Yessie's Bar Review pt. 2

yessieb's version from 2015-06-30 13:52


With the exception of Preliminary Injunction and T.R.O.’s (Rule 65), Rule 64 advises federal courts to
look at state law for obtaining provisional remedies.

1) There are 4 types of provisional remedies in New York – LIAR:

Question Answer
LLIS PENDENS (warns others not to buy property)
AATTACHMENT (as security for payment)
RRECEIVER (who protects the property)

2) The lis pendens is the only provisional remedy where the P is not a SLOB:

Question Answer
SSHERIFF is not involved
LNo court review of the P’s LIKELIHOOD of success on the merits
ONo court ORDER is required
BNo BOND has to be posted by the P

3) A New York or federal court preliminary injunction will not be granted unless the P demonstrates

by clear and convincing evidence LIE:
Question Answer
LLIKELIHOOD (a probability not certainty) of the P’s success
IIRREPARABLE injury is occurring or will occur to the P unless the preliminary
  injunction is granted
Question Answer
EEQUITIES, when balanced by the court, clearly tip in the P’s favor

4) Notice on a T.R.O. does not have to be given if you can SIP, i.e., show:

Question Answer
PPREJUDICE would result if notice of the motion is given Federal Rule 65(b) limits a T.R.O. not to exceed 14 days. To get it ex parte, show “immediate and irreparable injury”

5) To issue an order of attachment, a New York court must find FIND CJ “extraordinary circumstances”:

Question Answer
FD is a FOREIGN corporation not qualified to do business in New York
IWith the INTENT to defraud creditors or frustrate the enforcement of a money judgment, D has concealed or transferred assets or is about to do so (a.k.a. constructive fraud)
ND is a NON-DOMICILE, with no New York residence
DD is a New York DOMICILE or resident who cannot be personally served, despite DILIGENT efforts to do so
CCRIME victims suing a convicted felon can obtain an order of attachment
JP’s cause of action is based on either a default JUDGMENT from a federal or sister state ct, which is entitled to full faith and credit, or based on a foreign country’s judgment, entitled to comity. In the P’s 3213 motion for summary judgment in lieu of complaint, the P can also seek an order of attachment

6) Before a New York or federal court permits the use of any provisional remedy, it must ensure that due process is satisfied by a COP:

Question Answer
CShowing by CLEAR AND CONVINCING evidence that P is likely to succeed and is entitled to the provisional remedy requested because of extraordinary circumstances
OOPPORTUNITY to be heard
PAn immediate POST-SEIZURE hearing must be held if LIAR was obtained ex parte (and 5 or 10 days is considered “immediate”)



1) Choosing the proper venue in New York depends on the type of TLC action involved:

Question Answer
LA LOCAL action
CAn action to recover a CHATTEL
28 U.S.C. § 1391 has abolished the distinctions between local, transitory and local actions for venue. It allows venue to be placed in a federal district where all defendants, reside or, in a federal district where a substantial part of the real or personal property is located. These venue rules apply to both diversity jurisdiction and arising under claims

2) A local action involves disputes of ownership, use, or possession of real property. Venue is proper in the county in which the real property is located for WASP MEN:

Question Answer
WThe tort of WASTE
AA tenant’s ACTION* seeking to regain possession of a leasehold
SSPECIFIC performance of a real property contract
PPARTITION actions between concurrent tenants
MMORTGAGE foreclosures
EEJECTMENT actions against a trespasser
NNUISANCE* action to prevent the D from using her land in a manner creating a nuisance to the plaintiff
*A lis pendens cannot be filed in these two actions

3) Once the P has chosen venue, there are 3 grounds to change that venue, which are found in a BIN:

Question Answer
BBAD venue was chosen by the P
IIMPARTIAL and fair trial cannot be had in the chosen county
NThe proper venue chosen is inconvenient for NECESSARY witnesses



1) In New York, common law joint and several liability continues for ARM WIN claims:

Question Answer
AWhere the P’s injuries were caused by a co-defendant’s ownership, operation, or use of an AUTOMOBILE, motorcycle, or other motor vehicle* *Municipal fire trucks and police cars continue to receive the benefits of Article 16’s limits on J&S liability, but not other municipal vehicles
RA co-defendant found to be RECKLESS
MA co-defendant found to be MORE than 50% responsible for P’s injury
WWORKER’S COMP where the injured employee sues a defendant, who then impleads the injured worker’s employer to share in the worker’s grave injury
IA co-defendant found to be INTENTIONALLY tortious in causing P’s injuries
NDefendant owes a NONDELEGABLE duty

2) A New York defendant can implead the plaintiff’s employer for a “grave injury” if DEBTS [are] PAID

Question Answer
DEmployee’s DEATH
ELoss of one EAR or nose
B – BRAIN damage (permanent)
Question Answer
TMultiple TOES or fingers
SSevere facial SCARRING
PPARALYSIS (paraplegia or quadriplegia)
ILoss of an INDEX finger
DPermanent DEAFNESS or blindness



1) In New York and in Federal Practice, use AID MD for pre-trial discovery:

Question Answer
DDEPOSITIONS (a.k.a. EBTs – “examinations before trial”)
MMENTAL and Physical Exam
DDISCOVERY & Inspection of evidence

2) A New York expert witness must only disclose I.Q. S.O.S.:

Question Answer
IExpert’s IDENITITY (except doctor’s identity in med mal case doesn’t have to be disclosed – to prevent retaliation by other doctors (peers)).
SSUBJECT matter on which expert will testify
OSubstance of expert’s OPINION; AND
SBasic overall SUMMARY of grounds that form basis of expert’s opinion Federal Rules much broader for expert depositions and discovery

3) In a personal injury action, P should always demand to see if there are any WAIFS:

Question Answer
WDisclosure of identities of WITNESSES (but not their statements), or the disclosure of expert witnesses (I.Q. S.O.S.)
ADisclosure of ACCIDENT reports prepared in the regular cause of business
IDisclosure of liability INSURANCE policies
FDisclosure of FILMS, videos, or audio tapes taken of the P
SDisclosure of any STATEMENTS made by the P
Waifs also applies in Federal Practice

4) Protective orders seek to prevent unreasonable DEEP abuses of discovery procedure:

Question Answer
EEXPENSE (especially where there is economic disparity between the parties)
Rule 26(c) in accord

5) Object to the form of an EBT question at A CLAM’S BAR: (New York & Federal Courts)

Question Answer
CCOMPOUND Q (asking 2 things at once)
LLEADING Q on direct exam
MMISQUOTING an earlier statement
SAsk the witness to SPECULATE
BAn overly BROAD Q
AASSUMING a fact not in evidence when asking Q
RREDUNDANT Q on direct exam (previously asked & answered by witness)

6) BAR SAPS needs a New York court order for EBTs:

Question Answer
BBEFORE an action has been commenced, to assist in bringing an action, or to preserve evidence
AAFTER a case is placed on the trial calendar, and the other party makes no objection w/in 20 days that the case is not ready for trial, no further discovery is allowed unless the moving party can show the ct that “unusual or unanticipated” circumstances occurred subsequent to filing the notice of issue and that prejudice would result if further discovery is not permitted
RREFUSAL to comply w/ EBT Demand
SSPECIAL Proceedings – Art. 78 (except notices to admit are permitted in special proceedings)
AARBITRATION requires extraordinary circumstances for ct to order pre-trial discovery
SSTATE of New York when it is not a party


7) There’s a BAN on interrogatories in New York: (Does not apply to Federal Rules)
Question Answer
BBILL of Particulars & Interrogatories can’t both be demanded (except in matrimonial actions)
AP can’t demand interrogatories from D until after D’s time to ANSWER has expired
NWhere NEGLIGENCE is sole basis of P’s claim, interrogatories or EBT’s can be demanded
but not both

8) DRI(2)PS are a discovery punishment: (Rule 26(g) in accord)

Question Answer
DDISMISSING an action against DRI2)PS P or ordering a DEFAULT judgment against DRI(2)PS D
RRESOLVING issues against a non-disclosing party
IIMPOSING attorney’s fees & punitive sanctions against non-disclosing party
IAn adverse INFERENCE jury charge
PPRECLUDING that party from offering evidence on certain issues
SSTRIKING that party’s pleading or any part thereof

9) A New York party should demand a bill of particulars for PAL: (Bills of Particulars are not used in Federal Practice)

Question Answer
PPREVENTS surprise at trial
LLIMITS proof that can be offered at trial



1) A New York or federal court will not interfere with an arbitration award unless it finds FABLES:

Question Answer
FFRAUD, misconduct, or corruption
AARTICLE 75 procedures were not followed
BBIAS of the arbitrator
LThe award LACKED rationality
EThe arbitrator EXCEEDED her authority
SSERVICE of the notice to arbitrate was improper
Federal Arbitration Act § 10 in accord in limiting court review of arbitrator’s award

1) To certify a class action in New York (CPLR Article 9) and federal court (Rule 23(a)) think CAN’T 9 U.S.S. §§ 1 to16

Question Answer
CCOMMON QUESTIONS of law or fact
AADEQUATE representation by the class rep.
NClass size so NUMEROUS ordinary joinder is impracticable
TClass rep’s claim is TYPICAL of all other claims