JURISDICTION CPLR 301In personam jurisdiction- NY has in personam jurisdiction over anyone in NY, regardless of why they are there, UNLESS you fraudulently induce the person to come to the state. Burnham v. Superior Court of CA There is in personam general jurisdiction of any individual that can be found within its border- and then can retain jurisdiction once he is served in that state no matter how transient his visit is- does not violate due process as long as you are found in the stateMerigone v. Seaboard- usually someone just comes for lawsuit then cant serve him- so that non new york citizens can attend court without fear of availing himself of ny jurisdication but in this case the suit arose out of things that happened in NY- so even though P was here for an unrelated suit, because he could have been served in NJ (or anywhere else) brought to NY- he can obviously also be served in ny. service doesn't work if the only reason he is susceptible to service is being present for the unrelated suit but if they are otherwise susceptible to service in ny then its ok

CPLR 310: Personal service upon a partnership First American- jurisdiction can be acquired over a partnership if a partner is in ny, even if the partner is not a resident or domiciliary Price waterhouse (PW) US- original case brought in federal court in dc Turns out the P wanted docs that were relevant to case but the docs were from PW- UK 2nd cir. If there are two separate corporation then two separate legal entities then you cant give jurisdiction based on that, BUT because Newton remained a UK partner in NY, the NY court now has jurisdiction over the entire PW-UK partnership through the presence of the UK partner who is physically in NY bec 301(a)- personal service upon persons conducting a business as a partnership may be made by personally serving the summon upon any of them

Presence of Corporation- when do they have jurisdiction General - If your incorporated in NY- you have presence Specific- Corp that is authorized to do business in ny- and suit arises from actions in the state

Goodyear children killed in Paris- parents in North Carolina want to sue suing goodyear- no problem bc they are present in NY Turkish subsidiary made the tire- which allegedly created the accident want goodyear subsidiary to be under NY jurisdiction- they were in turkey, france, and luxemberg Connection alleged that there were tires from turkey though stream of commerce in NY A court may assert general jurisdiction over a foreign corporation when the affiliation with the state become so systematic and continuous as to render the corporation essentially at home in the state Here there was not enough of a connection- bc nothing for specific jurisdiction bc the tire was made in turkey and the accident was in turkey and there wasn't continuous and systematic contacts between the company and the state

OVERRULED!!! Tauza v. Susquehanna Coal Co,- CARDOZO company incorporated in PA office in NY- solicitation office it's a regular and systematic part of the business it had customers in NY but guts of operations was PA the jurisdiction does not flow from a specific transaction bc it is not from the business that was done in NY but bc there was systematic and regular business within the state the corporation is here in the form of an agent that is here and service upon him is service on the principle ( 310(d)) Just having an agent isnt enough- it needs to be that substantial and regular business was done there

Bryant v. Finnish National Airline There was a plane accident in paris D is Finish company with an office in ny That office is just generating business but doesn't fly to ny but even though they don't sell here the airline was "doing business" in the State of New York. Although the foreign airline company did not directly sell tickets in New York, the foreign airline company maintained an office, advertised, employed several people, had a bank account, and facilitated the ticket business of the foreign airline company in the State of New York.

Daimler AG. v. Baumer 134 S.Ct. 746 p argue that gen jurisdiction should be anywhere w systematic, continuous and substantial business. Court holds NO- that will be too far reaching Business needs to be so systematic that it is essentially at home in NY The court says- We do not foreclose that in an exceptional case without PPB or incorp may still get jurisdiction if so substantial as to render it at home in NY NO MORE TAUZA

Dollar co. v. Canadian Car- just bc president is visiting US that is not enough to give the state jurisdiction- however, if the corporation is at home in the state then any agent or officer can be served in the state and you can give notice of jurisdiction to the corporate officer

Delagi v. Volkswagen AG of Wolfsburg Germany- Someone from ny gets injured in germany by car made in Germany For general jurisdiction- its not enough that a manufacturers product ends up in the forum state if the sub is in NY (meaning that NY has gen jurisdiction over it) that is not enough for NY to hav gen. jurisdiction over the parent, unless the sub is really just a department of the parent and the parent has full control over the sub.

OVERRULED!!! Laufer v. OStrow The suit is against the individual agent and the soliciting company works for The soliciting company is incorp in NJ and its PPB in NJ The company is not licensed to do business in NY Agents job was to solicit furniture orders for North Carolina company The court hold that's bc the individual was clearly just an agent and was not doing business of his own behalf the state doesn't have jurisdiction over him individually but if he was acting on his own behalf they would but company has clear substantial contact with NY and therefore NY does have jurisdiction over them NOTE: prob also destroyed by Daimler

Consent to Jurisdiction A person or entity can give their consent to be subject jurisdiction of NY before a case arises--- Either you can appoint a agent to receive service or have a forum selection clauseOR If they appear in NY and do not affirmatively state that there is no jurisdiction then they are subject to the jurisdiction of the state

Ex: Lets say US and French company enter contract which states they are subject to US jurisdiction consent ok

Boss a forum selection clause saying any lawsuit must be brought in Minnesota should be enforced

CPLR 302(a) Specific Personal Jurisdiction Fishberg- The P is a lawyer in NY and the D is a past client who is not in NY and has not paid his bills Held: Ny could properly exercised personal jurisdiction over defendant pursuant to CPLR 302(a)(1) bc their activities in retaining plaintiff a ny attorney situated in ny to represent them in Oregon were purposeful and a sufficient nexus exists between that retention and the instant claim came from allegedly unpaid legal fees Cplr 302(a)(1)jurisdiction is proper even though the defendant never came to new york so long as their activities in ny were purposeful and there is a substantial relationship between then transaction and the claim asserted Purposeful is when it is intentional and they get the protection of NY laws- just one phone call or order

Side point: appealability in NY in federal courts can only appeal something that ended the case- ex. Granting of summary judgment - not denying it bc then the case continues But in NY state can appeal virtually anything- can appeal discovery orders- denial of motion to dismiss Appellate division to court of appeals- if the ruling of app div ends the case- so final order- then the app division can give leave to appeal or court of appeals can give leave to appeal- Only time you can appeal as a right to ct of appeals is when there was a final order and two dissents in the app division A non final judgment- one that doesnt end the case- can only get to ct of appeals through permission of app division

Deutsche bank case deutsche bank had a securities dept that entered into transaction with Montana agency they communicate through e-mail etc- and enter into a transaction so they entered NY by knowingly initiating and pursuing this negotiation with NY person So availed themselves of NY electronically and the COA arose from that of NY BIG TAKEAWAY: look to see who initiated the contact, if it was an ongoing relationship, and if the customer is sophisticated

note: the case is strongest when there is some type of physical presence in NY- ex: an agent comes to NY to sign papers- however this physical presence is not very common

Paradise Products Corp. v. All-Mark Equipment Co., Inc. - defendant sold 500 gallon copper kettle from stock to plaintiff, - Even though defendant knew that kettle was bound for NY- P picked up the kettles in NJ- Knowledge that a product may be destined for a particular forum is insufficient to sustain jurisdiction. Here, title to the property passed in NJ They havent purposefully availed themselves of NY - even though the suit arises out of a contact in NY- the transaction did not take place in NY title did not pass in ny

Lamarca- D is a garbage hauling manufacturer. They manufacture in Virginia and P is a new york resident who is injured in NY The tortious act is the faulty manufacturing which took place in VA but hurt someone in NY302(a)(3)(ii)- they knew the truck would end up in ny, got lots of business from NY, and obviously it was interstate commerce Factors: 1) committed tortious act outside state2) cause of action arises from that act3) the act caused injury within the state4) the d expected or should have reasonably expected the act to have consequence in the state 5) d derived substantial of revenue of interstate or international commerce- in order to avoid business who are really local not to be reached by the long arm statute

- Vehicle and Traffic Law 253- In car accident- there is a law that says that is it considered that you have appointed the secretary of state as your agent so you can be sued for any car accident in NY- and then the P can serve the sec of state and it is the same as if they had served the D directly

Sybron v. Wexel There is a company with a division in ny and an employee of that ny division leaves and goes to a competitor was in NJ Commits a tortious act includes threatening to commit a tortious act Threatening to divulge trade secrets- economic injury Is there an injury in NY? Its not enough to say they are incorp there- you need to show that the business in NY will actually be the one effected- P was in NY- the economic injury threatens to effect NY customers, and it stems from trade secrets gathered in ny The court discusses both 203(a)(3)(i) and (ii)-but only needs one

Walden v. Fiori there were 2 gamblers- and they were stopped in Atlanta and all their money taken it was returned 7 months later they sued in Nevada- where they were going/live and where the injury occurred The Court held that the district court in Nevada could not exercise personal jurisdiction over Walden because he lacked contacts with Nevada. The Due Process Clause of the Fourteenth Amendment requires that a non-resident defendant have a substantial connection with the state in which he is sued. This connection must arise from the contacts that the defendant himself creates; yet all of Waldens conduct occurred in Georgia. The fact that Fiore and Gibson were injured in Nevada was insufficient to establish personal jurisdiction over Walden their only connection to Nevada was that they chose to reside there during the months the money was seized. this is a big problem with 203(a)(3)(ii) bc now they are saying that D also needs minimum contacts there- but the garbage case is still ok

OWNING REAL PROPERTY 302(a)(4) Tebedo v NYE Owns uses or posses property within the state Residents in FL HAD owned property in NY and had an obligation to sell a piece to the P but instead sold to someone else The court said yes jurisdiction bc not unfair since dispute arises from property you owned Only issue is that the language of statute is present tense- relationship btwn the d and the property at the time the action arose

Internet based commerce if its just informational probably there is no jurisdiction but if u sell into NY then you probably have availed yourself of jurisdiction- we are going to look to see the level of interactivity and commercial nature between the host computer and the person within NY

Quasi in rem jurisdiction- Pre-1977: if a plaintiff wanted to sue a def and didn't have in personam jurisdiction they could have jurisdiction through property that the d owns in the state even if the property was unrelated to the suit- but only to the amount of money the property was worth P can recover up to the amount of the seized property And D couldve put in a limited appearance so was only subject to the amount of the property If someone had owed money to D then P could serve that person if in that state- bc the debt is considered property of the D as seen in harris v balk So the debt follows the debtor- so can collect up to what C owes D if serve CPost- 1977- the US says this is a violation of due process to defend in NY just bc there is some other property in NY and that isnt enough for quasi in rem jurisdiction- Now you need to show the property seized has a relationship to the case Shaifer said we are changing the doctrine- were not permitting quasi in rem unless minimum contacts standard are satisfied with respect to the person whose property was seized- not good enough that just had property there that could be attached So seized property must has some contact to the litigation this isnt in personam so clearly not enough contacts to have had general or specific under other 302 ideas- bc having to use this more obscure theoryBanco v Artoc Bt two foreign banks- ambrosiano lent money to artoc- and they transmitted this money by putting money in a NY bank- So money ends up in NY So they try to assert quasi in rem- they couldnt get in personam They attached the bank account that was the VERY subject of the subject of litigation not just some random bank account that happens to be in the state Is this enough under Shaifer?- are there minimum contacts? The court says pretty obvious that this is enough bc it is the very reason theyre having the dispute- the bank account attached is what is being litigated-

302(b) MATRIMONIAL LITIGATION- marital res- theory is that each spouse carries with him/her the status of marriage and that is the same as in rem jurisdiction- same as adjudicating over the real property in the state= a legal fiction

HYPO:- Couple married in FL- have never been to NY- The wife wants out and goes to NY- wife lived in NY for 2 yrs and wants to get a divorce- ok bc the marital res follows the spouse

CARR v. CARR After man dies his second wife is getting benefits the first wife wants to invalidate the ex parte divorce that he got from her in Honduras the question is: who is the surviving widow? The second wife has no contacts in ny First wife moved to ny after they got divorced The first wife wants to bring suit to confirm shes still married but her husband is dead and there is no case bc marital res doesn't extend after one of the spouses die Because that property right no longer exists there is def no in rem jurisdiction FN 2- What if the husband was still alive? If they were confirming the marriage then it is iffy whether there is even a marriage and so there wont be jurisdiction, but if you are seeking to dissolve the marriage-everyone agrees there is a marriage and therefore there is marital res and in rem jurisdiction

CPLR 327 FORUM NON CONVENIENS The court HAS jurisdiction but think that another forum is more convenient there is more than one forum in which they could bring the case, and the court is saying it makes more sense that a diff court will hear it

MARTIN v. MEITHER There is an accident in Chautauqua- in upstate ny- and both parties are Canadian The P brought the suit in ny county NY state had jurisdiction bc NY long arm statute- motor vehicle law- Venue proper in ny county bc of 503(a)- if neither party resides in ny and jurisdiction in NY state is proper- the P can pick any county within NY The D wants to try this case in canada Plaintiff wanted to keep the case in ny- the accident happened in ny, hospital in ny, no subpeona of witness in Canada, police in ny- and the court agrees Then D says- ok then atleast bring the case to chautiqua county Then the P lawyers says we don't need to be there the case can be tried anywhere (literally the opposite arguments from before) The court of appeals said were not giving any weight to the affidavits bc they contradict eachother- and the accident occurred in ny- but its not enough for us to maintain the case- so they send it to Canada Had the P lawyers just allowed the case to be in chaitiqua then they would have kept the case

Bewers v. American Home Products The P wanted the case to be tried in the US. The decision to sell and market in the UK was made in NY and the PPB was in ny so there is def. jurisdiction in ny However, the P are Uk citizens live there, the product was made there, marketed there and all witnesses there- and therefore the UK has a bigger stake in this case Therefore, the best jurisdiction is the UK When court dismisses on forum non conveneins grounds- they dismiss with conditions that the other jurisdiction must hear the case- otherwise it can come back to the US

Hart v. GM The directors of GM bought Perot out and then shareholders sue for breach of fiduciary duty and waste Other suits were brought in deleware- Deleware law would govern bc the law of state of incorp always governs This suit was brought in NY however, the P was a texas resident- so really doesn't have good reason to involve themselves Also- where there are many forums that cases could be brought in we don't want many diff outcomes Delaware, not New York, which has an interest superior to that of all other States in deciding issues concerning directors' conduct of the internal affairs of corporations chartered under Delaware law. Many States other than Delaware may claim some interest in this transaction, none of them, in the context of the derivative claims raised, are in a position to overcome the presumption in favor of the law of the State of incorporation. Given Delaware's paramount interest

Section 503: Venue based on residence- Appellate Court: the residence of a party turns on whether he has a significant connection w some locality in ny as a result of living in the state for some length of time in the course of a year

Section 510: Grounds for change of place of trialSection 511: Change of place of trial 503 lays out where there is proper venue 510 then says when you can move venues- either bc the venue to begin with was improper or bc the case should be brought in an improper venue 511 says how to switch the venue under 510.

SERVICE since 1992- an action is commenced by filing papers with the court and you have to make service within 120 days in NY you can file 1 of 2 sets of papers together- summons and complaint in ny you can file summons with notice- even tho you havent filed a complaint yet- this tolls the statute of limitations

CPLR Section 308: Personal service upon a natural person - CASE ON 308(1)-Maccia v. Russo- Negligence case- pre- 1992- so need to serve the complaint to commence the action The process server served the son the plaintiff was with the process server at the time you served the wrong person- so it doesn't matter that the p got the papers a min later if you don't follow the procedure it doesn't matter if the papers ended up properly in the right place the service is invalid and under CPLR 308(1) you need to serve the actual defendant

CASE ON CPLR 308(2) (you don't need to do 308(1) if you do 308(2))Bossuk v. Steinberg- the person who was home wouldn't open the door- the server can leave the service outside the door a long as the person on the other side is aware of whats happening and a copy is sent if the defendant himself didn't answer the door- the server can leave it and then mail if a process server is barred from going to apt then the doorman is ok if giving to business- it needs to be plain envelope w personal and confidential written on it

CASE ON CPLR 308(3) Edward v. green enterprises v. Manillow trying to serve mannillow gave to mannilows agent and while it makes sense to give it to the agent of person- the ability to give to an agent is only for corporations- and it is for the legislature to make the rule for individuals agents too if they gave it to the agent and mailed it to his last known residence- this would work if it was the actual place of business under 308(3)

CASE ON CPLR 308(4)- can only use this when service was tried under 308(1) and 308(2)Feinstein v. Bergner- the D got married and moved- and the p tried to serve at the parents house and mailed to the house too- the mailing was ok bc it was last known residence the problem was notice needed to be attached to the place he actually lived/worked- and that wasn't the right place CASE ON CPLR 308(5)Dobkin v. Chapman- the defendants cant be found- in one case they wanted to get the money from the insurance companies and the other case they want money from MVAIC (motor vehicle accident indemnicafation corp.= when someone doesn't have insurance and should have had insurance MVAIC pays)- the court says that there was extensive due diligence and still it service could not be effectuated - the D.C. says that service is impracticable under the other sections and the P should send service using reg. mail to the addresses they have for the D- the A.C. says that this is reasonable and there needs to be broad discretion.

Section 311: Personal service upon a corporation Colbert v. international security- The only person at the office when process server shows up was a secretary The P say that the person they served was managing agent it cant be that any person alone is a managing agent the court says that she was too far down on the totem pole to count as an agent- she wasn't designated as an agent, and had no control

Fashion page- process server walks in and says that he has papers and process server goes to the second receptionist and she says shes authorized to take it. this is good service bc she had been doing this for yrs- and the boss authorized her to take the service

Section 312-A: Personal service by mail 312- a- you can mail a summons and complaint to D- but this isnt valid until the d or ds lawyer sends back receipt of service- and the only penalty is them maybe having to pay for u to serve another way - VERY RARE

Section 313: Service without (aka outside) the state giving personal jurisdiction unless you are serving under 312-a (by mail), only a person who is 18 older, who is not a party to the suit, may serve the defendant.

STATUTE OF LIMITIONS 203.Method of computing periods of limitation generally To find the time limit in a particular one must decide: 1) which statute (211-217) is relevant 2)when the time accrues 3) if there is any applicable tolling

Usually: Ucc- 4 yrs- breach of warranty from the time the time of delivery breach of sale- when the breach occurs even if done secretly Contract 6 yrs- from the time the breach occurs- even if it occurs secretly Torts- 3 Medical malpractice 2.5- 3

213. Actions to be commenced within six years: where not otherwise provided for; on contract based on fraud 214.Actions to be commenced within three years: TortsChase p is a manufacturer and hired d to get insurance coverage d got a policy for P and there was a storm and the insurance didn't cover the storm p is suing for negligence and breach of contract bc the insurance didn't cover the P is trying to get it under breach of contract so there is a 6 yr of statute and the d is trying to get it under malpractice bc under 214(6) it would be 3 yr statute of limitation The court makes a big deal about what is a professional- Extensive formal learning and training Licensure and regulation Code of conduct Standards beyond those in marketplace Discipline for violating standards Here 214(6) does not apply bc insurance brokers arent professionals so they apply 214(4) and 213(2) for breach of contract 6yr SOLCubito architect is being sued for design of the laundry room d says it should accrue from date of the completion of the job the A.D. says no- its from the time of the injury under 214(6) [wiener: kinda crazy bc hes on the hook forever] the general rule: the SOL accrues from the time of injury when does SOL start running on cross-claims? From the time the D has to shell out money to P- bc that is when they would look to third party for indemnification

Victorson v. Bock laundry P wanted 214(3) and D wanted UCC 2725 bc of diff rules on who can sue (under UCC on those in privity of contract can sue) and when it applies even tho 214 is 3 yrs and UCC is 4 yrs for product liability- the time accrues from injury under 214(4) and (5) and SOL is 3 yrs product liability is tort NOT contract

Solomon R. Guggenheim Foundation v. lubellms lubell bought chigal in good faiththe painting was stolen in 60s they didn't find out till late 60s/70s bc the museum just said missingwhen they find out she has it ask for it- and she say no- and she says that there should be latches (which shortens the SOL= an equitable bar to delay) bc they didn't use reasonable due diligence to find their propertyReplevin- property possessed by D and supposedly belonging to P3 yrs statute under 214- to recover chattelhow do u measure the 3 yrs?if a genuine good faith purchaser has it then the SOL starts when the owner demands it back-and it is refused bc the tort is the refusal bc you cant get good title from a thief but w a thief the SOL starts to run from the time of the theft

Caffaro the court said no statute of limitations bc could add that he diedbut we have latches- an equitable bar to delay

214-a.Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions The legislature changed medical malpractice from 3 to 2.5 yrs from date doctor screwed up But if there is a foreign object then 1 yr from discovery of the object

Labarbera Surgery in may 1986- doc was supposed to remove plastic stent 10 days later- and didn't Went to new doc who found it in 92 and suit brought within 1 yr= 6/93 This is far after 2.5 years from 1986 so we know you would have to fall under foreign object and not med mal. Could they use foreign object doctrine? No- the stent was left in for healing purposes and these are considered fixation devices and not foreign objects A foreign object is one that is neg. left in the patients body without any intended continuing treatment purpose (aka clamps or a sponge)

Goldsmith- this is a hip replacement in 73 he broke his hip replacement in 81 suit brought in 83 against doc and manufacturer usually statute begins to run when malpractice occurs- and 2.5 years from then this isnt a foreign object bc foreign object doesn't include prosthetic, aid, or device the court says it runs from time of act- aka when neg. occurs and the legislature hasn't changed that, so can't sue doc what about the manufacturer? this is a product liability so totally diff outcome then for the doc.- this is within 3 years of the injury happens

- catheter was a fixation device bc was placed in patient with intention that it will remain to serve a purpose

Chiropractor, psychologist, and optometrists arent considered docs unless he is recommended by a doc/ working with a team of doctors- A nurse is part of medical team so is part of medical so 2.5 years If a hospital is sued is 3 yrs bc not med. Mal. Just neg. business

With med. malpractice- the statute doesn't start to run as long as there is continuous care (or legal matter) of a particular issue- so its 2.5 years from the time the doc stopped treating that issue that's why a law firm writes to say that we have concluded our representation of matter x but still lawyer in terms of y and zSimcuski P alleges that a doc concealed his malpractice and therefore under 213(8) the SOL is tolled bc FRAUD estoppel She alleged neg. med mal and fraudulently misinforming p as to her physical condition The critical issue is if the med mal is barred- usually it would be bc its more then 3 yrs from injury, however, she couldn't have discovered it until 6 yrs later bc it was concealed from her and she relied on the misrepresentation and therefore she would get equitable estoppel as long as she shows she used due diligence and brought it within a reasonable time For fraud its under 213(8)- an action based upon fraud; the time within which the action must be commenced shall be [fig 1] the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom [fig 2] the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it. They havent decided if she met the due diligence bc they didn't have enough facts yet

214-c.Certain actions to be commenced within three years of discoveryUnder subsection 2- you have 3 years to bring the claim from the time of discovery the injury, or when it reasonably should have been discovered. Under subsection 4- you have 1 year from the time of the discovery of the cause of the injury, as long as you discover the cause within 5 years of discovering the injury- as long as there is a good reason you couldn't have discovered the reason earlier Someone discovers cancer 10 yrs after smoking cigarettes- must bring suit within 3 yrs from discovering the cancerBlanco The P is alleging of Repetitive stress injury from using a keyboard which caused carpal tunnel Defendant said first use doctrine should be used- when first use keyboard- and if the legislature doesn't like it then they can change it Court says 214-c applies to toxic torts and there is nothing toxic abt a keyboard RULE: accrues at last use of device or onset of symptoms- whichever is first- so they are using 214 but not 214-c 215.Actions to be commenced within one year: against sheriff, coroner or constable; for escape of prisoner; for assault, battery, false imprisonment, malicious prosecution, libel or slander; for violation of right of privacy; for penalty given to informer; on arbitration awardWhen is it valid to change statute of limitation by contract? you can agree to shorten and not extend the SOL by contract (as long as its reasonable) only once the cause of action accrues u can extend the statute of limitation- the limitation period then runs anew from the time of the writing- can only arise out of cause of action from a contract 202.Cause of action accruing without the state CPLR 202 requires that when a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued. This prevents nonresidents from shopping in New York for a favorable Statute of Limitations. UNLESS the P is a NY resident

Global 2 Delaware companies P brings suit in NY saying that the actual injuries in NY But court says it accrued in del. Even tho a few events happened in NY Action accrues WHERE the breach/tort occurs When an alleged injury is economic- usually where P lives and sustains the injury 203.Method of computing periods of limitation generally

CASE ON 203(f) - Caffo 66- misdiagnosed 6/67- he died 12/68- P sue bc misdiagnosed 9/72- will is probated which is very long time after death- not normal 1/73- add wrongful death suit to the med mal you can add wrongful death as long as its 2 yrs within the date of death but here bc it's the same issue- related back- usually when you add a theory to the same set of facts its related back to when the first cause of action was brought the d is saying that the issue is that he didn't die at the time ur relating it back to but the policy concerns are dealt with bc- doctor should have notice that he was sued so it is fair to relate back

Duffy first suit 1979- P sued hospital p dies in 1981 in 1981 hospital wants to add the doctor- which means that the malpractice must have occurred no earlier than 12/78 (within 2.5 yrs of 1981) P wants to amend complaint and have that relate back to the original suit had there been no 3rd party complaint- the doc couldnt have been brought in but bc doc was brought into litigation by the hospital the policy of the statute of limitations was filled- bc he was on notice that he could be sued- now P can amend the complaint to have a direct claim against him which relates back to the 3rd party complaint

205.Termination of action

Andrea- neglect to prosecute 205- a new action can be brought within 6 months of a prior action being dismissed- as long as the first case was timely except a certain list of things- one of these things is neglect to prosecute action brought and then p council continuously missed discovery deadlines this is failure to prosecute 208.Infancy, insanity infancy toll SOL until person turns 18 for med mal there is a 10 yr limit The tolling depends on who is the interest in the action

Henry- municipality has its own deadlines bc it's a negligence suit against a municipality- and that deadline is missed parent brought the suit but then didn't commence the action within the right amount of time the court says that just because a parents brings a suit doesn't change the fact that the statute tolls the SOL until infant is 18- so this isnt time barred you cant forfeit a childs rights just bc a parent made a mistake as long as the beneficiary is going to be the child

207 The Absence Toll Yarrusso There was an accident in Nassau- D was a resident of NY Then D moved to Miami- and was there for many yrs P tried to secure jurisdiction over D for Personal injury (3 yrs SOL) Under the VTL 253 and 254- he sent summons and complaint to the NY sec of state and mailed copies by registered mail w return receipt requested but it was to the wrong place P moved for default judgment bc D never respond but this was dismissed bc service never completed- not appealed While the cross motions were pending a summons and complaint were personally serve in NY and D moved for summary judgment saying time barred Under 207- the SOL is tolled when the D is absent from the state UNLESS JURISDICTION OVER THE DEF CAN BE OBTAINED WITHOUT PERSONAL DELIVERY OF SUMMON TO HIM WIHTIN THE SATE Here bc they could have gotten jurisdiction by sending it to FL- the SOL was not tolled

NOTE: today the tolling is stopped when he files- and then u have 120 days to send D

CLASS ACTIONS:

901.Prerequisites to a class action 1)numerostiy 2)common issues of law/fact----if a class is certified its rare that it wont settle- 1/100 get tried---this is usually biggest kind of cases 3)if you want to represent a class u need to be hurt in same way as class- representative will fairly represent the class 4)class action needs to be best way to settle this

Small v. lorriad P said that they wanted a consumer fraud class action - just want monetary recovery for all cigarettes since 1980 The whole reason they brought this kind of suit was because they don't want to have to prove each individuals damages in terms of health of individual and whether the individual issues will dominate over class issues The lower court- certify class without even mentioning addiction There is a question of fact that they would need to bifurcate (split) after they decide on the joint issues and then decide for each plaintiff - did thy purchase based on reliance of the deception- meaning did they know that the cigarettes were addictive (or reasonably should have known based on info in the market) Also if u never became addicted then u werent relying on it- so we need to prove each individual was actually addicted the other issue is that if they try and bring other claims then it would be res judicta- and there are other claims that other cigarette smokers could bring that may be more lucrative.

Weinberg v. hertz hertz was sued for unfair rental fees diff then tobacco case bc it's a standard package- all have commonality but here to identify class members which D say would cost a fortune court says this is actually perfect case for class action bc if we didn't aggregate no one could bring the suit bc recovery too small and they didn't believe herz that it would be too expensive to identify class members 902.Order allowing class action within 60 days the d has to answer- p should move to certify the class 902(5)- if its too big it may not be manageable by one court ppl can opt out of class action WHEN APPROPIATE [in federal law that is absolute right when the claim is for monetary damages] court can uncertify if facts change during the case 904.Notice of class action 904- for injunctive/declaratory relief (aka no damages) notice is not required unless necessary for fair representation of the class but otherwise it is necessaryBoulevard- no notice is necessary for declaratory relief class actionR 908.Dismissal, discontinuance or compromise 908 if someone wants to dismiss a class action once it started- it needs court approval- for settlement most often the court gives notice and has hearing abt whether settlement should be granted and any class member can come and object it- usually courts the grants the settlementWoodrow- one out of state P who wasn't from NY wanted to opt out but when class action demands equitable then there is no opt out [this would be diff if it were for damages] bc it necessarily benefits all class member- aka NO opt out option if only for injunctive relief however- it was ultimately improper to approve the settlement which prevented them from brining any other suits for damamges- bc this essentially amounted to monetary damages (bc now they cant sue for monetary damages) and then it become unfair not to allow them to opt out bc now its really not letting them opt out for monetary damages class action 1401.Claim for contribution so long as a tortfeasor would be liable to the plaintiff had he/she been named in the action, that tortfeasor is subject to contribution.

JOINT AND SEVERAL LIABILITYTenant sue architect (A) and landord (L)- and they can have cross claimsif the tenant only sue one then that one could have a third party claim against the otherFirst jury asked if A and L are both at faultthen if both- to which extent is each responsiblethen jury is asked to est damages

if jury finds both liable and A 70% and L for 30%the jury finds $100,000 only for economic lossbc they are joint tortfeasors- the P can collect the entire $100,000 for either oneif they are both solvent- then if P goes to A they can get the entire $100,000 and then A can go to L and get $30,000.Lets assume A was insolventP goes to L and gets the $100,000 and now L cant recoup the $70,000

Lets say A and L argue the tenant (T) was negligentSection 14-1- comparative negligence was added to contributory negligentSo the jury would be asked to divide responsibility between A L and TJury says A- 70%, T- 10% and L- 20%Now P is only able to collect $90,000

HYPO ABT INDEMNIFICATION P sues cab company (C)C sues D- third party complaint against driver for indemnification indemnification is ok here bc is a case of vicarious liability- respondent superior vicarious liability- master servant relationship - where the employer is only liable bc of the relationship with the employee= indemnification is allowed

Dole v. dow chemicals- H died after being exposed to poison. W said there wasnt proper warning. D makes 3rd party complaint against. Court uses relative culpability, that the jury should decide what percentage of culpability for each D instead of all or nothing. 1601.Limited liability of persons jointly liableLets assume $100,000 was for non-economic loss-Article 1601- non-economic losses protection if under 50%Jury finds liability: T- 10%, A- 70%, L- 20%If A is insolvent then L can only be forced to give $20,000unless A or L defrauded the TFrom A you could get the entire 90,000 and then the A could seek the additional 20,000 from L

Hypo:Betty P, falls in laundry room in building. Sues architect (A) and Owner (O). The two Ds make cross claims against each other. Jury concludes that the fault is split as follows: B - 10% A - 70% O - 20%Jury says $6000 economic damages, and $4000 non-economic damages.For theeconomicdamage, we remove B's share, so $6000-600=$5400. The two Ds are each liable for the full amount and joint tortfeasors. If B goes to A and asks for $5400, A can sue O for 20% of total, $1200. Same if B goes to O for all $5400, O can cross claim for contribution for $4200.If someone is insolvent - if O is broke and B collects $5400 from A, A is stuck with that full amount. Same if A is insolvent.Fornon-economicdamage, we remove B's share, so $4000-400=$3600. Since A's culpability is above 50%, no protection from Article 16, O does get protection. So if A becomes insolvent, B can only get $800 from O. It seems like 50% isamong defendants, so in this case if 50% is allotted to A, it is 50/90th and therefore not protected.Exception: negligence, can be liable for non-economic even if liable for less than 50%.

Robinson v. June- the court had a weird way of dealing with this- they said A was 50% liable, L was 40% and T was 10%- said A was 50/90- and that is more than 50% liable- so could get the entire amount from A

Ravo v. Rogatnick (article 16 was not enacted - so economic and non economic damages were considered in the same way)- baby had brain damage- 2 doctors messed up, jury found both doctors liable - R- 80% liable and H 20% liable- usually w joint and several liability- there is one incident but here there were 2 diff actors at diff times- here the jury couldnt say which was responsible for the damage that was done- amount owed 2,250,000 - R cant pay his 80%- so is H now responsible for the rest of the amount R cant pay?- H said this isnt joint and several- this is successive liability (which would mean each is liable for their own act)- the court says there is one single indivisible injury- so we will apply joint and several liability even though the acts were successive

Effect of settlements- realease in settlement - against more than one person- what happens if one of the Ds settle and the other doesnt- the jury will be still determine relative culpability- take higher of relative capability or damages- a joint tortfeasor can no longer maintain a claim for contribution from others and others cant collect against him- If T sues A and L - A and L both owe 50%- culpability is $100,000- L settles with T for $25,000- we reduce judgment by 50%- so 50% owed- but if it were $75,000 settlement then would A only owe $25,000

In the matter of NY asbestos:A jury comes back with 4 mil.K- 15%M- 60%o- 25%m settles for $800,000o settles for 2.5mil.then lawyer for k says he owes nothing- we apply in each case the higher of culpability or amount of settlementfor M 60% we reduce 60%- which is 2.4 leaving 1.6then for O we take higher of 25% or 2.5 mil.- which is 2.5 miland then we see 1.6 mil and 2.5 mil. > O owes nothing this doesnt make senseso we add together M and O - together owe 85% which is 3.4 but they paid 3.3 so the higher is the 85% and then K owes $600,000YOU AGGREGATE settlement and then decide how much is owed

MOTION ACTION: Motion- - you submit that u want to make motion- court gives u date- then you give the other party notice of motion- you can appeal a motion in ny immediately- but not in fed cases- would need to be certified to get to the court of appealsCPLR 5701 (a)(2), an appeal to the appellate division may be taken as a matter of right on certain orders, including interlocutory orders, where the motion resulting in the order was made on notice. (Appeals stemming from ex parte orders are governed by CPLR 5701 (a) 3.) Among the categories of orders which may be appealed as of right are those that "involve[] some part of the merits" of the action and orders that "affect[] a substantial right." CPLR 5701 (a) 2

An alternative to initiating a motion by notice is an order to show cause- One motions for an order to show cause with an affidavit explaining why they would be unduly prejudiced if it wasn't granted- this motion can be ex parte because it is immediate relief the merits arent reached in granting or denying the order- it just says that the other party must stop the activity they are doing until the motion is reached on its merits Then you tell the other party that your order to show cause was granted and you are given a court date when you both come in and the judge directs D to show why they shouldn't grant/deny the motion The other party can also submit an affidavit of why the order to show cause should not be granted- but they would need to know this is happening Many lawyers incorrectly use this for motions but its rly suppose to only be for something that needs to happen immediately

PROVISIONAL REMEDIES- bc its not the ultimate remedy of the case this is before the final order has been decided

REPLEVIN- seizure of chattel on behalf of P- before suit-1) security measures- u can seize something before litigation- so that if you get a judgment you know there will be the money to back it up ; or2) you want to preserve the status quo

Hypo: assume u are the owner of a painting that u put in ur apt in ny- it's a shegal and ur abt to go away and ur concerned w safety of the paining- u have neighbor u are frndly w- and you tell them ur on vacation and u give it to the neighbor to hold on to she says sure-and then you come back and the frnd wont give back and says- you said it was gift and youll never see it again you go to court right away to get a provisional remedy of seizure of a chatell ex parte- article 7102(c)- u must submit an affidavit with details of the chattel and tell the story you can seek this without starting the action but the complaint and affidavit will be basically the same anyway you must not know any defense that the D has 7102(c)(7) if u submit exparte- then you must show that the def is going to walk off w it- that's why u need this- (e) undertaking-the P must have a bond in case they were wrong in seizing the chattel this must be sufficient surety- which not less then twice the amount of the thing u will take the chattel must be seized by the sheriff- you cant seize it yourself d(4)An order of seizure granted without notice shall provide that the plaintiff shall move for an order confirming the order of seizure on such notice to the defendant and sheriff and within such period, not to exceed five days after seizure, as the court shall direct. Unless the motion is made within such period, the order of seizure shall have no further effect and shall be vacated on motion and any chattel seized thereunder shall be returned forthwith to the defendant. Upon the motion to confirm, the plaintiff shall have the burden of establishing the grounds for confirmation. sheriff must retain the chattel for 10 days

morning glory- p is a corp d were 2 directors of the corp the d helped p buy the machine the d had it in their possession and p got it ex parte through 7102- this is when they have the order to confirm the p said they would transfer title if the d wins the court decided to put it back with the d but ordered that the d could not move it until the litigation is over- TRO against moving it until lit is over the p didn't show cause to seize it there is no reason to think that the d would get rid of or move this chattel

Christies inc- 7109- provides for extraordinary orders of seizure if the item unique- here the d had lots of decorative art and furniture which secured the loan- the d default on loan - they want the items where the chattel in unique- D is ordered to give property to P even without a sheriff- here art was work twice amount of the debt- so a windfall for P

6201- Attachment

hypo: there is an accident in NJ and there is no long arm statute that would work p wants jurisdiction in ny d has lots of money in bank in ny pre 1977 there was no q that the p could obtain quasi in rem jurisdiction even tho the property has nothing to do w the suit then post 1977- heitner- also need minimum contacts bc money had NOTHING to do with the case what if we have in personam jurisdiction bc person comes to visit- can d attach the money in the bank pending the outcome of the case he is entitled to attachment not to establish jurisdiction but for security bc the d isnt from this jurisction 6201 the debt follows the debtor- so harris v balk survives in terms of security but not jurisdiction you can also have this if you think that the d will hide the money from creditor

Society general Zurich owes bank 350,000- bank cant get money the guy also has a ny acct.- and the whole point of this suit is that they think that D is hiding money So the bank relies on the fraud provision 6201(3) which says that the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts

6211.Order of attachment without notice

6202.Debt or property subject to attachment; proper garnisheeAbko - pre shafer -pre 1977- so we are talking abt qausi in rem attachment - abko is in ny have loan agreement - if the movie does well then inc will owe ltd proceeds from movie - the court says that the rights of the licensing agreement is a property interest so it falls within 6202- bc its assignable

WRONGFUL ATTACHEMENT- you can seek damages

Injunction- CPLR 63- most common type of relief Suit for injunction- often want move for order to show cause for preliminary injunction and you get a TRO in the meantime and then if the suit is for an injunction you are asking for a preliminary injunction subject to a final injunction

6301.Grounds for preliminary injunction and temporary restraining orderCredit Agricole- 3 banks Suing a Russian BANK- suing for 30 million they want a TRO bc the Russians were making themselves judgment proof by moving the money the court denies bc P were seeking a money judgment and preliminary injunctions are only available for injunctive relief the court says that theoretically for a money judgment what you would ask for is an attachment but here the property is in Russia to attachment also isnt available

CPLR- 65- Notice of pendency- you file this with the court to tell the world that you have a claim to the property so that no one else can then claim that they didn't knowThen you need to serve the summons within 30 days

Parr meadow racing- if you file a notice of pendency (or any other provisional remedy) improperly you can be liable for abuse of process.

PLEADINGSIn ny (unlike fed) you can file the summons 120 days before the complaint3106- pleadingsWhen the basis is fraud- you need to state basis in particular3044- ONLY IN NY- If a complaint is verified (aka it has a sworn affidavit by client which states the client read the pleading and is saying its right) the answer then also must verified- you should always verify complaint and for corp. this is done by director/officer

BILL OF PARTICULARS: used primarily in neg- where they must specify the acts and/or omission constituting the negligence the theory of a bill of particulars is to put more meat on bones in terms of disclosure of what is being complained of in a detailed manner- used by d against p (hybrid between a pleading and discovery) usually served w the answer the P doesn't need to give evidence in the bill of particulars, just state more facts as to what they think the evidence will be/is and why they think they have a valid claim Ferlock v. Albany- in malpractice there is a 10yr limit to tolling- even if child is not yet of age the Ps family were seeking special damages etc- the D asks for a bill of particulars the D says the bill of particulars wasn't particular enough the P serve notice to admit that the nurses notes were missing the court says that bc the nurses notes were missing and it was the Ds job to retain them, it is not the Ps fault that they cant state with more particularity, and therefore the P has been as particular are they could be

DICLOSURE= DISCOVERY-3101- crucial bc most cases settle before trial so this is the main tool in getting ppl to settle

Andon v. 302-304 trying to say baby was hurt by lead based test- lowered iq want to get mom to take iq test- to see if the issue was genetics you need to show that there is strong medical reason to require the IQ test weigh the relevance vs burden

3102(c) - pre-action discovery Holzman- the p was claiming negligence w a bus and p wants to inspect the bus pre action discovery should only be granted when the petitioner demonstrates that he has a meritorious cause of case and the information sought is material and necessary to the actionable wrong- Cant use discovery to ascertain whether there is a cause of action here he doesn't have enough facts to plead a meritorious claim you cant use this when you have legit claim and the pre-discovery would just give you more info to allege additional theories

with negligence- broad complaint then in the answer they can ask for a detailed bill of particulars

Electronic discovery- v important in a complex lit. ESI- electronically stored infoUS bank v. greenpoint- issue- who pays for the discovery? Expense- how readily retrievable- email on ur comp is readily retrievable- but deleted emails that need to be retrieved is much harder Who pays- b4 ESI it was the producing parties responsibility follows the fed. Interpretation of Zubulake- cost of discovery is on producing party but can be shifted basically looking at who has the money to pay Zubulake factors: the extents to which the request is specifically tailored to discover relevant info the availability of such info from other sources the total cost of production compared to the amount in controversy the total cost of production compared to the resources of each party the relative ability of each party to control the costs and incentive to do so the importance of the issue at stake in the litigation the relative benefit to the parties of obtaining the information

Voom- when do u need to preserve documents - arises way b4 a suit is brought - its when litigation should have been reasonably anticipated

Privilege

2 absolute privileges 3101 (b) and (c) (b) Privileged matter. (c) Attorney's work product. 3101(d)(2) qualified privilege- weiner thinks the absolute privilege of mental impressions etc. about what other professionals do- the qualified privilege is also for things ppl do in preparation for trial for agents of the attorney- the standard is undue hardship

Spectrum case- NY court of appeals- broad view of materials protected by attorney client privilege chemical bank asked law firm to investigate what was going on the spectrum if this had just been to give them business advice it wouldn't be privilege but bc it is of legal character and ambit of legal work it is privileged the communication between client and attorney needs to be about legal relationship is privileged (either from client to attorney or attorney to client)- aka rendering legal services for legal reasons they asked the law-firm to investigate to deal with the legal consequences of fraud/corruption- and just bc the memo ends with notes about what the company should do in the future doesn't put this investigation into the realm of business decisions (many legal investigations will include notes on how to avoid future problems) they don't need to reach whether this was in anticipation of litigation to find if its attorney work product here bc it was a communicationHoffman- if someone discovered name and address of potential witness- you need to give that info (not privileged)

Miranda- shredding machine accident- if accident report is within normal course of business then its not privileged 3101(g) burden that its not in normal course of business is on the party seeking disclosure

DISCOVERY OF EXPERTS

EXPERTS- someone with specialized knowledge useful to a case most importantly docs engineer accountants3101(d)(1)- upon request the other side can ask which experts you will call and ask abt them and abt what they intend to testify w reasonable detail- and on what basis they are testifying but unless u can show special circumstance u cant depose them- however for med mal- they can omit the name of the medical expert but still need reasonable detail about the credentials and what they will testifySaar v. Brown classic med mal- sues the hospital and doc the doc didn't name a expert and the hospital told a little about the expert but didn't give enough detail the P asked to preclude both of their witnesses here the hospital didn't give enough detail about the underlying reasons to his conclusions- so the court just said that within 30 days they needed to add details or the expert would be precluded from testifying the court also told the doc to get an expert then give reasonable detail- but will tell them to give enough detail so that the P can rebut and must give some actual details courts are lenient when it comes to doctors testifying they have a strong lobby

Devices used in disclosure

3106-3117 Deposition- Devices used in disclosure: depositions- testimony is given under oath- not given before a judge or court room prob in office if use depo before jury can show jury at depo u rep client only time can say not to answer for ex if would violate privilege or confidentiality can take depo of witnesses have to give notice to other side so dont take depo ex parte for a non-party the sole methods of discovery are documents and depo section 3106a- normally D has priority in taking depo so can take depo of D before P- which means when u serve answer serve notice to take depo of P notice to take depo- see form 622

Goberman- there were 3 questions asked by Ds attorney at P deposition taking about his character and Ps lawyer doesn't want him to answer but the court says that we will assume that that this will only be used at trial for impeachment purposes except for objections of form- which are dealt with during the depo OR if answering the q would violate the witnesses constitutional rights- ALL other objects are preserved for trial this means that all questions (unless they violate your con. rights) must be answered but they wont necessarily be able to admit it at trial

Deposition at trial- Wojtas- you can always use the deposition of an adverse party - this means that you don't need to call an adverse party to the stand and you can just admit their depo but you can only use your own partys deposition if they are unavailable this means if you have deposed your witness unless they are unavailable you MUST call them to the stand usually a P/D can never use their own depo at trial bc they are the parties - they are available but in this case the D was v sick so they were considered unavailable and their deposition was admitted

Interrogatories- when in a depo they would need time to review the material- so usually you ask for these before a deposition so you know what to ask about. These are also used after a deposition when you now know what to ask for specifically

Mackinson- 3120- a means of obtaining docs from a party or if you want from 3rd party you must get a court order a wife wants the documents of 10 yrs of financials the court says before u make demand for discovery of docs you first depose the witness so you know what you are asking for and also says you get 5 yrs also court has the ability to limit disclosure if embarrassing or burdensome---in reality this makes no sense because you want the docs before deposition

Notice to admitting- before trial you can ask the other side to admit to certain facts they can be penalized for not admitting things that are obviously true- so you shouldn't deny everything bc that is bad faith You cannot ask to admit a legal determination- you can only ask to admit FACTS if you fail to answer a request to admit- considered like u admit- so either object or deny

3213- summary judgment in lieu of a complaint- just start with summary judgment for an action based on an instrument for the payment of money

Section 3214(b)- Stay of disclosure- if anyone seeks to take advantage of motion to dismiss, summary judgment, or summary judgment in lieu of complaint- disclosure is stayed until the motion is determined - unless court determines otherwise This can be a big advantage for D

3211- motion to dismiss

3211(a)(7)- failure to state a claimRovello Wife made contract w D to sell dead husbands property The D moved to dismiss for failure to state a claim bc P didn't pay the amount she was supposed to and this was just based on an affidavit that said a down payment was due None of the affidavits P bring really deal with why she didn't pay Anytime something is brought under (a) or (b) and there is a question of fact that needs to be decided it can be converted to summary judgment Whether or not the D has answered- the court after adequate notice to the party the court can treat the motion to dismiss as motion for summary judgment (this is diff then what usually happens which is that d would need to answer and motion for summary judgment) However in this case the court didn't tell the parties that they would treat this as summary judgment and cant dismiss for failure to state a claim unless it actually doesn't state any claim If complaint states a cause of action then cant dismiss on 3211(a)(7) had they just given notice probably wouldve been dismissed under summary judgment

3212- motion for summary judgment Downside is youre giving away your strategy for trial if the motion is denied.

Ramos- P was working and a transformer blows up and he sues the manufacturer for product liability but by the time he does that the transformer was gone bc this suit was brought 2 yrs later and at first he hadnt brought this claims against the manufacturer The issue is that there is no transformer and its 2yrs later so how can he sue? The D moves for summary judgment saying they werent at fault, and had expert that says that the transformers were all checked for safety and there was never this issue Gave summary judgment bc ps affidavit didn't give any other fact to rule out any other possibilities ---This may be a bad result bc maybe the jury should have been able to decide if they trust the P or the expert

Ugarriza facts are undisputed: D at 4am turned into shopping center then made a turn into dark street and hit a divider and P got hurt and sued we don't need a jury to decide what happened but we need a jury to apply the standard of negligence to decide whether P was negligent

Goncalves- a jury should decide what is reasonably considered a safe in a hotel

Weissman- there were 6 ppl who wanted to buy delicatessen and that the corp would make a payment and the P is saying this means there was an indemnification clause the P says this equivalent to a personal guarantee and this should be considered an instrument for the payment of money under 3213 the court says that's crazy- 3213 is only for a clear promissory note or something else certain the court then granted summary judgment against the P bc they say there is no way to construe this document as a promise to pay- there is no right to sue for non payment in this case here there was cross summary judgment

motion for summary judgment allows the court to grant to other side even if they don't cross-move

3215(a)- judgment by default - amount can be entered by a clerk if there is a sum certain but if its not certain a judge needs to decide how much you should get- Gleich- here the lawyers sue for their unpaid fee but there wasn't enough to say that was a certain sum so even though the D defaulted, the D can still come and contest the amount due when the judge is deciding

3218- confession of judgment- useful if you are negotiating a settlement- no litigation- the other side says they will pay in installments for the next few months if a payment isnt made u can sue on agreement but you don't wanna get involved in a full scale litigation so if you have enough leverage u will negotiate a 3218- in which the potential D says that they confess to judgment of a certain amount- and then you agree to hold that in escrow and not use it unless they default if there is a default u are seeking a judgment on the basis of this proof and then its automatic

Res judicata and Collateral estoppel/ issue and claim preclusion2 cases and something was decided in the first case preclude a second case

A sues b in auto accident and b wins- no negligence. Then a new witness appears which couldn't be found before he cant sue again- that is res judicata under 505(a)(1)(2)- open up judgment on new info- get it vacatedEx: u sue in tort and 3 yrs statute of limitation- d seeks to dismiss on basis that it wasn't a proper tort claim- cant leave to amend then you sue on breach of contract- the matter has already been determined even though you have a new theory so its res judicata but you could appeal that judge abused discretion by not letting u amend to add a contract claim

Gowan v. Tully 1st case was a class action it lost They didnt opt out. If they did it wouldnt be precluded. 2nd case was a private action but here they say the law changed.so big change of circumstances the court says that new supreme court law doesn't change anything to make it not res judicata. This sounds ridiculous! If the law changes, your rights can be changed!

Hodes hodes and herman convicted of medicare fraud their nursing home operating certificate was revoked that gets reversed bc there was a provision that says that you cant automatically revoke the certificate then the rule changes to take away their license- change is statute the court talk a lot abt policy and how we don't want these ppl to have their license so come up w reasons res judicata doesn't apply change in the law was deemed to permit a second suit in rare cases- for example FOIL case where they were turned down law amended and now can ask again pertinity proceeding then statute of limitation amended and now can bring suit so when statutory right is altered can bring second suit[this doesn't really make sense]

Res judicata - Dismissal on the merits: Didnt state a claim Grant of summary judgment on merits If just for procedural problem, most likely not considered on the merits If for SOL ________- Issue preclusion 2nd claim is different than the first, but still can't litigate it in 2nd. Theory is you already had your day in court so won't give you a second shot. Can be used defensively or offensively (by P, to establish liability of D) Blonder A sues B because B infringed As patent. Court says As patent is invalid. A then sues C on same patent. C says As patent was already deemed invalid. SCOTUS said its invalid alts nonmutual ____ collateral estoppel. This is an example of defensive collateral estoppel. Kaufman After P was victorious, other Ps tried using collateral estoppel against Ely Lilly to say you already lost on same issues, we automatically win. Ps won This is offensive collateral estoppel CASE P offensively using collateral estoppel. D argues in the first case it was a judge that decided it, we want jury in this case, and denies 7th A by not giving us trial by jury. Court doesnt buy it, says its still collateral estoppel Court notes offensive use can be abused, so shouldnt be available to a P that easily couldve joined the first litigation, or in circumstances it otherwise wouldve been unfair. Ex: 2 identically situated Ps with claims against D. They could join, but one says lets wait and see how the other P does that way we then have an easy case, or if they lose well learn from their mistake and bring our own case. Court says youre not allowed to do this. Note: A wait-and-see P loses the right to collateral estoppel, NOT the right to sue Chan v. Bishop Divorce litigation. P ed she was entitled to divorce because husband was physically abusive. Didnt seek damages for injuries. Divorce action got resolved. Later she sued for damages for assault. He said claim preclusion. Court said a divorce trial is very different, so there won't be tort preclusion from a divorce trial. DES Litigation You only have collateral estoppel if exact same Q, so judge wanted to make sure it was clear what the Qs were so has jury decide on individual Qs and not just liability/damages. Note: Having the same lawyer doesnt make a difference. Cotter(?) Pedestrian killed. 2 suits: 1 by decedent against organizers of bike trial, other against state. Claim against state was settled in court of claims that comparative negligence was 50%. In other case, the jury said decedent was 60% negligent, so it shouldnt be relitigated. Court says ", because they're comparing P to two different Ds, its not the same issue. Tidings Person waited until 6yrs after trustee resigned to ask for accounting. SOL shouldve been raised but lawyer didnt do it. Sues for malpractice. Court said P didnt show it expired, and also that it was waived. Appellate division only upheld it was waived, didnt decide on SOL issues. Firm says even if we screwed up, it wasnt deemed the SOL was an issue so of course wasnt raised and were Scott-free! Court of Appeals says just because it wasnt decided on doesnt mean it was collaterally estopped. Gilbert 2 cases: 1. Ds deposition, didnt want to A without lawyer there, fight ensues. Lawyer charges D with harassment, a petty offense, in city court. There's a trial, with witnesses, D found guilty of harassment. 2. Next day, P files complaint of assault against D and says collateral estoppel. Court says estoppel isn't here because the first court wasnt fancy enough to apply collateral estoppel because there was no jury, and also because he couldnt be expected to defend with the same vigor (Prof: This doesnt make sense) Decision in small claims court isn't enough to apply collateral estoppel. In criminal case, if there's a conviction, that can establish elements of liability alts collateral estoppel in subsequent civil case. But if there's an acquittal, that won't stop from a civil case. ConEd Major blackout, accused of negligence, loss of earnings Case brought by 14 corporations. Court said it was already litigated and ConEd was held negligent. They apply collateral estoppel. Non-party bound by prior case: Hypo: Class action, class loses. In this case a non-party will be bound by outcome of prior case. Bugle(?) - 3 lawyer partners, enter questionable fee agreement. Q of legality of fee agreement was raised against one but not all 3 partners. Fee agreement found to be illegal and not enforceable for that one. Can other 2 partners relitigate this issue? Court said because they're in privity with other partner, there's collateral estoppel. Big Caveat: In Taylor,