311(a): Personal service upon a corporation or governmental subdivision shall be made by delivering the summons:
To basically anyone
Rule has lots of nitty gritty
Colbert Pg. 222: The plaintiffs sue to recover damages for defamation out of a private investigative report commissioned by the defendant Southern Railway Corporation.
Defendant was served in its offices, left a copy of the summons and compliant with Sobelsobel turned the papers over to a responsible officer of the corporation and referred the matter to its attorney.
Sobel was pretty much a secretary
So was the corporation served in the way that would allow for in personam jurisdiction? Court says no
She’s not a managing agent within CPLR 311…courts have defined managing agent as “must be some person invested by the corporation with general powers involving the exercise of judgment and discretion as distinguished from a mere employee who acts in an inferior capacity under the discretion and control of superior authority both in regard to the extent of his duty and the manner of executing it
Also note: The “cashier or assistant cashier” to which the statute refers is a financial official within the ranks of the managerial hierarchy, not a check-out clerk at the counter of a retail store
Foreign Coporations
Bus Corp Law 306: See page 226
Domestic and Foreign corps authorized to do business in state can be served through secretary of state
THE APPEARANCE – a jurisdictional trap for the unwary
How and when made:
320(a): Requirement of appearance.
Within twenty days (30 if served by SoS) through answer or motion, including motion to extend time
3211(e)(f):
(e) Number, time and waiver of objections;
Before answer each party can only move once without leave
Any service or jurisdictional claims must be put in the answer or they are waived
(f) is a magic time extender for two specified motions.
3012
If you just serve with summons they have twenty days to ask for complaint and then you have twenty days to ask for it.
CPLR 2004:
Court can extend time as reasonable
CPLR 2005:
Gives court discretion over delays – can excuse them.
Effect:
CPLR320(b):
Appearance = personal jurisdiction unless you appear solely to contest personal jurisdiction
302(c): Personal jurisdiction by acts of non-domiciliary
If the court only has personal jurisdiction because of business, land or transactions appearance does not confer personal jurisdiction
Iacovangelo Pg. 246: even if you are missing your defense based off of lack of personal jurisdiction in your initial answer, as long as you amend it before trial you are alright.
As long as it doesn’t prejudice the plaintiff (day before) then its fine. General principle that we want to decide cases on merits over procedure.
This is probably specific to NY
Gager Pg. 249:Rush v Savchuk is only applied when a specific objection to jurisdiction is made. That means you are allowed to attach someone’s insurance policy in NY. When you get into an accident with them outside of NY and they are a non-NY resident to get quasi in rem.
So defendants now will want to raise an objection to PJ, they will win, and they will only be held there quasi in rem which means they can only lose the property attached.
If you just show up and don’t waive then you are fucked.
Policy point: in NY since you can only win what you attach – this may influence your forum choice. You may want to sue in a state where you can attach more assets if you're after mo' money.
Textile Technology Pg. 253: waive your jurisdictional defense if your counterclaim is unrelated to the original claim. At that point you are seeking relief from the court and waiving your jurisdictional defense. Otherwise you would have simply been making arguments that you did not want to be precluded from making later.
Retrospective:
We have seen a number of ways in which the defendant can object to plaintiff’s choice of forum. To recap, they are: move to change venue (CPLR 510-511); move to dismiss because the forum is inconvenient (CPLR 327); seek removal to a different court within the state system (CPLR 325); move to dismiss for a lack of smj (3211a2); and as seen in this chapter move to dismiss for lack of jurisdiction over person or property 3211a8,9.
LIMITATIONS OF TIME
Statues of Limitations
In general:
CPLR 201:
Actions must be brought within the SOL
From time action accrues to the time the action is interposed (filing with the clerk)
The applicable Period:
Tort and Contract:
See page 23 of "yellow book"
CPLR 213(2):
CPLR214(4),(5),(6):
CPLR214(d):
Chase Pg. 269: are insurance brokers “professionals” as is meant by malpractice in 214(6)? No they are not professionals so it does not apply.
Professional contains qualities including extensive formal learning and training, licensure and regulation indicating a qualification to practice, a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards. Additionally, a professional relationship is one of trust and confidence , carrying with it duties to counsel clients.
Need to know what a professional is as per the rule.
Cubito Pg275: General rule: Accrual of the statute of limitation starts once the injury occurs. Not when the work is complete. “If we are going to depart from this rule we think that it should be accomplished by the legislature, just as the legislature has acted on behalf of the medical profession.
Even if the statute of limitations has run on the injured party to the architect, it is not run on the owner against the architect if it’s an indemnification action and a judgment has been rendered against the owner in favor of the injured party.
You don’t use the malpractice one because there is no client and no professional relationship between the plaintiff and defendant.
Intentional torts
CPLR 213(b): Crime victims , refer to rule – generally 7 years
CPLR 213 (c): Sexual Assault Victims 0
CPLR 215(3),(8): The following actions shall b commenced within one year: see rule. For 8 you have a year post the end of the criminal action.
Products liability:
UCC 2-725: an action for breach of any contract for sale must be commenced within four years after the cause of actions accrual. By agreement you can limit to no less than 1 year.
For breach of contract and sale of goods we use UCC not CPLR.
CPLR 214-c: exposure is calculated by the date of discovery not the date of exposure
CPLR 214-d: architects
CPLR 214-e: HIV
Victorson Pg. 280: the period of limitation with respect to strict products liability claims begins to run at the date of the injury and that the duration of such period is found is CPLR 214(4,5).
Blanco Pg. 285: Claims for repetitive stress injuries are now being seen by insurance carriers with increased regularity. RSI can be defined as an injury to the musco skeletal tissues from repeated motions and exertions. Carpal tunnel syndrome is the best known. Use of keyboard working, at what point in time does an RSI claim trigger the applicable insurance policy.
One approach suggests that the court apply an exposure trigger of coverage as RSI claims are similar to toxic tort claims in that the injury is caused by a prolonged exposure to a particular condition.
The approach to RSI is that a manifestation theory should be adopted. If manifestation is not reasonably determinable the date of last use of the injury producing device.
Malpractice:
CPLR 214(6): Malpractice is three years if not medical, dental or podiatric
CPLR 214-a: Action for medical, dental or podiatric malpractice should be with 2 years and six months unless discovery of a foreign object in the body which is one year after the date of discovery. If in the case of continuous treatment count from the day of last treatment (not check-ups)
Goldsmith: when a prosthetic device malfunctions, does a cause of action for medical malpractice accrue upon implantation of the prosthetic device or upon injury? Implantation!
Only two exceptions for a doctor’s malpractice which were not met (continuous treatment after the malpractice, and if a doctor leaves a foreign objection)
P. argues doctor should still be in the case because of Martin’s third exception for products; but that’s when there’s a products liability claim and not a med mal case, so there is no third exception.
Nyorchuck Pg. 303: this action arises out of defendant doctor’s alleged failure to properly diagnose and monitor a lump in plaintiffs breast the question is whether this suit, which was commenced more than eight years after the lump was first brought to defendant’s attention and more than four years after plaintiffs last appointment with defendant in connection with another medical condition is barred by the 2.5 years stat of lim in 214a?
P. argues that he gets the benefit of the continuous treatment doctrine. Which, when applicable, toggles the running state of lim till the end of the treatment.
Court says the patient never underwent any treatment for breast cancer the facts say that he complained and did a bunch of stuff, and really late eventually he referred her to an oncologist, but did nothing in-between, that’s not really treatment.
They define treatment more like: “continuous treatment must be for the same illness, injury which gave rise to the act or omission, there is no connection here”
Dissent: “where the physical and patient reasonably intent the patient’s uninterrupted reliance on the physicians observations, directions, concern, and responsibility for overseeing the patients progress, the requirement of the continuous treatment doctrine are satisfied.
ANGRY ALI IS ANGRY
McCoy v. Feinman: lawyers fucked up, didn’t secure her survivor benefits from her husband in insurance policy. She sues. Stat of limit starts running from the moment the divorce judgment was entered.
P wants to extent the representation through continuous doctrine until they closed the file much later.
Continuous representation only applies when there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.
Times runs from when the judgment was entered doesn't matter that the file wasn't closed
Note p.314: In a misdrafted stipulation of settlement for a divorce the clock starts when it's filed with the court. P didn't notice until after death of husband, but that is irrelevant.
Latent harms:
Latent harms are taken care of in 214 c, these are latent harms that are the result of products, if the result of professionals we use 214
Conditions Precedent
General: Note p.368 some limitations of time are not true statutes of limitations but are conditions precedent. This is because they must be satisfied before a valid action can begin. Sometimes the act is just commencement of an action. They can have origin in statue or contract. Conditions precedent are not subject to tolls or suspensions.
Yonkers: plaintiff sues port authority; action is dismissed for not being filed within the time constraints for commencement of suits against port authority. Issue on appeal is whether section 7107 of McKinney’s uconn’s laws, which states that the filing req for suits against PA may be overcome pursuant to CPLR 205(a) because the action was commenced “within six months of the final dismissal of a previous action involving the identical claim”
The normal 1 year req and the 6 months following the final dismissal of an identical claim are two separate conditions. AND ONE DOES NOT EXTEND THE OTHER.
Right of action is created by the law once a condition is met – that's what a condition precedent is. ASK: Would you have the right of action without meeting this condition?
Notes 371-374. Gen Mun Law 50-e; 50-i: Most common condition precedent:
NEW YORK POT HOLE LAW: condition precedent to a condition precedent. If you want to sue city for a pothole, or street maintenance in general you need to show that the defect was reported the city prior to the accident (by somebody)…city says we want individual. Court says you have to accept the map of all of them. Court: little squiggle on map is effective notice.
CLASS ACTIONS AND THE INTERPLAY BETWEEN STATE AND FED PRACTICE
Certification:
CPLR 901-903:
901: Prerequisites to a class action: 4 conditions
902: Class actions must be "certified" but we don't call it that in NY
CPLR 906: Allows for classes to be maintained or subdivided
Weinberg Pg. 415: class action against hertz for their refueling charges. Originally was dismissed as a class action because it didn’t meet the superiority element of certification. Special term ruled that “economic impracticability renders this proposed class action an inferior form of adjudication”. It would cost more to figure out the exact class size and amount of each class member than this is worth.
That’s bullshit. They have that technology already. In another action against hertz much smaller amount was consolidated into a class so it's no hardship to figure it out.
It’s not only the superior method of action it’s the only one.
Notice:
CPLR 904: Notice of class action (see rule)
Notice can happen however the court deems ok
P is responsible for cost of notice unless the court determines that justice wants to shift it
Notes 423-424: FRCP requires “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort”, whereas CPLR 904b mandates that “reasonable notice of the commencement of a class action shall be given to the class in such manner as the court directs”. 904d also lets the opponent bear the cost of notice. The USSC has suggested that when the class has been adequately represented that’s enough to bind its members, even if they don’t even know about it..
Conduct, settlement and judgment:
CPLR 907-: Court makes the rulse
CPLR 908: Can't dismiss class action without court approval (we assume this also means settlements also must be approved)
CPLR 909: Attorney's fees can be given to the winner
Woodrow P. 424: Does a Missouri corp with no ties to NY, have a due process constitutional right to opt out of a NY class action in which the relief sought in the complaint was largely equitable in nature. We hold today that when a class action complaint demands predominantly equitable relief that will necessarily benefit the class as a whole if granted, the trial judge is not required to give each class member the opportunity to opt out of the class. We also hold, however, the under the governing principle as applied to the faces of this case, the trial judge erred in approving a settlement agreement insofar as it purported to extinguish the respondents right to pursue a case of action in damages.
If the equitable relief is binding certain parties from pursuing damages and individual rights of action then they need to allow people to opt out.
We hold that the trial court did err as a matter of law by seeking to bind an absent plaintiff with no ties to NY state to a settlement that purported to extinguish its right to bring an action in damages in another jurisdiction.
Klein Pg. 433: On this appeal we are presented with a challenge to the certification of a nationwide, settlement-only class action involving, inter alia, claims of fraud and the violations of section 349 and 350 of the general business law.
Even when a class is certified only for settlement we still need to meet the requirements…indeed they “demand undiluted and even heightened attention”
Trial courts must act as the protector of the right of the absent class members since they will not directly participate in the action, this includes determining whether any settlement is “fair, reasonable and adequate
Because the court stands in for a jury the court has a hire responsibility to absent parties in cases that go to settlement
SPECIAL PARTIES
The poor:
CPLR 1101: (see rule) allows for adjustments in filing fees and other costly issues when you are a poor person
A: Court can grant right to proceed as a "poor person" upon motion
B: Attorney has to certify the "po'person" motion
C: other parties will be notified of "po'person" motion
D: waiver of filing fee
E: No "po'person" motion when represented by legal aid or a non profit
Smiley: the issue on this appeal is whether an indigent plaintiff wife in a divorce action and an indigent defendant wife in a similar action are entitled as a matter of constitutional right to have the county provide tem wit counsel or compensate counsel retained by them.
For private civil matters there is no absolute right to counsel; whether in a particular case counsel shall be assigned lies instead in the direction of the court.
The court does not have the power to decide this
Policy of increased litigation if we start providing for this
It would be unfair to the bar if we told them someone must do it uncompensated
Dissent:
The state holds the exclusive right to dissolve marriages so they must provide. They held in Boddie that they must get rid of filing fee and stuff in matrimonial litigation because otherwise people who are poor will be denied the right to divorce.
Not entitled to in private civil! Possibility of increase legal costs and you can go to a non profit.
Turner v. Rogers BB: Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his or her incarceration?
the year-long incarceration of a South Carolina man for failure to pay child support violated the Constitution because adequate safeguards had not been in place to ensure that his failure to pay was willful.
the Court also ruled that indigent parents did not have a categorical right to a court-appointed defense attorney in hearings to enforce child support orders when the party on the other side is unrepresented.
No categorical right to counsel in civil actions
Mandatory Pro Bono (SG 194-204):
Policy Question?
NYR 6.1: Every Lawyer should aspire to provide at least 20 hours of pro bono legal services, contribute financially to orgs that provide for poor persons. But the rule is not to be upheld with disciplinary procedures and there's no legal consequence.
Infants incompetents and conservatees:
CPLR 1201: infants will be represented by guardian or guardian substitute
CPLR 1202: must move if you want a guardian ad litem
CPLR 1203: cannot enter a judgment by default against an infant (or incompetent) unless representation made appearance
CPLR 1206: property awarded to an infant goes to the guardian to be held for the infant (special rule for spouses). Court can rule it goes into a trust
CPLR 1207: Can't settle without the court's leave through motion
Barone: In compliance with the court’s duty protect a person who was apparently incapable of handling her affairs at the time of their service of the summons and complaint and entry of default judgment, the order should be reversed and the motion to vacate the judgment should be granted, without prejudice to plaintiff proceeding in a manner consistent with this opinion.
When a creditor becomes aware the his alleged debtor is or apparently incapable of protecting his own legal interests it is incumbent upon him to advise the court thereof so that the court may make suitable inquiry and in its discretion appoint a person to receive service of a copy of the summons.
DUTY! (other side: to inform/court: to protect)
NYR1.14: Client with Diminished Capacity
Must maintain conventional relationship as far as "reasonably possible"
May take protection action when there's a risk of physical, financial or other harm.
Allows for a loosening or confidentiality within limits
