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March 4-6, Tuesday - Thursday, 2003
9am-2pm
 
 

Preparation for Trial

 

  • Jury Selection Voir Dire
  • Client Selection
  • Witnesses availability

 

Project Management Process

  • Gain consensus of project outcomes
  • Be willing to change
  • Keep others informed of what you are doing

 

PHASES OF PROJECT

 

  1. Initiation Process
  2. Planning Process
  3. Execution Process
  4. Controlling Process
  5. Closing Process

 

1.      Initiation Process

a)      Recognizing that a Project should be done

b)      Determining what the Project should accomplish

c)      Define overall Project goals

d)      Define general expectations of the stakeholders

e)      Selecting Project Team members

f)        Agreement of work to be accomplished by the Team

g)      Establish rules:

i)        Levels of Authority

ii)       Communication Channels

iii)     Chain of Command

 

2.      Planning Process

a)      Define Scope of the Project

b)      List tasks and activities that will lead to achieving the Project Goals

c)      Sequence activities in most efficient manner possible

d)      Develop workable schedule and budget to assign resources and activities required

e)      Getting the Plan approved

 

3.      Executing Process

a)      Procure necessary resources

b)      Lead the Team

c)      Meet with Team Members

d)      Secure the special talent and/or expertise required to implement the tasks

e)      Communicate with the stakeholders

 

4.      Controlling Process

a)      Monitoring deviation from the plan

b)      Implement corrective action to expedite processing the plan

c)      Receive and evaluate Project changes requested by stakeholders and team members

d)      Rescheduling tasks

e)      Adapting resource levels

f)        Changing the project scope

g)      Returning to planning stage

h)      Conflict Resolution

 

5.      Closing Process

a)      Acknowledge achievements and results

b)      Learn from project experiences

c)      Review process and outcomes with stakeholders and team members

 

Goals of a Project

1.      To complete a project within budget

2.      within time frame

3.      on schedule

 

4.      Criteria for setting great goals

a)      Goals must be specific

b)      Goals must be realistic

c)      Goals must be measurable

d)      Goals must be agreed upon

e)      Responsibility for achieving the goals must be identified

 

 

Successful Leadership

 

1.      Visibility in your role

2.      Must communicate your intentions and the progress of the project on a regular basis.

Wednesday March 5, 2003

 

Cornell Ahmed-Odom, Esq.

Simplicity, comprehension and clarity

 

New York Civil Procedure Laws and Rules

Class Outline and lecture notes for

Week 1 Wednesday and Thursday March 5 & 6, 2003

 

I.                    Jurisdiction

A.    Subject Matter jurisdiction

B.     Procedural jurisdiction (3 types)

a. Personal jurisdiction

b.      In rem jurisdiction

c. Quasi in rem jurisdiction

 

Constitutional Requirements

 

A.                 Minimum Contacts

1.      New York domicile

2.      Agent

3.      Long Arm jurisdiction over a non-domiciliary

a.       Proof of a single transaction

b.      Tortuous acts within New York

c.       Tortuous acts outside New York

d.      Ownership or use of New York real property

e.       Actions for support, alimony or maintenance DADA

f.        Long Arm qualified appearance

4.      Service on a non-domiciliary within New York

a.       Trick

b.      Immunity

5.      Doing business in New York

6.      consent to jurisdiction

a.        

b.       

c.        

d.       

e.        

  1. Proper Service of Process
  2. Opportunity to be Heard
  3. Raising a jurisdiction

1.      Either raise the objection and litigates the issue and the main action

2.      Declines to appear and accepts a default judgment, deferring:

a.       In a PRI answer or motion to dismiss

b.      If no motion is made

 

II.                Jurisdiction

 

Involves a court authority to hear a past case or controversy.  It consists of 2 broad categories;

A.    Subject matter jurisdiction

B.     Procedural jurisdiction

 

a. speaks of courts authority over the subject of a case

def on controversy  example:  2 nj residents are involved in a   agreement they wish to file a complaint in a New York court.

If a court lacks subject matter jurisdiction to deal with a particular question on issue, the parties to the action can not stipulate that the court has subject matter jurisdiction.

 

C.    the authority of the court over def the parties.  There are 3 types of proc jurisdiction:

  1. Procedural Jurisdiction

1.      Personal jurisdiction involves an action which is capable of imposing a personal obligation on the D.  ex: to pay money, to account for something, to specifically perform an act or to refrain from acting.

 

    1. In Rem jurisdiction involves the determination of status on the disposition of ownership, possession, control or title of property interest of a rest = (thing) that is situated within New York state.

 

    1. Quasi In Rem Jurisdiction this allows p to attach real property of the D that is within New York state and to use the property as a basis for jurisdiction as well as to satisfy the p claim.  The property must be significantly connected with the underlying controversy, so as not to violate the 14th amendment due process laws.

 

Constitutional Requirements

A.    Minimum contacts (major area) in the absence of sufficient minimum contacts with the state, due process limits the courts territorial rights (judicial power) to exercise jurisdiction over the non-domiciliary resident or on the non-domiciliarys property.  A D must have a minimum contact, a connection or a relationship with the forum state, such that been brought in to a New York court does not offend the 14th amendment.  Minimum contacts must come about by an action of the D prospectively directed to the forum state. 

 

B.         Proper Service of Process

 

Shaffer v. Heitner & International Shoe, 433 U.S. 186 (1997) Supreme Ct.

 

Notice of the Action must be reasonably calculated to inform parties of the proceedings (Notice of Complaint filed with the court and delivered to the parties) which may directly and adversely affect their legality.

 

C.            Opportunity to be Heard

 

D must be afforded a reasonable opportunity to appear before the court to be heard.  Under CPLR 320 (a), a D has only 2 days to appear to void a default judgment when personally served within New York state or after consenting to be served by mail.  In all other situations, the D must within 30 days  __ (when service is complete). 

 

D.        Raising a jurisdictional objection  - a D who has a defense predicated on lack of procedural jurisdiction (lack of minimum contacts or defective service) may pursue 1 of 2 options:

Either raise the objection and litigate the issue and the main action

Declines to appear and accept a default judgment, deferring litigation or the issue until the p seeks to enforce the default judgment at which time D counters with a violation of his due process rights.  If the D wishes to immediately challenge the jurisdiction issue, this can be done either:

In an answer or motion to dismiss

If no motion is made the D can assert the jurisdiction objection as an affirmative defense in his answer.

 

Minimal Contacts (for New York)

 

There are 6 kinds of contacts that will subject a D to In Personam jurisdiction in a New York court.

 

            1.            New York Domicile

If the D is a domiciliary of New York when the D contacts with New York are sufficient so that it will not be unfair to have the D attend a trial in a New York court, regardless of where service occurs, provided the D is given a reasonable opportunity to appear and is properly served.  CPLR 313 allows for service upon a New York domiciliary outside the state.  Establishing a domicile requires a physical presence in the state and intention to make the state a permanent house.  A person can have only one domicile and multiple residences.  Once a domicile has been established it continues until there has been

a)                  actual change of residence

b)                  an absolute and fixed intent of abandoning the former residence

c)                  an absolute and fixed intent of acquiring a new domicile.

2.            Agent

Personal service on an agent of the D is sufficient to assert personal jurisdiction if D has expressly or impliedly designated an agent to accept service of process on her behalf, service on that agent meets the requirements of minimal contacts and is sufficient for a New York court to assert In Personam jurisdiction.

 

            3.            Long Arm jurisdiction on over a non-domiciliary CPLR 302 Pennoyer v. Neff, 95 U.S. 714 (1878)

 

 

Minimum Contacts:

 

There are six types of contact that will subject a D to In Personam jurisdiction over a person of a ny court. 

 

  1. NY Domicile If D is a NY domiciliary of NY when the P began the action, such a Ds contacts with NY are sufficient so that is would not be unfair to have the D attend a trial in a NY court, regardless of where service occurs, provided the D is given a reasonable opportunity to appear and is properly served.



CPLR 313 allows for service upon a NY domiciliary outside the state. 

 

Establishing a Domicile requires a physical presence in the state and an intention to make the state a permanent home.  A person can have only one domicile but can have multiple residences.  Once a domicile has been established, it continues until there has been:

 

 

  1. An actual change of residence
  2. An absolute and fixed attempt of abandoning the former domicile
  3. An absolute and fixed intent of acquiring a new domicile.

 

  1. Agent: Personal service on an agent of the D is sufficient to assert personal jurisdiction.  If D has expressly or impliedly designated an agent to accept service of process on her behalf, service on that agent meets the requirement of minimal contacts and is sufficient for ny court to assert In Personam jurisdiction. 
  2. Long arm jurisdiction over a non-domicilary

 

CPLR 302(a)(1) asserts jurisdiction over a non-domiciliary over a ny business or contracts any where in the world   goals or services within ny state.  NY recognizes the mere shipment rule, eg., a florida warehouse that ships it goods intoNew Yorkbased on a florida K is nevertheless subject to In Personam on a COA arising out of that K.  Thus a non-resident who agrees to supply goods or perform services in New York will be subject to In Personam jurisdiction on a suit involving breach of that K.  In Personam jurisdiction

 

3.(a) Under CPLR 302(a)(1) proof or evidence of a single transaction will suffice. 

 

Example:  although not physically present in New York, doctor f was found to be subject New York auction by means of an open telephone line.  Doctor fs bids were relayed by his agent to the auctioneer, who announced them to the other bidders.  Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13 (1970)

 

2nd  example X responded to an ad in the New York Globe placed by a New York corporation for a salesperson for its NE territory.  X came to New York for a day to interview, negotiate and finalize a K with the New York corp.  The K created a continuing relationship between X and the Corp.  X was found to have transacted business in New York and was subject to In Personam jurisdiction on a cause of action arising out of that K.  a performance K has been breached ie. The shipping of good in the form of potential labor, mba, interview, negotiation are all transactions

 

elements of a K

  1. offer
  2. acceptance
  3. meeting of the minds
  4. consideration

referred to a COMA

 

New York has In Personam jurisdiction and in rem jurisdiction over this transaction. 

 

3.(b)  Tortious (wrongful)  (tort feasor = wrong doer) or wrongful acts in New York

CPLR 302(a)(2) comes into play where a D commits a wrongful act (assault, negligence, battery, tortuous or wrongful interference with a K, false imprisonment, malicious prosecution and abuse of process), within New York.  Pontarelli v. Shapero, 231 A.D.2d 406 (1996).  By committing a tort in New York, a D subjects herself to In Personam jurisdiction on a cause of action arising out of that tort. 

 

3.(c) tortuous acts outside New York: CPLR 302(a)(3)  this applies to a non-New York resident who has committed a wrongful act (except libel or slander) outside New York causing injury (economic injury, personal injury or property damage) in New York where:   I) the D regularly does or solicit business in New York.  Look for the relationship between seattle shrimp producer and New York restaurant.  Ii) engages in any other persistent course of conduct.  Iii) derives substantial revenue from goods used or consumed in New York state.  Iv)  it was forseable that the tort would have consequences in New York and the D derived substantial revenue from interstate or international business.  

 

Example:  where a New York resident visited a doctor over the state line in Vermont, the court held, ruled or surmised that assuming that the tort occurred in New York arising from the doctors medical malpractice in Vermont, no CPLR 302(a)(3) jurisdiction existed because respondent rendered medical services wholly within his own state (Vermont) and he cannot be said to be engaging in interstate commerce wouldnt apply.  A physician does sell his or her services in interstate commerce by treating unsolicited patients that travel into the physicians home state seeking health care.  Ingraham va. Carroll, 90 N.Y. 2d 592 (1997). 

 


 

 

Plaintiff

Defendant

Rule/Issue

1.

Plaintiff claims that defendant, in October 1993, informed the Federal Aviation Administration that the Bill of Sale was issued in error, and that the sale had not been finalized, thus beclouding plaintiff's title.

Defendant cross moved for dismissal of the action for lack of personal jurisdiction (CPLR 3211 [a][2],[8]), asserting that this was a New York transaction between New Yorkers; that there was no proof that plaintiff himself was a Texas resident at the time of the challenged transaction; that no part of the agreement was to be performed in Texas; and that defendant had no meaningful contacts with Texas.

I.  whether

2.

He further alleges that defendant had in fact paid only $255,000 (not $300,000) for the helicopter.

B.

II.

 

 

C.

III.

 

 

D.

IV.

 

 

E.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Consic plain English in explaining your analysis of the case

 

Case 1 McCasland v. McCasland, 68 N.Y. 2d 748 (1986)

Case 2 Asahi Metal Indus. Col. v. Superior Court, 480 US 102 (1987)

Case 3 Etra v. Matta, 61 N.Y. 2d 455 (1981)

 

Form the rule of law in a question.

Act as if you belong. 

Example: 

 

    1. Ownership or use of New York real property CPLR 302(a)(4).

This rule allows a New York court to assert In Personam jurisdiction over a D who, at the time of a cause of action, owned, used or possessed real property within New York where the cause of action in tort or K arose out of that relationship to the property. 

 

    1. actions for support, alimony or maintenance CPLR 302(b) this rule speaks of In Personam jurisdiction of either a family or superior court of a non-domiciliary where the P is a domiciliary of New York and is seeking a divorce, alimony, child support, maintenance or equitable distribution and D has some former marital contact with New York.

In Personam jurisdiction regarding alimony or child support in New York or family court is

 

DADA = D = New York was the last marital Domicile of the parties

A = abandonment took place in New York state

D = the claim for support arose out of a New York state DECREE or under New York state law. 

            A = P claim arose under a separation AGREEMENT executed in New York state. 

 

Court defines marital relationships as economic relationships.. courts do not care why you get married.  Alimony, maintenance and equitable distribution are the terms that a court recognizes.. love has nothing to do with an organism.. an ethereal, abstract concept. 

F.         Long Arm Qualified Appearance.  CPLR 302 (c) = when a long arm D appears in a New York action, the P may not amend or supplement the complaint to include a cause of action over which In Personam jurisdiction otherwise could not be asserted.  p

4.      Service on a non-domiciliary within New York a non-domiciliary who is in New York even temporarily, is subject to personal service and the New York courts consider this presence within the state sufficient contact for In Personam jurisdiction on any cause of action regardless of whether it arose within or outside the state. 

4.(a)  The general rule is that when a non-domiciliary D has been enticed into New York by fraud or deceit for the purpose of obtaining service upon him, the service thereby effectuated will be vacated.  It is equally well established that if the D is not lured into the jurisdiction but is here of his own volition, the service will not be invalidated merely because it was accomplished thru the use of deception. 

 

Immunity from in state service:  a non-domiciliary who has voluntarily attended (who is a party or witness) to a New York judicial proceeding (a trial or appeal) or quasi-judicial proceeding (an arbitration, legislative or motor vehicle hearing) who would not otherwise be subject to In Personam jurisdiction by service outside the state is afforded common law immunity from service.  This case must be unrelated to the d case.  The non-domiciliary is given a reasonable amount of time to attend the proceeding and leave. 

5.      Doing business in New York:  a New York court may assert In Personam jurisdiction over a non-domiciliary or a foreign corporation that conducts business in New York.  CPLR 301 states: that a court may exercise such jurisdiction over persons, property or status. 

Doing  business requires a finding by a New York court that the non-domiciliary has engaged in such a continuous and systematic course of business within New York that is warrants a finding of its presence within New York. 

A non-resident D who is doing business within New York is subject to In Personam jurisdiction in New York courts on any cause of action regardless of where it arose, even if the cause of action did not arise out of the business done in New York

The mere maintenance of a single bank account in New York does not, as a general rule, constitute doing business under CPLR 301.  Where, however, a non-domiciliary uses a New York bank for the receipt of substantially all of its (non-domiciliary) income and for the payment of substantially business expenses, this New York activity constitutes doing business.  Understanding the issues. 

I Issue(s)

R - Rules of law

A Analysis

C Conclusion

Find out what the ruling should have been in your own opinion.  Use the IRAC system.  Make a note of what you think.  Use quotations for language that is not your own.  Exercise your right to be intellectual.  Phrase the rule of law in the form of a question.

Example : New Jersey corporation maintained no offices, bank account or telephone in New York.  However, it did $2 mil in New York sales and sent its reps to call on customers, follow up on complaints, run clinics in New York and deliver goods in New York.  The courts held that the corporation was subject to long arm jurisdiction.  Laufer v. Ostrow, 55 New York 2d 305 (1982)

6.      Consent to jurisdiction even though a non-resident has no minimum contacts within New York, the D, nevertheless, may consent to jurisdiction in a New York court.  Example consent to be subject to the jurisdiction of a New York court clause.  it is well settled parties may consent to submit to the jurisdiction of the court so that a New York court governs the behavior of the parties.  1978 agreement to enforce any actions brought under it.  The legislature also specifically expressed its willingness that the courts of this state exercise jurisdiction over this situation.  Submission to New York state law.  Money is political.  Needs must be met.  Banco de Commercio e Industria de Sao Paolo v. Esusa Engeharid e Construcoes S.A., 173 AD 2d 340 (1991).  This consent may arise in several ways: a) by the D making any one of the CPLR 3211(a) motions to dismiss without moving to dismiss for lack of procedural jurisdiction.  A guarantee in this case is the K.  practice finding the legal reasoning in a set of fact.. the devil is in the details, so is the reason in the details. 

6.(b) by the D serving an answer and failing to assert a defense of lack of jurisdiction.  The court presumes jurisdiction if you fail to stipulate in the answer that the court lacks In Personam jurisdiction over d.  affirmative defense is that the court lacks In Personam jurisdiction over the issue.

6.(c) by the D properly raising the defective service as an affirmative defense in the answer but failing to make a summary judgment motion on this issue within sixty days from serving the answer.  CPLR 3211(e).  dismiss a p complaint with prejudice. 

D.     by the D stipulating to jurisdiction in a signed writing or in open court. 

E.      By the D interposing a counter-claim that is unrelated to the p complaint.

1.      Jurisdiction

2.      Proper Notice

How a summons may be served CPLR 308

6 basic methods by which a summons may be served on an individual. 

1.      personal delivery to D

2.      1st class mail

3.      personal delivery to an agent

4.      personal delivery to someone that is SAD, suitable age and discretion

5.      nail, mail and file

6.      service by publication.

In hand personal delivery CPLR 308(1).  To serve a summons by personal delivery, a process server merely hands the summons to the D.  Service is complete at that moment.  Process server also must sign an affidavit attesting to the description of the person served.  (example height, weight, color of hair or eyes); where the service occurred and what papers were served. 

Personal service is the best method to serve a summons.  If a summons is not personally served, the D may defend against a default judgment, alleging that he did not personally receive notice of the action in time to defend against it and that he has a defense of merit.  Query if the ps goes to the D house, and gives the summons to Ds son, and the son then proceeds to the house and hands the summons to the father, is valid personal delivery under CPLR 308(1) achieved as to the father.  No because the statute calls for actual personal delivery to the D.

If D refuses to open a locked door to personally accept a summons, the ps can leave it outside the door provided that a ps so advises the p of this fact. 

Service in a matrimonial action, requires in hand service to D unless the court orders otherwise or unless D consents to service by mail.  CPLR 312-a. 


Case Analysis

 

 

Plaintiff

Defendant

Rule of Law/Issue

1.

D failed to pay as agreed in the monthly lease

A.  p

I.   Whether Dhad a direct responsibility to adequately and properly secure common walkways for the buildings tenants.

2.

D failed to clean community walkways for other tenants as agreed in monthly lease

B.  p

II.  According to the NYC Building Code Section 302, did D follow the proper guidelines in wiring p;s building.

3.

D negligently wired the building electrical system which was the direct cause of the fire.

C.

III.

4.

 

D.

IV.

5.

 

E.

V.

 

 

 

 

 

 

 

 

 

 

 

 

 

Court ruled in favor of D because ..

Court should have ruled against p due to

Telescope the issues, identify and frame why or how the rule of law settles the issues. 

 

Thursday March 6, 2003

 

II.            Proper Notice of Delivery

1.             Personal Delivery - CPLR 308(2) concerns the valid delivery of notice

2.            Suitable Age and Discretion

3.            Nail, Mail and file CPLR 308(4) is acceptable only if after exercising due diligence, the process server cannot personally serve the D and cannot serve a person of suitable age and discretion at the D actual place of employment or residence.

What constitutes due diligence?  The court of appeals constitutes that after two attempts nade constitutes due diligence Feinstein v. Bergner, 48 N.Y. 2d 234 (1979).  However, several attempts on different days at the Ds residence only during business hours (10am 5pm, 8:20am) is not due diligence since the process server should attempt either before or after working hours or at the Ds place of business.  Avoid jurisdictional defect by properly serving D

4.            Service on a Designated Agent CPLR 308(3).  Provides for delivery of a summons within the state to an agent for the service of a person to be served as designated under CPLR 318.  CPLR 318 requires such a designation to be filed with the country clerk.  In addition, a K may designate an agent to accept service; there is no requirement that the K be filed.  Assign the secretary of state to serve document upon D. 

5.            Personal Service by Mail CPLR 312(a) New York permits personal service of summons and complaint or summons and notice by ordinary first class mail.  If the D is willing to accept such service, the D completes a form acknowledging receipt within 30 days and mails it back to the p.  To serve by mail, the p mails the summons and complaint with 2 copies of a statement of service by mail acknowledgment of receipt and a self addressed stamped return envelope.  The D his attorney or an employee of his attorney must complete the acknowledgement of receipt and return it within 30 days from the date of receipt.  Note that infants, incompetents and conservators may not be served my mail.  County clerks office will identify whether D has assigned a power of attorney to another person. 

6.            Alternative methods as directed by the courts CPLR 308(5):  when the above methods are impractical, and cannot be used successfully to provide the D with adequate notice, the ps remedy is to make an ex parte motion for a court ordered alternate method of service.  There is no constitutional prohibition against court devised methods of service as long as they are reasonably calculated to give the D notice of the lawsuit and an opportunity to be heard.

7.            Service by Subpoena CPLR 2303: a subpoena may be served pursuant to methods prescribed in CPLR 308 except that, when using Nail & Mail or SAD service, an affidavit of service of the subpoena need not be filed with the court.  (2 and 3 do not)

8.            Who may serve process CPLR 2103(a) Except where otherwise prescribed by law or court order, papers may be served by any person not a party to the action  who is 18 years of age or older.  Most summonses are served by process servers who must log the time and place of service and who are generally paid by the number of summonses they successfully serve in a day.  This log is a good source of cross examination of the ps process server. 

9.            Who may serve outside New York CPLR 313: where service is made outside New York state, the following persons may serve:  a) a resident of New York state who is an adult non-party to the action; b) anyone authorized to service under the laws of service in the foreign jurisdiction;  c) an attorney in any foreign jurisdiction.

10.        When process may be served In a Supreme Court or country court action, any attempt at making service prior to obtaining an index number and filing the summons with the court clerk is null and void.  Service may be made at any time, day or night, either within or without the state, but generally not on Sunday.  The only exception to the never on Sunday rule is when the summons is accompanied by an injunction needed to avoid irreparable damage.  Service on Saturday is prohibited when done with malice upon one who observes Saturday as the Sabbath. 

11.        Service on a Corporation CPLR 311:  Service upon a corporation may only be made by In-hand personal delivery and not by any other method defined by CPLR 308, example by substituted service  (for example Nail and Mail or SAD delivery), unless personal service proves impractical in which case the p can make an ex parte motion and the court will prescribe an alternative method of service. 

CPLR 311 lists the 7 persons who are authorized to accept service on behalf of a corporation:

(1)   Assistant cashier

(2)   Managing agent

(3)   Any other agent expressly or impliedly authorized to receive service

(4)   Cashier

(5)   Director

(6)   Officer (president, vp or treasurer)

(7)   General agent

A person stationed at a cash register at a retail store was neither a cashier nor a managing agent of the D corporation.  See Weiss v. Glatt Pack Kosher, Inc., 138 AD 2d 591 (1988).  When a process server informed the corporations receptionist that he had legal papers to serve and she summoned an individual, the process servers belief that the person was the corporations managing agent was reasonable and the service was upheld.  Nationwide Mutual Insurance v. Kauffman, 896 F.Supp. 104 (1995).

12.        CPLR 310 to obtain jurisdiction over a partnership, any one of the partners may be served pursuant to CPLR 308.  the partnership or any or all of the partners may be named as a D.  However, where a partner is not served or named in the suite, only her partnership interest (that is contribution to capital and right to any profits) can be reached or attached by the judgment. 

III.          Opportunity to be Heard

Under CPLR 321, any natural person other than an infant or incompetent may appear in person or thru attorney.  An infant must appear under a court appointed guardian or by a guardian by his property.  If none has been appointed a parent having legal custody may appear.  If there is no such parent then another person or agency having legal custody may appear.  If the infant is married, an adult spouse residing with the infant may appear. 

Corporations may only appear through an attorney except in the defense of a small claims action.  An officer of a corporation or shareholder who owns not less than one third of the issued shares where there are no more than ten shareholders all of whom are natural persons may appear in defense of a small claims action against a corporation.

When a D is served with a summons and complaint or summons with notice, in order to avoid a default judgment, she must appear within 20 or 30 days after service is complete, depending on the method of service.  If the D was personally served in New York state, she has 20 days to answer before being subject to a default. 

A D appears in an action by either a) making a motion which effectively extends the Ds time to answer; b) serving an answer to the complaint; or c) serving a notice of appearance, where the summons was served without a complaint. 

2.            Qualified Appearance there are three types of qualified or limited appearances

(1)   Where the D is a non-domiciliary and jurisdiction is based on one of the long arm provisions of CPLR 302, the p cannot amend or supplement his complaint to add a non-302 cause of action on which he would not otherwise have long arm CPLR 302 jurisdiction over the D.  Read CPLR 302 extensively.

(2)   In a quasi in rem action, the D may fully contest on the merits without subjecting herself to In Personam jurisdiction

(3)    In an in rem action, the D may contest the jurisdiction issue under CPLR 3211(a)(9) but if D loses on that issue, she will have agreed  to In Personam  jurisdiction over herself by Dover the merits.

(4)   Default upon failure to appear - CPLR 3215.  The most common grounds of default judgment are failure to timely appear by serving a notice of appearance when served only with a summons with notice or a failure to timely serve an answer to a claim.  When the p claim is for a sum certain, an Application for Default Judgment is made to the court clerk.  No notice to D unless the D appeared (to file a motion, notice) and then defaulted.  A D who has failed to appear may nevertheless on the assessment issue of damages (Leona Helmsley you gave them how much?).  May a D who has defaulted and failed to appear at the inquest still contest the assessment of damages?  The D may make a motion to resettle the judgment alleging that the judgment is excessive and the court may utilize its inherent power to modify the judgment.  Boorman v. Deutsch, 152 AD 2d 48 (1989). 

(5)   Notice for default under CPLR 3215(g)(3)(i), when the D is a natural person and the suite is based in K, additional notice of the action must be given by, or on behalf of the p at least 20 days prior to entry of any default judgment.  Notice is accomplished by mailing a copy of the original summons by first class mail to the D at her last known address; if it is returned by the post office, or if the residents address is unknown, notice is accomplished by mailing a copy of the summons to the D in care of his place of employment.in an envelope marked personal and confidential.  In addition to the above two requirement of notice, a notice of default inquest also is required.  a)  if the D has appeared in the action a 5 day notice under CPLR 3215(g)(1) but the court may dispense with the notice requirement when a D who has appeared has failed to proceed on a case called for trial; b) if more than one year has expired since the Ds default; c) if the defaulting Dserves a demand for that notice to be served at least 5 days prior to the default inquest. 

 

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