New York Practice

Where an unlicensed foreign corporation that has any DIAL DC minimum contacts with NY, then service can be made on the NY secretary of state by serving one copy of process on the secretary of state in Albany (the secretary of state holds process and does not mail it to the defendant) and then then plaintiff either delivers personally a copy of process to the foreign corporation, or mails a copy to that corporation registered mail RRR. Proof of service must be filed with the clerk of the court within 30 days and service on the defendant is complete 10 days after filing (which starts the defendant's time to answer). Failure to file with the clerk of the court within 30 days is a jurisdictional defect.

Service is made on the Secretary of State by personally delivering a copy of process to the secretary of states office anywhere in the state, and it requires a $10 filing fee. The plaintiff must then have the defendant personally served outside NY or mail a copy of process together with notice that it was served on the secretary of state to the defendant by certified or registered mail RRR. If the certification is unclaimed and unsigned and sent back to the post office, then serve the defendant by ordinary mail and file proof of service with the clerk of the court within 30 days of the return of the RRR and service is complete on filing. This can also be used on a NY resident who has fled the state or gone into hiding.

The use of long-arm jurisdiction always involves the activity of a non-domicile or the non-domiciles agent which as had some effect in NY. CPLR 302 allows a NY court to obtain personal jurisdiction over a non-domicile, but only on causes of actions arising from the defendants 302 activity; it does not allow a court to exercise "general jurisdiction"

Used when a non-domicile:

1. "transacts" business in NY; or

2. enters a contract anywhere either to ship goods into NY, or to perform service in NY.

The defendant does not have to have entered NY in order for the NY court to have PJ. Courts simply look at whether the defendant purposely availed himself of a NY business opportunity.

"Transacting business" is far less NY action that "doing business." A single act may be sufficient to give right to CPLR 302 activity

Simply advertising on a website by posting information that NYer's will visit generally does not by itself subject the defendant to jurisdiction. A "sliding scale" of internet activities issued by the court. Thus if the website is proactive, and a contract can be consummated, then the courts may find jurisdiction over non-domiciles, but there s great "inconsistency."

A corporate employee is liable for her tortous activity while acting in her corporate capacity. Thus there is PJ over that employee who targets NY

Allows personal jurisdiction over a non-domicile who commits a tortous act in NY, but this jurisdiction does not apply if the defendant's tort was defamation (libel or slander)

Used when a non-domicile commits a tortous act (but not defamation) outside NY and the first effect of the tortous act experienced by the plaintiff (economic injury, personal injury, or property damage) is within the state of NY, plus one of the DEER elements.

"D" - defendant DERIVES "substantial revenues from goods used or consumed or from services rendered in NY

"E" - defendant ENGAGES in some persistent court of conduct within NY

"E" - the defendant should reasonably EXPECT (foreseeability) that its tortous act would have a consequence in NY and the defendant derives substantial revenues from interstate business.

"R" - the defendant REGULARLY does or solicits business in NY (requires less than doing business but more than transacting business)

The substantial revenues requirement is to ensure that NY jurisdiction will not be used over a tortfeasor whose out-of-state activity is purely of a local character.

Where an Arizona domicile engaged in digital piracy by downloading a NY publishers books, the place where the plaintiff suffers economic loss (NY) is considered the place where the tort occurred. Thus, in order for the NY publisher to hail a non-domicile into a NY Court, the digital copyright infringement by the defendant requires that the defendant anticipate this its piracy would have adverse monetary effects in NY, and that defendant may derive substantial revenues from interstate or international business.

In a strict products liability claim (DIM - defective design, inadequate warning, and an unintended manufacturing flaw) the USSC has held that a manufacturer simply placing a defecting product in the stream of commerce foreseen that it could enter NY is not by itself a sufficient minimum contact for 302(a)(3). Every seller of a chattel does not by virtue of the sale appoint the chattel as its agent for service of process. There must exist some other three "S" (SSS) activity purposely directed at NY such as:

1. the SOLICITATION (advertising) of NY business;

2. the SALES (marketing) performed in NY; or

3. SERVICES conducted in NY.

The plaintiff must be able to show that the defendant "targeted" the NY market and purposely availed itself of the privilege of conducting NY business activity

Yes. Even though this tort cannot be the bass for 302(a)(2) or 302(a)(3) jurisdiction, however if the claim arose out of the "transaction of business" in the state of NY, then 302(a)(1) can be used to obtain jurisdiction over the non-domicile. Thus where the defendant researched the book in NY, conducted numerous NY interviews, and negotiated his publishing contract in NY, and the plaintiffs claim arose out of this transaction or business, then the NY courts have jurisdiction over that non-domicile.

Where a non-domicile owns, uses, or possess NY real estate, but the plaintiffs claim must arise out of this ownership, use, or possession of the real estate.

In a matrimonial action, or in a proceeding in the family court, where the plaintiff is seeking maintenance or child support, there exists personal jurisdiction over the non-domicile defendant provided DADA.

"D" - NY was the last recent martial DOMICILE of the parties; or

"A" - the ABANDONMENT took place in NY; or

"D" - the claim for support accrued under a NY DECREE or under NY law which permits a NY paternity proceeding to be commenced a non-domicile where the non-marital child was conceived in NY; or

"A" - the parties executed a SEPARATION AGREEMENT in NY

A CPLR 302 defendant has a qualified appearance in the action preventing the plaintiff from amending the complaint to add a non-302 cause of action on which there would be no other DIAL DC minimum contacts with NY.

The defendant must be a NY domicile at the moment the action is commenced. The rationale for this basis of jurisdiction is that a NY domicile receives the benefits and protections of NY state and as a quid pro quo (exchange for) these protections, the domicile contents to jurisdiction on any claims commenced in a NY or federal court.

Whenever a non-NYer is sued in a NY state court, the that defendant should consider (within 30 days) removing the action (ex. a claim for strict product liability, breach of a real property contract, a claim involving adverse passion of NY realtor, or a slip and fall in a Dunkin' Donuts in NY) from the NY state court to the federal courts on the grounds of diversity jurisdiction provided there is complete diversity and the plaintiffs claim exceeds $75,000.

Even though a defendant has no minimum contacts with NY or was not properly served with process, the defendant may nevertheless consent to jurisdiction by A SCAM:

"A" - serving an ANSWER and failing to include the mock jurisdictional answer, unless the defendant corrects the omission and amends the answer "as a right" without going to court; or

"S" - STIPULATING to jurisdiction in "open court" or in a signed writing; or

"C" - asserting an unrelated COUNTERCLAIM in the defendants answer, because this amounts to a defendant taking affirmative advantage of the NY courts jurisdiction; or

"A" - ASSERTING improper service of process in the defendants answer but failing to move for summary judgment on this issue within 60 days of service; or

"M" - by making any CPLR 3211(a) MOTION TO DISMISS but failing to raise the MOP jurisdictional objections in that motion.

An "in rem" right is a right in a thing. It is used to determine:

1. title or a right to possess personal property located in NY; or

2. to determine or terminate marital statue located in NY where there is no personal jurisdiction over the defendant's spourse

A ex parte in rem divorce action arises where the court lacks personal jurisdiction over the defendant's spouse. If there is no DIAL DC personal jurisdiction over the defendant's spouse (no DADA 302(b)) then only an in rem divorce can be obtained, but in the divorce action the court cannot order the non-domicile spouse to pay money (child support or maintenance) or to equitably distribute the parties "marital property" located outside the state without the existence of personal jurisdiction. In rem jurisdiction allows a NY court to act only on the parties marital status located in NY but the court cannot act personally on the out of state spouse.

A defendant in any in rem action has a limited qualified appearance to appear and contest the jurisdictional issue only. If the defendants CPLR 3211(a)(9) motion is denied by the court and the defendant continues to participate in the action (pretrial discovery or motion practice) then the defendant consents to personal jurisdiction on the in rem action

The summons is drafted and signed by the plaintiffs attorney. If is a one page sheet naming the parties and it should contain the index number, the date it was filed with the clerk of the court, the basis for the plaintiffs choice of venue, the name and the address of the plaintiffs attorney, and the notice that a defendants failure to appear within 20 or 30 days may result in a default judgment. CPLR 305

A mistake in the defendant's name is not jurisdictionally defective provided the name used by the plaintiff fairly advises the defendant that he is the intended party in the action.

CPLR 2001 allows the court to disregard an irregularity or mistake.

In an action (but not in a CPLR Article 4 special proceeding) a summons can be filed and served on the defendant without any complaint, but the summons must briefly state the nature of the plaintiffs claim and the relief being sought. If just a summons is served on the defendant, and this notice is not placed on the summons, then it is jurisdictionally defective and the defendant can move to dismiss for lack of jurisdiction

***If the plaintiff serves only the summons with notice then the defendant does not have to appear in that action, but instead can serve a CPLR 302(b) demand for a complaint.

This is not deemed an appearance in the action but it automatically extends the defendants time to appear until 20 days after the complaint is served. If the complaint is served by mail, then the defendants time to appear is 25 days.

If the plaintiff does not serve the complaint with 20 or 25 days of the demand, then the defendant can move to dismiss the plaintiffs action for neglect to prosecute. The plaintiff can oppose this motion by establishing REAM.

The summons can be served day or night, within or without the state, but regardless of where it is served never on Sunday, unless a company by an injunction necessary to avoid irreparable injury. General Business Law, Section 11.

There is no Saturday service on someone who is observing Saturday as a day of worship, but it will be ineffective only if the service was made with malice.

After an action has been commenced, a new party can be added to the action at any time by:

1. motion to the court;

2. stipulation of the parties; or

3. an amendment once as a right, without having to go to court, within 20 days after the plaintiff is served with the defendant's answer.

CPLR 1003, CPLR 305(a)

"AN"

an ADULT, NON-PARTY

CPLR 2103(a)

"ALRAN" - CPLR 313

"A" - an ATTORNEY admitted in that jurisdiction

"L" - look to the LAWS of that jurisdiction

"RAN" - a RESIDENT of NY, ADULT, NON-PARTY

Using CPLR 2001, a mistake in AN or ALRAN is harmless is service was reasonably calculated under the circumstances to apprise the defendant of the summons and the defendant received the summons

As a condition proceeding to serving process, the plaintiff must first file process with the clerk of the court, pay $210, and receive an index number for the action. The "clerk of the court" in the county or supreme court in the county clerk.

The date of filing and the index number "should" be placed on the summons, but its absence is not a jurisdictional defect.

In a special proceeding, commencement is accomplished by filing the "petition" (the complaint) but the notice of petition (summons) or the order to show cause, which is used to quickly commence the special proceeding, does not have to be initially filed with the clerk of the court, but filing must take place 5 days after the court fixes the return date in court.

A plaintiff has 120 days from filing to properly serve process on the defendant. However, where the plaintiffs claim has a SOL of 4 months or less then process must be served on the "respondent" (the defendant) within 15 days from when that SOL expires

CPLR 2001 gives courts authority to correct non-prejudicial errors during an action. It is frequently used to correct a parties non-prejudicial mistakes in commencing the plaintiffs action, including mistakes in purchasing an index number or in the filing process providing the mistake does not prejudice the defendant

CPLR 2001 will not save the plaintiffs claim from dismissal where the mistake is made on what was filed, where it was filed, or with whom it was filed. Examples:

1. service of the summons without a complaint where the summons failed to cite the nature of the claim and the relief the plaintiff was seeking;

2. a complete failure to file;

3. service of process on a defendant, before that process was filed with the county clerk; or

4. process filed with the administrative clerk of the supreme court and not with the clerk of the county

2, 3, and 4 are non-waiveable and can be raised month or years after the defendant gives an answer