New York Practice Outline:

Mike Gugig -

I.NY Practice Overview

A.NY-CPLR: aka the bible of New York Practice

The CPLR governs all actions in every court in the State of New York.

The only time when the CPLR does not govern is when there is another statute governing procedure such as a Court Act AND there is a direct conflict of procedure set forth in the Court Act and that which is listed in the CPLR. (e.g. NY Civil Court Act says response is due within 10 days from the time the motion is served and the CPLR says something else –here, the Court Act will govern. But, if there is no direct conflict, the CPLR will govern.

County Courts in 5 Boroughs and In the State: Governed Exclusively by the CPLR.

CPLR is divided into 100 articles.

  • To determine what Article a rule falls into (ie. §3212 Summary Judgment) drop the last two digits and that is your Article Number - 32)
  • CPLR 100: Within each article there are statutes and rules. When there is a “§” mark in front of a provision it means that it is a statue. When you see “R” in front of the provision it means that it’s a Rule.
  • Statutes can only be altered by the legislature
  • Rules used to be such that they could only be altered by either the legislature of the Judicial Conference, which is now superseded by the Office of Court Administration; now Rules appear to be alterable by the legislature only thanks to §229(e)(3) of the Judiciary Law (see p. 3 of the CB for details)
  • If the Statutes and Rules conflict, the Statute controls
  • CPLR 101: authorizes the citation of CPLR provisions without indicating whether it is a rule or statute; this manner of citation has become the common practice

B.OTHER PROCEDURAL TOOLS: Four Uniform Court Acts that govern various courts

  1. NYC Civil Court Act- governs the Civil Courts in New York City; Each of the five boroughs of New York City is coextensive with one of its five counties. Under the General Municipal Law of the State of New York, a borough results when the towns, villages and cities in a county merge with the county itself.

The Bronx (Bronx County)

Brooklyn (Kings County)

Manhattan (New York County)

Queens (Queens County)

Staten Island (Richmond County)

all other counties have a county court (CPLR).; these are courts of lesser subject matter jurisdiction – they can only hear cases worth $25K or less);

  1. Uniform District Court Act: applies only to civil practice in Nassau and Suffolk County District Courts (these are presently the only two counties that have District Courts); these district courts are very similar to Civil Court in NYC
  2. UniformCity Court Act: governs all city courts (there are 61 of them) outside NYC
  3. Uniform Justice Court Act: governs civil practice in all of the village and town courts around the state.
  • Article 2: of Each Uniform Court Act sets forth the jurisdiction of the court and tells you what kinds of cases each court can hear. It is imperative to be mindful of what court you are bringing your action in.
  1. Uniform Rules of Court (URC): these are superimposed on all of the above
  • Part 200: for Courts with Criminal Jurisdiction
  • Part 202: for the Supreme Court and County Court
  • Part 205: for Family Court
  • Part 206: for Court of Claims
  • Part 207: for the Surrogate’s Court
  • Part 208: for the New York City Civil Court
  • Part 210: for the City Courts Outside the City of New York
  • Part 212: for the District Courts
  • Part 214: for the Justice Courts (villages & town courts only)
  1. Uniform Rules of Engagement of Counsel: instructions for the resolution of ‘conflicting engagements’, a perennial friction in practice when lawyers find their presence demanded in two or more courts at the same time
  • Part 125

C.ONE FORM OF ACTION

1.CPLR §103:

This does away with the difference between actions at law and equitable actions; the same judge can hear every kind of action regardless of whether it’s an equitable or legal action. there is no distinction in New York between courts of law and equity, therefore each court has the power to grant both legal and equitable relief; however in New Jersey there is a Chancery Division (court of equity) and Law Division (which has the power to award monetary damages).

Still the distinction does linger in certain areas, for example:

  • In determining the right to trial by jury, actions at law (e.g. monetary damages) provide a right to trial by jury where as equitable actions (e.g. injunctions) do not
  • On equitable defenses: claims sounding in what was once equity, and which appeal to the conscience of the court, are still subject to certain equitable defenses, such as laches and unclean hands, to which law claims are not

2.Action vs. Special Proceeding: The CPLR governs both actions and special proceedings

Action:a law suit regardless of what relief is sought, whether it be equitable relief or monetary relief whereby a petition or complaint is filed by one or more persons against one or more other persons who file an answer or a response, which results in a full trial or plenary hearing on the merits of a complaint following full discovery, as distinguished from a summary proceeding

Motion: is a written request to the court. When a party asks the court to take some kind of action in the course of litigation, other than resolving the entire case in a trial, the request is made in the form of a motion. Motions are often made before trials to resolve procedural and preliminary issues, and may be made after trials to enforce or modify judgments. Motions may also be made to resolve legal issues in the case if there is no disagreement about the facts. Usually called a motion for summary judgment or a motion for summary adjudication of the issues, these motions can resolve all or most of the issues in a case without the need for a trial. Normally, one side submits a motion, the other side submits a written response, and the court holds a hearing at which the parties give brief oral arguments. (Some motions are considered only on the basis of the writings.) Then the court approves or denies the motion.

Special Proceeding: a hybrid of ‘motion’ and ‘action’; it is like an action in that it is plenary (it seeks the vindication of a right in a final judgment) but it is brought on with the procedure and speed of a motion; because of its expeditious path, special proceedings are, of course, preferable to an action whenever available, but it is only available when a statute specifically prescribes it (CPLR 103(b)), otherwise the usual procedures of an action must be followed; typically what happens is:1) you file a special proceeding along with a brief; 2) adversary will put in opposition filings; and 3) the judge will make a decision; some examples of a special proceeding are:

  • Article 78 Proceeding: primary mission here is to review administrative decisions; here there is no discovery
  • Article 75 Proceeding: primary mission here is to test whether a given dispute is arbitrable; where there is an agreement to arbitrate a dispute as opposed to litigating it in a courtroom there is a very strong public policy towards arbitration. Cases will be arbitrated when there is a contractual agreement in place.
  • Article 7 of the Real Property Action and Proceedings Law: this proceeding is among the most highly specialized (and frequently brought) of special proceedings; aka Summary Proceeding to Recover Possession of Real Property; this device is used to settle landlord-tenant disputes quickly

Note: in the CPLR, the word ‘action’ includes a special proceeding to facilitate the expression of procedures that are applicable to both (it was easier to write it this way); still it is the lawyer’s responsibility to know when a special proceeding is appropriate; it used to be that bringing a special proceeding when an action was appropriate or vice versa resulted in dismissal; now, CPLR 103(c) no longer permits dismissal on this basis, instead the case will be converted to its proper form (for more details, see p. 6 of the casebook)

D.ADMINISTRATION OF THE COURTS

  1. The authority and responsibility for administrative supervision of the courts is in the chief judge of the Court of Appeals pursuant to the state constitution.
  2. The chief judge establishes the standards and the administrative policies for general application throughout the state and then submits to the court of appeals for approval; therefore the court of appeals has the ultimate authority over the standards and policies of judicial administration. (for more details, see p. 6 of the casebook)
  3. The Office of Court Administration (OCA) is the physical base of judicial administration in New York.

E.LIBERAL CONSTRUCTION

  1. CPLR §104: CONSTRUCTION; modeled on Rule 1 of the Federal Rules of Civil Procedure (which makes federal caselaw available by analogy should a point arise that has not been addressed by a case in NY); One sentence statute that is very important. “Civil practice laws are to be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding.” ‘Civil judicial proceeding’ is defined as actions and special proceedings collectively – it includes everything but a criminal action;the procedures are supposed to be a means to an end and not an end in itself…in practice, sometimes it is.

There are two provisions in the CPLR of pervasive relevance to all of procedure-CPLR 2001 and CPLR 2002 and therefore the liberal construction set forth of CPLR §104 is especially important here.

2. CPLR §2001: this provision governs mistakes and omissions. At any stage of an action, the

court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms

as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission,

defect or irregularity shall be disregarded.

3. CPLR §2004: This is the provision governing extensions of time. This places a time limit on

a lawyer and allows a judge to extend that period of time in the “interests of justice”. This is

basically the lawyers’ ‘get out of jail free’ card; if you blow a deadline and there is no

prejudice to anyone and no one is hurt by it, you will probably get the relief (an extended

deadline); however, if it’s your 6th or 7th time in the aforementioned circumstances, the court is

probably gonna cut you off and hold you to the original deadline; “the statute is intended more as

an admonition to practitioners who would hold their opponents too rigidly to time requirements”;

still, there are two statutory exceptions to the power of CPLR 2004:

  • Statutes of Limitation: these are not subject to discretionary extensions (CPLR 201)
  • Time to Appeal: if treated as a statute of limitations, they are unextendable (CPLR 5514(c))

Hypo: Let’s say your adversary wants an additional two weeks to answer your complaint and you call your adversary and want an extension you hope that your adversary will give you common courtesy to extend the time to answer. Atthat point you would file a stipulation. The adversary’s request also must be reasonable.

II.The Courts and Their Jurisdiction (p. 10 of the casebook)

A.Kinds of Jurisdiction:

Personal Jurisdiction:

It deals with the authority of the court to bind a particular party to its judgment.

A plaintiff submits to the authority by bringing an action in the court.

The defendant is subjected to it when she is served with the court’s process under circumstances that require her to defend the action.

An objection in this category of jurisdiction is waivable.

  • One way is the defendant waives personal jurisdiction is by contesting the action on the merits without raising the issue of lack of personal jurisdiction

See CPLR §301 and §302

3 Requirements to Obtain Personal Jurisdiction (ON TEST):

1. Notice or Service of Process

2. Opportunity to be heard

3. Jurisdictional basis (state cannot subject a non-domiciliary to its jurisdiction

without a nexus connecting the def. to the state); there must be some nexus

between the D and the State of NY or the Transaction and the State of NY

Rem Jurisdiction:

A subcategory of personal jurisdiction

Only turned to when personal jurisdiction is lacking

An objection in this category of jurisdiction is waivable.

Here the court has obtained actual or constructive custody of some property of the defendant, so that it is able, even without personal jurisdiction, to render a judgment effective at least to the extent of divesting the defendant of any interest in that property.

Specific Jurisdiction:

A subcategory of personal jurisdiction

General jurisdiction exists when a party has extensive ("continuous and systematic") dealings with the forum administered by the court.

Specific jurisdiction is present when a party performed some activity in the territory without which the present action before the court could not have been brought

it is appropriate when the following requirements are met:

  • (1) The nonresident defendant must purposefully direct her activities or consummate some transaction with the forum or resident thereof; or perform some act by which she purposefully avails herself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
  • (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
  • (3) the exercise of jurisdiction must comport with fair play and substantial justice(i.e. it must be reasonable.)

Subject Matter Jurisdiction:

It is the authority of the court to hear a particular kind of case.

In New York, subject matter jurisdiction is conferred either by Court Acts or the Constitution of the State of New York.

Lack of SM Jurisdiction is generally not curable by waiver, consent, estoppel, laches, or anything else. Parties cannot agree to waive subject matter jurisdiction.

When a court lacks subject matter jurisdiction it has no authority to hear the case and therefore the judgment is void and would not be enforceable.

  • This means that the judgment would be subject to collateral attack – it can be resisted when the question of its validity arises in another forum later on

Lack of subject matter jurisdiction can be raised at any stage of the proceedings and it can be raised for the first time on Appeal.

Courts can transfer cases, refuse to proceed further, and dismiss actions for lack of subject matter jurisdiction sua sponte.

Sua Sponte: “of one’s own accord”; without prompting or suggestion; on its own motion (e.g. “the court took notice sua sponte that it lacked jurisdiction over the case”)

B. The Court System:

Courts of Limited Jurisdiction:

It can only hear certain types of cases.

Usually the types of cases are limited by type: civil, criminal, or monetary (e.g. $25K limit).

In a court of limited jurisdiction, whenever questioned, it must be shown that the particular claim is within some law or constitutional provision conferring subject matter jurisdiction

  • In a court of general jurisdiction, jurisdiction is presumed

In the instance of a personal injury case where a remedy of$500K is sought: you would have to bring that action in Supreme Court because it’s a court of general jurisdiction.)

Courts of Record:

All of the state’s courts are courts of record, because they are so listed in §2 of the Judiciary Law, except the town and village courts

Court of Appeals:

On all matters of New York law, it is the highest court in the state (with jurisdiction in both criminal and civil matters) and the court of last resort

Also appoints and oversees the Board of Law Examiners and promulgates the rules for the admission of attorneys to practice (p. 15)

For details on the individuals that make up the Court of Appeals, see p. 14 of the casebook

It only decides question of law with two exceptions, where it also reviews the facts:

  • On an Appeal from an Imposition of the Death Penalty: The court can review factual findings, find new facts, and direct that a final judgment be entered on the new facts
  • The reason for reviewing the facts in a death case is that the appeal bypasses the Appellate Division (it goes directly from Supreme Court to Court of Appeals) and it is NY’s policy to allow at least one appellate review of the facts (it is a matter of law and due process), which explains the second exception too
  • Appellate Division Decision Reversing or Modifying A Judgment: will make factual decision when the Appellate Division reverses a trial court opinion b/c the Appellate Division found different facts.
  • Here, the new facts found by the Appellate Division have not yet been subjected to review (it goes directly from the trail court to the appellate division) and it is NY’s policy to allow at least one appellate review of the facts (it is a matter of law and due process)

Advisory Opinions: The Court of Appeals is the only court in the State of New York that can issue advisory opinions. An advisory opinion will only be issued when

  • Asked to answer a question of NY law by the U.S. Supreme Court, a federal court of appeals, or a sister state’s highest court, AND
  • There is no dispute (when there is no actual case or controversy in front of it)

Why would the US Court of Appeals for the Second Circuit certify a question to the Court of Appeals? Because there is an important question of state law where there is no binding precedent. There is a critical question of state law and they will certify the question to the court of appeals. The court of appeals will decide what the law of the state of New York is and gives it to the Second Circuit. The Court of Appeals wants to be the court that makes New York law.

Appellate Division: (full name: Appellate Division of the Supreme Court)

There is an intermediate appellate court (aka the Appellate Division) in each of the four judicial departments (each department’s full name looks like: New York Supreme Court, Appellate Division, Fourth Department). The decisions in each Department are binding only on courts within that department and lower courts within that department, with conflicts between the two resolved by the Court of Appeals.

  • The First Department:seated in Manhattan (New York County) and covers only The Bronx(Bronx County) and Manhattan (New York County) (known formally in the court system as Bronx and New York Counties, respectively).
  • The Second Department:seated in Brooklyn and oversees the supreme courts of the remaining boroughs of New York City--that is, Queens (Queens County), Brooklyn (Kings County), and Staten Island (Richmond County), as well as the remainder of Long Island (Nassau County and Suffolk County) and the New York City suburbs in Dutchess, Orange, Putnam, Rockland, and Westchester Counties.
  • The Third Department:seated in Albany and includes an area extending from the territory of the Second Department north to New York's borders with Vermont and Quebec, and includes the cities of Albany and Binghamton. This territory extends nearly as far west as Syracuse.
  • The Fourth Department:seated in Rochester and covers the remainder of the state (west of the Third Department's territory), and includes the cities of Buffalo, Rochester, and Syracuse.

The Appellate Division has appellate jurisdiction and can review questions of law and fact, including exercises of discretion made at the trial level (CPLR 5501 (c))