There will be a complaint and an answer (cross claim, interpleader complaint, or complaint against third party). In certain instances there shall be a reply or considered waived. No other pleadings without leave of court.
CPLR 3013: Particularity of statements generally (see rule): pleadings shall be sufficiently particular to give the court and parties notice.
CPLR 3014: Statements (see rule): "plain and concise statement." Some formatting rules and when you can't combine. Can state causes in the alternative or hypothetically
CPLR 3015: Particularity as to specific matters (see rule): Nitty Gritty – don't need to plead conditions precedent, name corporate statute, can cite other decisions without showing their jurisdiction, must show license to do business if cause of action requires it.
CPLR 3016: Particularity in specific actions (see rule): lays out specific requirements for libel/slander, fraud/mistake/separation or divorce, law of foreign country, sales and delivery of good, and personal injury
CPLR 3017: Demand for relief. (see rule): pleading must contain demand (and sets certain limits)
CPLR 3026: Construction (see rule): LIBERAL CONSTRUCTION. Ignore defects if there's no prejudice.
NYR 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer:
Client is the boss
NYR 1.4: Communication:
Lawyer must communicate things to client
Nichols: Workman's comp suit where P hired a lawyer for worker comp. Lawyer didn't inform him about other claims he would have against third parties. This is malpractice because you should tell your client about all the avenues because you're in the best position to help the client protect themselves in regards to this transaction.
The Complaint
CPLR 3020: Verification: gotta have it
CPLR 3024: Motion to correct pleadings: can ask for clarity, or to strike prejudicial matters within 20 days
CPLR 3211(a)(7): motion to dismiss because the pleadings fail to state a cause of action = equivalent to 12(b)(6) "failure to state a claim upon which relief can be granted"
CPLR 3012a(a): A Certificate of merit in medical, dental and podiatric malpractice actions: have to talk to other doctors to know the claim is legit – powerful medical lobby
Foley: appeal of a failure to state a cause of action ruling.
Sufficient pleadings generally depended upon whether or not there was substantial compliance with 3013 providing that “statements in a pleading shall be sufficiently particular to give the court and parties notice of the transaction, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” These are at the “heart of the pleading requirement”
“The basic requirement now is that the pleadings identify the transaction and indicate the theory of recovery with sufficient precision to enable the court to control the case and the opponent to prepare
Generally we have a liberal approach;
Burden is on the one who attacks the pleading to prove he is prejudiced
Pludeman: did the plaintiff’s plead properly under CPLR 3016 specificity.
Although plaintiffs have not alleged specific details of each individual defendant's conduct, we have never required talismanic, unbending allegations. Simply put, sometimes such facts are unavailable prior to discovery. Lest we willfully ignore the obvious—or the strong suspicion of a fraud—we have always acknowledged that, in certain cases, less than plainly observable facts may be supplemented by the circumstances surrounding the alleged fraud
Here it is significant that plaintiffs, unrelated to one another, all registered parallel complaints. Moreover, it is the language, structure and format of the deceptive lease form and the systematic failure by the salespeople to provide each lessee a copy of the lease at the time of its execution that permits, at this early stage, an inference of fraud against the corporate officers in their individual capacity and not the sales agents
Agents unique from the corporation as a whole To have a legit claim against agents need more than for the company (allege facts sufficient to infer knowledge of fraudulent scheme)
Here the facts pleaded do not allow for an inference. Even if you wrote this is a four page lease and you should read the other pages on it they probably wouldn’t.
The answer:
CPLR 3018: Responsive Pleadings: an answer must include denials and affirmative defenses (that would take the other party by surprise if not pleaded) or they're waived
Bello: man leaves a bag of stuff ticking on a bus; mother notices he was acting weird; other passengers were alarmed and settled in; bus driver comes to a quick stop and lets everyone off; mother sees her kid has been injured as a result of the sudden stop.
Summary judgment is granted to defendants. The issue on appeal was whether the answer should have contained the emergency doctrine as an affirmative defense.
P arg. That since they did not plead the emergency doctrine they should not be able to use it. Court disagrees
“CPLR 3018b “depends on whether it would unfairly take the other party by surprise” in this case all the facts were known
Hypothetically if the aff defense was "my medications made me do it" those facts are not readily apparent and if not plead at the answer they would be barred from bringing it as a aff defense
Counterclaims:
CPLR 3019: Counter Claims
(a) Subject of counterclaims.
P v. D or reverse
(b) Subject of cross-claims.
P v. D1 who then goes v. D2
(c) Counterclaim against trustee or nominal plaintiff are barred
(d) Cause of action in counterclaim or cross-claim deemed in complaint: Cross and counters may not get the full judicial treatment. Also, if someone not a party is liable then through a pleading a summons is issued. They get a chance to answer and are now defendants as if they been the whole time.
Chrisholm-Ryder Pg. 610: Dispute between client and its former attorneys is before the court for the second time; in prior appeal they granted attorney’s motion for summary judgment – finding an account stated between the parties for legal services rendered during the eighteen years of the retainer; rights before that judgment plaintiff files against attorney’s for malpractice.
Attorney’s move to bar based on prior judgment and this court grants the bar.
Collateral estoppel or issue preclusion precludes issues which were necessarily decided in a previous matter. Will not foreclose issues that were not raise and not necessarily decided. Burden is on litigant to prove that it is not precluded.
P.arg: not precluded because that action was for an account stated, not an action in contract; that counterclaims are permissive in NY and that it was therefore not obliged to seek damages for malpractice in the prior action; and that at the time of the prior motion it had insufficient knowledge upon which to predicate it claim of malpractice.
But the account established only the amount of debt it does not create liability where none existed; the creditor’s claim may always be defeated because of failure of considerations; thus prior action was necessarily determined; it’s about the nature of the claim not its form
Batvia Kill Pg. 613: there is a contract insured by travelers; batvia terminates due to what he calls lack of performance. Deusch sues for damages resulting from breach. Batvia does not counterclaim but they assert affirmative defenses:
That the plaintiff as contractor failed to prosecute the work with such diligence that would insure the completion within the time specified and therefore we terminated
In that trial court found that deusch did incur many costs in reliance, but batvia was justified in terminating.
Batvia then sues seeking damages as a result of deusch’s lack of compliance with contract. Court finds that they failed to counterclaim; Appeal…and court reverses
It does not impair any rights;
Judicial economy is not a consideration since the relevant questions that were determined will be carried over
The effect of the pleadings:
CPLR 3017: If you want relief you have to demand it and the type can be at the court's discretion
CPLR 3025(c): Amendment to conform to the evidence. The court may permit the pleadings to be amended before or after judgment to form them to the evidence, upon such terms as may be just including the granting of costs and continuances
CPLR 3026: Pleading shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced.
Iannone Pg. 625: this is an action to recover for property damage arising out of blasting operations performed by the defendant who entered into contract with the city to construct a subway on second ave. One cause of action is predicated on absolute liability and the second is on negligence. Third is for loss of business and disturbance in the enjoyment of the property. The fourth is based on negligence when they were blasting.
Defendants served a demand for particulars with respect to the alleged plaintiff property damage. The jury considered damage before blasting based on trial court's instructions (to which the defendants objected) which was not in the pleading but the jury thought the it was implied in a fair reading.
CPLR 3013: statements shall be sufficiently particular to give the court and parties notice of the transactions – the primary purpose is to advice of the complaint to allow him to respond without risk of surprise. This one gives no notice of pre blasting stuff.
Courts that don't use PJI have been reversed in NY
Amendments:
CPLR 3025: Amended and Supplemental Pleadings: Once without leave, after that with permission and good cause, and as is just to conform with evidence
Heller: plaintiff fell in defendant’s elevator and was injured. Gets award of 2.5 million. Trial judge reduces to 1.25 million.
Then plaintiff moves to amend complaint and ask for punitive damages. Court allows. This court reverses.
D.arg: this is only a strategy to enhance bargaining position; all of the facts were known from the very beginning.
Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine.
There is prejudice here. This amendment would subject defendants to a far greater and different dimension of liability than would otherwise have been the case.
Punitive damages require gross negligence, whereas the original pleadings only put him on hook for regular negligence
There is no explanation for the delay
Sanctions:
CPLR 8303-a: Costs upon frivolous claims and counterclaims in actions to recover damages for personal injury, injury to property or wrongful death. You can award costs and fees and sanction and the shit out of people
NYCRR part 130: authorizes the court in its discretion to impose sanctions on, or award attorney’s fees against, any party or attorney who engages in frivolous conduct.
Matter of Minister: Respondent unsuccessfully prosecuted two appeals and two prior motions in this court. The motion is plainly untimely and, for that reason it should be dismissed. Further because the motion is utterly without legal support and was evidently made for the purpose of delaying enforcement, we conclude that respondent should be fined.
Is nothing more than a same legal theory previously offered, and nothing more than the same evidenced offered in the same light.
Don't be a dick or we'll fine you
NYR 3.1: Non Meritorious Claims and Contentions
Non-meritorious claims and contentions.
(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous. A lawyer for the defendant in a criminal proceeding or for the respondent in a proceeding that could result in incarceration may nevertheless so defend the proceeding as to require that every element of the case be established.
(b) A lawyer's conduct is “frivolous” for purposes of this Rule if: (1) the lawyer knowingly advances a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law; (2) the conduct has no reasonable purpose other than to delay or prolong the resolution of litigation, in violation of Rule 3.2, or serves merely to harass or maliciously injure another; or (3) the lawyer knowingly asserts material factual statements that are false.
NYR 3.3: Conduct Before A Tribunal (See rule important)
Conduct before a tribunal.
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not: (1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply; (2) engage in undignified or discourteous conduct; (3) intentionally or habitually violate any established rule of procedure or of evidence; or (4) engage in conduct intended to disrupt the tribunal
THE BILL OF PARTICULARS
CPLR 3041-3044
41: Bill of Particulars: a party can request a bill of particulars when the claim is not clear (a more detailed pleading)
42: Procedure for a Bill of Particulars: (see rule): Demand must be made (can be amended), if not responded to can compel compliance, there can also be penalties (including preclusion)
43: Bill of Particulars in personal injury actions (see rule): what you can ask for in an injury situation
44: Verification of Bill of Particulars: If the pleading is verified than the BOP should be too, unless negligence in which case verified no matter what.
Felock Pg. 645: defendant moves to strike certain portions of the bill of particulars. Denied. Appeal
Following her birth Felock was hospitalized at defendant hospital. Suffered burns from where electrodes had been placed on her skin.
Defendants felt that the responses to certain questions were not sufficiently particular in the bill of particulars.
In addition, plaintiffs objected to defendant’s response in saying they were not able to locate nursing notes.
Eventually defendant moved to CPLR 3042 and 3126 to strike certain paragraphs of the verified bill of particulars on the ground that they were not sufficiently particular or were overly broad. Plaintiffs opposed the motion and cross-moved pursuant to CLR 3124 and 3126 for sanctions against defendant’s based upon the failure to produce a complete set of medical records.
Court denies defendants
Grants plaintiffs conditionally if notes are not produced in 90 days. If they do not they will be precluded from rebutting any evidence regarding the material contained therein.
The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial.
The responses to a demand for a bill must clearly detail the specific act of negligence attributed to each defendant. However they don’t need to provide evidentiary material or information. Especially in a med mal case, as any for personal injuries, the bill of particulars requires only a general statement of the acts or omissions constituting negligence.
Plaintiffs did not need to allege anymore specifically. They said that there were insufficient medical knowledge and that they kept insufficient medical records.
Northway Pg. 648: Defendant contracted to have plaintiff perform work. In its answer defendant’s asserted two counterclaims. Plaintiff sought a bill of particulars with respect to the counterclaims. But defendant’s failed to furnish any information, and they were unitliamtely dismissed under a preclusion order. Defendant’s nevertheless sought to use facts underlying the counterclaims as defenses against plaintiff’s claim.
Court had ruled that they cannot use proof from the underlying counterclaim in defending the plaintiffs claim since they are inextricably connected.
The purpose of the preclusion is to make the party whole; they are whole. The fact that it is interwoven doesn’t matter at all. Reverse.
Dissent;
Plaintiffs request for bill was no addressed merely to defendant’s counterclaims, as the majority misportray. Instead plaintiff’s request was directed to specific paragraphs of the answer which defendant itself had denominated counterclaim and defense.
Like Cricket (darts!) once it's closed out other side can't profit but can close it tout as defense
Finkel Pg. 654: Order denied defendant motion for preclusion, directed plaintiff to serve a further bill of particulars when plaintiff acquires additional information.
The bill that was provided was so general as to be useless to defendant. Thus, as defendant had suggested, the bill should be amended stating that they have no further knowledge, but, that if any were obtained, it would be supplied to the defendant. You are entitled to the particulars demanded when and if plaintiff acquires the necessary information
DISCLOSURE
Scope In General
CPLR 3101(a)(e)-(i): Scope of Disclosure
Generally (a)
Privileged matter (b)
Attorney work product (c)
Trial Prep (d)
Party statements (e)
CPLR 3102(a): Method of Disclosure include information, depositions, interrogatories, and document (etc... reviews), and requests for admissions
CPLR 3102(c): You can engage in disclosure before an action has started but only with the leave of the court.
CPLR 3103: Protective Orders: gives the court authority to limit disclosure through protective orders when moved or by its own initiative. Can suppress if something was supposed to be protected
Devices available:
CPLR 3102(a): Disclosure devices:
CPLR 3106: Priority of depositions; witnesses; prisoners; designation of deponent.
If you want to depose before the response time is over you need a court order
Witnesses must be subpoena
Can depose prisoners with leave
Can ask to depose by title or role
CPLR 3117: Use of Depositions: Can use to impeach
CPLR 3120:Discovery and production of documents and things for inspection, testing, copying, or photographing: Bottom line – you can get shit.
CPLR 3121:Physical or Mental examination applies when in controversy.
CPLR 3123: How to use Admissions as a disclosure tool
CPLR 3130-33: Use of Interrogatories; Service of interrogatories; Service of answers or objections to interrogatories.
Unique from the federal system that has the required disclosures.
Andon: Case where damages were sought for an infant who had ingested lead based paint, defendant moved to compel plaintiff-mother to submit to an IQ test. The injuries allegedly sustained by the infant included “learning disabilities, developmental delays in speech and language skills”.
The disabilities might be genetic. Doctor testifies that maternal IQ is relevant.
This court feels mother’s condition is not in controversy.
The decision in the lower court to say it’s not in controversy rested on balancing:
Defendant’s need for information
Relevance of information
The burden on mother
Potential for unfettered litigation
In the end all of that reveals that it will raise more questions than answer.
It will turn this into a series of mini trials on what does and doesn’t contribute to the disabilities.
IQ test Is violation of the mother’s privacy as well.
There's a strong wall against someone putting their opponent's mental state in issue.
Bertocci Pg. 665: Plaintiff seeks to recover damages resulting from the purchase of a fiat. Plaintiff asks for in interrogatories, the number of fiats sold and the number of replacement clutch cables fuel pumps and timing belts for the models sold during that period of time.
Special term granted the motion for a protective order striking the interrogatories as irrelevant this court disagrees
The inquiries bear upon the central issue in dispute.
This is a property damage case, but if parts are defective then it is relevant.
*However the court limits the amount of information that they are allowed to have to the exact model that the injured party had. If this was a products liability case maybe the others would be relevant too
Lipco Pg. 704: the dispute arose out of a failed joint venture formed for public works contract work. Material sought pursuant to the CPLR 3120
The only way that it can be verified that the material sought is genuine is by receiving the raw data in computerized form.
New issues arise with e discovery. Are the docs still on the hard drive or are they on some form of back up; have the docs bee deleted, what software was used to create and store the docs; and is that software commercially available or created for this user
Regardless first ask is this material and necessary in the prosecution or defense of the action.
ASG admits it is discoverable only issue is that it is extremely difficult, time consuming and expensive.
So who should bear the costs?
Normal files are kept because they have value, computer files are kept because it doesn’t really cost anything.
Federally, The party from who electronic discovery is sought should be required to produce material stored on a computer so long as the party being asked to produce the material is protected from undue burden and expense and privileged material is protected.
Federal courts have spoken about cost shifting; however, in NY under the CPLR, the party seeking discovery should incur the costs incurred in the production of discovery material.
Since the software is available commercially, and the cost is substantial. The seeking party will bear the costs.
Background- The Duty of Confidentiality and the Attorney-Client Privilege Compared
Upjohn: The AC privilege is huge. It is the oldest privilege of communication known o common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice,
Although the managers of a corp can be said to possess an identity analogues to the corp as a whole, this would overlook that the lawyer needs information from others to amenable him to give sound information and advice.
Normally a client will provide lawyers with all the info they need, but now it is officers and their agents who provide that information
Thus the control group test frustrates the purpose of privilege in the corporate context, because we want agents to be willing to openly share information with attorneys.
So we extend to lower level employees. Work-product doctrine protects oral statements made to attorneys, but not the facts underlying hem.
Upjohn construed the privilege under fed law. States are free to define however they want.
What's the difference between confidentiality and privilege(CPLR 4503 and NYR 1.6(a))
The source of the information. Privilege is just with the client and Confidentiality is anything about the client.
Attorney Client Evidence Privilege
Confidentiality - there are exceptions in the rules.
CPLR 3101(b): Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.
CPLR 4503(a)(1): Sanctity of A/C Privilege – NO disclosure sans waiver, no compulsion to disclose
NYR 1.6:Confidentiality No revealing of confidential information without informed consent. Implied waived for best interest (negotiation)
NYR 1.9(c): duty to keep things confidential doesn't expire with the relationship
NYR 1.18(b): even prospective client communications are to remain confidential.
Confidentiality in entity representation:
Spectrum Pg. 669: in an action to recover fees for consulting services, plaintiff demanded that the defendant produce certain documents pertaining to the bank’s internal investigations of fraud.--> defendant says that they are protected by A/C privilege. Is the report prepared by D’s specially retained outside counsel privileged and thus immune from discovery.
This report went through and detailed that there were possible fraud by its employees and that it had X, Y, Z potential actions against P.--> coincidently law suit is filed later. Lower court decides not privileged because an independent investigation cannot obtain privileged status merely because it may have been communicated to an attorney. They were not material prepared in anticipation of litigation.
This court disagrees:
The communication must primarily be of legal nature, and for the purpose of facilitating the rendition of legal service
The appellate division thought this report was aimed at assisting D in its business and prevent future corruption. However this court disagrees
It is not narrowly confined to the repetition of confidences that were supplied to the lawyer by the client.
If a lawyer is hired to do non lawyer work then the communication isn’t necessarily privileged. But we think this report was very legal in character.
Tekni-Plex, Ind SG 535: fist, can long time counsel for a seller company continue to represent the shareholder in a dispute with buyer? Second, who controls the A/C privilege as to pre-merger communications?
And that the buyer controls the privilege as to some, but not all of the pre-merger communications. The things relating to the merger that the attorney represented both sides are not privileged because shared attorney means no priv.
Normally if you share an attorney there is no expectation of privilege.
Counsel should step aside (THREE PRONGS: 1. New tekniplex is a former client of M&L; There is a substantial connection between the current and former representations; Are the interests of M&L’s representation material adverse to the interest of its former client)
When a business is taken over or is transferred somewhere else and tries to maintain all of its shit the A/C carries over.
Merely a transfer of assets with no attempt to continue does no transfer AC
In re Grand Jury Subpoena:
Grand jury subpeonas interviews of former employees of AOL conducted by a law firm that AOL hired. AOL explicitly waived its privilege. Former employees move to quash and district court rejects the motion. Court here affirms because:
Investigating attorneys told them that they represented the company
The investigating attorneys told them "we can" represent you which is different from "we do" represent you
The could not show that the investigating attorneys agreed to represent them, and
The investigating attorneys told them that the A/C privilege belonged to the company and the company could choose to waive it
NYR 1.13: Details the specific confidentiality provisions when the client is an organization and not a person.
Material Prepared for Litigation and Other Privileges applicable to Disclosure
CPLR 3101(c): Work product is not obtainable
CPLR 3101(d):Have to reveal experts and other relevant trial prep stuff
CPLR 3101(g): accident reports are obtainable
Hoffman: Plaintiff, was robbed in her apt building by a person who obtained unauthorized access. Sues landlord for negligence in securing the premises.
Defendant wanted witnesses to any acts or omissions that may have resulted in the occurrenceP refuses
Revealing the names of witnesses would not violate the general policy against invading the privacy of an attorney’s course of preparation; is in accordance with the trend towards greater disclosure. The names of these witnesses is not material prepared for litigation, even though it involves his investigative efforts, it is limited to those that are uniquely within his professional skills
Results of a lawyer's investigations are not always "work product" just because s/he did the leg work
Miranda Pg. 680: sues for injuries sustained while operating a shredding machine owned and operated by D. there is a witness makes a statement to some officers of the corp and an attorney. The D claims that this guy barely spoke English so he didn’t understand the questions, but the P wants it disclosed. This court says that it is not protected, and should be disclosed
CPLR 3101(g) provides for the disclosure of any written report. (d) conditionally exempts anything prepared for litigation.
Taken together, the effect is to authorize the disclosure of an accident report made in the regular course of business even if it is made solely for the purposes of litigation.
It is only when an accident report has not been made in the regular course of business that it may be exempt if it is made solely for the purposes of litigation. Burden of showing everything is on the party seeking to prevent disclosure
