New York Practice Spring 2012

Professor Cary Stewart Sklaren

TOPIC 1 Introduction to New York Practice

New York Practice Secondary References

Siegel, N.Y. Practice (5th Ed.) Weinstein, Korn, Miller, N.Y. Civil Practice McKinney's Consol. Laws of NY Annotated Ferstenig, N.Y. AnswerGuide

Reading a New York Practice Case

Platt v. Platt Supreme Court Of Judicature Of New York Cole. Cas. 36; 1795 N.Y. Lexis 2 (April, 1795)
BENSON, J. The pleadings in this cause are: Narr. intitled of October Term, 1794, in assumpsit charged, 1st September, 1794, plea in abatement, that on the 28th January, 1793, the defendant was taken and detained in prison under the custody of the Judges and Assistant Justices of the Court of Common Pleas for the County of Westchester, by virtue of' a plaint levied against him in that court at the suit of the plaintiff; that the plaintiff declared against the defendant on that plaint, and the plea set forth the declaration at large, which is similar to the declaration in this court (with this difference only, that in the latter [*37] there is an addition of a count on an insimul computassent, and in the former the assumpsit is charged on the 1st of January, 1793); that the defendant sued out of this court an habeas corpus for removing the cause, tested the 9th, and allowed the 27th August, 1794, and returnable the ensuing October Term; that the habeas corpus was returned in that term, and setting forth the return, which is in the usual form; that thereupon the defendant was delivered to bail in this court at the suit of the plaintiff in the plea [**2] aforesaid, whereupon the plaintiff exhibited the bill aforesaid in this court against the defendant in the plea aforesaid; that inasmuch as it appears by the bill here that the causes of action specified in the bill had not accrued before the term of the caption of the defendant by virtue of the plaint, nor before the time when the plaintiff declared on the plaint, nor before the day of the test, nor before the day of the allowance of the habeas corpus, the plea therefore concludes by praying judgment of the bill, and that it may be quashed.

Interrelationships Exist Among

CPLR; Statutes dealing with procedure; State-wide court rules (NYCRR); Local court rules; Judges individual rules.

Why sue in New York? (1/2)

Plaintiff a NY resident. Place to get jurisdiction over defendant. Real or personal property in NY. Marital res is in NY in matrimonial action. High verdicts in some counties. More favorable substantive or proced. law. Forum selection clause in contract.

WHY SUE IN NEW YORK (2/2)?

NY choice of law ( you want a NY judge to interpret). Lawyer handling more familiar with NY law. Want a Judge who specializes in commercial law. Dont like the way US courts interpret law. Your office is in NY. (You hate traveling, and it is expensive.)

Field Code (1848)

Lawrence Friedman on the Field Code in History of American Law (1/2) It was couched in brief, gnomic
Napoleonic sections, tightly worded and skeletal. No trace of the elaborate redundancy, the voluptuous heaping on of synonyms, so characteristic of AngloAmerican statutes.

Friedman (2/2)
In

short, a code in the French sense, not a statute. A lattice of reasoned principles, scientifically arranged, not a thick thumb stuck into the dikes of common law.

Field Code 62 (1848)

The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing are abolished; and there shall be in this state, hereafter, but one form of action, for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be denominated a civil action.

CPLR 103(a) (2012)

Form of civil judicial proceedings. One form of action. There is only one form of civil action. The distinctions between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.

Field Code 62
The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing are abolished;

CPLR 103(a)
The distinctions between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.

N.Y. Civil Procedure Acts 1848 Field Code (29 years) 1877 Throop Code (43 years) 1920 CPA (43 years) 1963 CPLR (49 years and counting)

The CPLR is the Basic Procedural Law of New York

The CPLR embodies both: Due process, and Fundamental fairness.

Underpinnings of New York Procedural Law (1/5) U.S. Constitution

Judiciary Article (Article 3)

New York State Constitution

Judiciary Article (Article 6)

Underpinnings of New York Procedural Law (2/5) N.Y. Constitution, Art. 6

Establishes the Unified Court System 1; Defines subject matter jurisdiction; Judicial selection; Judicial discipline; Creates a Chief Judicial Administrator.

Underpinnings of New York Procedural Law (3/5)

New York Judiciary Law Amplifies Article 6, N.Y. Constitution; Powers and duties of Judges; Powers and duties of court officers; Powers and duties of attorneys; Code of Professional Responsibility; Procedural Details.

Underpinnings of New York Procedural Law (4/5) Numerous other statutes (e.g.)
Vehicle and Traffic Law General Obligations Law Business Corporation Law Uniform Commercial Code Estates, Powers and Trusts Law General Construction Law

Underpinnings of New York Procedural Law (5/5)

Court Acts; CPLR; Court Rules (New York Court Rules And Regulations or NYCRR); Judges Rules.

New York Court Acts

Court of Claims Act Family Court Act Surrogates Court Procedure Act New York City Civil Court Act Uniform District Courts Act Uniform City Courts Act Uniform Justice Court Act

Amending the CPLR

Only the New York State Legislature can amend the CPLR! Others can recommend or advise: Chief Judge (Recommend); Chief Administrative Judge (Recommend); Advisory Committee on Civil Practice; Law Revision Commission.

Organization of the CPLR

72 Articles Grouped by Subject Matter. For example: Art. 2, Statute of Limitations Art. 3, Jurisdiction Art. 31, Disclosure Art. 32, Accelerated Judgment

CPLR 101(a)
This Article shall be known as the civil practice law and rules, and may be cited as 'CPLR. N.B. Statute is not to be cited as either C.P.L.R. (no periods), or Civ. Prac. L. & R (no abbreviations).

CPLR 101(b) The CPLR shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute. [Statutes trump CPLR.]

CPLR 101(e) You may refer to a CPLR provision without indicating whether it is a rule or section. DO NOT CITE
CPLR Rule 3211, or CPLR [Sec.] 101(e).

Examples of Special Proceedings

CPLR Art. 78 (proceeding against body or officer) CPLR Art. 77 (proceeding relating to express trust) CPLR 7503 (application to compel/stay arbitration) Civ. Rights L. 60-63 (change of name) Debtor & Creditor L. 3-22 (assign. benefit of cred.) RPAPL 701-767 (Sum. Proc. to recover real prop.) SCPA 203 (all proceedings in Surr. Court).

CPLR 104 CPLR shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding.
[Liberally construed + CPLR = 1779 cites]

CPLR 105(b)
Action and Special Proceeding Action includes special proceeding; Plaintiff and defendant include petitioner and respondent in a special proceeding; Summons and complaint include notice of petition and petition.

CPLR 105 (h)

A domestic corporation is one created by or under the laws of the state or a corporation located in the state and created by or under the laws of the United States.

CPLR 105(h)

Definition of Foreign Corporation: Any corporation that is not a Domestic Corporation.

CPLR 105(j) The word infant, as used in this chapter, means a person who has not attained the age of eighteen years. The word infancy means the state of being an infant.

CPLR 105(k)

Judgment. The word judgment means a final or interlocutory judgment. Note Spelling: One E. Not Judgement

CPLR 105(p)
Matrimonial Action means Action for separation, and Action for annulment or dissolution of a marriage, and Action for a divorce, and Action for a declaration of the validity or nullity of a foreign judgment of divorce, and Action for a declaration of the validity or nullity of a marriage.

CPLR 105(u) A verified pleading may be utilized as an affidavit whenever the latter is required.

Mistakes

CPLR 2001 (1963- Aug. 15, 2007)

Section 2001. Mistakes, omissions, defects and irregularities. At any stage of an action the court may permit a mistake, omission, defect or irregularity, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.

CPLR 2001 (as amended) (1/3)

At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action,
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CPLR 2001 (as amended) (2/3) the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just,
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CPLR 2001 (as amended) (3/3)

or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid.
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Matter of United Servs. Auto. Assn. v. Kungel, 72 A.D.3d 517 (1st Dept 2010).

CPLR 2001 was expressly enacted to fully foreclose dismissal of actions for technical...nonprejudicial defects in commencement . . . regardless of whether the defendant objected in a timely and proper manner."
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Examples, Excusable Mistakes (1/10) Mistakes in filing initial process

Failure to pay index number fee*; Failure to obtain an index number*; Some technical aspects of service of process and filing proof of service.

* Fee must be subsequently paid.

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Example, Excusable Mistakes (2/10)

Failure to file proof of service within the time specified in CPLR 308(4) is not a jurisdictional defect but, rather, is a procedural irregularity that may be cured by an order permitting the late filing of proof of service nunc pro tunc. Discover Bank v. Eschwege, 71 A.D.3d 1413, (4th Dept 2010).
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Example, Excusable Mistakes (3/10)

Timely mailing of notice of appeal outside New York is not a fatal jurisdictional defect requiring dismissal of the appeal. CPLR 5520(a).
M Entertainment, Inc. v. Leydier, 13 N.Y.3d 827 (2009)
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Example, Excusable Mistakes (4/10) Notarization of expert affidavit outof-state in non-compliance with CPLR 2309(c) is an irregularity. Betz v. Daniel Conti, Inc., 69 A.D.3d (2d Dept 2010).

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

(c) Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.

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Example, Excusable Mistakes (6/10)

Argument that out-of-state affidavits were invalid for lack of the certification required by CPLR 2309(c) and Real Prop. L 299-a not preserved. Courts not rigid about this requirement. If oath is given, authentication of authority can be secured later and given nunc pro tunc effect. Matapos Technology Ltd. v. Compania Andina de Commercio, Ltda., 68 A.D.2d 672 (1st Dept 2010).

Example, Excusable Mistakes (7/10) Court may disregard the failure of a notary to sign the jurat of an experts affidavit. Carter v. Grenadier Realty, 83 A.D.3d 640 (2d Dept 2011).

Example, Excusable Mistakes (8/10)

Unauthorized person, in violation of CPLR 313, served process in Pennsylvania. Court may disregard lack of authorization as an irregularity. It is not jurisdictional. Ruffin v. Lion Corp., 15 N.Y.2d 578 (2010).

Example, Excusable Mistakes (9/10)

Court correctly overlooked the fact that plaintiff improperly submitted the affirmation, rather than affidavit, of a partner. Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 920 N.Y.S.2d 23 (1st Dept 2011).

Example, Excusable Mistakes (10/10)

Service of a cross-motion by USPS media mail rather than first class mail, is a mere irregularity resulting in no substantial prejudice. Jones v. LeFrance Leasing Ltd. Partnership, 81 A.D.3d 900 (2d Dept 2011).

Exceptions to CPLR 2001 FATAL ERRORS

No Jurisdiction Personal Subject Matter Statute of Limitations (but CPLR 203(e) and 205) Filing Notice of Appeal

Goldenberg v. Westchester Cty. Health Care Corp., 16 N.Y.3d 323 (2011).

P commenced a special proceeding to file a late notice of claim, and attached a copy of the proposed complaint. P served D with notice of claim, summons and complaint without an index number. Proposed complaint not "the functional equivalent of a filing." Statute of limitations has expired.

Other Error References in CPLR

CPLR 103(c)-- e.g., special proceeding brought as action. CPLR 305(c)-- correction of non-prejudicial defects in process or proof of service. CPLR 325 and Judiciary Acts--action brought in improper court and removal sought. CPLR 1003--nonjoinder and misjoinder of parties.

Extensions of Time, CPLR 2004

Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.

Extensions of Time, CPLR 2004

terms as may be just AND good cause shown.

Exceptions to CPLR 2004

Extension of time prohibited by another law: CPLR 201 (statute of limitations) CPLR 5514(c) (time to appeal) CPLR 7503(c) (time to stay arbitration)