniens  Can’t have any ambiguity in forum selection clause (must or shall, NOT may)

PARAGON HOMES, INC. V. CARTER

NEW YORK PRACTICE OUTLINE

KEIGHLY & MARC 

 Π tried to rely on consent clause in his assignor’s K w/ ∆ consumer (MA): ∆ consented to Nassau, NY jurisdiction  Forum selection clauses not enforceable if they’re unconscionable  Clause was inserted to make it difficult, if not impossible, for ∆ to sue

Long-Arm (Specific) Jurisdiction  

Can only sue for transaction or occurrence that forms basis of connection to NY CPLR §302: Personal Jurisdiction by Acts of Non-Domiciliaries o Action must be specifically related to acts in the section o (a) ∆ in person or by agent:  1) Transacts business/contracts to supply goods or services in state  2) Commits tortious act in state (EXCEPT defamation)  Usually car accidents  Allows NY courts jurisdiction over foreign ∆s who commit tortious act in state but then leave and don’t return  3) Commits tortious act outside state causing harm in state (EXCEPT defamation) if ∆:  (i) regularly does/solicits business, engages in course of conduct, or derives substantial revenue from goods/services in state  (ii) expects or should reasonably expect to have consequences in state and derives substantial revenue from interstate or int’l commerce  These qualifications protect small, out of state “mom and pop” stores  4) Real property in state  NOT quasi-in-rem or in-rem statute  Foreign ∆ has real property in state + property forms basis of action = jurisdiction  Π not going over property but the individual ∆ based on his ownership of real property  Ex. NJ LL owns building in NY where tenant injured  tenant can sue LL based on his ownership of real property in NY o (b) Matrimonial/family court  Demand for support, alimony, maintenance, distributive awards, special relief  Doesn’t matter that ∆ is no longer resident/domiciliary  Π must be resident or domiciliary at time demand is made  MUST have one of these:  NY must be marital domicile of parties pre-separation, OR  ∆ abandoned π in NY, OR  Claim accrued under NY laws or under NY judgment o (c) Appearance in COA from act in this section ≠ long-arm PJ  ∆ not consenting to jurisdiction regarding anything more than the claim against him  Only applies when jurisdiction is based on long-arm statute o (d) Foreign defamation  Out-of-US judgment against ∆ (NY resident or subject to NJ jurisdiction)  Court has PJ for purposes of declaratory relief/determining whether judgment should be recognizable  SO LONG AS:  1) Publication at issue published in NY  2) ∆ resident/subject to PJ: o (i) has assets in NY that could be used to satisfy the foreign judgment o (...