Washington University School of Law. Introduction to New York Practice. March 28 & 29, 2008

Transcription

1 Washington University School of Law Introduction to New York Practice March 28 & 29, 2008 Professor Patrick M. Connors Albany Law School C.P.L.R. Civil Practice Law & Rules I. PURPOSE AND SCOPE OF LECTURE 1. Jurisdiction 2. Venue

2 3. Statute of limitations 4. Pleadings 5. Summary Judgment 6. Provisional remedies 7. Third party practice 8. Arbitration 9. General Observations 2

3 II. JURISDICTION Three General Elements Of Jurisdiction A. Subject matter jurisdiction proper commencement B. Valid basis of jurisdiction over the person or property involved in the action C. Proper service of process on defendant A. Subject Matter Jurisdiction 1. Papers a. Caption / Proper Court / Index #: b. Process - two types of process used: (1) Summons and Complaint: (2) Summons with Notice: 3

4 Three necessary items to Notice: a) A brief statement of the nature of the action. b) Nature of the relief being sought. c) If damages are being requested, the amount of damages must be specified. Exception: 2. Method of commencement of action a. Supreme and County Courts, City Courts, District Courts b. Town & Village Courts 3. Parties 4

5 Question: complaint? Can a New York State action be commenced with a bare summons or with a bare CPLR 2001 provides: CPLR Mistakes, omissions, defects and irregularities. At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid. 5

6 Title: Summons with Notice for use in conjunction with a New York State Supreme Court action served by CPLR 308 method SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER Homer J. Simpson, Plaintiff, - against - Kent Brockman, Defendant. Summons with Notice Index No. and Date of Filing With Clerk To the above-named defendant: You are hereby summoned to appear in this action by serving a notice of appearance on plaintiff s attorney within twenty days after the service of this summons, exclusive of the day of service, or within thirty days after service is complete if this summons is not personally delivered to you within the State of New York. Take notice that the nature of this action and the relief sought is to recover damages for [insert nature of the action, e.g., breach of contract, negligence ], and that in case of your failure to appear judgment will be taken against you by default for the sum of $ [if applicable, add with interest from ], plus the costs and disbursements of this action. The basis of the venue designated is [specify basis, as: the residence of (plaintiff/defendant), which is ; a written agreement fixing the place of trial ; or the county in which the real property that is the subject of the action sits ]. Dated: [Signature of Attorney] Lionel Hutts Attorney for Plaintiff Address: Telephone Number: 6

7 B. Valid basis of jurisdiction over the person or property involved in the action 1. Presence in New York State a. Persons Two feet in New York State b. Corporations subject to jurisdiction in New York: (1) domestic corporation (2) foreign corporation which obtains a license to do business in New York Example: (3) unlicensed foreign corporation is subject to jurisdiction in New York if it is: Doing business test: an unlicensed foreign corporation is doing business in New York if: a) at the time the action is commenced b) the corporation s employees or agents are in New York 7

8 c) engaging in commercial activity d) on a regular, systematic and ongoing basis. Question: What is the most important factor for determining if an unlicensed foreign corporation is doing business in New York and, therefore, subject to jurisdiction?: 2. Domicile of Defendant in New York State a. residence b. domicile 8

9 3. Long arm jurisdiction a. Plaintiff s claim arises from a transaction of business by defendant in New York. b. Plaintiff s claim is based on a contract made outside of New York to supply goods or services in New York. c. Cause of action based on defendant s commission of a tortious act within the State. d. Cause of action based on a tortious act outside of New York that causes injury within New York. 9

10 In addition, under category d, Plaintiff must show at least one of the following three links: (1) defendant is regularly doing or soliciting business in New York; or engaging in any other persistent course of conduct in the state (2) defendant is deriving substantial revenue from goods used or services rendered in New York; or (3) defendant could expect, or reasonably should expect, that the tortious act would have consequences in New York and defendant is deriving substantial revenue from interstate or international commerce. Caveat: Cause of action for is excluded from categories c and d above. e. A claim arising from the defendant s ownership, use or possession of real property in New York. 10

11 General items that apply to all categories of long arm jurisdiction: a) The statute applies to any type of defendant b) Agents c) Death d) Service of process e) Essay question on bar exam - be sure to discuss Constitutional Due Process the assertion of jurisdiction under New York s long arm statute must also comport with due process. The State of New York may exercise jurisdiction over non-domiciliary defendants provided they have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, at 316 (1945). For a thorough New York Court of Appeals case discussing the application of New York s long arm statute, see LaMarca v. Pak- Mor Mfg. Co., 95 NY2d 210, 735 NE2d 883 (2000). Question: A New York Bank contacts a sophisticated Montana Corporation charged with managing an investment program. The communications are made through an instant messaging service. In the 13 months prior to this transaction, the parties had engaged in eight similar transactions with a face value of over $100 million. The Montana Corporation agrees to sell $15 million in bonds to the New York Bank after a series of instant messages. One day after an agreement is reached, the Montana Corporation notifies the New York Bank that it is breaking the trade. The New York Bank purchases the bonds elsewhere for an additional $1.6 million and 11

12 commences an action against the Montana Corporation in New York State Supreme Court alleging breach of contract. The Montana Corporation moves to dismiss the action based on lack of personal jurisdiction because it never set foot in New York. Decide the motion. 4. Non-resident motorist statute 5. Consent C. Proper Service of Process On Defendant within 120 days of filing the summons and complaint, or summons and notice, plaintiff must serve the defendant through one of the methods outlined below. Extension of 120-day period: The court has the authority to extend the 120-day period upon a showing of 12

13 (1) good cause ; or (2) interest of justice 1. Who may serve process? 2. When may Summons be served? 3. Statutory methods of serving process must be followed to the letter to constitute valid service of process. 4. Service of process on natural persons 5. What papers must be served? 6. Five traditional methods of service: a. Personal delivery to defendant. 13

14 b. Leave and Mail service Two-step procedure: (1) Deliver process to person of suitable age and discretion at defendant s actual dwelling place or actual place of business, plus (2) mail a copy of process by regular mail to the defendant at the defendant s last known residence or actual place of business. c. Affix and Mail or Nail and Mail service Two-step procedure: (1) Affix process to door of actual dwelling place or actual place of business of defendant, plus (2) a mailing of process to the last known residence or actual place of business. 14

15 Caveat: As to both methods b and c above, both service acts must be performed within 20 days of each other and both acts must be performed within 120 days from the filing. In addition, plaintiff must file proof of service if methods b and c are used. Service is complete, for purposes of computing defendant s answering time, 10 days after the filing. See V,E,1,(a),(1). Caveat. The failure to file proof of service is not a jurisdictional defect, but merely May plaintiff deliver or affix process to the defendant s actual residence and mail to defendant s actual place of business? Can plaintiff resort to the affix and mail method of service in the first instance? d. Expedient service. 15

16 e. Delivery to an agent of the defendant who has been specifically designated by the defendant as an agent to accept service of process. 7. Service of process upon an infant. 8. Service of process outside of New York. Question: What method of service should be used for serving process on a defendant in a New York State Supreme Court action while the defendant is in California? Proper Process Server When Service Made Outside New York (1) Anyone who is authorized under New York law to serve process. 16

17 (2) Anyone authorized by the laws of the jurisdiction where process is being served. (3) Any attorney, or the equivalent, such as barrister or solicitor, in the jurisdiction where process is being served. Question: Plaintiff serves defendant by placing the summons and complaint under defendant s windshield wiper 80 days after filing the summons and complaint with the clerk of the court. Defendant goes out to her car, sees the summons and complaint, reads it thoroughly and hires a lawyer who serves an answer. The answer asserts lack of proper service. Defendant moves to dismiss based on lack of proper service. Plaintiff responds by arguing that defendant received notice of the action, otherwise she never would have made the motion to dismiss. Who wins the motion and why? 9. Service of process on a corporation a. Make personal delivery to any one of the following corporate representatives: (1) officer, (2) director, (3) designated agent, or 17

18 (4) managing agent Question: May a corporation be served through delivery of the summons and complaint to a person of suitable age and discretion, such as a receptionist, and by mailing the summons and complaint to an officer at the corporation s actual place of business? b. New York Secretary of State s Office (1) domestic corporation, foreign corporation licensed to do business in New York (2) unlicensed foreign corporation 18

19 Question: Plaintiff commences a New York State Supreme Court action against an unlicensed foreign corporation who she believes is doing business in New York State. She serves two copies of the summons and complaint on the New York State Secretary of State. The Secretary of State mails one copy of the papers to the defendant, which receives it. Defendant moves to dismiss the action for lack of proper service. Who wins the motion and why? 10. Service of process by first class mail plus acknowledgment. This method allows plaintiff to mail process (summons and complaint, or notice) to defendant, with two copies of acknowledgment of receipt and a postpaid envelope addressed to the sender. Defendant has 30 days from the receipt of the papers to send back the acknowledgment. If defendant does not send back the acknowledgment within 30 days from receipt of the papers, service must be accomplished through another method, but Question: Plaintiff properly served defendant through the first class mail plus acknowledgment method, but defendant takes the papers, tears them in half and throws them all in the wastebasket. Is service proper if plaintiff can prove the above facts? 19

20 Assuming defendant did return a signed acknowledgment, can defendant assert lack of personal jurisdiction in an answer to the complaint? III. VENUE Two basic venue rules: 1. Real property 2. Residence Question: Plaintiff, a resident of Saratoga County, is struck by defendant, a resident of New York County, while attending a Yankee game in Bronx County, New York. Plaintiff plans to sue defendant for $50,000 in damages. Does Supreme Court, Bronx County, have subject matter jurisdiction to hear the matter? 20

21 Does Supreme Court, Erie County, have subject matter jurisdiction to hear to the matter? Is venue proper in Supreme Court, Bronx County? Is venue proper in Supreme Court, Saratoga County? IV. STATUTE OF LIMITATIONS A. No discovery rule: B. Computation Rule: C. Three year periods: 21

22 D. Medical Malpractice: 1. General rule: 2. Two exceptions a. continuous treatment doctrine the 2 1/2 year statute of limitations runs from the last day of continuous treatment of the condition that gives rise to the malpractice. Question: Doctor treats patient by examining the patient s knee in March 2000, performing surgery on the knee in August 2000 and by performing a post-operative exam in October Doctor also examines patient s shoulder in December What is the last month in which patient could sue doctor for medical malpractice committed by the doctor in operating on the knee? Caveat: Misdiagnosis of a condition does not constitute treatment. If there is a series of consecutive misdiagnoses, the 2 1/2 year statute of limitations begins to run after each separate misdiagnosis. 22

23 b. foreign object rule (1) commence an action within 2 1/2 years of the date of the operation, or (2) commence an action within one year from date plaintiff discovers presence of object Three things specifically excluded from definition of foreign object: 1. chemical substances 2. a prosthetic device 3. a fixation device E. Products Liability Cases - Exposure To Toxic Substances To sue for negligence or strict products liability based on exposure to a toxic substance, plaintiff must commence the action within three years from the date when the injury is discovered by plaintiff, or when the injury should have been discovered with reasonable diligence, whichever is earlier. Examples of toxic substances: DES, asbestos, insecticides, HIV virus, PCBs, oil spill. Exposure : any form of assimilation into body or property, including implantation 23

24 Question: Plaintiff is treated by Dr. Hibbert in June The doctor injects medicine into plaintiff to cure plaintiff s condition. In 2007, plaintiff discovers cancer in the area of her body where the medicine was injected and determines that the cancer was caused by the medicine. Plaintiff s claim against the manufacturer of the medicine for negligence or strict products liability must be commenced by: Plaintiff s claim for medical malpractice against the doctor must be commenced by: V. PLEADINGS A. Complaint B. Answer 1. Denials 2. Affirmative defenses 3. Counterclaims 24

25 4. Cross-claims C. Reply Question: May plaintiff serve a reply to defendant s answer if the answer contains seven denials, six affirmative defenses, and three cross-claims against other defendants? D. Service of Interlocutory Papers 1. personal delivery 2. by regular mail 25

26 3. by overnight delivery 4. by facsimile 5. Who to serve? E. Defendant s Options and Response Time To Plaintiff s Complaint 1. Defendant s response time: a. Plaintiff filed a Summons and Complaint, which was subsequently served upon defendant. (1) Answer a) personal delivery within the State of New York 26

27 b) first class mail plus acknowledgment method c) other circumstances Caveat: Where defendant is served by deliver and mail or affix and mail methods, the 30-day period begins to run 10 days after proof of service is filed. Therefore, defendant has 40 days from the filing of proof of service to serve an answer. Question: If defendant is personally served in Central Park in New York City on July 1, 2008, she has until to interpose an answer. If defendant is personally served on the Mall in Washington, D.C. on July 1, 2008, she has until to interpose an answer. 2. Motion to Dismiss Instead of answering, defendant may move to dismiss within the above time periods. F. Motion to Dismiss instead of answering, the defendant may move to dismiss the complaint based on one or more of the following grounds. 1. DOWNFALL : a. Documentary evidence b. Other action pending 27

28 c. Want of capacity d. Non-joinder of a necessary party e. Failure to state a cause of action f. Affirmative defenses - SABERSRIP (1) Statute of limitations. (2) Arbitration and award (3) Bankruptcy discharge (4) Estoppel (5) Res judicata (6) Statute of frauds (7) Release (8) Infancy of the moving party (9) Payment 28

29 g. Lack of personal jurisdiction (1) lack of a basis of jurisdiction (2) defect in method of serving process (3) defect in form of the summons and complaint/filing h. Lack of subject matter jurisdiction. 2. Procedural effects of making 3211 motion to dismiss: a. Time limit: b. extends defendant s time to answer. Question: If defendant s pre-answer motion to dismiss is denied, defendant has days to serve the answer after the order denying the motion to dismiss is served with notice of entry. 29

30 3. Making a 3211 motion is optional. 4. Defendant is entitled to make only one 3211 motion 5. Waiver of defenses If defendant has two or more affirmative defenses available or other grounds under DOWNFALL, but makes a pre-answer motion to dismiss on only one of the grounds and loses the motion, he can put the remaining affirmative defenses in the answer. Exception: Question: Defendant makes a pre-answer motion to dismiss on the ground of the statute of limitations and the motion is denied. When defendant serves his answer, can he properly assert: (1) the defense of release? (2) the defense of arbitration and award? 30

31 (3) improper service of process? There are two ways for a defendant to preserve jurisdictional defenses: (1) Before serving the answer, defendant makes a pre-answer motion to dismiss including lack of personal jurisdiction; or (2) Defendant makes no pre-answer motion to dismiss on any ground and includes lack of personal jurisdiction as an affirmative defense in the answer. Caveat: If defense of lack of proper service is included in the answer, it must be moved on within 60 days of service of the answer. Three defenses in 3211 are never waived: (1) non-joinder of a necessary party; (2) failure to state a cause of action; and (3) lack of subject matter jurisdiction. 31

32 G. Defendant s Response To Summons With Notice (1) Demand for a complaint, and/or (2) Notice of appearance 1. Time Limits a. Time limit for serving either of the above is the same for serving an answer. b. After defendant performs one of the above acts, burden is on plaintiff to serve the complaint within 20 days after defendant served demand for the complaint or a notice of appearance. c. Once complaint is served, defendant now has only 20 days, no matter how complaint is served, to serve an answer to the complaint or to make a 3211 motion to dismiss. 32

33 Question: Plaintiff commences an action in Supreme Court, Nassau County by filing a summons and notice with the Nassau County Clerk s Office on March 17, Plaintiff serves the summons and notice on July 1, 2008, by delivering a copy of the summons and notice to defendant personally in Maine. Defendant serves a notice of appearance and demand for the complaint on July 31, How long does plaintiff have to serve a complaint? How long does defendant have to serve an answer or make a pre-answer motion to dismiss? May defendant s answer include a defense based on lack of personal jurisdiction? VI. SUMMARY JUDGMENT A. Purpose B. Timing 33

34 C. Movant s Burden D. Opponent s Burden E. Partial Summary Judgment VII. PROVISIONAL REMEDIES A. There are five provisional remedies in New York: 1. Attachment 2. Preliminary injunction 3. Temporary receivership 34

35 4. Order to seize a chattel in an action to recover a chattel, i.e. a Replevin action 5. Notice of pendency 6. Strict Construction B. Attachment 1. How does one make a levy on real property? 35

36 2. If it is personal property, levy can be made in two ways: a. Seizure of the personal property b. Sheriff delivers the order of attachment to the person holding the property interest 3. Order of attachment is available only in actions where plaintiff is seeking money damages. 4. In addition, plaintiff s case must fall within one of five possible categories of actions: a. defendant is either an unlicensed foreign corporation or a nondomiciliary. b. defendant is a New York resident who cannot be personally served with due diligence c. defendant is about to conceal or remove assets from the State of New York with the intent of defrauding creditors d. an action on an out-of-state money judgment e. civil action by the victim of a felony against a convicted defendant who has earned profits from the crime 36

37 5. Must make a motion to obtain an order of attachment a. Affidavit submitted in support of attachment motion must show that one of plaintiff s causes of action fall into one of the five categories above. b. Plaintiff must also show a probability of success on the merits of the cause of action. c. Plaintiff must post an undertaking d. Attachment motion can be made on notice or ex parte. e. Time limits VIII. THIRD PARTY PRACTICE A. Impleader 1. Usually impleader is based on a claim for indemnity or contribution: 37

38 2. Three ways that a claim for indemnity or contribution can be asserted: a. separate action: b. cross-claim: c. impleader: 3. Mechanics Two steps: (1) File a Summons and Third-Party complaint with the court. (2) Within 120 days of the filing, serve the Summons, the third-party complaint and all prior pleadings on the third-party defendant with a copy to the plaintiff. 4. Third-party defendant must serve a third-party answer 5. Substantive law questions of impleader: a. indemnity 38

39 (1) right to indemnity can be created by contract (2) right to indemnity can be implied in law (3) right to indemnity can be created through vicarious liability b. contribution (1) joint and several tort liability - general rule in New York is that each tortfeasor is liable to the plaintiff for the full 100%, of plaintiff s damages, regardless of an individual tortfeasor s degree of fault. (2) formula for contribution 39

40 (3) successive tortfeasor 6. Statute of limitations in impleader actions contribution or indemnity 7. Workers Compensation Law 11 Grave Injury Requirement in Thirdparty Actions Workers Compensation Law 11 states: An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a grave injury which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability

41 [T]he terms indemnity and contribution shall not include a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident.... a. [L]oss of multiple fingers 1. Castro v. United Container Machinery Group Inc., 96 N.Y.2d 398, 736 N.Y.S.2d 287 (2001) The amputation of the tips of fingers on one hand does not constitute loss of multiple fingers and, therefore, is not a grave injury under 11 of the Workers Compensation Law. The Court of Appeals held that the term loss of multiple fingers cannot sensibly be read to mean partial loss of multiple fingers. 2. Meis v. ELO Organization, LLC, 97 N.Y.2d 714, 740 N.Y.S.2d 689 (2002) The loss of use of the thumb is not, standing alone, a grave injury. Plaintiff failed to demonstrate that due to the amputation of the thumb, he suffered a permanent and total loss of use of the hand. Plaintiff s argument that the loss of his thumb automatically renders his hand totally useless is unavailing. Could the loss of use of the thumb constitute permanent and total loss of use of the hand in a particular case? 41

42 3. Vincenty v. Cincinnati Inc., 14 A.D.3d 392 (1st Dep t 2005) Plaintiff s pinkie and ring fingers were completely amputated in a workplace accident. Shortly after the accident, however, the fingers were surgically reattached so that plaintiff regained their use, at least partially. The court holds that because the fingers and their use were not permanently and totally lost, plaintiff did not sustain a grave injury within the meaning of Workers Compensation Law 11. The statute, however, only requires loss of multiple fingers, not permanent loss. b. [L]oss of an index finger Castillo v. 711 Group, Inc., 10 N.Y.3d 735 (2008) The denial of third-party defendant s motion for summary judgment dismissing the third-party action was affirmed by the Appellate Division. In addition, the Appellate Division searched the record and awarded plaintiff and defendant/third-party plaintiff partial summary judgment on the issue of whether plaintiff sustained a grave injury. The Court of Appeals affirmed. Citing its decision in Castro, the Court noted that plaintiff demonstrated that he lost both interphalangeal joints of his left index finger, leaving a painful amputation stump that required two corrective surgeries to desensitize. This established the loss of an index finger within the meaning of Workers Compensation Law 11. The Court also noted that reattachment was contraindicated. IX. ARBITRATION A. Definition - a dispute resolution procedure involving private resolution of a dispute. 42

43 B. Court Intervention If there is a valid agreement to arbitrate, there are only five areas where a court can decide an issue instead of an arbitrator: (1) whether the dispute falls within the scope of the agreement to arbitrate (2) the statute of limitations (3) the nonperformance of an express condition precedent to arbitration (4) public policy limitations (5) fraud in the inducement of the arbitration clause. 43