Barbri New York Practice

Front 1

When does SOL begin to run, generally?

Back 1

From the date of injury or breach, not the date of discovery

Front 2

What are the exceptions to the "date of injury" SOL rule when the date of discovery applies?

Back 2

Foreign object in medical malpractice
Fraud
Toxic substance exposure

Front 3

What plaintiff statuses will toll SOL?

Back 3

Infancy
Insanity
Death

Front 4

What Defendant statuses will toll SOL?

Back 4

* Death
* Absence (never in NY, or gone for 4 months and no way to serve in NY)
[One of the NY essay questions seemed to indicate that if you could get someone under Long Arm or similar methods, SOL didn't toll]

Front 5

What medical status will toll SOL?

Back 5

Continuous treatment by a professional (will toll malpractice from date of injury)

Front 6

If you bring a suit within SOL that is dismissed are you shit out of luck? Are there exceptions?

Back 6

No, you get a 6 month grace period to recommence the action.

Exceptions:
dismissal on merits
voluntary dismissal
Pl's general pattern of delay
lack of personal jurisdiction

NOT lack of diversity.

Front 7

What types of actions (subject matter) does NY Supreme Court have jurisdiction over?

Back 7

All. Supreme may not mean much in this state, but it means something.

Front 8

6 bases of personal jurisdiction in NY

Back 8

1) physically present in NY when served
2) doing business in NY
3) domicile in NY
4) long arm statute
5) driver or owner of vehicle in NY
6) consent

Front 9

What are the factors that make good personal jurisdiction under the NY Long Arm statute?

Back 9

Transaction of business in NY
K for good or services in NY
Tortious act in NY
Tort injury + other connection in NY
Real estate in NY

Front 10

Types of process service in NY (6)

Back 10

1) Personal service
2) leave-and-mail
3) Nail-and-mail
4) Expedient service via court order
5) Designated process agent
6) 1st class mail, and Def returns acknowledgment form

Front 11

3 types of corporate process service in NY?

Back 11

* Serve on NY Sec of State (2 copies if NY corp or licensed in NY; 1 copy + mail 1 to corp if unlicensed non-NYcorp)
* 1st class mail, & Def returns acknowledgment form
* Expedient service via court order

Front 12

How does age affect process service?

Back 12

Must be served by 18 year old. If D under 14, served on adult. Id D is <18 and >14 copy to adult and D.

Front 13

Factors for good process served outside of NY

Back 13

* use proper NY method
* server must have been 18+, or valid under state where served, or attorney licensed in state.

Front 14

What LSAT score do you need for St. John's Law School if you got magna from Yale undergrad?

Back 14

-1

Front 15

Can you have a court with subject matter jurisdiction if neither party is a NY resident and the cause of action has nothing to do with NY?

Back 15

Yes. That's a personal jurisdiction problem.

Front 16

What is forum non conveniens?

Back 16

Court can, in its own discretion, dismiss the case when the action lacks any substantial nexus with NY.

*Def must so move.

Front 17

What are the two exceptions to NY Supreme Court subject matter jurisdiction?

Back 17

*Exclusive Federal jurisdiction via Federal statute (copyright, bankruptcy)
* Suit against NY State

Front 18

Where must you bring a suit against NY State?

Back 18

NY Court of Claims

Front 19

Can you join another defendant in a Court of Claims suit.

Back 19

Nope. 1 defendant in this court: NYS.

Front 20

NY Supreme Court has exclusive subject matter jurisdiction over what kinds of actions?

Back 20

Matrimonial
CPLR Article 78 (judicial reivew of state admin action)
Declaratory judgment actions

Front 21

What is the SOL for Contract actions?

Back 21

6 years from breach

Front 22

What is the SOL for Personal Injury or Property actions?

Back 22

3 years from impact

Front 23

To satisfy SOL, the action must be commenced by what day?

Back 23

On or before the last day of the SOL.

Front 24

What is "commencing" the action (for SOL and other purposes)?

Back 24

Filing summons and complaint, or summons with notice, with the Clerk of the court.

Front 25

1) How do you compute SOL (and other time periods in CPLR)? 2) When must you file a negligence action for a car wreck on June 1, 2006?

Back 25

*From the day AFTER the triggering event.

*June 1, 2009.

Front 26

What if the last day of the period to do a procedure is on a weekend or holiday?

Back 26

Wait till Monday. Friday is not a weekend. And Thursday is the new Saturday only for drinking.

Front 27

What's the SOL for Medical Malpractice?

Back 27

2 1/2 years from the date of the malpractice

* unless continuous treatment for the same condition

Front 28

What is the SOL for foreign objects during medical malpractice?

Back 28

2 1/2 from date of malpractice or 1 year from discovery (or reasonable "should have" discovered, whichever is later.

*Now we know where James's watch went. Still set to Havana time.

Front 29

Name four non-doctor learned professions and one non-learned one.

Back 29

Learned: lawyer, architect, engineer, accountant (accountant?)

non-learned: CPR School, finance douchebag

Front 30

What is the procedure when a building is over 10 years old, but you want to sue the engineer or architect?

Back 30

Service notice of claim 90 days before suit.
* You can get discovery then
* Def can move for Summary judgment for you to show "substantial basis" for suit.

Front 31

What is the SOL for Breach of Warranty for the sale of goods (UCC)?

Back 31

4 years from date Def makes delivery. All other products liability is 3 years, like everyone else.

Front 32

What is SOL for contribution or indemnity claims?

Back 32

6 years.

Front 33

What is the SOL for Toxic Substances suits?

Back 33

3 years from discover (for when you reasonably should have discovered it).

Front 34

When Pl is no longer Legally Disabled, how long left on SOL?

Back 34

Time remaining on claim or 3 years, whichever is more

*SOL was less, then you get that lesser amount.

* Cap of 10 years.

Front 35

What is the SOL on a wrongful death claim?

Back 35

2 years from death.

* Must show that dead guy's personal injury claim would have been timely.

Front 36

What is the SOL on a survival claim?

Back 36

whatever time remains on dead guy's SOL or 1 year (whichever is longer)

Front 37

What is SOL toll if Def dies

Back 37

18 months

Front 38

What if another potential forum state has a shorter SOL but suit is brought here?

Back 38

New Yorkers get our longer SOL

If the Pl is not a NY-er, then we'll use that one, thanks. No forum-shopping here, Bub.

(Unless you like our liberal juries and our high cost of litigation.)

Front 39

After filing process with the clerk, what's next, and how long do you have?

Back 39

Serving process on Def. 120 days.

(court can extend on ex parte motion)

Front 40

What the difference between a summons and complaint and summons with notice?

Back 40

Summons and complaint has the whole pleading attached.

Summons and notice is a really short summary of complaint.

Front 41

What must notice in a summons with notice contain?

Back 41

* Brief statement of the nature of the action (cause of action)
* type of relief sought
* amount of damage

Front 42

What happens if you file a naked summons

Back 42

Def can dismiss, if they move in time

Front 43

What days can't you serve?

Back 43

Sunday

Or Saturday if you know they observe it.

(i.e., the sabbath, with a rebuttable presumption of Christianity)

Front 44

What is personal service of process?

Back 44

Hand it to them, or general vicinity if they are dicks about it.

Front 45

What is leave and mail service of process?

Back 45

One copy to person of suitable age and descretion at actual dwelling or actual business PLUS mail copy to actual business or last known address.

Front 46

Roomates can share copy of service?

Back 46

Nope.

Front 47

What is nail and mail?

Back 47

Affixing process to Def's door (actual dwelling) or (actual) business

PLUS mail to last known residence or actual business.

If you have already tried (w/ due diligence) to do personal service & leave and mail.

Front 48

What is due diligence for service?

Back 48

Try to serve on different days at different times.

Front 49

What happens after leave and mail or nail and mail?

Back 49

Server must file affidavit (proof of service) -- service is good 10 days after affidavit is filed

Front 50

What is expedient service of process?

Back 50

Court order when the other method don;t work. Something that will work (service on someone else, email, newspaper)

Front 51

How can you serve infants and tarts?

Back 51

Spouse (live-in)
parent
guardian
person w/ legal custody

(If infant over 14, they get a copy, too)

Front 52

Who is a valid corporate rep for process serving?

Back 52

Officer
Director
designated agent
managing agent (any supervisor)

Front 53

What happens if Def does not return an acknowledgment form with mailed service?

Back 53

You have to try again, but Def pays for it.

(Can't use on kids or tarts)