Spring 2014 BarBri New York Practice Outline

I. Subject Matter Jurisdiction

A. Introduction
1. Ultimate goal of civil action is to obtain judgment that can be enforced in NY & in other
states where it can be enforced under Full-Faith & Credit Clause.
2. Three Elements of Jurisdiction (to get valid Judgment)
a. Subject Matter Jurisdiction: Concerns Ct’s authority or power to hear particular type of
civil action that Plaintiff has brought.
b. Basis Jurisdiction: Valid Basis of Jurisdiction Over Defendant (Personal Jurisdiction)
c. Proper Service of Process: Service of Process on Defendant must be proper.
3. You commence an action in the Court that has Original Subject Matter Jurisdiction. This is
normally the trial Court.
4. Court w/ Original Subject Matter Jurisdiction goes in Caption.
5. Most important Trial Court in New York is the New York Supreme Court.
6. The highest Court in the NYS is the Court of Appeals.
7. Intermediate Court is the Appellate Division.
B. Supreme Court of New York
1. These Courts have General Original Subject Matter Jurisdiction.
2. Any type of action can be brought in this Court.
3. It has unlimited monetary jurisdiction.
4. It has full equity jurisdiction.
5. It doesn’t matter where issue arose, or where parties are from for Subject Matter Jurisdiction.
6. There are 62 Counties in New York & each county has its own Supreme Court.
a. Particular County is merely a question of Venue.
7. If Supreme Ct of NY has Jurisdiction, then they all have Jurisdiction, regardless of County.
C. Other Lower Courts
1. There are some other lower courts with Limited Subject Matter Jurisdiction.
2. These Courts have limits on monetary jurisdiction.
3. Like limits on damages of $25,000.
D. Commencement of Action
1. Plaintiff’s attorney will draft Initiatory Papers. This is called Process.
2. There are 2 Alternative Types of Process
a. Summons & Complaint: Complaint is Plaintiff’s pleading, where you look for formal
written allegations of Plaintiff’s cause of action. Plaintiff lays out all of the essential facts
of their Cause of Action.
b. Summons w/ Notice: This is an abbreviated complaint. It lets Plaintiff gets action started,
w/ less paperwork. But, this will be followed up w/ complaint later.
3. If Plaintiff uses Summons w/ Notice of Option. Notice must include:
a. Brief Statement of Nature of Action: Say it’s action for _ (negligence, breach of K, etc.)
b. Specify Nature of Relief being sought: Damages, Injunction, etc.
c. If Plaintiff seeks Damages, then they must specify amount of Damages, except where
there is a Personal Injury or Wrongful Death claim, where they wouldn’t be permitted to
specify amount of damages.
4. If Plaintiff has neither Complaint nor Notice, then it’s called Bare Summons or Naked
Summons. This would be a defect in Personal Jurisdiction.
a. Action would be subject to dismissal on this defect alone.
5. You Commence an Action by filing the initiatory papers w/ the Court Clerk.
a. Filing of Initiatory Papers is the Commencement of Action.
b. Filing marks measurement of Statute of Limitations.
6. Plaintiff must also purchase an Index Number.
 7. Plaintiffs must then Serve Process on Defendant to get Jurisdiction over Defendant.
8. Process must be served on Defendant no later than 120 Days from the filing.
9. Remedy for Plaintiffs who can’t find Defendants w/in 120 Days
a. Plaintiff may make a motion requesting the Court to give extra time to make service.
b. Court may grant motion on either of 2 grounds (w/in their Discretion)
i. Good Cause: Basically means that Plaintiff is exercising diligence.
ii. Interest of Justice: More flexible standards. Plaintiff doesn’t have to show due
diligence.
10. If Defendant wants to challenge timeliness of Service.
a. Defendant would have to make Motion to Dismiss for Untimely Service.
b. Even if Service wasn’t timely, Court may retroactively grant extension of time to serve.

II. Personal Jurisdiction

A. Types of Personal Jurisdiction
1. In Personam Jurisdiction: Need this to get monetary damages.
2. General Personal Jurisdiction: There’s no need for Cause of Action to be related to NY.
a. Presences of Defendant in New York
b. Doing Business in New York
c. Defendant is Domiciled in New York
3. Specific Jurisdiction: Cause of Action has to be related to New York
a. Long-Arm Jurisdiction
b. Non-Resident Motorist Statute
c. Consent
B. Presences of Defendant in New York
1. Personal Delivery of Process to Defendant while Defendant is Physically Present in NY.
2. Presences Doctrine can also be applied to Corporations/Corporate Defendant.
3. If Defendant is a Domestic Corporation, meaning incorporated in New York, then they’re
always subject to jurisdiction in New York, no matter where Cause of Action arose.
4. If Defendant is a Foreign Corporation, meaning incorporated outside of New York, but
they’re licensed to do Business in New York, then they’re treated just like a Domestic
Corporation, no matter where Cause of Action arose.
5. When you see Jurisdictional Question involving Corporations on the Bar Exam, it will
probably be an Unlicensed Foreign Corporation.
6. If Unlicensed Foreign Corporation is actually Doing Business in New York, even though it
doesn’t have a license, we say it’s present in New York.
C. Doing Business in New York
1. How do you measure “doing business” in New York?
a. If at time action is commenced, the Corporation’s Agents or its EEs are in New York,
engaging in commercial activity, in regular systematic & ongoing matter.
b. If those activities of Corporate Agents in New York are continuous & of substantial
quantity, then Corporation is Doing Business in New York & makes it present.
c. If you have enough of ongoing business activity in New York, then there’s no need to
show any rel’ship between particular Cause of Action & State of New York.
2. Case Law Limitations
a. Just b/c Corporation is advertising in New York, it doesn’t mean it’s doing business in
New York.
b. If Corporation is merely having its products sold in New York, through independent
retailers, that isn’t doing business in New York.
c. Mere advertising, mere soliciting, or mere sales of products isn’t enough to show doing
business in New York.
3. New York Courts require continuous presence & activity of Corporation’s Agents in NY.
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 4. Best Evidence that Corporation is doing business in New York is if Corporation maintains an
office in New York, staffed w/ 1 or more EEs, that is there continuously, regularly, &
systematic basis.
5. If Corporation is Doing Business in New York, as described above, then Process can be
served on Corporation in either inside of New York or outside of New York.
D. Defendant is Domiciled in New York
1. If Defendant is domiciliary of NY, at time action is commenced, then you can serve process
on NY domiciliary anywhere in USA. – It doesn’t matter where Cause of Action arose.
2. Residence: Place where person lives for fair amount of time, w/ some degree of permanency.
Someone can have several places of residence.
3. Domicile: Person has only 1 domicile. It’s 1 residence where person intends to remain
indefinitely & is treated by them as principal home.
a. This is a stronger connection to place, than mere residence.
E. Long-Arm Jurisdiction
1. CPLR 302: Long-Arm Statute for NY
2. Plaintiff’s Cause of Action must be specifically related to some act by Defendant that has
connection to NY.
3. International Shoe (US SC): Minimal Contacts Standard of Jurisdiction.
4. Plaintiff’s claim must arise out of Defendant’s actions that are related to NY.
a. This is different from Defendant’s presence, doing business, & domicile.
5. In order to have Long-Arm Jurisdiction, Cause of Action must arise out of Defendant’s NY
activity.
6. CPLR 302 lists 5 NY related activity – 5 Long Arm Categories
a. (1) If Plaintiff’s claim arises from Defendant’s transaction of business in New York, all
you need for this is 1 single transaction of business in New York. (P’s claim must arise
from that 1 transaction of business)
b. (2) Where Plaintiff’s claim arises out of K made outside of NY, in which Defendant
agreed to supply goods or services inside NY.
c. Case Law Limit
i. Simple 1-shot telephone (or internet, or e-mail, or fax) order, from out-of-state Buyer,
doesn’t qualify as transaction of business in NY, by the Buyer.
ii. Paying money isn’t agreement to provide goods or services.
d. (3) [Limited to Tort Claims] Cause of Action, based on Defendant’s commission of
tortious act in NY.
e. (4) [Limited to Tort Claims] (a) Cause of Action is based on tortious act from outside of
NY, which causes injury from w/in NY; (b) In addition, to tortious act from outside NY
to harm inside NY, there must be some additional link between Defendant & NY.
i. 3 Alternative Links: (1) If Defendant is regularly soliciting business in NY; OR (2) if
Defendant is deriving substantial revenue from goods or services sold in NY; OR (3)
Defendant is deriving substantial revenue from interstate commerce, in which
Defendant is making a purposeful effort to participate in NY market.
f. (5) Claim arising from Defendant’s ownership, use, or possession of real property in NY.
7. Applies to any type of Defendant, whether it be Corporation, Natural Person, or Partnership.
8. Acts giving rise to jurisdiction can be performed by Defendant themselves, or their Agents or
EEs. – Agents acts in NY will subject both Agent & ER to Long-Arm jurisdiction.
9. If Long-Arm Defendant is Natural Person who dies, then Personal Jurisdiction still applies to
their Executor or Administrator. So, you can Serve Process on Executor or Administrator,
just as if they’re actual participant in activity.
10. 3-Prong Approach (in Essays)
a. (1) Talk about whether traditional basis apply (Presence, Domicile, or Doing Business).

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 b. (2) Discuss whether facts of Plaintiff’s Cause of Action fit into 1 or more of NY’s Long
Arm categories. – Talk about how facts fit those categories.
c. (3) Talk about Constitutional Due Process. – All assertions of Jurisdiction have to satisfy
Due Process.
11. Due Process is satisfied if: Plaintiff’s claim arises out of conduct by Defendant that is so
purposefully directed towards forum state that Defendant should r’ably anticipate being
hailed into its Courts.
F. Non-Resident Motorist Statute
1. Confers Personal Jurisdiction over out-of-State driver or owner of motor vehicle for claims
arising from accident that took place in New York.
2. Statute goes back to 1930s. It really applies to non-domiciliary.
3. 2 Unique Features of this Statute
a. (1) If Plaintiff is suing for injuries, they’re given unique method of Serving Process.
Under this statute, Plaintiff can serve 1 copy of process on NY Secretary of State, who is
deemed implied Agent of non-resident motorist.
i. Plaintiff would also have to serve copy, by certified mail, on non-resident motorist at
his out-of-State residence. (Rather than sending a Process Server to non-resident
motorist)
b. (2) This isn’t limited to jurisdiction over non-resident driver. It can also be used to get
jurisdiction over non-resident owner of car, if car was being driven in NY w/ owner’s
permission.
G. Consent
1. Typically see consent in K that parties enter into. It’s Forum Selection Clause.
2. Consent clause would be enforceable in NY Courts.
H. NY Civ Problem
1. Jurisdiction over Devin
a. Claim arises out of tortious act in New York.
b. Devin drove his automobile in NY negligently.
c. Under Long-Arm Statute, Process Server can be sent to serve Devin in Massachusetts.
d. Under Non-Resident Motorist Statute, Process can be served on NY Secretary of State &
mail copy, by certified-mail, to his home in Boston.
2. Mega-Motors, Michigan Corporation
a. Is Mega-Motors “doing business” in New York? – No
b. Mere sales & advertising in NY wasn’t enough under NY Case Law.
c. There’s missing physical connection to NY. There are no offices or EEs in NY for Mega-
Motors.
d. Under Long-Arm Statute, Mega-Motors committed tortious act outside of NY (negligent
manufacturing of car outside of NY), causing injury inside NY.
e. Mega-Motors is involved in interstate commerce that purposefully includes NY.
i. They’re advertising in NY. They’re selling products in NY. That generates revenue
from NY.
f. Connection satisfies Due Process. Claim arises out of purposeful activity directed to NY.
3. Tri-State, New Jersey Distributor
a. Is Tri-State “doing business” in New York? – Yes
b. Tri-State has office in NY, staffed by EEs, who regularly & systematically service
accounts in NY. – Regular & Systematic Presence in NY.
c. It doesn’t matter where claim arose, since it’s “doing business” in NY.
d. Under Long-Arm Statute, since they committed tortious act outside-of-State (sold car in
Connecticut) & that sale of car caused injury inside of NY.
e. Tri-State is involved in interstate commerce that purposefully includes NY.
4. Reno, Connecticut Car Dealer

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 a. Reno is individual, not Corporation.
b. Reno isn’t doing business in NY. There’s nothing in facts to prove this.
c. Is there enough for Long-Arm Jurisdiction? – No.
d. There’s no additional linkage between Reno & State of NY.
e. Technically, Reno is engaged in interstate commerce. But, his interstate commerce isn’t
purposefully directed towards NY.
f. There’s no advertising in NY & he isn’t trying to lure people from NY.
g. To assert Jurisdiction over Reno would violate Due Process, since he didn’t purposefully
direct activity in NY.
h. Serving Reno would violate Due Process & NY’s Long-Arm Statute.
i. If Reno comes into NY (on his own), then he can be served in NY, regardless of where it
occurred.
5. Dr. Pain, Medical Malpractice Issue
a. Dr. Pain did tortious act in NY.
b. Dr. Pain now lives in Virginia.
c. Under Long-Arm Statute, Dr. Pain can be served in Virginia.

III. Service of Process/Methods of Service

A. Service of Process on Natural Persons (HYPO: On Devin, Reno, & Dr. Pain)
1. Personal Delivery of Process to Defendant: Most effective way of Serving Process. Process
Server simply tenders papers to Defendant. If he tries to run away, just drop it in his
presences & you’ve satisfied legal req’ts.
a. Service by personal delivery is complete upon its tender to Defendant.
b. Delivery is complete when Defendant’s duty to respond is triggered.
2. Leave & Mail (Deliver & Mail): Process Server can make delivery to person of suitable age
& discretion at Defendant’s Actual Dwelling Place or Actual Place of Business. AND in
addition mail a copy, by First-Class Mail, to Defendant at his place of residence or business.
a. It doesn’t matter which step is performed 1st, so long as, both are done w/in 20 days of
each other.
b. You can make delivery to 1 location & mailing to other location.
c. Both steps must be performed w/in initial 120 days of initial filing of process w/ Court.
3. Affix & Mail (Nail & Mail): You take Process & affix it to door of Defendant’s Actual
Dwelling Place or Place of Business. PLUS mail copy, by first-class mail, either to
Residence or Place of Business.
a. It doesn’t matter which step is performed 1st, so long as, both are done w/in 20 days of
each other.
b. Both steps must be performed w/in initial 120 days of initial filing of process w/ Court.
c. Prerequisite: Due Diligence of trying to make Personal Delivery on Defendant or try to
make delivery on Person of Suitable Age & Discretion. – Have to show other options
weren’t practicable. – This is case-by-case determination. – Look for multiple attempts
on different days of week & different times of day.
4. W/ respect to Leave & Mail and Affix & Mail, there’s req’t relating to making service
complete.
a. It involves something called Proof of Service, which has to be filed w/ Court Clerk. It’s
affidavit, by Process Server, in which Process Server describes date, time, & place of
service, & description of person served, & surrounding circumstances.
5. How do you make service complete?
a. Service is complete (for Leave & Mail and Affix & Mail) 10 days after proof of service is
filed. At that point, Defendant’s response time begins to run.
6. Expedient Service (Court Ordered Service): Plaintiff resorts to this when they can’t find

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 Defendant, or place where he lives or works. Plaintiff goes to Court & makes ex parte motion
allowing for improvised method of service.
a. Plaintiff must demonstrate to Court that other Methods of Service aren’t practicable.
b. Upon such a showing, Court may grant Order allowing alternative that’s r’able under
circumstances. (Ex: Service of Defendant’s liability insurance company, or close family
member, or even publication in newspaper).
c. Plaintiff can only improvise like this w/ Court Order.
7. Delivery to Agent who was specifically designated by Defendant to Accept Service of
Process: This is very limited type of Agent that’s designated to accept Service of Process.
B. Methods of Service of Process Outside of New York
1. Same methods used inside of New York can be used on Defendants located outside of NY,
assuming Plaintiff has basis to serve outside of New York. You don’t use methods of place
where you’re doing service.
C. Service of Process on Corporations
1. Make Personal Delivery to any 1 of following Corporate Representatives
a. Officer:
b. Director:
c. Designated Agent:
d. Managing Agent: Person who has Supervisory responsibility.
e. Assuming you have Basis of Jurisdiction over Corporation, you can serve anyone above,
anywhere in United States.
f. Leave & Mail and Affix & Mail methods aren’t available in these situations. You have to
tender process directly to them.
2. Delivery on New York Secretary of State
a. (1) Applies when Corporation is either Domestic Corporation or Foreign Corporation
that’s licensed in New York.
i. Service can be made by delivering 2 copies of Process to NY Secretary of State.
ii. By Statute, NY Secretary of State is Designated Agent of NY Corporation or Foreign
Corporation that’s licensed in New York.
iii. NY Secretary of State will mail 1 of those copies to the Corporation by Certified Mail
at its address that’s on file in their Office.
b. (2) Applies when there’s Unlicensed Foreign Corporation.
i. You can also use NY Secretary of State’s Office.
ii. Plaintiff serves 1 copy of Process to NY Secretary of State.
iii. Plaintiff has burden of mailing 2nd copy of Process, by Certified Mail, to Corporation.
iv. Plaintiff has burden b/c NY Secretary of State wouldn’t know where to send it.
c. This tends to be just symbolic act.

IV. Venue
A. If any 1 Supreme Court has Jurisdiction, then they all have it.
B. Venue: Proper County in New York for trial of Supreme Court Action.
C. Rule 1: If it’s Action affecting Title or Possession of Real Property, Proper Venue would be in
County where Real Property is located.
D. Rule 2: In all other Actions, Proper Venue would be any County in New York in which any 1 of
parties resides at time Action is commenced.
E. If none of parties resident in New York, then any County in New York would be Proper Venue.
F. Venue rules don’t specify County where Cause of Action arose.
G. Under Federal Practice, you can use the Federal District where claim arose. But, this isn’t test for
Venue under New York State Law. Residence is key.
H. Improper Venue isn’t a Basis or Ground for Dismissal. It isn’t a Jurisdictional Defect.
1. Worst that happens is there will be a Transfer by Motion of a Party to Proper County.
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 I. There’s Discretionary Ground for Change of Venue to County Most Convenient for Material
Witnesses.
1. Either Party by Motion can request Court for Change of Venue.
2. In Court’s discretion, it may be granted if it’s most convenient for material witnesses.

V. Statute of Limitations
A. Introduction
1. Statute of Limitations: Affirmative Defense, which has to be raised by Defendants. If
properly raised by Defendant, can end a meritorious claim, strictly on passage of time.
2. ** NYS Bar Examiners always ask a question on Statute of Limitations. **
B. Basics on Statute of Limitations
1. Statute of Limitations begins to run when Cause of Action accrues.
2. Accrual begins when injury occurs.
3. For Personal Injury & Property Damage, Action accrues at initial impact.
a. These have 3 years Statute of Limitations.
4. Breach of Contract has a 6 years Statute of Limitations, running from Date of Breach.
5. Statute of Limitations doesn’t run from discovery of injury or breach, since New York
doesn’t follow Discovery Rule w/ Statute of Limitations, even if Plaintiff is unaware of
Injury or Breach.
6. To satisfy Statute of Limitations, Plaintiff must commence action no later than last
permissible day. – Plaintiff must commence action no later than last permissible day.
7. Statute of Limitations for Personal Injury, Negligence, & Products Liability is 3 years.
8. To calculate Statute of Limitations, you exclude day incident occurs, then start counting days
for Statute of Limitations.
a. Date of Serving Process is irrelevant.
9. If Last Day doing some Procedural Act falls on a Saturday, Sunday, or Holiday, Plaintiff gets
until end of next business day to perform required act.
10. Statute of Limitations for Medical Malpractice is 2.5 years.
a. This is due to Tort Reform to protect members of Medical Profession.
b. This runs from date malpractice occurs, not from when Plaintiff discovers it.
C. Tolling Provisions
1. Continuous Treatment Doctrine (for Medical Malpractice)
a. If after malpractice occurs, Doctor continues to treat patient for exact same medical
condition that gives rise to malpractice, Plaintiff gets 2.5 years from termination of
continuous treatment.
2. Foreign Object Rule (for Medical Malpractice)
a. If Doctor is responsible for introducing foreign object into patient’s body, then leaves it
behind, Plaintiff gets an option.
i. Plaintiff gets either: (1) 2.5 years from the date of operation OR (2) 1 years from the
date Plaintiff discovers presences of object, whichever is longer.
b. Foreign Object is something Doctor didn’t intend to leave in body, like sponge, surgical
equipment, scalpel, etc.
c. According to Statute, there are 3 things that don’t qualify as foreign objects.
i. Chemical Substances (Steroids, HGH, Medication, etc.)
ii. Prosthetic Device (Plastic Hip Joint, Knee Replacement, etc.)
iii. Fixation Device (Item Doctor deliberately places in body to serve continuous
treatment purpose)(Like Pacemaker, Internal Suture, etc.)
d. Doctor’s failure to detect something, doesn’t convert it into Foreign Object. It’s just a
misdiagnosis.
VI. Pleadings, Interlocutory Papers, & Interlocutory Appeals
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A. Introduction
1. Plaintiff starts off action w/ Summons & Complaint, which shows their Cause of Action.
2. Defendant’s Pleading in response to Complaint is called Answer.
3. Usually only Plaintiff’s Complaint & Defendant’s Answer are required.
4. In Defendant’s Answer, he must deny those allegations of complaint, in which he wishes to
contest. Anything in Complaint that isn’t denied is admitted.
5. Defendant must also specify any Affirmative Defenses that he wishes to assert.
a. EX: Statute of Limitations, Lack of Jurisdiction, Plaintiff’s Contributory Negligence, etc.
6. General Rule: Any Affirmative Defenses not raised by Defendant is waived.
B. Counter-Claim
1. Any affirmative action Defendant has against Plaintiff.
2. This may be raised by Defendant in his Answer.
3. In NY, Counter-Claim can be any Cause of Action that Defendant has against Plaintiff.
4. This doesn’t have to be related to Plaintiff’s Claim.
5. If there is a Counter-Claim in Answer, then we’re going to require Plaintiff to serve another
Pleading; mainly Reply.
a. Plaintiff would make Denials & Affirmative Defenses to Counter-Claims.
C. Cross-Claim
1. In Multi-Defendant Case, any Defendant may assert Cross-Claim against any other
Defendant.
2. Cross-Claims don’t have to be related to Plaintiff’s Claim. They’re placed in Defendant’s
Answer.
D. Service of Pleadings
1. Each party must serve copy of Pleading to all other members of Action.
2. Every Pleading has to be served on all parties to Action.
3. All other Pleadings, after Initiatory Papers (Summons & Complaint OR Summons &
Notice), are Interlocutory Papers.
4. Interlocutory Papers can be served by Regular First-Class Mail to other side’s Attorney.
5. Interlocutory Papers are deemed to be served upon mailing, not receipt. We use Mailbox
Rule.
6. Interlocutory Papers include Pleadings, Motions, Discovery Papers, etc.
E. Time Limits on Defendant’s Response to Plaintiff’s Service of Process (Summons & Complaint)
1. In order to avoid being in default, Defendant is going to have to respond w/in certain # of
days.
2. (1) If Service of Summons & Complaint was made by Personal Delivery w/in State of New
York, Answer must be served w/in 20 days of Personal Delivery.
3. (2) If Service of Summons & Complaint was made under any other circumstances, Answer
must be served no later than 30 days after Service is complete.
4. Pre-Answer Motions
a. Lack of a Basis of Jurisdiction, Improper Service, & Statute of Limitations – Defenses
that could also be placed in Defendant’s Answer.
i. These particular defenses can be brought in a Pre-Answer Motion to Dismiss or in
Defendant’s Answer.
b. Motion to Dismiss (CPLR 3211): Defendant is permitted to make a Motion to Dismiss
Cause of Action prior to service of Answer, on 1 or more of 8 specified grounds –
D.O.W.N.F.A.L.L..
i. Documentary Evidence as Basis for Defense: Documents refer to legally operative
documents, such as Mortgage, Deed, or Written Contract.
ii. Other Action Pending: Would be between same parties on same Cause of Action.
iii. Want of Capacity: This is where Plaintiff doesn’t have legal authority to come into
Court, like infant (those under age 18).

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 iv. Non-Joinder of Necessary Party: This comes up a lot in property disputes.
v. Failure to State Cause of Action: Pleadings on their face are substantively
insufficient. Substantive Law doesn’t recognize right of recovery.
- This motion must be denied if there’s any basis for relief under Substantive Law.
- Plaintiff gets benefit of doubt.
vi. Additional Affirmative Defenses: 9 Additional Affirmative Defenses –
S.P.A.R.E.R.I.B.S.
- Statute of Limitations:
- Payment:
- Arbitration Award:
- Release: It doesn’t about Defendant’s fault, if there was release of it.
- Estoppel: Like Collateral Estoppel
- Res Judicata:
- Infancy:
- Bankruptcy Discharge:
- Statute of Frauds:
vii. Lack of Personal Jurisdiction: There are 3 defects in PJ – Lack of Proper Basis, OR
Improper Service of Process, OR Defective Form of Summons.
viii. Lack of Subject Matter Jurisdiction:
c. Time Limit on Pre-Answer Motion to Dismiss is any time before Service of Answer is
due.
d. CPLR 3211 motion extends time to serve Answer itself.
i. If Motion to Dismiss is granted, then no Answer has to be served.
ii. If Motion to Dismiss is denied, then Defendant must serve Answer w/in 10 days of
denial.
e. Defendants may put all Affirmative Defenses in either CPLR 3211 Motion to Dismiss or
as Affirmative Defenses in Answer.
f. Defendant is only allowed to make ONE CPLR 3211 Pre-Answer Motion to Dismiss,
but may do so on multiple grounds.
5. Waiver: If Defendant’s Motion to Dismiss is denied on only certain CPLR 3211 defenses,
what happens to other defenses?
a. RULE: Pre-Answer Motion to Dismiss, on any of grounds listed in CPLR 3211, doesn’t
preclude raising any of other grounds as Defenses in Answer, EXCEPT for Lack of
Personal Jurisdiction.
6. How do you preserve Personal Jurisdiction Objections? – 2 Ways
a. (1) Before serving Answer, make a CPLR 3211 Motion & be sure to include Lack of
Personal Jurisdiction.
b. (2) Make no CPLR 3211 Motion on any ground, & instead, serve Answer that includes
Lack of Personal Jurisdiction as Affirmative Defense.
7. Improper Service of Process
a. If this Defense is saved up & put into Answer, you must w/in 60 days after serving
Answer, follow up w/ Motion to Summary Judgment on Ground of Improper Service.
b. Why? – B/c this is a boilerplate defense put in & Courts want to get rid of it right away.
8. 3 of CPLR 3211 Defenses are NEVER waived, even if Defendant fails to put it in Answer.
a. (1) Non-Joinder of Necessary Party
b. (2) Failure to State a Cause of Action
c. (3) Lack of Subject Matter Jurisdiction
F. Time Limits on Defendant’s Response to Plaintiff’s Service of Process (Summons & Notice)
1. Defendant wouldn’t serve answer, since there’s no Complaint.
2. Instead, Defendant would serve either
a. (1) Demand for Complaint; OR

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 b. (2) Notice of Appearance
3. Function for above response is for Defendant to avoid Default.
a. Effect is to put Burden on Plaintiff to Serve Complaint w/in 20 days.
4. Defendant’s Time Limit for Demand for Complaint & Notice of Appearance
a. Same response times for Response to Summons & Complaint.
b. Either 20 days for Service by Personal Delivery in New York, OR 30 days for all other
types of Service.
5. Now that Defendant has Complaint, he’ll either respond to Complaint w/ Answer or Pre-
Answer Motion to Dismiss.
6. Jurisdictional Point: Regardless of whether Defendant serves Demand for Complaint or
Notice of Appearance, that Service isn’t by itself Waiver of Personal Jurisdiction Objections.
G. Motions for after Answer is Served
1. Motion for Summary Judgment
a. Purpose of Motion for Summary Judgment is to permit either Party (Plaintiff or
Defendant) to make showing before Trial. – This is Pre-Trial Motion.
b. Even though Claims & Defenses are sufficient on their face, there’s no Genuine Issue of
Material Fact requiring trial.
i. Moving Party would be entitled to Judgment as Matter of Law.
c. Normally, this can only be done after Answer is served.
d. Any party can make this motion on any claim or defense in Pleadings.
e. You need to have evidence to prove your position.
f. Party moving for summary judgment, must submit evidence in form Affidavits from
persons who have actual knowledge of facts.
i. Other Evidence: Discovery Info, Depositions, Answers to Interrogatories, Documents
produced in Pre-Trial Discovery, etc.
g. W/ this Evidence, Moving Party must demonstrate that there’s no genuine triable issue of
fact exists, r’able persons can’t differ, & that’s why they’re entitled to Judgment as
Matter of Law.
i. Evidence demonstrates conclusively that they’re entitled to Judgment as Matter of
Law.
h. Opponent, in order to defeat motion, must come forward w/ same type of evidence, to
show that triable issue of fact DOES exist.
i. This must be done w/ Evidence, similar to Moving Party’s evidence.
ii. Opponent can’t simply rely on Pleadings, since they don’t count as Evidence.
i. If there’s Triable Issue of Fact, then Motion of Summary Judgment is denied & case goes
to Trial.
H. Appeals from Motions
1. In New York, if a Motion is denied, while case is still pending, disappointed party may
appeal particular issue to a higher Court.
2. In Federal Practice & most other States, party has to wait until there’s Final Judgment.
3. New York permits Interlocutory Appeals.
4. Aggrieved Party has to bring Appeal w/in 30 days of Order that decided Motion.
a. If 30 day deadline is missed, then Party has to wait to appeal from Final Judgment.

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