NY Practice and Procedure: frequent issues

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  1. summary judgment: standard: Court grants judgement as a matter of law because there is no clear material and triable issue of fact.
  2. summary judgement: burden: party moving for summary judgment has the burden to establish by prima facie evidence that entitled to judgement as a matter of law. 
  3. summary judgement: burden shifting: If the moving party satisfies, burden shifts to the non-moving party to establish by sufficient evidence that there is a bona fide issue of fact
  4. summary judgement: a court may generally award to the non-moving party as well as the moving party, w/o the need for the non-moving party to make a cross-motion
  5. motion to dismiss: used to terminate an action before service of the answer
  6. motion to dismiss bases: a zillion, including failure to state a cause of action
  7. motion to dismiss: failure to state a cause of action: even if every allegation made by P is correct, no cause of action stated. Court assumes the truth of all allegations, and will not consider evidence to the contrary
  8. motion to dismiss may be made at any time before service of the responsive pleading is required. Responsive pleading includes:
    • - answer to complaint
    • - answer to a cross-claim
    • - answer to a 3rd party, etc
  9. motion to dismiss: no limit to how many motions to dismiss defenses, but only one motion to dismiss a cause of action
  10. preliminary injunction: action to maintain the status quo while a case in pending
  11. preliminary injunction: used when any judgement that might be ultimately obtained for P in the litigation would be ineffective
  12. preliminary injunction: operative against all parties and against any other persons who have knowledge of the injunction and are acting in concert with the party against whom it was issued.
  13. preliminary injunction: moving party must demonstrate:
    1) likelihood of success on the merits

    2) irreparable harm unless the preliminary injunction is granted (lack of an adequate remedy at law); and

    3) a balancing of the equities in the favor of the moving party
  14. temporary restraining order: used to maintain the status quo when a preliminary injunction is pending; may be sought through an ex parte motion
  15. TRO: party seeking it must show that giving notice to the opponent would cause significant prejudice
  16. joint and several tort liability (traditional approach) each tortfeasor is subject to liability to P for all of P's damages, regardless of actual percentage of fault
  17. joint and several liability: each of two or more Ds who is found liable for a single and indivisible harm to the P is subject to liability to the P for the entire harm.
  18. joint and several liability: P can collect entire judgment from on D, another D, or portions of the judgment from various Ds as long as P's entire recover does not exceed the amount of the judgment.
  19. pure several liability: if D 50% or less at fault, responsible only for his equitable share of P's of non-economic loss i.e. pain and suffering.
  20. NY: joint and several liability for car accidents and worker's comp,  pure several liability for everything else
  21. contribution mitigates joint and several liability by permitting a tortfeasor to recover any excess paid over his equitable share.
  22. contribution is typically sought through an impleader by a tortfeasor who has been sued by the injured party
  23. contribution: a tortfeasor who settles with the injured party prior to judgment is generally not entitled to contribution from any other tortfeasors
  24. contribution: limited to a tort action in which damages are sought for personal injury or injury to property or a wrongful death action; does not extend to purely economic loss deriving from breach of contract
  25. U.S. district courts jurisdiction over actions when:
    (i) the parties to an action are citizens of different states or citizens of a state and citizens or subjects of a foreign state and

    (ii) the amount in controversy in the action exceeds $75,000.  In general, when these requirements are met, a federal court may exercise jurisdiction over the action, regardless of the legal subject of the controversy.
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NY Practice and Procedure: frequent issues
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