topic 1 power point final 2012 pdf

8/3/2019 Topic 1 Power Point Final 2012 PDF

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New York Practice

Spring 2012

Professor Cary Stewart Sklaren


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TOPIC 1

Introduction to New York Practice


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New York Practice

Secondary References

Siegel, N.Y. Practice (5th Ed.)

Weinstein, Korn, Miller, N.Y. Civil

Practice

McKinney's Consol. Laws of NY

Annotated Ferstenig, N.Y. AnswerGuide


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Reading a New York Practice Case

Platt v. Platt

Supreme Court Of Judicature Of New York

Cole. Cas. 36; 1795 N.Y. Lexis 2 (April, 1795)BENSON, J. The pleadings in this cause are: Narr. intitled of October Term, 1794, in assumpsitcharged, 1st September, 1794,

plea in abatement, that on the 28th January, 1793, the defendant was taken and detained in prison under the custody of the

Judges and Assistant Justices of the Court of Common Pleas for the County of Westchester, by virtue of' a plaint levied

against him in that court at the suit of the plaintiff; that the plaintiff declared against the defendant on that plaint, and the

plea set forth the declaration at large, which is similar to the declaration in this court (with this difference only, that in the

latter [*37] there is an addition of a count on an insimul computassent, and in the former the assumpsit is charged on the

1st of January, 1793); that the defendant sued out of this court an habeas corpus for removing the cause, tested the 9th, and

allowed the 27th August, 1794, and returnable the ensuing October Term; that the habeas corpus was returned in that term,

and setting forth the return, which is in the usual form; that thereupon the defendant was delivered to bail in this court atthe suit of the plaintiff in the plea [**2] aforesaid, whereupon the plaintiff exhibited the bill aforesaid in this court against

the defendant in the plea aforesaid; that inasmuch as it appears by the bill here that the causes of action specified in the bill

had not accrued before the term of the caption of the defendant by virtue of the plaint, nor before the time when the

plaintiff declared on the plaint, nor before the day of the test, nor before the day of the allowance of the habeas corpus, the

plea therefore concludes by praying judgment of the bill, and that it may be quashed.


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Interrelationships Exist Among

CPLR;

Statutes dealing with procedure;

State-wide court rules (NYCRR);

Local court rules;

Judges individual rules.


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WHY SUE IN NEW YORK (2/2)?

NY choice of law ( you want a NY judge to

interpret).

Lawyer handling more familiar with NY law.

Want a Judge who specializes in commercial

law.

Dont like the way US courts interpret law. Your office is in NY. (You hate traveling, and it

is expensive.)


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Field Code (1848)


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Lawrence Friedman on the Field Code

in History of American Law(1/2)

It was couched in brief, gnomicNapoleonic sections, tightly worded and

skeletal. No trace of the elaborate redundancy,

the voluptuous heaping on of

synonyms, so characteristic of Anglo-American statutes.


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Friedman (2/2)

In short, a code in the French

sense, not a statute.

A lattice of reasoned principles,

scientifically arranged, not a

thick thumb stuck into the dikesof common law.


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Field Code 62 (1848)

The distinction between actions at law and

suits in equity, and the forms of all such

actions and suits heretofore existing are

abolished; and there shall be in this state,hereafter, but one form of action, for the

enforcement or protection of private rights

and the redress or prevention of privatewrongs, which shall be denominated a civil

action.


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CPLR 103(a) (2012)

Form of civil judicial proceedings.

One form of action. There is only

one form of civil action. Thedistinctions between actions at law

and suits in equity, and the forms of

those actions and suits, have beenabolished.


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Field Code 62 CPLR 103(a)

The distinction

between actions at

law and suits in

equity, and theforms of all such

actions and suits

heretofore existingare abolished;

The distinctions

between actions at

law and suits in

equity, and theforms of those

actions and suits,

have beenabolished.


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N.Y. Civil Procedure Acts

1848 Field Code (29 years)

1877 Throop Code (43 years)

1920 CPA (43 years)

1963 CPLR (49 years and

counting)


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The CPLR is the Basic Procedural

Law of New York

The CPLR embodies both:

Due process, and

Fundamental fairness.


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Underpinnings of New York

Procedural Law (1/5)

U.S. Constitution

Judiciary Article

(Article 3)

New York State Constitution

Judiciary Article(Article 6)


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N.Y. Constitution, Art. 6

Establishes the Unified Court System

1;Defines subject matter jurisdiction;

Judicial selection;

Judicial discipline;Creates a Chief Judicial Administrator.


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New York Judiciary Law

Amplifies Article 6, N.Y. Constitution;

Powers and duties of Judges;Powers and duties of court officers;

Powers and duties of attorneys;

Code of Professional Responsibility;Procedural Details.


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Numerous other statutes (e.g.)

Vehicle and Traffic Law

General Obligations LawBusiness Corporation Law

Uniform Commercial Code

Estates, Powers and Trusts LawGeneral Construction Law


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Court Acts;

CPLR;

Court Rules (New York Court

Rules And Regulations or

NYCRR);

Judges Rules.


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New York Court Acts

Court of Claims

Act

Family Court Act Surrogates Court

Procedure Act

New York CityCivil Court Act

Uniform District

Courts Act

Uniform CityCourts Act

Uniform Justice

Court Act


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Amending the CPLR

Only the New York State Legislature can

amend the CPLR!

Others can recommend or advise:

Chief Judge (Recommend);

Chief Administrative Judge (Recommend);

Advisory Committee on Civil Practice;Law Revision Commission.


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Organization of the CPLR

72 Articles

Grouped by Subject Matter. For

example:Art. 2, Statute of Limitations

Art. 3, Jurisdiction

Art. 31, Disclosure

Art. 32, Accelerated Judgment


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CPLR 101(a)

This Article shall be known as the civil

practice law and rules, and may be cited

as 'CPLR.

N.B. Statute is not to be cited as either

C.P.L.R. (no periods), or

Civ. Prac. L. & R (no abbreviations).


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CPLR 101(b)

The CPLR shall govern theprocedure in civil judicial

proceedings in all courts of thestate and before all judges,except where the procedure is

regulated by inconsistentstatute. [Statutes trump CPLR.]


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CPLR 101(e)

You may refer to a CPLR

provision without indicating

whether it is a rule or section.

DO NOT CITE

CPLR Rule 3211, or CPLR [Sec.] 101(e).


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Examples of Special Proceedings

CPLR Art. 78 (proceeding against body or officer)

CPLR Art. 77 (proceeding relating to express trust)

CPLR 7503 (application to compel/stay arbitration)

Civ. Rights L. 60-63 (change of name)

Debtor & Creditor L. 3-22 (assign. benefit of cred.)

RPAPL 701-767 (Sum. Proc. to recover real prop.)

SCPA 203 (all proceedings in Surr. Court).


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CPLR 104

CPLR shall be liberally

construed to secure the just,

speedy and inexpensivedetermination of every civil

judicial proceeding.[Liberally construed + CPLR = 1779 cites]


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CPLR 105(b)

Action and Special Proceeding

Action includes special proceeding;

Plaintiff and defendant includepetitioner and respondent in a

special proceeding;

Summons and complaint includenotice of petition and petition.


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CPLR 105 (h)

A domestic corporation is one

created by or under the laws of the

state or a corporation located inthe state and created by or under

the laws of the United States.


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CPLR 105(h)

Definition of Foreign

Corporation:

Any corporation that is not a

Domestic Corporation.


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CPLR 105(j)

The word infant, as used inthis chapter, means a person

who has not attained the age ofeighteen years. The wordinfancy means the state of

being an infant.


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CPLR 105(k)

Judgment. The word

judgment means a final or

interlocutory judgment.

Note Spelling: One E.

Not Judgement


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CPLR 105(p)

Matrimonial Action means

Action for separation, and

Action for annulment or dissolution of a

marriage, and Action for a divorce, and

Action for a declaration of the validity or

nullity of a foreign judgment of divorce, and Action for a declaration of the validity or

nullity of a marriage.


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CPLR 105(u)

A verified pleading may be

utilized as an affidavit whenever

the latter is required.


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Mistakes


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CPLR 2001 (as amended) (1/3)

At any stage of an action,

including the filing of a

summons with notice,summons and complaint or

petition to commence anaction,

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39


the court may permit a mistake,omission, defect or irregularity,

including the failure to purchaseor acquire an index number orother mistake in the filing

process, to be corrected, uponsuch terms as may be just,


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or, if a substantial right of aparty is not prejudiced, the

mistake, omission, defect orirregularity shall bedisregarded, provided that

any applicable fees shall bepaid.


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Matter of United Servs. Auto. Assn. v. Kungel,

72 A.D.3d 517 (1st Dept 2010).CPLR 2001 was expressly enacted

to fully foreclose dismissal of

actions for technical...non-prejudicial defects in

commencement . . . regardless of

whether the defendant objected ina timely and proper manner."


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Examples, Excusable Mistakes (1/10)

Mistakes in filing initial processFailure to pay index number fee*;

Failure to obtain an index number*;

Some technical aspects of service ofprocess and filing proof of service.

* Fee must be subsequently paid.


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Example, Excusable Mistakes (2/10)

Failure to file proof of service withinthe time specified in CPLR 308(4) is nota jurisdictional defect but, rather, is a

procedural irregularity that may becured by an order permitting the latefiling of proof of service nunc pro tunc.

Discover Bank v. Eschwege, 71 A.D.3d1413, (4th Dept 2010).


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Timely mailing of notice of appeal

outside New York is not a fatal

jurisdictional defect requiringdismissal of the appeal. CPLR

5520(a).

M Entertainment, Inc. v. Leydier, 13

N.Y.3d 827 (2009)


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Notarization of expert affidavit out-

of-state in non-compliance with

CPLR 2309(c) is an irregularity. Betz v. Daniel Conti, Inc., 69

A.D.3d (2d Dept 2010).


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Mistakes, CPLR 2309(c) (5/10)

(c) Oaths and affirmations taken without thestate. An oath or affirmation taken without thestate shall be treated as if taken within the stateif it is accompanied by such certificate orcertificates as would be required to entitle adeed acknowledged without the state to berecorded within the state if such deed had beenacknowledged before the officer whoadministered the oath or affirmation.


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Argument that out-of-state affidavits wereinvalid for lack of the certification requiredby CPLR 2309(c) and Real Prop. L 299-anot preserved. Courts not rigid about thisrequirement. If oath is given, authenticationof authority can be secured later and givennunc pro tunc effect.

Matapos Technology Ltd. v. CompaniaAndina de Commercio, Ltda., 68 A.D.2d 672(1st Dept 2010).


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Court may disregard the failure of a

notary to sign thejuratof an

experts affidavit. Carter v. Grenadier Realty, 83

A.D.3d 640 (2d Dept 2011).


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Unauthorized person, in violation of

CPLR 313, served process in

Pennsylvania.

Court may disregard lack of

authorization as an irregularity. It is not

jurisdictional. Ruffin v. Lion Corp., 15 N.Y.2d 578

(2010).


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Court correctly overlooked the fact that

plaintiff improperly submitted the

affirmation, rather than affidavit, of a

partner.

Warshaw Burstein Cohen Schlesinger & Kuh,

LLP v Longmire, 920 N.Y.S.2d 23 (1st Dept

2011).


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Service of a cross-motion by USPS media

mail rather than first class mail, is a

mere irregularity resulting in no

substantial prejudice.

Jones v. LeFrance Leasing Ltd.

Partnership, 81 A.D.3d 900 (2d Dept2011).

E ti t CPLR 2001


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Exceptions to CPLR 2001

FATAL ERRORS

No Jurisdiction

Personal

Subject Matter

Statute of Limitations (but CPLR 203(e)

and 205)

Filing Notice of Appeal

G ld b h C l h


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Goldenberg v. Westchester Cty. Health

Care Corp., 16 N.Y.3d 323 (2011).

P commenced a special proceeding to file a

late notice of claim, and attached a copy of

the proposed complaint.

P served D with notice of claim, summons

and complaint without an index number.

Proposed complaint not "the functional

equivalent of a filing."

Statute of limitations has expired.


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Other Error References in CPLR

CPLR 103(c)-- e.g., special proceeding

brought as action.

CPLR 305(c)-- correction of non-prejudicial

defects in process or proof of service.

CPLR 325 and Judiciary Acts--action brought

in improper court and removal sought.

CPLR 1003--nonjoinder and misjoinder of

parties.


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Extensions of Time, CPLR 2004

Except where otherwise expressly

prescribed by law, the court may extend

the time fixed by any statute, rule or

order for doing any act, upon such terms

as may be just and upon good cause

shown, whether the application for

extension is made before or after the

expiration of the time fixed.


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Extensions of Time, CPLR 2004

terms as may be just AND

good cause shown.


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Exceptions to CPLR 2004

Extension of time prohibited byanother law:

CPLR 201 (statute of limitations)

CPLR 5514(c) (time to appeal)

CPLR 7503(c) (time to stay

arbitration)

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