NYP 11

NOTE OF ISSUE—Either party may file a note of issue with the country clerk; this places the trial on the court's calendar.

***Cross-reference: Once the note of issue has been filed, the parties have 120 DAYS to file a motion for summary judgment. (See NYP 9)

• PARTY WHO FILES NOTE OF ISSUE makes a demand for jury in the note of issue (if not, that party's right to jury is waived)
• OTHER PARTIES who want a jury trial may serve and file demand for jury within 15 DAYS of service of the original NOTE OF ISSUE.

• Actions seeking SOLELY money damages
• Replevin
• Claim to real property
• Annulment of marriage
• Divorce action (on the issue of grounds for divorce but NOT monetary support or child custody)

• 6 Jurors
• Need not be unanimous (5 out of 6 is enough for a verdict)

All CLAIMS by a π against a ∆ in a later proceeding are BARRED if they arise from

• 1) the SAME TRANSACTION tried in a prior case
• 2) there was a FINAL JUDGMENT in the prior case
• 3) based on the MERITS of that case

***Exception. In a matrimonial dispute, claims in a second trial for PERSONAL INJURY are not barred by claim preclusion (res judicata)

Issue preclusion prevents the re-litigation of specific FACTUAL ISSUES that were DECIDED IN A PRIOR PROCEEDING where (all three needed)

• 1) the factual issue in the 1st and current proceeding is IDENTICAL
• 2) the factual issue was LITIGATED and DECIDED in the former proceeding
• 3) party AGAINST whom preclusion is being asserted had a FULL AND FAIR OPPORTUNITY to litigate the issue in the prior proceeding

***Cannot use issue preclusion offensively against someone who was not a party to the prior action