NYP 9.txt

  1. When discovery is completed and the case is ready for trial, how is the matter placed on the trial court's CALENDAR?
    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)
  2. How does a party who is entitled to a JURY obtain it?
    • 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.
  3. When does a party in a civil action have the right to a TRIAL BY JURY?
    • 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)

    1) How large is a civil jury?
    2) Must the verdict be unanimous?
    • (1) 6 Jurors
    • (2) Need not be unanimous (5 out of 6 is enough for a verdict)

    When does it apply?
    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)

    When does it apply?
    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
Card Set
NYP 9.txt
Trial Procedures Estoppel