Miscellaneous Quiz / NY Civil Practice, 2011 Bar Exam

Random Miscellaneous Quiz

Can you name the Statute of Limitations and other Time Requirements?

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Relevant OffenseTiming Requirement Important notes
If D served with Process UNDER ANY OTHER CIRCUMSTANCES: He must serve the answer within
Indemnity and Contribution Claims: _ ______ running from the date of _____ ______ of the judgment for which indemnity or contribution is sought
Matrimonial Action: ONLY proper method of serving process:
Products Liability: Negligence Claim SOLfrom date of injury running against ALL D's in 'CHAIN OF SALE'
Joining a TPD via a summons +3rd party; valid service must be done within ______ _____ of the filing, and a _____ of the summons and 3rd party complaint on the 3rd party D
Fraud; P may sue within __ ______ of commission of fraud, or ___ _____ from ______ (actual or imputed), whichever is longer
If D served with process by FIRST CLASS MAIL PLUS ACKNOWLEDGEMENT; d must serve an answerD's return of acknowledgment is merely a notification of D's receipt of process and not an ANswer in and of itself
INSANITY Toll: Claims of insane Plaintiff's, regardless of the nature of the cause of action, become time barred after ____ _____ from the date of accrual.
Action by Crime Victim against convicted defendant for a SERIOUS crime; __ ____ from the date of ________Victim may also sue for damages for up to 3 years from the discovery of D's receipt of money or property from any source
Other Professional Malpractice: E.g Architechts, engineers, accountants, attorneys who are members of a _______ _______; but NOT insurance brokers, plumbers etc. What is SOL?runs from the termination of the p[articular services in which the malpractice occurred; similar to continuous treatment is 'continuous representation' tolling requirement
Products Liability: Breach of Warranty SOLUCC governs, and SOL begins to run when particular D against whom warranty claim is asserted made its delivery of the product
PART 2) What if SOL was less than 3 years? Apply the ______ ______ for the underlying claim and apply that from the date the disability ends
4 types of prior dismissals that the 6 month grace period wont apply to: 1) Dismissal ____ ____ _____, 2) Dismissal based on _______ _________ by P, 3) P's _______ to prosecute conNOTE: dismissal based on lack of SUBJECT MATTER jurisdiction IS entitled to 6 month extension
Either party may Amend Pleading once as a 'matter of right' so long as it is done within ____ ____ after D serves the answer
Action on Judgment SOL
If D serves a demand for the complaint and/or a notice of appearance, both have the effect of requiring P to serve the complaint within ____ ____ of D's answer
If P IS a NY resident when out of state claim arose: NY will always apply the ___
Matrimonial Long Arm Statute: When P spouse is a resident of NY, long arm JD can be acquired over D-spouse for monetary support if 1) NY was the __________ __________ of P and D prfor monetary support need PJ over the D
PART 1) Tolling and Disability: When disability ends, how long does P have to sue? If SOL was 3 years or more? P has the longer of either a) ___ _____ from the ____ of the _______
Process Server for purpose of Nail + Mail uses DUE DILLIGENCE by 2 things: making an _____ __ _____ D directly, Due Dilligence requires several attempts on different days and times
Foreign Objects Rule: IF med mal and doc responsible for introducing foreign object into P's body, what is SOL? P gets the longer of 1) _______ from the date of the operation OR __Chemical substance (medicine), prosthetic device and fixation device (e.g pacemaker) are not Foreign Objects under this rule and any malpractice must be 2.5 years from date of malpractice
Affixing and Mail (Nail and Mail): Affixing and Mailing in either order must be performed within ___ ____ of each other, and both steps must be performed within ___ ____ from filinNOTE: Process server must FIRST exercise DUE DILLIGENCE
Action by Victim of Rape-Related Felony: Has ___ _____ to bring an action, but if Perpetrator is prosecuted, victim gets an extra ____ _____ from termination of the criminal proceNote: requirement only that Perp be PROSECUTED not convicted; in fact even if acquitted Victim still gets the bonus years upon prosecution
Intentional Torts to the person SOLe.g, assault, battery, false imprisonment, and defamation
Moving Party must serve the motion papers on the opponent at least ___ _____ before the return date
Wrongful Death SOL; ___ _____ from date of death, except it MUST ALSO be shown that that decedent possessed a ______ _____ __ ______ at the time of death If crim proceeding brought against defendant, executor gets an optional and independent ONE YEAR PERIOD from termination of criminal proceedings, regardless of whether acquital or conviction of the defendant
When relying on an INFANCY TOLL for Med Mal, the action must be commenced no later than ____ _____ from date of accrual applies only to Medical Malpractice and Infants..... ALSO NOTE, continuous treatment toll and infancy toll are separate tolls; do not add the tolls together, run each one separately and determine if the action is timely under either toll.
GRACE PERIOD IN NY: IF NY action is timely commenced but is thereafter dismissed before trial, and at the time of dismissal the SOL has either expired or has less than 6 months rem
P must serve D with process within ____ ____ from the filing.Filing= purchasing an index #; CT has discretion to extend 120 time period provided P can demonstrate 1) good cause OR 2) interests of justice warrant an extension
Relevant OffenseTiming Requirement Important notes
SJ motion must be made within _____ _____ from the filing of the NOTE OF ISSUEException: if moving party shows 'good cause' for the delay, the Court may extend the 120 days
Matrional Durational Residency Requirements do not apply to __________ but go strictly to the merits. The requirement also does not apply in an action solely to enforce _______ ___
Contracts Action governed by UCC Article 2- Sales Statute of Limitation is ____
Return date in an ARTICLE 78 PROCEEDING can be no SOONER than ___ _____ from the service of process
Leave and Mail Service of Process: The 2 service Steps must be performed within ____ ____ of each other and both steps must take place within _____ _____ from filing processNOTE: NOT VALID WHEN SERVING A CORP regular mail fine, the person served at actual dwelling or actual place of business does not HAVE to be an adult to be of 'suitable age and discretion'
Survival Claim (any cause of action P herself could have brought if still alive. The estate representative gets the longer of either 1) the time remaining on the SOL or ___ _____ fNot limited to Torts and recoverable damages include all damages incurred by P prior to death, e.g PAIN AND SUFFERING
Products Liability: Strict Products Liability Claim
3 defenses are never waived even if D does not include them in the answer; they are
Action by crime victim against convicted defendant for 'ANY' crime (not the SERIOUS crime SOL)runs from the date of the crime
Continuous Treatment Rule: The medical condition for which P continues treatment must be the _____ ______ that gave rise to malpractice. The SOL ______ until the treatment ends
Order of Attachment obtained ex parte, the ex parte order will become automatically void if P fails to make a follow-up MOTION TO CONFIRM within the proper number of days after the
If D pleads improper service of process as a DEFENSE in an answer, he must make a follow up summary judgment motion on that ground within: Failure to timely make the motion will waive his objection
Contracts, express or implied (other than UCC Article 2- Sales Contracts): ___ _____ and irrespective of P's lack of knowledge the SOL starts to run upon the ______ ____ ____ _____
P's Infancy or Insanity; If the plaintiff is an infant or insane at the time cause of action accrues, the SOL is ________ until the _______ ____
Municipal Tort Liability; action for personal injury, med mal, or property damage against a government subdivision of the state (eg county, city) the SOL is __________from the date of the accident
Toxic Substance Exposure Case: _ ______ SOL begins to run upon the earlier of: 1) _______ __ the ______ OR date the injury ____ _____ _____ discovered with ______ ______Note for Toxic Substance: exposure= any sort of assimilation into one's body or property
Valid Service of Process requires that a person who is at least ____ _____ old serve process and it may be served on any day of the week except _______Note: process ok on Holidays, so long as not on a Sunday. Also note that if D is a saturday sabbath observer and P knows it, no proper service on a Saturday.
When can D implead a 3rd Party D?
Medical Malpractice SOLfrom the date of the malpractice (unless continuous treatment rule applies)
To appeal from an interlocutory order or judgment, a party must _____ and _____ a notice of appeal within ____ _____ from service of the order or judgment with notice of entry.
Personal Injury + Property Damage (inc replevin and conversion) SOL is _ ______ from the date the _______ _______No discovery rule applies except for Toxic Substance
Action to Recover Realty SOL(same as adverse possession)
Equity Actions (rescission, reformation, accounting) SOL
Pre-Answer motion to Dismiss extends D's time to answer, so if the motion is denied then D must serve the answer withinfrom date motion was denied
Time Limit for D to serve an answer if he was served with process by PERSONAL DELIVERY WITHIN NY STATE:
Article 78 Proceedings SOL
If a potential defendant dies AT ANY TIME before the SOL expires, __ _____ are always added to the releveant limitations periodNOTE: THIS IS REGARDLESS OF WHETHER P ACTUALLY NEEDS THE TIME
In addition to Subject Matter Jurisdiction, 3 additional jurisdictional elements must be satisified in order for a court to render a valid judgment (one that can be enforced in NY
Return date in a Special Proceeding can be no SOONER than from the service of process

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