New York Practice

Two district courts in NY State: cover Nassau County and Western Suffolk County.

Misdemeanor jurisdiction and civil money claims and replevin claims, up to $15,000.

**The monetary jurisdiction is $15,000

In district courts, and the city courts outside of NYC, where the plaintiffs money claim is $6,000 or less, or in NYC civil court where the plaintiffs claim is $10,000 or less, the claim will be send for mandatory nonbinding arbitration, where the arbitrators award is subject to a de novo review by a trial court.

There are 61 City Courts outside NYC, governed by the City Court Act (CCA).

Monetary limitation of $15,000, but no limitation on counterclaims or landlord/tenant claims seeking past due rent.

There is long-arm jurisdiction (under CCA 404) for process served outside of the city.

Must be a resident of the city or (except in Nassau or Westchester Counties) can also be a resident of an adjoining county.

There are no City Court in NYC

Appeals are taken to the county court, except in the 2nd Department, where appeals are taken to the appellate term of the Supreme Court.

Governed by the NYC Civil Court Act

There is a monetary limitation of $25,000.

Appeals from these courts are taken to the appellate term of the Supreme Court

Service of process must be made within NYC, except it can be made outside of the city:

1. on a long-arm defendant (CPLR 404);

2. to implead an additional defendant into the lawsuit (CPLR 408)

3. counterclaims or crossclaims;

4. to being in a necessary party into the lawsuit (CPLR 1001 and CPLR 3211(a)(10)); or

5. a defendant who is a NY State domicile, who is a resident of NYC

CPLR 3001 - ordinarily the NY Supreme Court has exclusive SMJ over declaratory judgment actions, however the NYC Civil Courts have SMJ for declaratory judgement actions that do not exceed $25,000 for:

1. to confirm an arbitration award of an attorney/client fee dispute; or

2. indemnification claims against liability insurance companies

In the District Court, NYC Civil Court, and the City Courts outside of NYC, service of process is generally limited to the county where the court is sitting (CPLR 403). However, there can be long-arm jurisdiction.

Lower Courts have long-arm jurisdiction to serve the defendant outside the courts jurisdiction if the claim involves:

1. the defendant trans-acting business within the city or the district;

2. the defendant's tortous conduct within the courts jurisdiction; or

3. the plaintiffs claims of the defendants ownership or use of real property within the jurisdiction.

Do NOT give jurisdiction where the defendants tortous conduct occurred outside the state, causing injury within the courts jurisdiction.

Located in every county outside of NYC.

Have no uniform court act, but it does have small claims court jurisdiction

Monetary limitation of $25,000, but unlimited jurisdiction on counterclaims, and landlord/tenant disputes.

Can also hear crimes that are felonies.

No long-arm jurisdiction - its civil jurisdiction is limited to claims against defendants who are:

1. residents of that county; or

2. maintain an office in that county

and the plaintiffs claim (1 and 2 above) must have arisen in that county.

Can hear real property actions and proceedings regardless of the monetary amount.

Appeals from the county court in the 3rd and 4th Departments are heard by the appellate division, but in the 2nd Department, appeals from the county court go to the appellate terms.

There are NO county courts in the 1st Department

Each of the NY Counties have a Supreme Court, which is a court of original unlimited jurisdiction.

The Supreme Court has concurrent jurisdiction with every other court in the state, except for the Court of Claims where the state of NY is sued for money damages (the Court of Claims has exclusive SMJ to hear those claims).

Supreme Court also lacks SMJ to hear and CPLR Article 78 proceeding against a Supreme Court or County Court judge.

The court can dismiss the action, or, under CPLR 325, the court can move the claim up or down to the proper court.

When a court removes the action without the consent of both parties, and the court recognizes that the plaintiff would not recover the amount sent forth in the plaintiffs complaint, then the higher court (Supreme or County Court) can remove the action to a lower court, and that lower court then has its jurisdiction increased to the amount o the transferring court.

These courts only exits in the 1st and 2nd Departments. They hear appeals for NYC civil courts and in the 2nd Department, they hear appeals from the district courts (Nassau and western Suffolk only), city courts, village courts, and county courts in the 2nd Department (no county courts in NYC)

Governed by the Court of Claims Act.

Less than 5% of the claims result in money awards (95% of the claims are dismissed).

The vast majority of the claims are brought by prisoners against the State of NY

All money actions against the state of NY must be commenced in the Court of Claims.

There are no jury trials.

The judges in the Court of Claims are appointed by the governor, but 3/4 of the judges never hear Court of Claims cases because they are designated as acting Supreme Court judges.

Appeals from the court of claims are taken to the Appellate Division

A notice of intent to sue the state must be filed with the clerk of the Court of Claims AND properly served on the NY State Attorney General within 6 months for a breach of contract action or within 90 days on a tort claim.

The Court of Claims SOL is 2 years for negligence, wrongful death, or breach of contract claims and 1 year for intentional torts.

The requirements for service of process and filing are strictly construed by NY courts, therefore the Attorney General must be personally served or certifies mail RR must be used within the proscribed time period.

NY Courts have dismiss plaintiffs claims that have been served by registered mail RRR, regular mail, express mail, as well as where the claim or notice of intent to sue was not verified under oath.

Governed by Surrogate Court Procedures Act (SCPA)

Exists in each county in NY.

It has SMJ involving a decedents affairs, however, if the decedent has a personal injury claim or a wrongful death claim, then the estates representative must commence these claims in the Supreme Court.

Also has SMJ over inter vivos trusts and issues involving incompetence.

It has concurrent jurisdiction with the family court on adoption, paterniy, or child visitation.

Governed by the Family Court Act.

Has SMJ over family court matters (ex. juvenile delinquents, PINS (persons in need of supervision), child custody, child support, guardianships, neglect proceeding, or maintenance (alimony), but lacks SMJ to hear matrimonial actions under CPLR 105(p).

If a matrimonial action is pending in the Supreme Court, then the Family Court lacks the SMJ to award child support or maintenance, unless it was referred to the Family Court by the Supreme Court.

Family Court lacks equitable jurisdiction, thus is cannot modify or rescind a separate agreement, a prenuptial agreement, or a nuptial agreement.

Broken into four (4) separate judicial departments, and each department has an appellate division.

1st Department = Manhattan and Bronx Counties

2nd Department = Brooklyn, Staten Island, Queens, Nassau, Suffolk, Westchester, Orange, Dutchess and Rockland Counties.

3rd Department = covers the area upstate from Albany to Ithaca (95% of the opinions are unanimous)

4 Department = Rochester, Buffalo, and Syracuse

The Appellate Division has jurisdiction to hear both questions of law and questions of fact and most appeals are taken to the appellate division "as a right".

Where two appellate divisions dissent on a matter of the, this permits an automatic appeal to be taken to the court of appeals.

NY trial court must follow an appellate division precedent from any department in the state until its own appellate division decides otherwise.

Where there was an earlier appeal from the lower court (ex. to the appellate term or upstate and appeal to the county court) he parties second appeal to the appellate division is the final word on that case unless permission from the appellate division is given to appeal to the Court of Appeals (which would be the third appeal of that issue)

Most cases for the court of appeals are only by cert, and less than 7% of the cases are granted cert. Permissions to take an appeal to the Court of Appeals can be requested from two judges on the court of appeals, or three judges of the appellate division.

The appellant can get two bites at the apple by first requesting permission from the Appellate Division and if unsuccessful, then seeking permission from the Court of Appeals. However, if an appellant goes straight to the Court of Appeals and is unsuccessful, she is precluded from seeking permission from the Appellate Division.

Appeals "as a right" to the Court of Appeals can only be taken from final orders or judgments involving:

1. a construction of the NY State or Federal Constitutions; or

2. if there were two (2) dissents in the appellate division on a question of law, where that issue would terminate the litigation (ex. an issue involving the SOL or in a motion for summary judgment)

Generally, the Court of Appeals hears only questions of law, except:

a. in defamation cases on the issue of "actual malice" and other factual issues;

b. where the appellate division modified or reversed a judgment, by making new findings of fact and basing its decision on new facts; or

c. appeals from the judicial conduct commission

When a party commences a lawsuit and enlists the state or federal court in recover money of property from a defendant, then "state action" is involved requires that the dues process clause of the US Constitution be satisfied.

Before a state or federal court can assist the plaintiff in taking away a defendants property, money, or liberty (contempt of court) the procedure must afford that defendant due process of law. The process is due (fair) if it satisfies MOP

"M" - MINIMUM CONTACTS with the state of NY.

"O" - OPPORTUNITY for the defendant to be heard.

"P" - The defendant must have been properly served with PROCESS

Perfect service of process will not give NY courts over a non-domiciliary who is served outside the state of NY. To satisfy due process, there must exist an adequate connection between the defendant, the plaintiffs claim, and the state of NY

The question is not whether the defendant is actually present in NY, but whether the quality and nature of the defendants contacts with NY are sufficient so that the exercise of jurisdiction by a NY court "does not offend traditional notions of fair play and substantial justice"

The court will consider whether is it fair to subject the out of state defendant to a lawsuit in NY that defendant must have some "contact" with NY, so that defendant should anticipate being sued in a NY court.

If the defendant has no minimum contacts with NY, usually the defendant is a non-domicile and the claim arose outside of NY state ("State X").

A proceeding where both parties appear is always fairer than a one-sided hearing. A defendant has 30 days from when "service is complete" to appear in a NY action to avoid a default judgment. But a defendant has only 20 days to appear where a defendant:

1. is served personally within the state of NY (CPLR 3012(c) & CPLR 320(a)); or

2. consents to service by mail (CPLR 312-a)

If any one of the MOP elements is deficient, then the court lacks valid procedural jurisdiction and if that defendant timely raises the jurisdiction defense, the court "shall" dismiss the plaintiffs action. If the defendant does not appeal in the action (within 20 or 30 days) and the plaintiff takes a default judgment, then the judgment is a nullity because it violates the due process clause (MOP)

1. Do nothing (do not appear in the action) and the plaintiff will probably enter a default judgment, but that judgment an be subsequently set aside by the court at anytime (CPLR 1515(a)(1)) and the motion to vacate a default judgment will not require the defendant to establish REAM, showing the court the defendant has a meritorious defense to the plaintiffs claim;

2. The defendant can make a motion to dismiss before serving an answer (CPLR 3211(a)(8) or 3211(a)(9)); or

3. If the defendant did not make a pre-answer 3211(a) motion on any of the eleven (11) grounds in 3211(a), then the defendant can assert the MOP objection in the defendants answer as an affirmative defense. However, if the MOP objection is the improper service of process, then after the answer has been served, the defendant must make a motion for summary judgment within 60 days of serving the answer, otherwise this jurisdiction is waived (CPLR 3211(e)).

Reasonable Excuse and an Affidavit of Merit

A judgment obtained outside NY ("State X") that violated due process (MOP) is not entitled to full faith and credit, and the defendant can collaterally challenge that in NY, based on MOP when that judgment is brought into NY to be enforced. However, if the defendant appeared in the state action and either did not raise the MOP issue (she waived her due process right) or she unsuccessfully raise the MOP issue, even is the "State X" court was incorrect in its decision, the decision is now entitled to full faith and credit in NY and cannot be collaterally attacked in NY based on MOP.

When a court dismisses an action for lack of jurisdiction (MOP) the dismissal is not on the merits (it is not res judicata) thus the plaintiff can recommence the same action the following day, provided the SOL has not expired in the interim.

The US Supreme Court has divided personal jurisdiction into two types:

1. general, all-purpose, jurisdiction, which arises by a defendants continuous ans systematic activity within that state. (ex. a domicile of the state, or a corporation doing business in the state, that is the defendant was "at home" in that state where the law suit commenced). General jurisdiction allos the court to hear ANY claim against that defendant.

2. specific jurisdiction, which arises where a non-domicile has engaged in a single act or occasional acts in the state, and where the plaintiffs claim arose out of that act (ex. CPLR 302 long-arm jurisdiction).

For a court to obtain personal jurisdiction over a NY defendant, that defendant must have some minimum contact with NY. DIAL DC.