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53 Cards in this Set
- Front
- Back
When does SOL begin to run, generally?
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From the date of injury or breach, not the date of discovery
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What are the exceptions to the "date of injury" SOL rule when the date of discovery applies?
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Foreign object in medical malpractice
Fraud Toxic substance exposure |
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What plaintiff statuses will toll SOL?
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Infancy
Insanity Death |
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What Defendant statuses will toll SOL?
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* Death
* Absence (never in NY, or gone for 4 months and no way to serve in NY) [One of the NY essay questions seemed to indicate that if you could get someone under Long Arm or similar methods, SOL didn't toll] |
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What medical status will toll SOL?
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Continuous treatment by a professional (will toll malpractice from date of injury)
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If you bring a suit within SOL that is dismissed are you shit out of luck? Are there exceptions?
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No, you get a 6 month grace period to recommence the action.
Exceptions: dismissal on merits voluntary dismissal Pl's general pattern of delay lack of personal jurisdiction NOT lack of diversity. |
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What types of actions (subject matter) does NY Supreme Court have jurisdiction over?
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All. Supreme may not mean much in this state, but it means something.
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6 bases of personal jurisdiction in NY
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1) physically present in NY when served
2) doing business in NY 3) domicile in NY 4) long arm statute 5) driver or owner of vehicle in NY 6) consent |
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What are the factors that make good personal jurisdiction under the NY Long Arm statute?
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Transaction of business in NY
K for good or services in NY Tortious act in NY Tort injury + other connection in NY Real estate in NY |
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Types of process service in NY (6)
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1) Personal service
2) leave-and-mail 3) Nail-and-mail 4) Expedient service via court order 5) Designated process agent 6) 1st class mail, and Def returns acknowledgment form |
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3 types of corporate process service in NY?
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* Serve on NY Sec of State (2 copies if NY corp or licensed in NY; 1 copy + mail 1 to corp if unlicensed non-NYcorp)
* 1st class mail, & Def returns acknowledgment form * Expedient service via court order |
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How does age affect process service?
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Must be served by 18 year old. If D under 14, served on adult. Id D is <18 and >14 copy to adult and D.
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Factors for good process served outside of NY
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* use proper NY method
* server must have been 18+, or valid under state where served, or attorney licensed in state. |
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What LSAT score do you need for St. John's Law School if you got magna from Yale undergrad?
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-1
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Can you have a court with subject matter jurisdiction if neither party is a NY resident and the cause of action has nothing to do with NY?
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Yes. That's a personal jurisdiction problem.
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What is forum non conveniens?
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Court can, in its own discretion, dismiss the case when the action lacks any substantial nexus with NY.
*Def must so move. |
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What are the two exceptions to NY Supreme Court subject matter jurisdiction?
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*Exclusive Federal jurisdiction via Federal statute (copyright, bankruptcy)
* Suit against NY State |
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Where must you bring a suit against NY State?
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NY Court of Claims
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Can you join another defendant in a Court of Claims suit.
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Nope. 1 defendant in this court: NYS.
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NY Supreme Court has exclusive subject matter jurisdiction over what kinds of actions?
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Matrimonial
CPLR Article 78 (judicial reivew of state admin action) Declaratory judgment actions |
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What is the SOL for Contract actions?
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6 years from breach
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What is the SOL for Personal Injury or Property actions?
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3 years from impact
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To satisfy SOL, the action must be commenced by what day?
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On or before the last day of the SOL.
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What is "commencing" the action (for SOL and other purposes)?
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Filing summons and complaint, or summons with notice, with the Clerk of the court.
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1) How do you compute SOL (and other time periods in CPLR)? 2) When must you file a negligence action for a car wreck on June 1, 2006?
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*From the day AFTER the triggering event.
*June 1, 2009. |
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What if the last day of the period to do a procedure is on a weekend or holiday?
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Wait till Monday. Friday is not a weekend. And Thursday is the new Saturday only for drinking.
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What's the SOL for Medical Malpractice?
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2 1/2 years from the date of the malpractice
* unless continuous treatment for the same condition |
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What is the SOL for foreign objects during medical malpractice?
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2 1/2 from date of malpractice or 1 year from discovery (or reasonable "should have" discovered, whichever is later.
*Now we know where James's watch went. Still set to Havana time. |
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Name four non-doctor learned professions and one non-learned one.
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Learned: lawyer, architect, engineer, accountant (accountant?)
non-learned: CPR School, finance douchebag |
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What is the procedure when a building is over 10 years old, but you want to sue the engineer or architect?
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Service notice of claim 90 days before suit.
* You can get discovery then * Def can move for Summary judgment for you to show "substantial basis" for suit. |
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What is the SOL for Breach of Warranty for the sale of goods (UCC)?
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4 years from date Def makes delivery. All other products liability is 3 years, like everyone else.
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What is SOL for contribution or indemnity claims?
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6 years.
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What is the SOL for Toxic Substances suits?
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3 years from discover (for when you reasonably should have discovered it).
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When Pl is no longer Legally Disabled, how long left on SOL?
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Time remaining on claim or 3 years, whichever is more
*SOL was less, then you get that lesser amount. * Cap of 10 years. |
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What is the SOL on a wrongful death claim?
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2 years from death.
* Must show that dead guy's personal injury claim would have been timely. |
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What is the SOL on a survival claim?
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whatever time remains on dead guy's SOL or 1 year (whichever is longer)
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What is SOL toll if Def dies
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18 months
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What if another potential forum state has a shorter SOL but suit is brought here?
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New Yorkers get our longer SOL
If the Pl is not a NY-er, then we'll use that one, thanks. No forum-shopping here, Bub. (Unless you like our liberal juries and our high cost of litigation.) |
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After filing process with the clerk, what's next, and how long do you have?
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Serving process on Def. 120 days.
(court can extend on ex parte motion) |
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What the difference between a summons and complaint and summons with notice?
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Summons and complaint has the whole pleading attached.
Summons and notice is a really short summary of complaint. |
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What must notice in a summons with notice contain?
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* Brief statement of the nature of the action (cause of action)
* type of relief sought * amount of damage |
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What happens if you file a naked summons
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Def can dismiss, if they move in time
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What days can't you serve?
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Sunday
Or Saturday if you know they observe it. (i.e., the sabbath, with a rebuttable presumption of Christianity) |
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What is personal service of process?
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Hand it to them, or general vicinity if they are dicks about it.
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What is leave and mail service of process?
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One copy to person of suitable age and descretion at actual dwelling or actual business PLUS mail copy to actual business or last known address.
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Roomates can share copy of service?
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Nope.
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What is nail and mail?
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Affixing process to Def's door (actual dwelling) or (actual) business
PLUS mail to last known residence or actual business. If you have already tried (w/ due diligence) to do personal service & leave and mail. |
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What is due diligence for service?
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Try to serve on different days at different times.
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What happens after leave and mail or nail and mail?
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Server must file affidavit (proof of service) -- service is good 10 days after affidavit is filed
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What is expedient service of process?
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Court order when the other method don;t work. Something that will work (service on someone else, email, newspaper)
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How can you serve infants and tarts?
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Spouse (live-in)
parent guardian person w/ legal custody (If infant over 14, they get a copy, too) |
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Who is a valid corporate rep for process serving?
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Officer
Director designated agent managing agent (any supervisor) |
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What happens if Def does not return an acknowledgment form with mailed service?
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You have to try again, but Def pays for it.
(Can't use on kids or tarts) |