User:CheshireKatz/NYPrac

NY CPLR: http://www.garygauthier.com/NYCPLR.htm

Exam Review

Jurisdiction

Before depriving D of civil liberty or property, courts must afford D with due process of law (5th&14thAmends). Thus, court must satisfy MOP test:

• D must have all: (1) Minimum contacts w/ state; (2) Opportunity to be heard by court; (3) been properly served with Process.
• Otherwise, dismissable upon D's objection forcing P to startover (or forfeit, if SoL has expired).

NY grants Full Faith & Credit to Federal & Sister State Ct Judgments (w/ valid jurisdiction over D).

• Sole exception: MOP challenges on default judgments (for non-default, D estopped from challenging)

MOP Jurisdiction

Elements of MOP - Must be established in all 3 realms of ProcJuris (personal, in rem, quasi in rem)

Minimum Contacts with NY (Basis)

• Non-domiciliary D must have some connection that would give rise to expectation (foreseeability) of being sued in a NY court. (See Personal Jurisdiction below for doing business)

Opportunity to be Heard & Defend the Lawsuit

• After "completion" of service, D has 30 days to appear & avoid default judgment (only 20, if served personally w/i NYS or delivered by mail w/ consent).

Proper Service of Process [ALRAN, and A MAC DOG] (Notice)

• Prior to serving D, P must have 1)Paid Filing fee, 2) Bought Index #, & 3) Filed Process w/ Clerk (County clerk for SupCt)
• P has 120 days to properly serve, after which he must move for extension (CPLR 306(b)), based on:
  • "Good Cause Shown” (Threshhold test) - Was failure in spite of ReZDiligence by P (eg. D in military, foreign country, etc.)
  • “In the Interest of Justice” (Balancing test) - 1) Merit of Claim, 2) Time w/i SoL, 3) Length of Delay, 4) Promptness of Extension Motion, 5) Prejudice to D, 6) Diligence in Attempts by P
• Where SoL is < 4mos (Art78 Proc), Service must be in > 15 days of expiration.
• Where no MOP, D may:
  • Do Nothing – Defaults, but its a vacatable null judgment for violation of due process and P does not have to submit an affidavit or merit (REAM)
  • Pre-Answer Motion to Dismiss – BUT objection to MOP jurisdiction must be in any 3211 Motion to Dismiss, else risks waiver & consent to jurisdiction.
  • Lack of Jurisdiction Affirmative Defense in Answer – provided D hasn't made a pre-answer 3211 Motion to Dismiss
    • If objecting for Improper Service in D's Answer, then D must move for SumJudg on issue w/i 60 days from service of Answer, else risks waiver & consent to jurisdiction.

Personal Jurisdiction

Minimum Contacts in NYS

1. Domicile in NYS - Automatically satisfied, so long as domiciled in NYS at commencement of action.
2. In-State Service on Non-Domiciled D - Automatically satisfied, unless A) Non-Domiciliary Tricked into Entering NYS or B) Voluntarily Attending a (Quasi-)Judicial Proceeding
3. Acceptance of Service by D's Designated Agent(NYL p.7—9)
   • Under BCL306, service is complete upon delivery (not mail) of 2 copies of process to NY SecOState (agent of all Corps Incorp'd or Cert'd todo business in NY).
   • However, > 20 days before default, P must mail copy of process & notice of service by SecOState to Corp's last-known address, and provide Ct w/ affidavit so stating.
4. Long-Arm Juris over Non-Dom'd D (CPLR 302) - Satisfied by CoA arising out of NYS-Related Activities
   • CPLR 302(a)(1) - D Transacted Business in or K'd to Ship Goods/Perform Services in NYS (single-act) [NYAA p.71]

     "Transacting business" satisfied through series of correspondence/negotiations or deal-facilitating interactive website

   • CPLR 302(a)(2) - D Committed a Tort in NYS (excluding Defamation)
   • CPLR 302(a)(3) - NYS-Connected D Committed a Tort causing PropDmg, PersInjury, or EconInjury in NYS.

     "NYS-Connected D" →

     1. Regularly does or solicits business in NY
     2. Persistent course of contact in NY (eg. Rents apartment for biz/personal use)
     3. Derives substantial revenues from goods/services used/consumed/rendered in NY
     4. Derives substantial revenues from interstate/int’l business & RzSHv Expected the Tortious Act would have consequence in NY
        • USSC (Asahi): Placement of defect product in ISC stream foreseeably flowing into NY is insufficient, unless purposely directed there through Solicitation, Sales (consummated in NY), or Services (performed in NY).

   • CPLR 302(a)(4) - D Owned/Used/Possessed Real Estate in NY & CoA arises out of that Ownership/Use/Possession
   • CPLR 302(b) - In MatrimonAction or FamCtProceed for Alimony/ChildSupport w/ History in NY

     History in NY - 1) Last Marital Domicile, 2) Site of Abandonment/SeparAgmt Execution, or 3) Source of Support Decree or Law

5. Locus of D's Business on Day-to-Day Basis (eg. has office or sales staff in NY)
   • Subject to PersJuris on any CoA arising anywhere in the world regardless of relation to business done in NY
6. Consent to Jurisdiction →
   • Stipulate in Open Ct or Signed Writings (eg. pleadings, contracts, or letter consenting to juris)
   • Make a Pre-Answer (3211) Motion to Dismiss w/o a MOP Juris objection
   • Interpose an Answer w/o a MOP Juris objection (amendable w/i 20 days)
   • Interpose an Answer w/ a novel Counterclaim (unrelated to P’s claims)
   • Interpose an Answer asserting Improper Service w/o Moving for SumJudg w/i 60 days

     60-day rule doesn't apply to lack of Minimum Contacts (MOP)

In-rem & Quasi-in-rem Jurisdiction

Quasi In Rem Jurisdiction - Juris over D's NY assets to enforce P's money judgment (limited to value of attached asset)

• P gets court order of attachment &, prior to service of summons, has sheriff attach D's NY assets sharing some nexus w/ P's CoA
• Automatic Qualified Appearance in QIR action enabling D to appear & fully contest on merits w/o being subject to PersJuris (cf. w/ limited appearance for an in rem action)

In Rem Jurisdiction - Juris over title & possessory rights for NY property and marital status (divisible divorces).

• In absence of PersJuris, any judgment based on IR/QIRJuris can't order D to pay money or, in MatrimonAction, affect vested Marital Prop'y Rights

Jurisdiciton

Personal Jurisdiction

For jurisdiction, look for purposeful contract of ongoing relationship with state that would foreseeably subject them to suit.

Single act statute (302(a)(1)) is not dispositive, analysis still required for fairness.

CPLR § 302 - Personal jurisdiction by acts of non-domiciliaries

(a) Acts which are the basis of jurisdiction. A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state, if, in person or through an agent, he:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state ...; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.

4. owns, uses or possesses any real property situated within the state [whether or not the non-domiciliary was using the property at the time the action was commenced]

• Carnival Cruise v. Shute - US federal courts will enforce forum selection clauses so long as the clause is deemed fundamentally fair.
• Burger King v. Rudzewicz - Where subject's conduct through contacts with a state would give rise to belief that he may be sued in that state, a state's long-arm statute exercising jurisdiction over him does not violate the Due Process Clause of the Fourteenth Amendment.
• Deutsche Bank v. MT Bd of Investments -
• Paradise Products v. Allmark Equipment - NY PLA (Allmark) K'd for kettle from NJ DEF (Paradise) and picked it up in NJ. PLA sued DEF in NY, but court held insufficient contacts, b/c knowledge of inevitable destination does not presume liability under NY law.
• LaMarca v. Pak-Mor Mfg. Co. - 5-element test for predicating jurisdiction under CPLR 302(a)(3)(ii): 1) Tortious Act committed outside NY, 2) giving rise to suit, 3) for injury w/i NY, 4) DEF expected (or RSH) consequences of act in NY, and 5) DEF derives substantial revenue from inter-state/national commerce
• Sybron Corp. v. Wetzel - Jurisdiction extended to anticipatory injunctions for revealing trade secrets of NY company in NJ.
• Citigroup Inc. v. City Holding Co. - Website may be sufficient for jurisdiction given sufficient interactivity in transacting business through site in NY.
• Shaffer v. Heitner Quasi in rem jurisdiction
  • Other cases: Open telephone line auction & 25 transactions over 4 months were each sufficient for contacts; but not single phone call over goods or several unrelated phone calls by a Maryland(?) investor(?).

Out of state attorneys performing legal services for clients in state are subject

2 prongs must be met:

Subject must have conducted business in state

Business must have sufficient nexus with suit

Obtaining NY Driver's license not related to car accident in NJ

Forum Selection

Forum non conveniens (FNC) - Court may decline to exercise jurisdiction at its discretion over transitory cause of action upon considerations of justice, fairness and convenience. Touchstone of FNC is flexibility, therefore NY courts need not entertain causes of action lacking substantial nexus with state.

Forum selection clauses will generally be enforced for matters involving more than a million dollars.

• Martin v. Mieth - Locus of accident by itself is insufficient for substantial nexus test; where no witnesses or evidence relative to accident were to be found in state, dismissal for FNC on condition that driver appear in action in home country for same relief. (CPLR 3211(a), par. 2, 5713; Vehicle and Traffic Law § 253.)
• Varkonyi v. Empresa -

PLA injured on boat ride at Turks & Caicos Islands. DEF resort manager

Nevander v. Deyo

Two car accident in Quebec. One party was N.Y. resident. There is a presumption that a N.Y. resident is entitled to benefit of N.Y. judicial system.

Bewers v. American Home Products Corp.

Ovran and Ovreanette cause thromboemoblic strokes. Drugs marketed, manufactured, tested, labeled, and distributed in UK. UK residents bring action in N.Y.; contend that � promoted, sold, marketed and distributed the drugs from PPB in N.Y. Court conditionally dismissed the action provided: 1. � waive objection to suit in UK

Statute of Limitations

Both cases went to the Court of Appeals, where Santiago was affirmed (96 N.Y.2d 765, 725 N.Y.S.2d 599, 749 N.E.2d 168) and the Second Department's position in Chase Scientific Research was rejected (96 N.Y.2d 20, 725 N.Y.S.2d 592, 749 N.E.2d 161) The decisive opinion was Chase Scientific Research, where the Court wrote that it could discern no legislative intent to shorten the malpractice statute of limitations for the benefit of a “vast” and “amorphous” group of businesspersons who perform services for the public. The Legislature appears to have been motivated, rather, by the concern expressed in a Report of the New York State Bar Association that no rationale supported the subjecting of “an architect, engineer, lawyer or accountant” to a statute of limitations more than twice as long as that applied to members of the medical profession (see CPLR 214-a).

2 Cases

Chase: (5/95) PLA K'd w/ DEF (ins brokers) for property ins. (1/96) Storm damaged PLA's warehouse/inventory for which PLA settled for half policy's value. (1/97) PLA sued DEF, claiming neg & KBreach for failure to obtain adequate ins. TrlCt dismissed under 3yr SoL of CPLR 214(6) for non-medical malpractice claims (AppDiv affirmed).

Gugliotta: (12/94) PLA K'd w/ DEF (ins broker) for secured Cmrc REstate ins. (SoonAfter) SlipNFall PersInj won against PLA outside scope of . Plaintiff then discovered that despite contracting for general liability insurance, it was not included in his policy. On March 6, 1998, Plaintiff brought a claim against Defendant for negligence and breach of contract based on Defendant's failure to obtain the insurance specified in the contract. As in Chase, the trial court here dismissed the case as time-barred under C.P.L.R. § 214(6), finding that the three-year statute of limitations applied to suits against insurance brokers. The Appellate Division affirmed.

On appeal to the Court of Appeals, Plaintiffs both asserted that the limitations period of § 214(6) was not applicable to their claims. Plaintiffs argued that the word "malpractice," as it appears in the statute, refers to professional malfeasance, and that since insurance brokers and agents are not professionals, § 214(6)'s three-year statute of limitations should not bar their suits. Instead, Plaintiffs argued, their suits should be subject to the six-year statute of limitations for general breach of contract claims. Although the word "professional" does not appear in § 214(6), the Court granted leave to define the term as a necessary step in resolving the issue of what malpractice means within the statute.

Attorney, Architect, Accountant, Licensed Psychologists are non-medical professionals, Generally, if you can prescribe medication you are a medical professional Ins Brokers though licensed are not professionals under statute

For purpose of CPLR 214(6) (see Chase Scientific):

Test for Professional:

1. Extensive formal learning training
2. Licensure & regulations
3. Code of Conduct
4. System of discipline
5. Fiduciary relationship

SoL begins to run once Wash Machine is sold, b/c prior to that impossible to know if defective.

Carpul tunner/repetitive stress injury

Court does comparative analysis of SoL standards

Compared to asbestos, SoL is 1st Exposure. Doesn't fit b/c not hurt by mere exposure

Compared to foreign object post-op, SoL is 1st Discovery. Doesn't fit b/c no invasion

Compared to defective product, SoL is date of injury. Doesn't fit b/c no clear date of injury

From onset of symptoms or last day of injury-producing devise use, whichever came first.

Nose surgery, incl packing & a stent, stent left behind when packing removed.

Court does comparative analysis of SoL standards

Compared to typical Med Malpractice, SoL is 2 1/2 years from act or last treatment in continuous treatment

Compared to foreign object post-op, Sol is 1 year from first discover or RSH been discovered

Not foreign object exception b/c intended for treatment and no exception provided. Call the Legislature.

Hip replacement is not foreign object

Just b/c Hospital is DEF, doesn't mean it's a MedMal claim. Negligent hirings & failure to supervise has 3 yr claim, not reduced to 2 as MedMal.

Failure to diagnose breast cancer, MD begins treating ('74), tells MD about lump unrelated to treatment ('79), last office visit ('83)

For "Continuous Treatment," must be treating symptoms at question, not a mere continuous relationship with MD.

For "Continuous Treatment," failure to diagnose is not a bar of continuous treatment, when symptoms were focus of care. (Hein, 753 NYS2d 71)

For "Continuous Treatment," Atty drafted divorce settlement ('88) & continued to represent PLA unrelated to divorce. Ex-husband dies &, b/c of defective settlement, PLA lost moneys. (McCoy 99 NY2d 295)

Kassner v. City of NY - ('67) K clause reduced SoL to 6mos of filing for cert of final payment, ('67) a suit arises from breach, ('74) city settles issuing payment, ('75) new suit filed claiming w/i SoL based on '74 payment. Court calls BS

Guggenheim v. Labelle - Demand return of stolen artwork purchased at auction by DEF. SoL for purchased stolen property is 3 yrs from demand. SoL for stolen property is 6mos from theft. DEF argues laches saying Guggenheim should've known painting was stolen, but Gug says didn't know it had been stolen. TrlCt rejected laches defense as unavailable, Higher court says available, but defers to determination of TrlCt.

('68) Victim files Med Mal claim timely, ('69) victim dies 1yr into suit, ('72) Will probated - State (PLA) permitted to continue suit on victim's behalf, ('73) PLA amends complaint to add wrongful death (SoL 2yrs from date of death). Under 203(f), same transaction/occurence doesn't matter that 2yr term expired.

Suit against hospital filed timely, Later (outside SoL), amends complaint to add direct claim against MD (new party). :Complete stranger standard: No relation back, so SoL applies.

Participant standard: Where fully aware of claim against him, then 3rd Party is a participant, preventing application of SoL.

DEF (H & W), neighbour of PLA, builds wall limiting PLA's access to water. PLA sues H. DEF passes property b/w corp owned by DEF and then back again.

Test for continuous trans - 1) Same transaction/occurence, 2) relationships b/w parties aware of suit (notice), 3) mere or excusable mistake of filing

Timely service on first DEF extends to second DEF so long as meets test.

Notice

Need only be reasonably calculated to alert recipient of pendency of action. However, where evidence that notice is not being received by current means, and no other manner of attempts are being made, posting notice is insufficient.

Machia v. Russo - Process server gives service to son of DEF outside his house, son goes inside & hands it over to his dad. Ct argues that where personal service is required by statute and no other attempts are made, proxy by another, no matter how unattenuated, is insufficient.

Ct rules that you can't use tricky to be brought into state for pers juris, but once inside state, DEF may be subject to trickery. However, summons may not be disguised. Service is good even if not handed, but merely put in their general vicinity. Mail must be delivered to last known address & actual place of business. Whatever legislature said goes under 308 for service.

Dobkin - PLA (NY res) attempts service to DEF (PA res) of MotVehAcc (in KingsCo) by ord mail, never returned. Certified/Registered mail, returned to post-office. Sheriff couldn't locate. VTL PA Sec State sends Registered mail, undelivered. Finally under 308(5), sends ord mail. MVAIC objects

Sellers - Similar DEF lived in B'klyn, but now cannot be found, mailings all returned. VTL NY Sec State sends Reg mail returned. Under 308(5) Publishes in B'klyn newspaper. MVAIC objects.

Keller -

Balancing Test:

1. PLA's Need
2. Public Interest
3. Reasonableness of DEF's effort
4. Availability of safeguards to protect DEF's interests

In MVA circumstances (especially involving fatalities), DEF knew or RSH known that their would be litigation, disappearance is offense to civic duty

Pleading and Answer

CPLR liberalized pleadings in NY (see Foley v. D'agostino, 248 NYS2d 121 (1964))

Omissions in pleading forgivable, so long as not intended to misrep (see P.T. Bank Central Asia v. ABN AMRO Bank N.V., 754 NYS2d 245 (2003))

Ticking bag on bus case (p602) - Failure to include common law "emergency" actions defense in answer to pleadings overlooked, b/c emergency known to both parties and presumed to brought as defense. To determine, look for prejudice.

General denials (answer consists of "we deny all") are disfavoured by court.

Munson v. New York Seed Imp. Co-op., Inc., 64 N.Y.2d 985 (1985) - PLA Ks for foundation seed makes deposit. DEF counterclaims....

• Failure of buyer to plead in complaint that foundation seed was inferior resulted in waiver of that issue.
• Buyer's general denial was insufficient to raise claim that foundation seed sold was inferior since general denial put in issue only matters which seller was bound to prove on its counterclaim to recover money due on sale of seed.

Brown v. Stone - patient received free medical care for indigence, now suing hospital, hospital asserts contingent counter-claim for hospital bills if PLA receives award, based on lack of indigence.

Batavia Kill Watershed Dist. v. Charles O. Desch, Inc., 444 NYS2d 958 (1981) - Permitted in this case, you assert the affirmative defense in previous action, you preserve your right to a counterclaim.

De Mato v. Suffolk County, 360 N.Y.S.2d 570 (1974) -

Husband & Wife cruelty -

Joinder

Original pleading Impleader ~> 3d party practice Interpleader ~> Stakeholder action Intervention Substitution (in the event of a party’s death) Necessary Joinder Class Action & Consolidation ~> Multiple actions combined into one

Bender –

• PLAs went to DEFs for hair transplants, now suing under common Qs of law & fact, same transaction, occurrences, series of…

Lawsuit between ex-husband & ex-wife, 2nd wife & children not permitted to intervene. Father's rights are already protected.

Cohen -

• Sell Ins Policies to Perlman & performer agency
• Performer executes promissory note

Resettling

CPLR 2221

Conditional Dismissals are permissible for Forum Non Conveniens as this is discretionary judgment

ConDismissals are NOT permissible when based on Personal or Subject Matter Jurisdiction, b/c court recognizes their lack of authority

Resettling an order is not an opportunity to reargue on the merits,

There is no motion to resettle

Interlocutory decisions may be appealed (discovery issues, motion decision, denial of SumJudg motion)

NY County (1Dept) case of MoVeAc in VT w/NY PLA & NJ DEF

PersJur established by attaching liability policy

D's move to vacate attachment, dismissing PersJur - Denied by NYCo JudgeK

D files an answer w/3 affirm defenses - 1) impropriety of attachment, 2) lack of PJ & SMJ, 3) Forum Non Conveniens

P moves to strike affirm defenses of Attachment & PersJur issues

D crossmoves to transfer to NassauCo (2Dept) - Granted & P's motion denied w/leave to renew in NassauCo

P renews motion to dismiss affirm defenses based on collateral estoppel, which D's dispute - Denied w/o prejudice by NasCo Judge, to be resettled w/ NYCo Judge

In NYCo, D moves by OTSC to resettle the order - Granted by NYCo Judge

P crossmoves to dismiss the affirm defenses - Denied by NYCo Judge

New Law Shaffer v. Heitner

Conditional dismissal to bring in NJ b/c SoL expired (acceptance of service by D & waiver of SoL defense)

D appeals the order based on the conditions - D wins, OTSC was improper

CPLR 2221 - Judge who signed order unless unable (NYCo JudgeK)

CPLR 2212(a) - where action triable in county adjoining (trumps 2221)

CPLR 2221(d) Motion to Reargue - Overlook or misapprehend facts

CPLR 2221(e) Motion to Renew -

CPLR 2221(a) - Motion to renew and reargue should go to judge that decided the original order, to prevent colleague judges from overruling one another. Only permissible if original judge is unavailable.

CPLR 2221 - Motion affecting prior order

(a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:

1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and

2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court.

(b) Rules of the chief administrator of the courts. The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivision (a) of this rule.

(c) A motion made to other than a proper judge under this rule shall be transferred to the proper judge.

(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

Generally Ps prefer Federal Court - no interlocutory appeals

Ds prefer state court

Rocket docket - all discovery must be completed w/i 6 months

Accelerated Judgment

Judgments concluding case

Summary Judgment

Motion to Dismiss

Default Judgment

Consent Judgment

Settlement (not in rules, but yes)

Binding Arbitration

Voluntary discontinuance w/ or w/o prejudice

Tender/Offer to Liquidate/Compromise

Failure to State a Cause of Action

Rovello v. Orofino Realty Co., 40 N.Y.2d 633, p.735

F: PLA Ks to purchase insurance business & related real estate from DEF, now seeks SpecPerf. Under NYCPLR 3211(a)(7), DEF moved for dismissal of complaint for failure to state a cause of action. Dist Ct denied, App Div reversed.

H: Motion to dismiss properly denied. Given complaint & affidavits, found reasonable chance, if small, that PLA would ultimately prevail on merits. Absent further evidence, a motion for summary judgment might finally resolve the dispute but that disposition by summary dismissal under C.P.L.R. 3211(a)(7) was premature. Under modern pleading theory, a complaint should not be dismissed on a pleading motion so long as, when plaintiff is given the benefit of every possible favorable inference, a cause of action exists.

• Affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims. Modern pleading rules are designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one. In instances in which a motion to dismiss made under N.Y. C.P.L.R. 3211(a)(7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, although there may be instances in which a submission by plaintiff will conclusively establish that he has no cause of action. Affidavits submitted by the defendant will seldom if ever warrant a dismissal unless the affidavits establish conclusively that plaintiff has no cause of action.

Ugarriza v. Schmieder, 46 N.Y.2d 471, p.742 F: MVA in diner parking lot. Passenger filed suit against driver, alleging acts & omissions constituting negligence as matter of law, and was granted summary judgment on liability issue. App Div reversed.

• H: SumJudg reversed. Impossible to find driver failed to meet standard of due care without passenger providing any act or omission showing negligence. Under NYCPLR 3212, SumJudg was inappropriate.

Goncalves v. Regent International Hotels, Ltd., 58 N.Y.2d 206, F: Guests put $1M in jewelry in hotel safe-deposit boxes, which were then stolen. Under NY GenBusLaw s200, hotel ordered to pay each guest $500 and denied guests cross-motions to strike hotel's affirmative defense and for summary judgment. App Div affirmed. H: Modified order. Statute limited hotel's liability, but required hotel to strictly adhere to its provisions, including issues of material fact as to whether the hotel's safe-deposit boxes constituted a "safe" under s200.

Brill v. City of NY, 2 NY3d 648 F: PLA injured on city sidewalk, sued city. City filed motion >120 days after PLAs filed note of issue & certificate of readiness for trial. Though filing late per NYCPLR 3212(a), trial court considered merits of and granted motion in the interests of judicial economy.

The motion was granted based on the fact that the city had not received written notice of any alleged defect in the sidewalk. The appellate division affirmed on the merits. The court reversed because the trial court should not have considered the merits of the motion. Section 3212(a) required a showing of good cause for failing to file a motion for summary judgment within 120 days of the filing of a note of issue. The city did not file its motion in a timely fashion and did not submit any reason for the delay. As a violation of � 3212(a) was clear, the motion should not have been heard. In the case before it, and in future cases of violations of � 3212(a), cases were to be left on the trial calendar where a motion to dismiss could be made after a plaintiff rested or a request for directed verdict could be made during trial.

Discovery

NY CPLR § 3101. Scope of disclosure

(a) Generally. Disclosure of all matter material & necessary by:

(1) party (or officer, director, member, agent or employee thereof);

(2) person who possessed a cause of action or defense asserted in the action;

(3) person out of or departing from state, or 100+ mi from Trial Ct, or too sick to attend trial, or doctor, dentist, podiatrist providing med, dent or podiat care/diagnosis to party demanding disclosure, or retained as an expert witness; &

(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.

(b) Privileged matter. Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.

(c) Attorney's work product. The work product of an attorney shall not be obtainable.

(d) Trial preparation.

1. Experts.

(i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial & shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts & opinions on which each expert is expected to testify, the qualifications of each expert witness & a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.

(ii) In an action for medical, dental or podiatric malpractice, any party may, by written offer made to & served upon all other parties & filed with the court, offer to disclose the name of, & to make available for examination upon oral deposition, any person the party making the offer expects to call as an expert witness at trial. Within twenty days of service of the offer, a party shall accept or reject the offer by serving a written reply upon all parties & filing a copy thereof with the court. Failure to serve a reply within twenty days of service of the offer shall be deemed a rejection of the offer. If all parties accept the offer, each party shall be required to produce his or her expert witness for examination upon oral deposition upon receipt of a notice to take oral deposition in accordance with rule thirty-one hundred seven of this chapter. If any party, having made or accepted the offer, fails to make that party's expert available for oral deposition, that party shall be precluded from offering expert testimony at the trial of the action.

(iii) Further disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing of special circumstances & subject to restrictions as to scope & provisions concerning fees & expenses as the court may deem appropriate. However, a party, without court order, may take the testimony of a person authorized to practice medicine, dentistry or podiatry who is the party's treating or retained expert, as described in paragraph three of subdivision (a) of this section, in which event any other party shall be entitled to the full disclosure authorized by this article with respect to that expert without court order.

2. Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section & prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case & is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

(e) Party's statement. A party may obtain a copy of his own statement.

(f) Contents of insurance agreement. A party may obtain discovery of the existence & contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purpose of this subdivision, an application for insurance shall not be treated as part of an insurance agreement.

(g) Accident reports. Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution & disclosure would interfere with a criminal investigation or prosecution.

(h) Amendment or supplementation of responses. A party shall amend or supplement a response previously given to a request for disclosure promptly upon the party's thereafter obtaining information that the response was incorrect or incomplete when made, or that the response, though correct & complete when made, no longer is correct & complete, & the circumstances are such that a failure to amend or supplement the response would be materially misleading. Where a party obtains such information an insufficient period of time before the commencement of trial appropriately to amend or supplement the response, the party shall not thereupon be precluded from introducing evidence at the trial solely on grounds of noncompliance with this subdivision. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. Further amendment or supplementation may be obtained by court order.

(i) In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law.

A-C Privilege

A-C Priv Underlying facts are not covered by privilege. Communication must be primarily or predominantly legal in nature. Attorney doesn't need to have cited cases or law to be legal counsel.

Chemical - Internal non-legal investigation into potential fraud

• PLA (vendor to DEF) suing for payment under K w/DEF
• DEF alleging PLA not entitled to fees b/c of fraud
• DEF hires Shulfie(?) Roth to conduct investigation into potential fraud

  - Shulfie Report: Opinions re: possible claims, potential weaknesses, opinions as to successful claims

  - Report delivered to G.C. & other Senior Management

  - No suit pending when investigation conducted

• DEF invokes A-C Privilege/Work Product (absolute bar to use) or Anticipation of litigation (conditional bar)
• TrialCt - No review order to produce
• AppDiv - In camera review - finds its material & should be produced

  - No imminent litigation/No legal research, purely factual study

• DISCOVERABLE

Hoffman v. Ro-San Manor, 73 AD2d 207 (1980) - Names & Addresses of sexual assault witnesses was discoverable.

• PLA (tenant) sues DEF (landlords & manager) alleging negligence in securing premises/provide for safety, resulting in 3rd party accessing & sexually assaulting on tenant.
• DEF demands names & addresses of witnesses (TriCt denies)
• AppDiv holds that (1) pursuant to N.Y. C.P.L.R. 3101, full disclosure of all evidence material and necessary in the prosecution or defense of an action was required regardless of the burden of proof, subject to exceptions for privileged matter, attorney work product, and material prepared for litigation, (2) the tenant challenged neither the materiality nor the necessity of production of the names sought, (3) the discovery of witnesses did not qualify as attorney work product under N.Y. C.P.L.R. 3101(c), (4) the names and addresses of witnesses were also not material prepared for litigation pursuant to N.Y. C.P.L.R. 3101(d), and (5) given the absence of reasons to bar discovery, it was proper to allow the discovery.

Miranda v. Blair Tool & Mach. Corp., 114 AD2d 941 (1985) - Supervisor's accident report was discoverable.

• PLA (employee) sues DEF (employer) for personal injuries allegedly sustained while operating a shredder.
• After PLA demands a certain transcript as an accident report, employer moves for a protective order, which TriCt grants. App Div reversed, holding that the record contained no proof that the supervisor's oral statement, which was reduced to writing, was not made in the regular course of the employer's business and was made solely for purposes of litigation.
• Further, the court reasoned that although inaccuracies and inconsistencies limited the usefulness of the transcript, it could reasonably be expected to aid counsel in investigating the accident and preparing for cross-examination of the supervisor.

Deposition

Dioguardi v. St. John's Riverside Hospital

Split b/w the 1st, 3rd, & 4th Depts which just look for materiality & relevance, while the 2nd Dept adds the additional requirement of special circumstances preventing the information from being obtained.

Be prepared for Depositions, but NO COACHING witnesses! Fine line. You should know the answer to every question in advance. When defending, advise that they limit every answer to Yes, No, or I Don't Know, if possible. Explain that this is testimony. No obscenities.

Deposition is where you want to learn the bad info, rather than at trial. Get as much out as possible. "Usual stips" means all objections preserved except form or privilege, which if not raised are waived. Objections for form must be explained at moment of objection,

2121: Limited objections to form & privilege, barring speaking objections. Restructure such objections into form objections, "are you asking if the defendant could possibly know whether the floor was even or not at that time?" Objection noted & question re-asked & then answered "How could I possibly know whether the floor was even or not at that time?"

Goberman v. McNamara, 352 N.Y.S.2d 369 (Sup. Ct. 1974)

Character evidence cannot be introduced unless character is directly at issue.

Mora, 2005 WL 1458045

• During pre-trial exam, absent clear irrelevance, privilege, or constitutional-violation, it is proper procedure to permit witness to answer all questions posed, subject to statutory objections.
• Questions related to patient's general health and prior surgeries and her receipt of disability benefits both before and after surgical procedure giving rise to her medical malpractice action were relevant to issue of damages, and thus should have been answered by patient in her deposition, notwithstanding her counsel's assertion that questions were palpably improper, given that patient asserted claims for pain and suffering and loss of enjoyment of life and her responses to such lines of inquiry were required to help shed light on what effect, if any, defendants' alleged malpractice had on her health and enjoyment of life.
• During patient's deposition in her medical malpractice action, counsel for surgeon was entitled to inquire whether patient had filed for personal bankruptcy, given that cause of action which accrued prior to or following commencement of bankruptcy case was estate property and could not be pursued by debtor. Bankr.Code, 11 U.S.C.A. § 541(a)(1, 7).
• Cause of action that accrues prior to or following the commencement of a bankruptcy proceeding is the property of the bankruptcy estate, and, consequently, debtor lacks legal capacity to commence or maintain a lawsuit on such a cause of action. Bankr.Code, 11 U.S.C.A. § 541(a)(1, 7).
• Questioning patient, during her deposition in medical malpractice action, about whether she had ever been diagnosed with psychological disorder was improper if patient's claim for loss of enjoyment of life was limited solely to physical effects of defendants' alleged malpractice, but defendants' counsel could probe patient on issue of her mental health history and obtain authorizations to get copies of related medical records to the extent that patient sought to recover for any specie of emotional or psychological damages.

Questions: PLA taking meds? OK; PLA on disability? OK; PLA filed for bankruptcy? OK; PLA diagnosed w/psych condition? UNCERTAIN, permitted if seeking damages; PLA prior surgeries & heart palpatations? For damages, OK;

Misc

Interrogatories - Atty helps client with each response, thus not as useful.

MacKinnon v. MacKinnon, 665 N.Y.S.2d 123 (1997)

E-discovery - At preliminary conference, all e-discovery issues must be raised, including scope, identification of data, anticipated costs of data recovery, identification of individuals responsible for data. Responsibility for preservation of data is on the attorneys (read as Sanctions). Hire independent contractors to go in and inquire as to what's backed up & not.

Lipco v. ASG, 798 N.Y.S.2d 345 (2004) - Provides hard copies of everything on system. Lipco wants the electronic documents, which include metadata, showing changes.

NOTE: Don't put anything in an e-mail you wouldn't want said in open court. Sarcasm does not work in e-mails or legal documents.

"Do you mind staying the order, so we may appeal?"

Dillenbeck v. Hess, 539 NYS2d 707 (1989) - MVA PersInj lawsuit, DEF neg for not wearing seatbelt, PLA demands med records that show intoxication, cops did not breathalize at scene.

• Dr-PatPriv covers all info acquired in & necessary to serving patient as Dr, whether obtained from patient's words, appearance, or test results, unless obvious to laymen. N.Y. C.P.L.R. 4504 (a).
• Dr-PatPriv is waived if affirmatively placing med condition at issue, but not by defending whether med condition is in controversy.
• Once req'd info is proven privileged, only waivable by patient or AuthRep. N.Y. C.P.L.R. 4504(a).

Trials

4000s

§ 4001. Powers of referees -

Ct may appoint referee to determine an issue, perform an act, or inquire and report in any case where this power was heretofore exercised and as may be hereafter authorized by law.

• § 4011. Sequence of trial - Ct determines sequence issues are tried & regulate all trial conduct for speedy & unprejudiced resolution in proper decorum.

§ 4012. Marked pleadings furnished

The party who has filed the note of issue shall furnish the judge who is to preside at the trial with copies of each pleading, where they have not been superseded by the pre-trial order, plainly marked to indicate which statements are admitted and which controverted by the responsive pleading.

§ 4013. Trial elsewhere than at courthouse

Upon stipulation of the parties, the judge who is to preside at the trial of an issue may direct trial in whole or in part at a specified place other than the courthouse.

§ 4014. Duration of trial

Notwithstanding the expiration of the term at which it was commenced, a trial shall continue until it is completed.

§ 4015. Time for motion for referee or advisory jury

A motion for trial by a referee or an advisory jury shall be made within twenty days after note of issue is filed, except where the issue to be tried arises on a motion or pursuant to a judgment.

§ 4016. Opening and closing statements

(a) Before any evidence is offered, an attorney for each plaintiff having a separate right, and an attorney for each defendant having a separate right, may make an opening statement. At the close of all the evidence on the issues tried, an attorney for each such party may make a closing statement in inverse order to opening statements.

(b) In any action to recover damages for personal injuries or wrongful death, the attorney for a party shall be permitted to make reference, during closing statement, to a specific dollar amount that the attorney believes to be appropriate compensation for any element of damage that is sought to be recovered in the action. In the event that an attorney makes such a reference in an action being tried by a jury, the court shall, upon the request of any party, during the court's instructions to the jury at the conclusion of all closing statements, instruct the jury that:

(1) the attorney's reference to such specific dollar amount is permitted as argument;

(2) the attorney's reference to a specific dollar amount is not evidence and should not be considered by the jury as evidence; and

(3) the determination of damages is solely for the jury to decide.

§ 4017. Objections

Formal exceptions to rulings of the court are unnecessary. At the time a ruling or order of the court is requested or made a party shall make known the action which he requests the court to take or, if he has not already indicated it, his objection to the action of the court. Failure to so make known objections, as prescribed in this section or in section 4110-b, may restrict review upon appeal in accordance with paragraphs three and four of subdivision (a) of section 5501.

§ 4018. Increased damages

Where increased damages are granted by statute, the decision, report or verdict shall specify the sum awarded as single damages, and judgment shall be entered for the increased amount.

§ 4019. Recording in camera interviews of infants

(a) A court shall not conduct an in camera interview of an infant in any action or proceeding to fix temporary or permanent custody or to modify judgments and orders of custody concerning marital separation, divorce, annulment of marriage and dissolution of marriage unless a stenographic record of such interview is made.

(b) If an appeal is taken to the appellate division from a judgment or order of the court on any such action or proceeding, the stenographic record of any such interview shall be made a part of the record and forwarded under seal to the appellate division.

4100s § 4101. Issues triable by a jury revealed before trial

In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under section 4317, except that equitable defenses and equitable counterclaims shall be tried by the court:

1. an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only;

2. an action of ejectment; for dower; for waste; for abatement of and damages for a nuisance; to recover a chattel; or for determination of a claim to real property under article fifteen of the real property actions and proceedings law; and

3. any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury.

§ 4102. Demand and waiver of trial by jury; specification of issues

(a) Demand. Any party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury. Any party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue. A demand shall not be accepted for filing unless a note of issue is filed in the action. If no party shall demand a trial by jury as provided herein, the right to trial by jury shall be deemed waived by all parties. A party may not withdraw a demand for trial by jury without the consent of the other parties, regardless of whether another party previously filed a note of issue without a demand for trial by jury.

(b) Specification of issues. In his demand a party may specify the issues which he wishes tried by jury; otherwise he shall be deemed to have demanded trial by jury of all issues so triable. If he has demanded trial by jury of only some of the issues, any other party within ten days after service of the demand may serve and file a demand for trial by jury of any other issues in the action so triable.

(c) Waiver. A party who has demanded the trial of an issue of fact by a jury under this section waives his right by failing to appear at the trial, by filing a written waiver with the clerk or by oral waiver in open court. A waiver does not withdraw a demand for trial by jury without the consent of the other parties. A party shall not be deemed to have waived the right to trial by jury of the issues of fact arising upon a claim, by joining it with another claim with respect to which there is no right to trial by jury and which is based upon a separate transaction; or of the issues of fact arising upon a counterclaim, cross-claim or third party claim, by asserting it in an action in which there is no right to trial by jury.

(d) Local rules. The chief administrator of the courts may by rule provide that a party shall be deemed to have demanded trial by jury by filing a note of issue not containing an express waiver of trial by jury.

(e) Relief by court. The court may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result.

§ 4103. Issues triable by a jury revealed at trial; demand and waiver of trial by jury

When it appears in the course of a trial by the court that the relief required, although not originally demanded by a party, entitles the adverse party to a trial by jury of certain issues of fact, the court shall give the adverse party an opportunity to demand a jury trial of such issues. Failure to make such demand within the time limited by the court shall be deemed a waiver of the right to trial by jury. Upon such demand, the court shall order a jury trial of any issues of fact which are required to be tried by jury.

§ 4104. Number of jurors

A jury shall be composed of six persons.

§ 4105. Persons who constitute the jury

The first six persons who appear as their names are drawn and called, and are approved as indifferent between the parties, and not discharged or excused, must be sworn and constitute the jury to try the issue.

§ 4106. Alternate jurors

Unless the court, in its discretion, orders otherwise, one or two additional jurors, to be known as “alternate jurors”, may be drawn upon the request of a party. Such jurors shall be drawn at the same time, from the same source, in the same manner, and have the same qualifications as the regular jurors, and be subject to the same examinations and challenges. They shall be seated with, take the oath with, and be treated in the same manner as the regular jurors, except that after final submission of the case, the court shall discharge the alternate jurors. If, before the final submission of the case, a regular juror dies, or becomes ill, or for any other reason is unable to perform his duty, the court may order him to be discharged and draw the name of an alternate, who shall replace the discharged juror in the jury box, and be treated as if he had been selected as one of the regular jurors.

§ 4107. Judge present at examination of jurors

On application of any party, a judge shall be present at the examination of the jurors.

§ 4108. Challenges generally

An objection to the qualifications of a juror must be made by a challenge unless the parties stipulate to excuse him. A challenge of a juror, or a challenge to the panel or array of jurors, shall be tried and determined by the court.

§ 4109. Peremptory challenges

The plaintiff or plaintiffs shall have a combined total of three peremptory challenges plus one peremptory challenge for every two alternate jurors. The defendant or defendants (other than any third-party defendant or defendants) shall have a combined total of three peremptory challenges, plus one peremptory challenge for every two alternate jurors. The court, in its discretion before the examination of jurors begins, may grant an equal number of additional challenges to both sides as may be appropriate. In any case where a side has two or more parties, the court, in its discretion, may allocate that side's combined total of peremptory challenges among those parties in such manner as may be appropriate.

§ 4110. Challenges for cause

(a) Challenge to the favor. The fact that a juror is in the employ of a party to the action; or if a party to the action is a corporation, that he is a shareholder or a stockholder therein; or, in an action for damages for injuries to person or property, that he is a shareholder, stockholder, director, officer or employee, or in any manner interested, in any insurance company issuing policies for protection against liability for damages for injury to persons or property; shall constitute a ground for a challenge to the favor as to such juror. The fact that a juror is a resident of, or liable to pay taxes in, a city, village, town or county which is a party to the action shall not constitute a ground for challenge to the favor as to such juror.

(b) Disqualification of juror for relationship. Persons shall be disqualified from sitting as jurors if related within the sixth degree by consanguinity or affinity to a party. The party related to the juror must raise the objection before the case is opened; any other party must raise the objection no later than six months after the verdict.

§ 4110-a. Competency of inhabitants as justices or jurors; undertakings not required of village

In an action brought by or against a village it shall not be an objection against the person acting as justice or juror in such action that he is a resident of the village or subject to taxation therein. It shall not be necessary for the village to give a bond, undertaking or security to appeal or to obtain a provisional remedy, or to take or prevent any other proceeding; or to do or perform any act or thing notwithstanding any provision of any other law to the contrary, but the village shall be liable to the same extent as if it had given the bond, undertaking or security otherwise required by or in pursuance of law.

§ 4110-b. Instructions to jury; objection

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court, out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

§ 4110-c. Trial jury; viewing of premises

1. When during the course of a trial the court is of the opinion that a viewing or observation by the jury of the premises or place where alleged injuries to person or property were sustained in an accident or occurrence claimed to have been the cause thereof or of any other premises or place involved in the case will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the commencement of the summations, order that the jury be conducted to such premises or place for such purpose in accordance with the provisions of this section.

2. In such case, the jury must be kept together throughout under the supervision of an appropriate public servant or servants appointed by the court, and the court itself must be present throughout. The parties to the action and counsel for them may as a matter of right be present throughout, but such right may be waived.

3. The purpose of such an inspection is solely to permit visual observation by the jury of the premises or place in question and neither the court, the parties, counsel nor the jurors may engage in discussion or argumentation concerning the significance or implications of anything under observation or concerning any issue in the case.

§ 4111. General and special verdicts and written interrogatories

(a) General and special verdict defined. The court may direct the jury to find either a general verdict or a special verdict. A general verdict is one in which the jury finds in favor of one or more parties. A special verdict is one in which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereon.

(b) Special verdict. When the court requires a jury to return a special verdict, the court shall submit to the jury written questions susceptible of brief answer or written forms of the several findings which might properly be made or it shall use any other appropriate method of submitting the issues and requiring written findings thereon. The court shall give sufficient instruction to enable the jury to make its findings upon each issue. If the court omits any issue of fact raised by the pleadings or evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without demand, the court may make an express finding or shall be deemed to have made a finding in accordance with the judgment.

(c) General verdict accompanied by answers to interrogatories. When the court requires the jury to return a general verdict, it may also require written answers to written interrogatories submitted to the jury upon one or more issues of fact. The court shall give sufficient instruction to enable the jury to render a general verdict and to answer the interrogatories. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court shall direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or it shall require the jury to further consider its answers and verdict or it shall order a new trial. When the answers are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial.

(d) Itemized verdict in medical, dental, or podiatric malpractice actions. In all actions seeking damages for medical, dental, or podiatric malpractice, or damages for wrongful death as a result of medical, dental, or podiatric malpractice, the court shall instruct the jury that if the jury finds a verdict awarding damages it shall in its verdict specify the applicable elements of special and general damages upon which the award is based and the amount assigned to each element, including but not limited to medical expenses, dental expenses, podiatric expenses, loss of earnings, impairment of earning ability, and pain and suffering. In all such actions, each element shall be further itemized into amounts intended to compensate for damages which have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future. In itemizing amounts intended to compensate for future wrongful death damages, future loss of services, and future loss of consortium, the jury shall return the total amount of damages for each such item. In itemizing amounts intended to compensate for future pain and suffering, the jury shall return the total amounts of damages for future pain and suffering and shall set forth the period of years over which such amounts are intended to provide compensation. In itemizing amounts intended to compensate for future economic and pecuniary damages other than in wrongful death actions, the jury shall set forth as to each item of damage, (i) the annual amount in current dollars, (ii) the period of years for which such compensation is applicable and the date of commencement for that item of damage, (iii) the growth rate applicable for the period of years for the item of damage, and (iv) a finding of whether the loss or item of damage is permanent. Where the needs change in the future for a particular item of damage, that change shall be submitted to the jury as a separate item of damage commencing at that time. In all such actions other than wrongful death actions, the jury shall be instructed that the findings it makes with reference to future economic damages, shall be used by the court to determine future damages which are payable to the plaintiff over time.

(e) Itemized verdict in certain actions against a public employer for personal injury and wrongful death. In an action against a public employer or a public employee who is subject to indemnification by a public employer with respect to such action or both, as such terms are defined in subdivision (b) of section forty-five hundred forty-five, for personal injury or wrongful death arising out of an injury sustained by a public employee while acting within the scope of his public employment or duties, the court shall instruct the jury that if the jury finds a verdict awarding damages it shall in its verdict specify the applicable elements of special and general damages upon which the award is based and the amount assigned to each element, including but not limited to medical expenses, loss of earnings, impairment of earning ability, and pain and suffering.

(f) Itemized verdict in certain actions. In an action brought to recover damages for personal injury, injury to property or wrongful death, which is not subject to subdivisions (d) and (e) of this rule, the court shall instruct the jury that if the jury finds a verdict awarding damages, it shall in its verdict specify the applicable elements of special and general damages upon which the award is based and the amount assigned to each element including, but not limited to, medical expenses, dental expenses, loss of earnings, impairment of earning ability, and pain and suffering. Each element shall be further itemized into amounts intended to compensate for damages that have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future. In itemizing amounts intended to compensate for future damages, the jury shall set forth the period of years over which such amounts are intended to provide compensation. In actions in which article fifty-A or fifty-B of this chapter applies, in computing said damages, the jury shall be instructed to award the full amount of future damages, as calculated, without reduction to present value.

§ 4112. Entry of verdict

When the jury renders a verdict, the clerk shall make an entry in his minutes specifying the time and place of the trial, the names of the jurors and witnesses, the general verdict and any answers to written interrogatories, or the questions and answers or other written findings constituting the special verdict and the direction, if any, which the court gives with respect to subsequent proceedings.

§ 4113. Disagreement by jury

(a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

(b) Procedure where jurors disagree. Where five-sixths of the jurors constituting a jury cannot agree after being kept together for as long as is deemed reasonable by the court, the court shall discharge the jury and direct a new trial before another jury.

4400s

§ 4401. Motion for judgment during trial

Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties.

§ 4401-a. Motion for judgment

A motion for judgment at the end of the plaintiff's case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent.

§ 4402. Motion for continuance or new trial during trial

At any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just.

§ 4403. Motion for new trial or to confirm or reject or grant other relief after reference to report or verdict of advisory jury

Upon the motion of any party or on his own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing. The motion shall be made within fifteen days after the verdict or the filing of the report and prior to further trial in the action. Where no issues remain to be tried the court shall render decision directing judgment in the action.

§ 4404. Post-trial motion for judgment and new trial

(a) Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

(b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.

§ 4405. Time and judge before whom post-trial motion made

A motion under this article shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury. The court shall have no power to grant relief after argument or submission of an appeal from the final judgment.

§ 4406. Single post-trial motion

In addition to motions made orally immediately after decision, verdict or discharge of the jury, there shall be only one motion under this article with respect to any decision by a court, or to a verdict on issues triable of right by a jury; and each party shall raise by the motion or by demand under rule 2215 every ground for post-trial relief then available to him.

• Matter of Hess (p807) -

In NY if you mix claims equitable & legal, you waive right to jury trial.

Judge has sole authority to rule on equitable issues, so long as the ?

Jury Trials - Total crap shoot, unreliable

• Takes much longer and more risk of verdict being overturned
• More satisfying for clients to be judged by jury of peers, litigants more willing to accept

Gotta be a jury demand in the note of issue.

Case: Attorney strikes a number of minority jury candidates on grounds that minorities are more sympathetic to plaintiffs and yielding higher verdicts. Plaintiff is not a minority. Ct says no way, still racially based, and reseats the jurors (very bad for attorney).

Attorney-signed trial subpoenas for non-parties are enforceable, though not subject to long-arm statutes (minimum contacts). How to get testimony from out-of-state non-party witness? Get depositions out-of-state during discovery and you are allowed to reimburse them for travel & childcare expenses. Cannot pay them to come & testify.

Santana (p826) - Spanish speaker injured on subway, when witness on stand, interpreter translated testimony as "bump," but spanish-speaking juror interpreted as "crash" and notified judge. Attorney moves for mistrial claiming juror is now witness. Ct found juror agreed to be bound by interpreter and didn't/won't share the note with others. If it was a huge discrepancy, he might rule differently.

JNOV - Atty moves to throw out verdict on basis of lack of serious injury pursuant to statute that jury ignored and judge allowed. Court of appeals says that court must hold plaintiff's actions to falling within statute. Presence of definitions of serious injuries makes this a legal issue, taking it out of jury's hands.

If you fail to move for directed verdict, right to JNOV motion is waived. Still able to move for mistrial. JNOV is court substituting verdict, but mistrial is court acknowledging errors in trial, thus diff standards.

Summation - Wide latitude granted, don't object unless egregious misrepresentation or toxicly prejudicial. But do make legitimate objections so as to preserve right to appeal.

Jury charges - Charging conference, each party submits proposed jury charges. Make objections then, to preserve for appeal.

Verdicts - need 5 out of 6 jurors, but do they need to be identical 5 for all findings? (Shade)

• Shade: Jury charges don't need same 5, dissenting jurors are bound by majority in other Qs. Atty objects, judge overrules. Juror4 said bus company negligent, but apportioned damages to others not bus company. Juror 1 said bus company not negligent, but apportioned damages to it anyway. Def does nothing. Ct holds purpose of non-unanimous is to facilitate justice system and "any 5" policy does so. Ct orders a new trial on liability only, but bound by "improper" damages computation by first jury.

One Juror doesn't participate in complete verdict determination, attorney objects seeking polling and confirmation, judge overrules and discharges jury. Higher ct declares mistrial.

• Difference between confirming the verdict and impeaching the verdict, is confirming takes place before jury has been discharged, while impeachment is after.

One Juror conducts own investigation of scene after verdict rendered, he impeaches himself, confessing his improper actions. Court of appeals says a juror may not impeach himself, unless in acceptance of bribes or under influence of threats.

Cohen v. Hallmark Cards - Photog takes photos of PLA model & model's child. Sells photos to DEF Hallmark, obtaining releases, which model refuses to sign. PLA's att'y sends ltr to DEF advising no release & requesting no publication, but DEF publishes anyway. PLA serves summons, DEF doesn't answer and republishes. PLA serves complaint and DEF republishes again. Jury nominal damages and $50k punitive (35 for model, 15 for child). DEF argues insufficient evidence to support claim that knowingly violated rights.

• TrlCt granted D's motion, AppDiv affirms (where JuryTrl, only order a new trial; where BenchTrl, AppDiv does factfinding)
• As a matter of law, if it is insufficient to find for PLA, then directed verdict. However, where jury conflict relates to weight of evidence, order new trial.
• The question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors. For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, however, requires a harsher and more basic assessment of the jury verdict. It is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.
• It is a basic principle of our law that it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict. Similarly, in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence.

Outline

Procedure is a vehicle to enforce a substantive right fundamentally based upon the due process clause of the Constitution.

Course Outline

1. SUBJECT MATTER JURISDICTION
2. TRANSFER & REMOVAL
3. FORUM NON CONVINIENS
4. VENUE (a. As of right & b. Discretionary)
5. NOTICE
6. COMMENCEMENT
7. SERVICE
8. APPEARANCE
9. JURISDICTIONAL PREDICATE
10. STATUTE OF LIMITATIONS
11. TOLLS AND EXTENSIONS OF SOL
12. PLEADINGS
13. THIRD PARTY PRACTICE
14. MOTIONS
15. APPEALS
16. ACCELERATED JUDGMENT
17. PROVISIONAL REMEDIES

Forum Non Conveniens

• Is the state the proper forum for adjudication of the action?
• Equitable doctrine, codified in �327.
• Discretionary power...“in the interests of substantial justice.”
• Remedy is to stay or dismiss, in whole or in part. Court may impose a condition to assist plaintiff in the other forum (i.e. waiving defenses & accepting service in other forum)
• Factors examined (connections bet. action and the state):
  1. Plaintiff's choice of forum
  2. Plaintiff's residence; presumption that N.Y. resident entitled to N.Y. judicial system (Nevander).
  3. Location of facts that are the basis of the cause of action, regardless of decision in Martin (location of accident not a sufficient nexus to counsel against dismissal)
  4. Location of witnesses/evidence
  5. Burden on �; will � be subject to foreign law?
  6. Possibility of litigating in another forum - there needn't be another forum
  7. Court's convenience and general public policies
  8. Forum selection clauses

Forum selection clauses honored, in accordance with �327(b).

• Per se honored if transaction is for $1,000,000 or more (regardless of other connections to the state); lower transaction amount, need to look at the connections.
• Forum selection clauses are “prima facie valid and should be enforced...unless unreasonable under the circumstances.” M-S Bremen v. Zapata (U.S. 1972).
• Honored because of the value of international business transactions to N.Y.
• The clause submits to jurisdiction and admits such jurisdiction to be the exclusive jurisdiction.

Service of suit clauses: submission to jurisdiction, but not exclusive jurisdiction.

Choice of law clauses: weaker than forum selection; decides what law applies.

PLA and DEF involved in accident in upstate N.Y. Both Canadian residents. � moves to dismiss complaint on grounds of FNC. � evidences all connections with N.Y. in reply affirmation. Special Term finds for �. � then sought to change venue because of location of witnesses and evidence in Buffalo. � files reply that contradicts reply aff. in previous motion (no connections with N.Y.). Special Term finds for � again. Appellate Division, on appeal, affirmed both orders b/c not an abuse of discretion. Ct. of App. reverses FNC order because of the contradictory reply affirmations.

Forum Non Conveniens

Credit Francais International

Forum selection clauses.

Venue

CPLR 511(a)

Determines county in which claim may be brought. Courts like the Supreme Court have venue considerations. County courts, for example, do not have venue issues.

Waiveable.

Venue requirements

1. Actions that affect title or right to possession of real property (local actions CPLR 507): venue in county where property is located.
2. Replevin (CPLR 508): � or �'s residence, or where the chattel is located.
3. Actions on contracts where choice of venue clause determines venue. **
4. All other actions base venue on �'s or �'s residence at time of commencement.*

• If neither � or � resides in state, any county may be chosen.
  • CPLR 501 directs that court will enforce contractual specification of venue; however, case law allows motion to be made to change venue in event of impartial trial, even when parties have contracted for venue. Convenience of witness may be entertained, although not compelling.

Foreign corporations: usually in county of their PPB, unless otherwise noted in corporate documents filed with state.

Partnership: PPB and any place where any of the partners reside.

Consumer credit transactions: preferred county is the �'s residence or, in the alternative, where the transaction took place.

As of right change of venue

1. Demand must be made prior to or with filing of answer
2. � then waits 5 days for response from �
3. If � does not respond, � may then bring motion to change venue in either �'s or �'s county within 15 days after service of demand.

Venue

1. According to 2013(b), the � has an extra 5 days to respond in the event of mailing...not a good idea to mail the demand because � then gets 10 days to respond. � still has to file motion within 15 days in the event of no response.

Discretionary change of venue: CPLR 511(a)

1. must be made within a reasonable time after commencement of the action.
2. impartial trial cannot be had
3. convenience of a witness is more frequently used; considers non-party witnesses (bystanders, police, other impartial officialSOLaymen)

Subject Matter Jurisdiction

General power of a court to adjudicate a class of cases. The constitutional or legislative authority to grant the relief that a party seeks.

Non-waivable.

May be raised by parties or sua sponte by the court.

Three tiered court system:

1. Trial (Supreme Court)
2. Appellate Term and Appellate Division
3. Court of Appeals

Two courts governed solely by the CPLR: Supreme Court (court of unlimited jurisdiction) and the County Courts ($25,000 jurisdictional limit).

Where other procedural rule exists, the CPLR is overridden in event of contradiction:

• N.Y.C. Civil Court Act
• Uniform District Court Act
• Uniform City Court Act
• Uniform Justice Court Acts
• Surrogate Court and Procedure Act
• Family Court Act
• Court of Claims Act

Rules of a court will govern motion practice, note of issue filing, certificate of readiness, trial calendar procedure.

Under BCL �1312, a foreign corporation must file a certificate of authority as a condition of using the state courts.

When court has no subject matter jurisdiction, the judgments it renders are null and void.

Subject Matter Jurisdiction

Court of Appeals

• Reviews final orders of Appellate Division as of right if:
  1. Dissent by two justices on a stated question of law or
  2. Appellate Division necessarily construed the State or Federal constitution.
• Otherwise, review by certiorari.

Appellate Division

• Final or interlocutory judgments, and orders of the Supreme or County Court appealable.
• Notice of appeal within 30 days of judgment or order.
• Appeals from NYC Civil Court, Nassau and Suffolk County District Courts, and Justice Court go through Appellate Term of Supreme Court.

Supreme Court (FILING COURT)

• Court of general, unlimited jurisdiction.
• Cannot entertain cases against NY State, except cases involving constitutionality of state statute, regarding real property, and Article 78 proceedings against the State.
• Exclusive jurisdiction over matrimonial actions, Article 78 proceedings and declaratory judgment actions.
• Supreme Court always has jurisdiction, even where statute or constitution conferring jurisdiction states that jurisdiction is exclusive in another court.

County Court (FILING COURT)

• Counties outside NYC
• $25,000 jurisdictional limit
• No jurisdictional limit on counterclaims
• Venue: property must be located in the county if suing for property, and if suing for money, all �s must reside in the county.
• Courts have construed the � requirement as personal jurisdiction, as opposed to subject matter jurisdiction, so the requirement is waivable.

New York City Civil Court (SERVICE COURT)

• Exists in each county in NY.
• Article 15 of NY Cons. authorizes this court
• $25,000 jurisdictional limit.

District Courts (SERVICE COURT)

• Authorized by Article 16
• $15,000 juris. limit.
• Nassau and Suffolk are only two counties to enact them
• Governed by District Court Act

Family Court (SERVICE COURT)

• NY Family Court Act governs
• Cannot dissolve a marriage. Has concurrent jurisdiction with Supreme Court
• Can modify foreign court decrees and NY decrees unless Supreme Ct. has retained exclusive juris.
• Handles all kinds of issues, with the exception of initial divorce decree
• Supreme Ct. can retain jurisdiction over such decrees if the parties don't want the action ending up in Family Court.

Surrogate Court (SERVICE COURT)

• Surrogate Court Procedure Act
• everything having to do with decedent's estate

Justice Courts (SERVICE COURT)

---

CPLR

ART. 2

• S 201. SoL to bring Causes of Actions (CoA) specified herein, UNLESS shortened by Statute or WritAgmt. NO EXTENSIONS.

• S 202. SoL to bring CoAs arising out-of-state are either as specified herein or in SoLs of foreign state, whichever first, unless CoA accrued in favor of foreign state resident, in which case foreign state SoL applies.

• S 203. Method of computing periods of limitation generally.

  (a) Accrual of cause of action and interposition of claim. The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed.

  (b) Claim in complaint where action commenced by service. In an action which is commenced by service, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when:

  1. the summons is served upon the defendant; or

  2. first publication of the summons against the defendant is made pursuant to an order, and publication is subsequently completed; or

  3. an order for a provisional remedy other than attachment is granted, if, within thirty days thereafter, the summons is served upon the defendant or first publication of the summons against the defendant is made pursuant to an order and publication is subsequently completed, or, where the defendant dies within thirty days after the order is granted and before the summons is served upon the defendant or publication is completed, if the summons is served upon the defendant`s executor or administrator within sixty days after letters are issued; for this purpose seizure of a chattel in an action to recover a chattel is a provisional remedy; or

  4. an order of attachment is granted, if the summons is served in accordance with the provisions of section 6213; or

  5. the summons is delivered to the sheriff of that county outside the city of New York or is filed with the clerk of that county within the city of New York in which the defendant resides, is employed or is doing business, or if none of the foregoing is known to the plaintiff after reasonable inquiry, then of the county in which the defendant is known to have last resided, been employed or been engaged in business, or in which the cause of action arose; or if the defendant is a corporation, of a county in which it may be served or in which the cause of action arose; provided that:

  (i) the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision; or

  (ii) first publication of the summons against the defendant is made pursuant to an order within sixty days after the period of limitation would have expired but for this provision and publication is subsequently completed; or

  (iii) the summons is served upon the defendant`s executor or administrator within sixty days after letters are issued, where the defendant dies within sixty days after the period of limitation would have expired but for this provision and before the summons is served upon the defendant or publication is completed.

  6. in an action to be commenced in a court not of record, the summons is delivered for service upon the defendant to any officer authorized to serve it in a county, city or town in which the defendant resides, is employed or is doing business, or if none of the foregoing be known to the plaintiff after reasonable inquiry, then in a county, city or town in which defendant is known to have last resided, been employed or been engaged in business, or, where the defendant is a corporation, in a county, city or town in which it may be served, if the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision; or, where the defendant dies within sixty days after the period of limitation would have expired but for this provision and before the summons is served upon the defendant, if the summons is served upon his executor or administrator within sixty days after letters are issued.

  (c) Claim in complaint where action commenced by filing. In an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced.

  (d) Defense or counterclaim. A defense or counterclaim is interposed when a pleading containing it is served. A defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed, except that if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed.

  (e) Effect upon defense or counterclaim of termination of action because of death or by dismissal or voluntary discontinuance. Where a defendant has served an answer containing a defense or counterclaim and the action is terminated because of the plaintiff`s death or by dismissal or voluntary discontinuance, the time which elapsed between the commencement and termination of the action is not a part of the time within which an action must be commenced to recover upon the claim in the defense or counterclaim or the time within which the defense or counterclaim may be interposed in another action brought by the plaintiff or his successor in interest.

  (f) Claim in amended pleading. A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.

  (g) Time computed from actual or imputed discovery of facts. Except as provided in article two of the uniform commercial code or in section two hundred fourteen-a of this chapter, where the time within which an action must be commenced is computed from the time when facts were discovered or from the time when facts could with reasonable diligence have been discovered, or from either of such times, the action must be commenced within two years after such actual or imputed discovery or within the period otherwise provided, computed from the time the cause of action accrued, whichever is longer.

• S 204. Stay of commencement of action; demand for arbitration.

  (a) Stay. Where the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.

  (b) Arbitration. Where it shall have been determined that a party is not obligated to submit a claim to arbitration, the time which elapsed between the demand for arbitration and the final determination that there is no obligation to arbitrate is not a part of the time within which an action upon such claim must be commenced. The time within which the action must be commenced shall not be extended by this provision beyond one year after such final determination.

• S 205. Termination of action.

  (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

  (b) Defense or counterclaim. Where the defendant has served an answer and the action is terminated in any manner, and a new action upon the same transaction or occurrence or series of transactions or occurrences is commenced by the plaintiff or his successor in interest, the assertion of any cause of action or defense by the defendant in the new action shall be timely if it was timely asserted in the prior action. (c) Application. This section also applies to a proceeding brought under the workers` compensation law.

• S 206. Computing periods of limitation in particular actions.

  (a) Where demand necessary. Except as provided in article 3 of the uniform commercial code, where a demand is necessary to entitle a person to commence an action, the time within which the action must be commenced shall be computed from the time when the right to make the demand is complete, except that

  1. where a right grows out of the receipt or detention of money or property by a trustee, agent, attorney or other person acting in a fiduciary capacity, the time within which the action must be commenced shall be computed from the time when the person having the right to make the demand discovered the facts upon which the right depends; and

  2. where there was a deposit of money to be repaid only upon a special demand, or a delivery of personal property not to be returned specifically or in kind at a fixed time or upon a fixed contingency, the time within which the action must be commenced shall be computed from the demand for repayment or return.

  (b) Based on misconduct of agent. Where a judgment is entered against a principal in an action based upon an injury resulting from the act or omission of his deputy or agent, the time within which an action by the principal against the deputy or agent to recover damages by reason of such judgment must be commenced shall be computed, from the time when the action against the principal was finally determined. Where an injury results from the representation by a person that he is an agent with authority to execute a contract in behalf of a principal, the time within which an action to recover damages for breach of warranty of authority must be commenced by the person injured against the purported agent shall be computed from the time the person injured discovered the facts constituting lack of authority.

  (c) Based on breach of covenant of seizin or against incumbrances. In an action based upon breach of a covenant of seizin or against incumbrances, the time within which the action must be commenced shall be computed from an eviction.

  (d) Based on account. In an action based upon a mutual, open and current account, where there have been reciprocal demands between the parties, the time within which the action must be commenced shall be computed from the time of the last transaction in the account on either side.

• S 207. Defendant`s absence from state or residence under false name. If, when a cause of action accrues against a person, he is without the state, the time within which the action must be commenced shall be computed from the time he comes into or returns to the state. If, after a cause of action has accrued against a person, that person departs from the state and remains continuously absent therefrom for four months or more, or that person resides within the state under a false name which is unknown to the person entitled to commence the action, the time of his absence or residence within the state under such a false name is not a part of the time within which the action must be commenced. If an action is commenced against a person described above, the time within which service must be made on such person in accordance with subdivisions (a) and (b) of S 306-b of this chapter shall be computed in accordance with this section. This section does not apply:

  1. while there is in force a designation, voluntary or involuntary, made pursuant to law, of a person to whom a summons may be delivered within the state with the same effect as if served personally within the state; or

  2. while a foreign corporation has one or more officers or other persons in the state on whom a summons against such corporation may be served; or

  3. while jurisdiction over the person of the defendant can be obtained without personal delivery of the summons to the defendant within the state.

• S 208. Infancy, insanity. If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy. This section shall not apply to an action to recover a penalty or forfeiture, or against a sheriff or other officer for an escape.

• S 209. War.

  (a) Cause of action accruing in foreign country. Where a cause of action, whether originally accrued in favor of a resident or non-resident of the state, accrued in a foreign country with which the United States or any of its allies were then or subsequently at war, or territory then or subsequently occupied by the government of such foreign country, the time which elapsed between the commencement of the war, or of such occupation, and the termination of hostilities with such country, or of such occupation, is not a part of the time within which the action must be commenced. This section shall neither apply to nor in any manner affect an action brought pursuant to section six hundred twenty-five of the banking law against a banking organization or against the superintendent of banks.

  (b) Right of alien. Where a person is unable to commence an action in the courts of the state because any party is an alien subject or citizen of a foreign country at war with the United States or any of its allies, whether the cause of action accrued during or prior to the war, the time which elapsed between the commencement of the war and the termination of hostilities with such country is not a part of the time within which the action must be commenced.

  (c) Non-enemy in enemy country or enemy-occupied territory. Where a person entitled to commence an action, other than a person entitled to the benefits of subdivision (b), is a resident of, or a sojourner in, a foreign country with which the United States or any of its allies are at war, or territory occupied by the government of such foreign country, the period of such residence or sojourn during which the war continues or the territory is so occupied is not a part of the time within which the action must be commenced.

• S 210. Death of claimant or person liable; cause of action accruing after death and before grant of letters.

  (a) Death of claimant. Where a person entitled to commence an action dies before the expiration of the time within which the action must be commenced and the cause of action survives, an action may be commenced by his representative within one year after his death.

  (b) Death of person liable. The period of eighteen months after the death, within or without the state, of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his executor or administrator.

  (c) Cause of action accruing after death and before grant of letters. In an action by an executor or administrator to recover personal property wrongfully taken after the death and before the issuance of letters, or to recover damages for taking, detaining or injuring personal property within that period, the time within which the action must be commenced shall be computed from the time the letters are issued or from three years after the death, whichever event first occurs. Any distributee, next of kin, legatee or creditor who was under a disability prescribed in section 208 at the time the cause of action accrued, may, within two years after the disability ceases, commence an action to recover such damages or the value of such property as he would have received upon a final distribution of the estate if an action had been timely commenced by the executor or administrator.

• S 211. Actions to be commenced within twenty years.

  (a) On a bond. An action to recover principal or interest upon a written instrument evidencing an indebtedness of the state of New York or of any person, association or public or private corporation, originally sold by the issuer after publication of an advertisement for bids for the issue in a newspaper of general circulation and secured only by a pledge of the faith and credit of the issuer, regardless of whether a sinking fund is or may be established for its redemption, must be commenced within twenty years after the cause of action accrues. This subdivision does not apply to actions upon written instruments evidencing an indebtedness of any corporation, association or person under the jurisdiction of the public service commission, the commissioner of transportation, the interstate commerce commission, the federal communications commission, the civil aeronautics board, the federal power commission, or any other regulatory commission or board of a state or of the federal government. This subdivision applies to all causes of action, including those barred on April eighteenth, nineteen hundred fifty, by the provisions of the civil practice act then effective.

  (b) On a money judgment. A money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it. This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged. Property acquired by an enforcement order or by levy upon an execution is a payment, unless the person to be charged shows that it did not include property claimed by him. If such an acknowledgment or payment is made, the judgment is conclusively presumed to be paid and satisfied as against any person after the expiration of twenty years after the last acknowledgment or payment made by him. The presumption created by this subdivision may be availed of under an allegation that the action was not commenced within the time limited.

  (c) By state for real property. The state will not sue a person for or with respect to real property, or the rents or profits thereof, by reason of the right or title of the state to the same, unless the cause of action accrued, or the state, or those from whom it claims, have received the rents and profits of the real property or of some part thereof, within twenty years before the commencement of the action.

  (d) By grantee of state for real property. An action shall not be commenced for or with respect to real property by a person claiming by virtue of letters patent or a grant from the state, unless it might have been maintained by the state, as prescribed in this section, if the patent or grant had not been issued or made.

  (e) For support, alimony or maintenance. An action or proceeding to enforce any temporary order, permanent order or judgment of any court of competent jurisdiction which awards support, alimony or maintenance, regardless of whether or not arrears have been reduced to a money judgment, must be commenced within twenty years from the date of a default in payment. This section shall only apply to orders which have been entered subsequent to the date upon which this section shall become effective.

• S 212. Actions to be commenced within ten years.

  (a) Possession necessary to recover real property. An action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action.

  (b) Annulment of letters patent. Where letters patent or a grant of real property, issued or made by the state, are declared void on the ground of fraudulent suggestion or concealment, forfeiture, mistake or ignorance of a material fact, wrongful detaining or defective title, an action to recover the premises may be commenced by the state or by a subsequent patentee or grantee, or his successor in interest, within ten years after the determination is made.

  (c) To redeem from a mortgage. An action to redeem real property from a mortgage with or without an account of rents and profits may be commenced by the mortgagor or his successors in interest, against the mortgagee in possession, or against the purchaser of the mortgaged premises at a foreclosure sale in an action in which the mortgagor or his successors in interest were not excluded from their interest in the mortgaged premises, or against a successor in interest of either, unless the mortgagee, purchaser or successor was continuously possessed of the premises for ten years after the breach or non-fulfillment of a condition or covenant of the mortgage, or the date of recording of the deed of the premises to the purchaser.

  (d) To recover under an affidavit of support of an alien. An action under section one hundred twenty-two of the social services law to recover amounts paid to or on behalf of an alien for whom an affidavit of support pursuant to section 213A of the immigration and naturalization act has been signed.

• S 213. Actions to be commenced within six years: where not otherwise provided for; on contract; on sealed instrument; on bond or note, and mortgage upon real property; by state based on misappropriation of public property; based on mistake; by corporation against director, officer or stockholder; based on fraud. The following actions must be commenced within six years:

  1. an action for which no limitation is specifically prescribed by law;

  2. an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen-a of this article or article 2 of the uniform commercial code or article 36-B of the general business law;

  3. an action upon a sealed instrument;

  4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein;

  5. an action by the state based upon the spoliation or other misappropriation of public property; the time within which the action must be commenced shall be computed from discovery by the state of the facts relied upon;

  6. an action based upon mistake;

  7. an action by or on behalf of a corporation against a present or former director, officer or stockholder for an accounting, or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith.

  8. an action based upon fraud; the time within which the action must be commenced shall be computed from the time the plaintiff or the person under whom he claims discovered the fraud, or could with reasonable diligence have discovered it.

• S 213-a. Actions to be commenced within four years; residential rent overcharge. An action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action.

• S 213-b. Action by a victim of a criminal offense. Notwithstanding any other limitation set forth in this article or in article five of the estates, powers and trusts law, an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant:

  (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime or

  (2) convicted of a specified crime as defined in paragraph (e) of subdivision one of section six hundred thirty-two-a of the executive law which is the subject of such action for any injury or loss resulting therefrom within ten years of the date the defendant was convicted of such specified crime.

• S 214. Actions to be commenced within three years: for non-payment of money collected on execution; for penalty created by statute; to recover chattel; for injury to property; for personal injury; for malpractice other than medical, dental or podiatric malpractice; to annul a marriage on the ground of fraud. The following actions must be commenced within three years:

  1. an action against a sheriff, constable or other officer for the non-payment of money collected upon an execution;

  2. an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215;

  3. an action to recover a chattel or damages for the taking or detaining of a chattel;

  4. an action to recover damages for an injury to property except as provided in section 214-c;

  5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215;

  6. an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort; and

  7. an action to annul a marriage on the ground of fraud; the time within which the action must be commenced shall be computed from the time the plaintiff discovered the facts constituting the fraud, but if the plaintiff is a person other than the spouse whose consent was obtained by fraud, the time within which the action must be commenced shall be computed from the time, if earlier, that that spouse discovered the facts constituting the fraud.

• S 214-a. Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions. An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section the term "continuous treatment" shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient`s condition. For the purpose of this section the term "foreign object" shall not include a chemical compound, fixation device or prosthetic aid or device.

• S 214-b. Action to recover damages for personal injury caused by contact with or exposure to phenoxy herbicides. Notwithstanding any provision of law to the contrary, an action to recover damages for personal injury caused by contact with or exposure to phenoxy herbicides while serving as a member of the armed forces of the United States in Indo-China from January first, nineteen hundred sixty-two through May seventh, nineteen hundred seventy-five, may be commenced within two years from the date of the discovery of such injury, or within two years from the date when through the exercise of reasonable diligence the cause of such injury should have been discovered, whichever is later.

• S 214-c. Certain actions to be commenced within three years of discovery.

  1. In this section: "exposure" means direct or indirect exposure by absorption, contact, ingestion, inhalation, implantation or injection.

  2. Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

  3. For the purposes of sections fifty-e and fifty-i of the general municipal law, section thirty-eight hundred thirteen of the education law and the provisions of any general, special or local law or charter requiring as a condition precedent to commencement of an action or special proceeding that a notice of claim be filed or presented within a specified period of time after the claim or action accrued, a claim or action for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property shall be deemed to have accrued on the date of discovery of the injury by the plaintiff or on the date when through the exercise of reasonable diligence the injury should have been discovered, whichever is earlier.

  4. Notwithstanding the provisions of subdivisions two and three of this section, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section.

  5. This section shall not be applicable to any action for medical or dental malpractice.

  6. This section shall be applicable to acts, omissions or failures occurring prior to, on or after July first, nineteen hundred eighty-six, except that this section shall not be applicable to any act, omission or failure:

  (a) which occurred prior to July first, nineteen hundred eighty-six, and

  (b) which caused or contributed to an injury that either was discovered or through the exercise of reasonable diligence should have been discovered prior to such date, and

  (c) an action for which was or would have been barred because the applicable period of limitation had expired prior to such date.

• S 214-d. Limitations on certain actions against licensed engineers and architects.

  1. Any person asserting a claim for personal injury, wrongful death or property damage, or a cross or third-party claim for contribution or indemnification arising out of an action for personal injury, wrongful death or property damage, against a licensed architect, engineer, land surveyor or landscape architect or against a partnership, professional corporation or limited liability company lawfully practicing architecture, engineering, land surveying or landscape architecture which is based upon the professional performance, conduct or omission by such licensed architect, engineer, land surveyor or landscape architect or such firm occurring more than ten years prior to the date of such claim, shall give written notice of such claim to each such architect, engineer, land surveyor or landscape architect or such firm at least ninety days before the commencement of any action or proceeding against such licensed architect, engineer, land surveyor or landscape architect or such firm including any cross or third-party action or claim. The notice of claim shall identify the performance, conduct or omissions complained of, on information and belief, and shall include a request for general and special damages. Service of such written notice of claim may be made by any of the methods permitted for personal service of a summons upon a natural person, partnership or professional corporation. A notice of claim served in accordance with this section shall be filed, together with proof of service thereof, in any court of this state in which an action, proceeding or cross or third-party claim arising out of such conduct may be commenced or interposed, within thirty days of the service of the notice of claim. Upon the filing of any such notice of claim, a county clerk shall collect an index number fee in accordance with section eight thousand eighteen of this chapter and an index number shall be assigned.

  2. In such pleadings as are subsequently filed in any court, each party shall represent that it has fully complied with the provisions of this section.

  3. Service of a notice as provided in this section shall toll the applicable statute of limitations to and including a period of one hundred twenty days following such service.

  4. From and after the date of service of the notice provided for in subdivision one of this section, the claimant shall have the right to serve a demand for discovery and production of documents and things for inspection, testing, copying or photographing in accordance with rule three thousand one hundred twenty of this chapter. Such demand shall be governed by the procedures of article thirty-one of this chapter. In addition, the claimant shall have the right to the examination before trial of such licensed architect, engineer, land surveyor or landscape architect or such firm or to serve written interrogatories upon such licensed architect, engineer, land surveyor or landscape architect or such firm after service of and compliance with a demand for production and inspection in accordance with this section. The court may, at any time at its own initiative or on motion of such licensed architect, engineer, land surveyor or landscape architect or such firm deny, limit, condition or restrict such examination before trial or written interrogatories upon a showing that such claimant has failed to establish reasonable necessity for the information sought or failed to establish that the information sought by such examination or interrogatories cannot reasonably be determined from the documents or things provided in response to a demand for production and inspection served in accordance with this section. Such examination before trial or interrogatories shall otherwise be governed by article thirty-one of this chapter.

  5. After the expiration of ninety days from service of the notice provided in subdivision one of this section, the claimant may commence or interpose an action, proceeding or cross or third-party claim against such licensed architect, engineer, land surveyor or landscape architect or such firm. The action shall proceed in every respect as if the action were one brought on account of conduct occurring less than ten years prior to the claim described in said action, unless the defendant architect, engineer, land surveyor or landscape architect or such firm shall have made a motion under rule three thousand two hundred eleven or three thousand two hundred twelve of this chapter, in which event the action shall be stayed pending determination of the motion. Such motion shall be granted upon a showing that such claimant has failed to comply with the notice of claim requirements of this section or for the reasons set forth in subdivision (h) of rule three thousand two hundred eleven or subdivision (i) of rule three thousand two hundred twelve of this chapter; provided, however, such motion shall not be granted if the moving party is in default of any disclosure obligation as set forth in subdivision four of this section.

  6. No claim for personal injury, or wrongful death or property damage, or a cross or third-party claim for contribution or indemnification arising out of an action for personal injury, wrongful death or property damage may be asserted against a licensed architect, engineer, land surveyor or landscape architect or such firm arising out of conduct by such licensed architect, engineer, land surveyor or landscape architect or such firm occurring more than ten years prior to the accrual of such claim shall be commenced or interposed against any such licensed architect, engineer, land surveyor or landscape architect or such firm unless it shall appear by and as an allegation in the complaint or necessary moving papers that the claimant has complied with the requirements of this section. Upon the commencement of such a proceeding or action or interposition of such cross or third-party claim, a county clerk shall not be entitled to collect an index number fee and such action, proceeding or cross or third-party claim shall retain the previously assigned index number. Such action, proceeding or cross or third-party claim shall otherwise be governed by the provisions of this chapter.

  7. The provisions of this section shall apply only to a licensed architect, engineer, land surveyor or landscape architect or such firm practicing architecture, engineering, land surveying or landscape architecture in the state of New York at the time the conduct complained of occurred and shall not apply to any person or entity, including but not limited to corporations, which was not licensed as an architect, engineer, land surveyor or landscape architect or such firm in this state or to a firm not lawfully practicing architecture, engineering, land surveying or landscape architecture at the time the conduct complained of occurred.

  8. The provisions of this section shall not be construed to in any way alter or extend any applicable statutes of limitations except as expressly provided herein.

• S 214-e. Action to recover damages for personal injury caused by the infusion of such blood products which result in the contraction of the human immunodeficiency virus (HIV) and/or AIDS. Notwithstanding any provision of law to the contrary, any cause of action for an injury or death against a proprietary manufacturer of blood products for damages involving the infusion of such blood products which resulted in the contraction of the human immunodeficiency virus (HIV) and/or AIDS which is barred as of the effective date of this section because the applicable period of limitation has expired is hereby revived, and an action thereon may be commenced and prosecuted provided such action is commenced within two years of the effective date of this section. The provisions of this section shall be inapplicable to any civil action governed by the statute of limitations of another jurisdiction.

• S 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 award. The following actions shall be commenced within one year:

  1. an action against a sheriff, coroner or constable, upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty, except the non-payment of money collected upon an execution;

  2. an action against an officer for the escape of a prisoner arrested or imprisoned by virtue of a civil mandate;

  3. an action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander, false words causing special damages, or a violation of the right of privacy under section fifty-one of the civil rights law;

  4. an action to enforce a penalty or forfeiture created by statute and given wholly or partly to any person who will prosecute; if the action is not commenced within the year by a private person, it may be commenced on behalf of the state, within three years after the commission of the offense, by the attorney-general or the district attorney of the county where the offense was committed; and

  5. an action upon an arbitration award.

  6. An action to recover any overcharge of interest or to enforce a penalty for such overcharge.

  7. an action by a tenant pursuant to subdivision three of section two hundred twenty-three-b of the real property law.

  8. Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.

• S 216. Abbreviation of period to one year after notice.

  (a) Action to recover money.

  1. No action for the recovery of any sum of money due and payable under or on account of a contract, or for any part thereof, shall be commenced by any person who has made claim to the sum, after the expiration of one year from the giving of notice, as hereinafter provided, to the claimant that an action commenced by another person is pending to recover the sum, or any part thereof, exceeding fifty dollars in amount. This limitation shall not be construed to enlarge the time within which the cause of action of the claimant would otherwise be barred.

  2. If any person shall make claim for the recovery of any sum of money due and payable under or on account of a contract, and an action has theretofore been, or shall thereafter be, commenced by another person to recover the sum, or any part thereof, exceeding fifty dollars in amount, the defendant in such action may, within twenty days from the date of service upon him of the complaint or from the date of receipt by him of the claim, whichever occurs later, make a motion before the court in which the action is pending for an order permitting the defendant to give notice to the claimant that the action is pending. The court in which the action is pending shall grant the order where it appears that a person not a party to the action has made claim against the defendant for the sum of money, or any part thereof, exceeding fifty dollars in amount; that the action was brought without collusion between the defendant and the plaintiff; and that the claimant cannot, with due diligence, be served with process in such a manner as to obtain jurisdiction over his person. The order shall provide, among such other terms and conditions as justice may require, that notice shall be given to the claimant by sending by registered mail a copy of the summons and complaint in the action and the order and a notice addressed to the claimant at his last known address. In the event that registration of mail directed to any country or part thereof shall be discontinued or suspended, notice to a claimant whose last known address is within such country or part thereof shall be given by ordinary mail, under such terms and conditions as the court may direct. Proof that the notice has been mailed shall be filed within ten days from the date of the order; otherwise the order becomes inoperative. Upon such filing, notice shall be deemed to have been given on the tenth day after the date of such order.

  3. Upon proof by affidavit or otherwise, to the satisfaction of the court, that the conditions of this subdivision have been satisfied and that there is no collusion between the claimant and the defendant, the court shall make an order staying further prosecution of the action for a period not to exceed one year from the date when the notice shall have been given to the claimant. At the time of the granting of such order or at any time thereafter, the court, upon the motion of any party, shall, as a condition of the granting of the order or its continuation, impose upon the defendant such terms as justice may require as to the furnishing of an undertaking in an amount to be fixed by the court. The stay shall be vacated and the undertaking, if any has been given, may be discharged or modified, as justice may require, upon proof to the court by any party to the action that the claimant has intervened or has instituted another action in any court of this state to recover the said sum of money, or any part thereof, exceeding fifty dollars.

  4. A motion for any relief as prescribed in this subdivision shall be made on notice to all other parties to the action.

  5. Whenever claims are made by two or more persons, each claiming to be, to the exclusion of the other, the duly authorized deputy, officer or agent to demand, receive, collect, sue for or recover the same sum of money due and payable under or on account of a contract, or any part thereof, exceeding fifty dollars in amount, for and on behalf of the same person, each person making such a claim shall be deemed an adverse claimant. Notwithstanding that an action has been commenced in the name of or on behalf of the person for whom he claims to be the duly authorized deputy, officer or agent, any such adverse claimant may be notified of the pendency of an action as provided in this subdivision and may intervene in the action and be designated as claiming to be or as the alleged deputy, officer or agent.

  6. Whenever an action has been commenced for the recovery of any sum of money exceeding fifty dollars due and payable under or on account of a contract and the records of the defendant show that a person other than the plaintiff has the right, exclusive of other deputies, officers or agents of the plaintiff, to demand, sue for and recover the same sum of money, or any part thereof, exceeding fifty dollars in amount, either in his own name, on his own behalf, or as the authorized deputy, officer or agent for the plaintiff, and the defendant has received no notice of transfer, revocation, or other change in right or authority acceptable to it, the person so appearing on the records shall be deemed to have made an adverse claim to the sum of money and may be treated as an adverse claimant.

  (b) Action to recover property. When an action has been commenced to recover specific personal property, including certificates of stocks, bonds, notes or other securities or obligations, exceeding fifty dollars in value, held by the defendant within the state, or to enforce a vested or contingent interest or lien upon such property, and a person not a party to the action asserts a claim to the whole or any part of the same property or to a right, interest or lien upon it which is adverse to the plaintiff`s claim, and the court in which the action is pending has no jurisdiction over the adverse claimant to direct the issuance of process or if the same be issued it would be without effect notwithstanding that the action seeks to have declared, enforced, regulated, defined or limited, rights, interests or liens upon specific personal property within the state, the defendant in the action may within twenty days from the date of service upon him of the complaint or within twenty days of the date of the receipt by him of the adverse claim, whichever shall occur later, make a motion before the court for leave to give notice to the adverse claimant of the pending action in the same manner as provided in subdivision (a). Upon the granting of such an order, the provisions of subdivision (a) shall apply insofar as they are compatible with the subject matter of the action.

• S 217. Proceeding against body or officer; actions complaining about conduct that would constitute a union`s breach of its duty of fair representation; four months.

  1. Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent`s refusal, upon the demand of the petitioner or the person whom he represents, to perform its duty; or with leave of the court where the petitioner or the person whom he represents, at the time such determination became final and binding upon him or at the time of such refusal, was under a disability specified in section 208, within two years after such time.

  2.

  (a) Any action or proceeding against an employee organization subject to article fourteen of the civil service law or article twenty of the labor law which complains that such employee organization has breached its duty of fair representation regarding someone to whom such employee organization has a duty shall be commenced within four months of the date the employee or former employee knew or should have known that the breach has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later.

  (b) Any action or proceeding by an employee or former employee against an employer subject to article fourteen of the civil service law or article twenty of the labor law, an essential element of which is that an employee organization breached its duty of fair representation to the person making the complaint, shall be commenced within four months of the date the employee or former employee knew or should have known that the breach has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later.

• S 218. Transitional provisions.

  (a) Actions barred at effective date. Nothing in this article shall authorize any action to be commenced which is barred when this article becomes effective, except insofar as the right to commence the action may be revived by an acknowledgment or payment.

  (b) Cause of action accrued and not barred at effective date. Where a cause of action accrued before, and is not barred when this article becomes effective, the time within which an action must be commenced shall be the time which would have been applicable apart from the provisions of this article, or the time which would have been applicable if the provisions of this article had been in effect when the cause of action accrued, whichever is longer.