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MRD3673-nyp

nyp

QuestionAnswer
S/L: Breach of Contract 6 years -- Does not include contracts arising from UCC Art 2.
S/L: Indemnity and contribution 6 years -- accrues on date of payment for which indemnity or contribution is sough
S/L: Fraud 6 years -- P may sue w/in 6 yrs of commission of fraud, or 2 years of discovery (actual or imputed), whichever is longer.
S/L: Equity actions (rescission, reformation, accounting) 6 years
S/L Breach of Contracts governed by UCC Art 2 5 years -- Breach of Warranty claims accrues upon tender of delivery
S/L: Pers inj based on negligence or strict products liability 3 years -- Pers Inj and prop damage claims accrue on date of the original injury (or prop damage). NO discovery rule except in cases of toxic substances.
S/L: Med Malpractice 2.5 years -- includes medical, dental, and podiatric malprac. Accrues on date of malpractice w/ the EXCEPTION of "continuous treatment (accrues from end of treatment) and "foreign objects" (one year from discovery)
S/L: Prop damage, including conversion and replevin 3 yrs
S/L: Prof malpractice, other than med aml 3 yrs
S/L: Wrongful death. 2 yrs -- Runs from the date of death, except that it must ALSO be shown that the statute of limitations on the underlying pers inj claim had not expired on the date of death.
S/L: Wrongful death where crim action is brought against defendant. Wrongful death = 2 yrs; When crim case is brought against the defendant, executor gets optional and independent one-year period from termination of crim proceedings (regardless of whether conviction or acquittal).
S/L: Pers inj or Prop damage claims against muni defendants 1 yr and 90 days- P must serve a notice of claim on the muni defendant w/in 90 days of the accident. Ct has discretion to allow late service of the notice of claim, but in no event may such notice extend beyond S/L period (+ any tolling provs)
S/L: Intentional Torts 1 yr
S/L Art 78 proceedings 4 months
What are the most frequently tested NYP subjects, in order of frequency? 1-Statute of limitations [26]; 2-MTDs and S/J [26]; 3-Provisional Remedies [16]; 4-Pers Jur [12]; 5-Contribution [12]; 6-Arbitration [6]; 7-Svc of Process [5]; 8-Matrim Jur [5]
Impleader Procedural device used by D to join another party alleged to be liable in whole or in part to D for damages. Usu a claim for indemnity or contribution.
How does a Def join a Third-Party Defendant? (1) FILE: summons + 3d party compl; (2) SERVE: copy w/in 120 days (need P/J). TPD then serves a third-party answer on D, P an al other parties [same time limit as ordinary D]. After TPD is joined, P may amend compl to assert direct claim against TPD.
How should the S/L be applied w/ respect to P's added claims against TPD? Relation-back doctrine: For S/L , P's claim against TPD will be DEEMED interposed on the date TPD was impleaded (ie when D filed the impleader papers) PROVIDED P's claim is based on same transaction or occurrence and would have been timely on date of impl
Contribution (Gen) MS: each tortfeasor is liable for full amt of damages w/o regard to individual percentage of fault. NY RULE: Art 16. If 50% or less TF pays only its SHARE of NON-ECONOMIC DAMAGES.
Contribution (Intentional Torts) MS: Contribution not available; NY: Contribution available for all torts, including intentional torts
How does one D assert claim for contribution (or indemnity)? [1] If P originally joined the TFs as cod-Ds, they can assert cross-claims against each other. [2] If P omits a TF, D can implead the outsider as a TPD, [3] TF may sue TPD in a separate action.
If a Def sues a TPD in a separate action, would D be bound by the findings of fact in the prior action? No. A party cannot assert issue preclusion against a party who has not had her day in court.
Contribution formulas Maj/NY formula: comparatives degrees of fault; Min formula: equal shares.
Substantive Law of Contribution Gen: Right to contibution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which D may be held liable to P. Thus, P may seek contribution from TPD even if the inured P has no right of recovery against TPD.
P, building owner, installs fire alarm manufactured by A. P enters into a written K w/ B for fire monitoring svcs. K limits B's liability to gross negligence. In bldg fire, alarm fails and B negligently reports it too late to avoid damages. P can sue A in prod liab. Even though B is not liable to P b/c of the exculpatory clause, A can seek contribution from B.
Contribution in Workers' Comp cases Under workers comp, employee cannot sue employer. BUT employee can sue 3d person (e.g. defective manufacture of equip used on job). 3d person BARRED from seeking contribution from P's employer UNLESS P suffered grave injury.
Settlements of P's claims in multi-tortfeasor cases. Under GOL, when P settles with one TF, recovery against remaining TFS will be reduced by the HIGHEST of 1) the amt of settlement; or 2)the settling TF's equitable share of fault.
Mike and Vinny have an accident on Jun 1, 08. M was taken to a hospital where Dr. House made injuries worse. M sues V in Feb 2011, and V impleads Dr. House in Aug 2011. What claims could parties bring? Under law of "successive tort liab", V is liable to M fo all injuries that proximately flow from the accident, including subsequent med mal. V could potentially sue Dr. House for contribution b/c Dr. aggravated damages.
Mike and Vinny have an accident on Jun 1, 08. M was taken to a hospital where Dr. House made injuries worse. M sues V in Feb 2011, and V impleads Dr. House in Aug 2011. Is there an S/L problem? Although S/L for med mal is 2.5 yrs, V is asserting a claim for contribution, not med mal. Contribution governed by 6 yr stat of limitations (from date of pymt of judgment).
"Reduction" formula When P settles claim with one of multiple TFs. Formula: Any judmt for P against non-settling TF must be reduced by either (a) amt of settlement, or (b) settling TF's equitable share of fault, WHICHEVER IS LARGER
Effect of settlement on contribution or indemnity claims Settlement extinguishes contribution claim by and against settling TF. Settlement DOES NOT extinguish claims for indemnity by and against settling party.
CPLR Article 16 When a jt tf is (1)50% or less at fault and (2) P has sustained non-economic damages, then joint TF can only be required to pay her own share of P's non-economic damages, subject to certain exclusions. Thus, any D 51% or more at fault is j+s liable.
What are non-economic damages? pain and suffering, mental anguish, loss of consortium.
What are the exclusions from CPLR Art 16? [a] Intentional or reckless TFs. If some TFs acted intentionally and some acted negligently, only the intentional TFs are subject to full j+s liability. [b] TFs who released hazardous substance [c] drivers/owners of autombles (other than police/firefgtr)
Motion for summary judgment Purpose = enable party to show, before trial, that there is NO GENUINE ISSUE OF MATERIAL FACT requiring trial (ie reasonable persons cannot differ) Thus, party entitled to judgment as matter of law) TIP: remember to discuss elements of underlying CoA.
When can parties move for S/J? Generally, after service of the answer. Exceptions: Conversion of MTD or MSJ in Lieu of Complaint. Time limit = 120 days (unless "good cause") from filing of note of issue. Note of issue = doc that places case on court's trial calendar.
What is the standard on a S/J motion? Moving party must produce proof that establishes she is entitled to judgment as a matter of law. (ie evidence is so overwhelming that reasonable persons cannot differ).
Searching the record. MSJ "searches the record," meaning that ct reviews all of the evidence in the record, regardless of who submitted it. Court may grant SJ to the opponent even if opp did not make cross-mtn.
Conversion of MTD Pre-answer MSJ for failure to state CoA can be CONVERTED into SJ if (1)At least one party has submitted evidence and (2)Ct gives notice to parties of conversion so party will have opportunity to submit more evidence.
MSJ in Lieu of Complaint P may move for SJ at same time she serves process by accompanying the summons w/ motion papers for SJ. (1) Action on instrument for pymt of $ only. (e.g. Art 3 instruments) OR(2)Action on an out-of-st judgment under full faith and credit.
MSJ in Lieu of Complaint: Procedure After filing process w/ ct, P must serve on D a summons and notice of MSJ (w/ supporting docs and affidavits). Min advance notice for return date must be at least equivalent to time limit for D's appearance in the action.
Time limits for D's appearance in any action *If personal delivery of papers upon D in NY, 20 days from the personal delivery. *If service of papers via any other method, 30 days after service is complete.
S/L: Products liability 3 causes of action: Negligence (3 yrs); Strict Liab (3 yrs); Br of Warrant (4 yrs per UCC). Indemnity and contribution claims (6 yrs)
Discovery Rule in Cases of Exposure to Toxic Substances S/L is 3 yrs which begins to run upon the earlier of DISCOVERY of injury or date the inj SHOULD HAVE BEEN DISCOVERED. "Toxic substance" = any inherently harmful toxin that has latent effects. "Exposure"=any assimilation into one's body or prop.
Dr. Kevorkian injects some medicine into Joe on 5/1/04. Liver problems, traceable to the meds, are first discovered by Joe on 7/1/09. Last date against manuf = 7/1/12. No indication he should have discovered toxin earlier. Last date for med mal would be 11/1/06 [2.5 yrs from injection]. No indication of continuous treatment and no foreign object.
Notice of pendency PROCEDURE P files NOTICE OF PENDENCY w/ county clerk of county where real prop is located. This gives RECORD NOTICE of pendency of P's action. Only remedy that doesn't require ct order (If improperly filed, D can file mtn to cancel the notice).
PaulyD (RI) plaintiff has an auto collision in NJ with a Ronni (from NY). If P sues J, which S/L will the court choose? NY will use "borrowing statute" (intended to prevent forum-shopping by non-resident Ps seeking longer S/L in NY). If P=non-res when cl arose, Ct will apply S/L where claim arose IF shorter than NY. If other state has longer S/L, ct will apply its own S/L
Notice of pendency DURATION Effective for 3 yrs. P can move for 3-yr EXTENSION but must make mtn PRIOR to expiration of 3-yr period. If NOP expires, it becomes VOID; and P cannot obtain another NOP on the same prop for same Coa. EXCEPT: Mortgage foreclosure actions.
Ex parte order of seizure [nyt 35] P may obtain ex parte order of seizure upon showing by aff: 1)that P is entitled to possession 2)value of chattel 3)no defense against P 4)P will probably prevail on merits 5)that chattel may become unvailable or be impaired.
Standard for a motion to dismiss Court must take all allegations of claim as true and determine that A has stated no cause of action upon which relief may be granted.
P watches his son get hit by a car driven by D. Before P could file suit, D leaves the jurisdiction for 1.5 yrs. During that time, P knew of D's out-of-state residence. Four years, after the accident P sues D. If D was in NY when CoA accrues, but D thereafter leaves the state and is continuously absent for at least 4 months, S/L will be tolled for the period of absence. EXCEPTION: 1) if P has basis of PJ over absent D, such that process could be validly served
In TX, A(of NY) hires B(of TX) to perform on a contract in TX. B breaches the K in TX in 2010. B comes to NY in 2015. If D is not in NY when CoA accrues, S/L does not begin to run until D comes to NY.
P is an infant at time CoA accrues. S/L is tolled until infant reaches age of 18.If original S/L >= 3 yrs or more, P gets LONGER of 3 yrs from disability OR time remaining on S/L period (from accrual). If og s/l < 3 yrs, P gets s/l period from 18th bday.
P is insane when CoA accrues. S/L is tolled until disability ends, ie when insanity clears up. Insanity is defined as any mental disorder that causes an overall inability to function in society. To be "insane," P need not have gone through formal jud proc for appt of guardian
S/L for infancy or insanity. If og S/L >= 3 yrs, P gets LONGER of 3 yrs from disability OR time remaining on S/L period (from accrual). If og s/l < 3 yrs, P gets s/l prd from time disability ends. 10 yr cap: For infancy, med mal claims capped frm accrual; Insn capped in any case
Dr. commits med mal on 3-yr-old (P) in 1/00, and continued to treat him for same condition until 1/12. P's action is timely through 7/14. Action expired in 1/10 under infancy toll. But continuous treatment rule give P 2.5 yrs from termination of treatment (Don't add the tolls together!)
Personal Jurisdiction Gen jur: Presence, Doing business, Domicile. Specific Jur (Cl specific to D's activity in NY): Long-Arm, Non-resident Motorist, Consent
Doing business in NY A domestic corporation is subject ot personal jurisdiction on any claim, no matter where it arose. Same rule for foreign corp authorized (ie licensed) to do business in NY.
Unlicensed out-of-state corporations "doing business" in NY. Cts will determine whether corp's employees or agents are in NY engaging in commercial activity for the corp on a regular systematic and ongoing basis. Most sig factor is if corp has an office or phys facility in NY. Mere sales, advertising NOT SUFFICNT
If P serves corp officer who is physically present in NY, does P establish personal jurisdiction? NO personal jurisdiction over the corp. If the claim is against the individual, then it would be okay.
P's claim arises from a transaction of business by D in NY Dn't confuse long-arm w/"doing business" test. Ex:CA retains NY lawyer.Over 2-yr rep, D sent 100s of docs to P and discussed case w/P in dozens of commncs.COA held D trans biz by "projecting himself into NY" and P's cl for nonpymnt had "substantial nexus"
P's claim arises from a contract transacted anywhere by which D agreed to supply goods and services. Long-arm jur-Contract must be economically significant. [Eg agmt by D to ship a sizeable quantity of goods to NY, or D is to perform in Broadway show.
Personal jurisdiction in Tort cases Long-arm jurisdiction for (1) tortious acts in NY or (2) tortious acts outside NY that CAUSE INJURY in NY [Defamation claims are excluded from both categories.]
Prof. Alexander's approach to personal jurisdiction essays 1st)discuss whether P can establish jurisdiction under any non-long-arm categories 2d)discuss whether facts of P's case fall w/in one or more long-arm categories 3d)discuss constitutional due process.
Tortious acts outside NY causing injury in NY. Long-arm jur. Must be ADDITIONAL link b/w D and NY. D reg solicits biz or any other persistent course of conduct in NY; D derives substantial $ fr goods or services, or D reas expects act to have conseq in NY AND derives subtantial $ fr interste comm
Due process test for long-arm jurisdiction Due process satisfied if claim arises out of conduct of D that is so purposefully directed toward NY that D reasonably should anticipate being sued on that claim in a NY court.
In a transaction in MA, P buys a car from R, a retail dealer who advertises only in MA and RI. The car was manufactured by M in VT. M's cars are sold by indep retailers in all 50 states, including 15% in NY. P's car blows up in NY. P sues M and R. M-not "doing biz" in NY (mere sales not sufficient). BUT M has long-arm jur b/c of tortious act + substantial revenue in NY. R) No jurisdiction.
P sues D for defamation. P was a landlord who was accused of misrepresenting the base rent used to calculate rent-stabilized apts. After the incident, D moved to CT, where he was later personally served w/ process. P/J issue. Possibilities: Long-arm jur over nondomiciliary who owns, uses, or posses any real prop w/in the state. Long-arm jur for tortious acts does NOT apply b/c defamation is excluded under the CPLR.
Claim preclusion Res judicata. NY uses "transactional approach". When cl against D has been brought to a final judgment on merits, all other cls by P against D are BARRED if the other cls ARISE out of SAME TRANSACTION OR OCCURRENCE. NB: matrimonial exceptions.
Issue preclusion collateral esoppel. 1)Issue is identical 2)issue was actually litigated an decided in former proceeding 3)Party against whom IsPrec is asserted had a FULL OPPORTUNITY to litigate that issue in former proceeding.
Matrimonial exceptions to res judicata Based on domestic abuse. S-1 v. S-2 for divorce based on cruel and inhumane treatment. Judgment for divorce granted. Then S-1 v. S-2 for personal injuries arising from the abuse. Second suit NOT barred by res judicata.
Created by: mdiaz367