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New York Practice
Spring 2012
Professor Cary Stewart Sklaren
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TOPIC 1
Introduction to New York Practice
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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
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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 assumpsitcharged, 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 atthe 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.
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Interrelationships Exist Among
CPLR;
Statutes dealing with procedure;
State-wide court rules (NYCRR);
Local court rules;
Judges individual rules.
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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.)
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Field Code (1848)
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Lawrence Friedman on the Field Code
in History of American Law(1/2)
It was couched in brief, gnomicNapoleonic sections, tightly worded and
skeletal. No trace of the elaborate redundancy,
the voluptuous heaping on of
synonyms, so characteristic of Anglo-American statutes.
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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 dikesof common law.
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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 privatewrongs, which shall be denominated a civil
action.
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CPLR 103(a) (2012)
Form of civil judicial proceedings.
One form of action. There is only
one form of civil action. Thedistinctions between actions at law
and suits in equity, and the forms of
those actions and suits, have beenabolished.
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Field Code 62 CPLR 103(a)
The distinction
between actions at
law and suits in
equity, and theforms of all such
actions and suits
heretofore existingare abolished;
The distinctions
between actions at
law and suits in
equity, and theforms of those
actions and suits,
have beenabolished.
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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)
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The CPLR is the Basic Procedural
Law of New York
The CPLR embodies both:
Due process, and
Fundamental fairness.
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Underpinnings of New York
Procedural Law (1/5)
U.S. Constitution
Judiciary Article
(Article 3)
New York State Constitution
Judiciary Article(Article 6)
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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.
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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.
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Underpinnings of New York
Procedural Law (4/5)
Numerous other statutes (e.g.)
Vehicle and Traffic Law
General Obligations LawBusiness Corporation Law
Uniform Commercial Code
Estates, Powers and Trusts LawGeneral Construction Law
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Underpinnings of New York
Procedural Law (5/5)
Court Acts;
CPLR;
Court Rules (New York Court
Rules And Regulations or
NYCRR);
Judges Rules.
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New York Court Acts
Court of Claims
Act
Family Court Act Surrogates Court
Procedure Act
New York CityCivil Court Act
Uniform District
Courts Act
Uniform CityCourts Act
Uniform Justice
Court Act
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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.
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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
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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).
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CPLR 101(b)
The CPLR shall govern theprocedure in civil judicial
proceedings in all courts of thestate and before all judges,except where the procedure is
regulated by inconsistentstatute. [Statutes trump CPLR.]
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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).
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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).
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CPLR 104
CPLR shall be liberally
construed to secure the just,
speedy and inexpensivedetermination of every civil
judicial proceeding.[Liberally construed + CPLR = 1779 cites]
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CPLR 105(b)
Action and Special Proceeding
Action includes special proceeding;
Plaintiff and defendant includepetitioner and respondent in a
special proceeding;
Summons and complaint includenotice of petition and petition.
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CPLR 105 (h)
A domestic corporation is one
created by or under the laws of the
state or a corporation located inthe state and created by or under
the laws of the United States.
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CPLR 105(h)
Definition of Foreign
Corporation:
Any corporation that is not a
Domestic Corporation.
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CPLR 105(j)
The word infant, as used inthis chapter, means a person
who has not attained the age ofeighteen years. The wordinfancy means the state of
being an infant.
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CPLR 105(k)
Judgment. The word
judgment means a final or
interlocutory judgment.
Note Spelling: One E.
Not Judgement
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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.
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CPLR 105(u)
A verified pleading may be
utilized as an affidavit whenever
the latter is required.
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Mistakes
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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 anaction,
38
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CPLR 2001 (as amended) (2/3)
the court may permit a mistake,omission, defect or irregularity,
including the failure to purchaseor acquire an index number orother mistake in the filing
process, to be corrected, uponsuch terms as may be just,
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CPLR 2001 (as amended) (3/3)
or, if a substantial right of aparty is not prejudiced, the
mistake, omission, defect orirregularity shall bedisregarded, provided that
any applicable fees shall bepaid.
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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...non-prejudicial defects in
commencement . . . regardless of
whether the defendant objected ina timely and proper manner."
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Examples, Excusable Mistakes (1/10)
Mistakes in filing initial processFailure to pay index number fee*;
Failure to obtain an index number*;
Some technical aspects of service ofprocess 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 withinthe time specified in CPLR 308(4) is nota jurisdictional defect but, rather, is a
procedural irregularity that may becured by an order permitting the latefiling of proof of service nunc pro tunc.
Discover Bank v. Eschwege, 71 A.D.3d1413, (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 requiringdismissal 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 out-
of-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 thestate. An oath or affirmation taken without thestate shall be treated as if taken within the stateif it is accompanied by such certificate orcertificates as would be required to entitle adeed acknowledged without the state to berecorded within the state if such deed had beenacknowledged before the officer whoadministered the oath or affirmation.
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Example, Excusable Mistakes (6/10)
Argument that out-of-state affidavits wereinvalid for lack of the certification requiredby CPLR 2309(c) and Real Prop. L 299-anot preserved. Courts not rigid about thisrequirement. If oath is given, authenticationof authority can be secured later and givennunc pro tunc effect.
Matapos Technology Ltd. v. CompaniaAndina de Commercio, Ltda., 68 A.D.2d 672(1st Dept 2010).
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Example, Excusable Mistakes (7/10)
Court may disregard the failure of a
notary to sign thejuratof an
experts affidavit. Carter v. Grenadier Realty, 83
A.D.3d 640 (2d Dept 2011).
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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).
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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).
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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 Dept2011).
E ti t CPLR 2001
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Exceptions to CPLR 2001
FATAL ERRORS
No Jurisdiction
Personal
Subject Matter
Statute of Limitations (but CPLR 203(e)
and 205)
Filing Notice of Appeal
G ld b h C l h
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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.
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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.
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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.
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Extensions of Time, CPLR 2004
terms as may be just AND
good cause shown.
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Exceptions to CPLR 2004
Extension of time prohibited byanother law:
CPLR 201 (statute of limitations)
CPLR 5514(c) (time to appeal)
CPLR 7503(c) (time to stay
arbitration)