Answers, Tips, and Forms for New York Litigators
New York Civil Practice Before Trial gives you clear, concise explanations, practice tips, and recent case-based illustrations covering everything from taking the case up to trial.
Confidential law clerk Sharon Stern Gerstman and litigators Michael Barr and Burton Lipshie have drafted a landmark procedure guide.
New York Civil Practice Before Trial delivers quick and reliable answers with its unique outline format, tight writing, superb scholarship, and extensive citations. Its practice-tested forms and pattern paragraphs speed drafting.
You will find detailed coverage of:
- Standing and joinder
- Production of documents
- Physical and mental exams
- Summons and service
- Motion practice
- Summary judgment
- Notices to admit
- TROs and injunctions
- Settlement and ADR
- Special proceedings.
Two-thirds of the book’s pages address pleadings, motions, and discovery. Eight chapters are devoted to discovery issues and procedures. New York Civil Practice Before Trial is focused on the issues and concentrates topics where questions and disputes arise. A few tips include:
- The easiest way to resolve a dispute. §31:02
- Procedural requirements for supervision of disclosure, §31:40, motions to compel production, §31:50, to extend time, §31:32, for protective orders, §31:110, and for sanctions, §31:90
- Examples of sanctioned and non-sanctioned conduct, with case citations. §31:93
- What constitute “material facts” for purposes of a summary judgment motion, with examples. §37:101
- How to meet summary judgment burdens, §37:150, supporting evidence available, §37:220, and procedural requirements, §37:380
- Strategies for responding to motions for summary judgment, §37:460, when opposition facts are unavailable, §37:480, bringing a cross-motion for summary judgment, §37:530, and deciding whether to respond to opposition papers, §37:560
- Strategic considerations, §16:07, pitfalls to avoid, §16:30, and brief-drafting tips, §16:86
- Service when defendant has not yet appeared. §16:103
- Practical hearing suggestions from the bench. §16:210
- Issues appropriate for immediate trials. §16:232
- When to use stays, §16:271, orders to show cause, §16:291, and motions for reargument or renewal, §16:310
- Techniques for obtaining damaging documents. §26:60
- Satisfying the “particularity” requirement. §26:64
- What is and isn’t discoverable. §24:20
- How to expedite discovery. §24:110
- Responding to missing, evasive, or incomplete answers. §29:392
- How to correct an inadvertent disclosure. §26:303
The book is supported by 3,500 citations, over 130 forms, advice from the bench, recent case-based illustrations, practice-proven strategies, and step-by-step procedures. Coverage runs from taking the case up to trial, and will help you increase efficiency, improve your advocacy, craft better documents, resolve peripherial disputes, answer ethical questions, and avoid and fix mistakes. It delivers a new level of practicality, quality, thoughtfulness, ease of use, and affordability.
REVISION 14 HIGHLIGHTS
This edition revises 22 chapters, adds 14 new sections, and updates more than 100 sections with over 200 recent case developments including these:
- Six-year CPLR 213 statute governed interior designer’s contract as opposed to the four-year UCC 2-725 statute.
- The continuous representation doctrine applies to statutory limitations periods only and not to contractual limitations periods.
- Parties may by contract provide that representations and warranties are made “as of the Closing Date” rather than the earlier date of execution of the agreement.
- When a note and mortgage were assigned during a foreclosure action but, the assignee opted to continue the action in the assignor’s name, the assignee could take advantage of CPLR 205(a) when re-commencing the dismissed action in its own name.
- Courts disagree on whether registration by a foreign corporation constitutes consent to general jurisdiction.
- In a dispute between Spanish companies over a contract executed in Spain, the parties’ trips to New York to secure a customer were sufficient to permit New York long arm jurisdiction.
- When a loan agreement contains the borrower’s consent to New York jurisdiction, but the accompanying guarantee does not contain such consent, the guarantor may be subject to New York jurisdiction.
- Residence for venue purposes cannot be demonstrated solely by evidence of ownership.
- Defendant may demand a complaint after both steps of “leave and mail” service have been completed, but before proof of service has been filed.
- When counsel appears for a defendant in default without challenging jurisdiction, the challenge is waived.
- First and Second Departments disagree on whether a defendant must demonstrate existence of a meritorious defense when applying to extend the time to appear, plead, or answer.
- Amended counterclaims must name the plaintiff even if the original counterclaim did so.
- A defendant amending an answer as of right may include a previously omitted limitations defense.
- Motion to amend or supplement pleadings must include a copy of the proposed amended or supplemental pleading.
- Courts may allow discovery of system metadata when relevant.
- Obtaining ESI from nonparties requires more than mere relevance.
- Who bears the costs of e-discovery, the party seeking discovery or the producing party?
- Drafting requirements for a litigation hold.
- Differing standards for imposing sanctions for negligent and grossly negligent failure to preserve ESI.
- Plaintiff’s failure to promptly object to specificity of expert disclosure can foreclose objection at trial.
- Courts will not engage in interest-balancing to determine which state’s privilege law will apply.
- When attorneys consult in-house “counsel to the firm” about ethical obligations to firm client, their communications are not discoverable by the client.
- Court of Appeals holds that the common interest privilege applies only when subject matter of otherwise protected attorney-client communication is litigation, not transactional, advice.
ABBREVIATED TABLE OF CONTENTS
Chapter 1 Taking the Case
Chapter 2 Presuit Activities
Chapter 3 Statutes of Limitations
Chapters 4-5 Reserved
Chapter 6 Subject Matter Jurisdiction
Chapter 7 Personal Jurisdiction
Chapter 8 Forum Selection: Venue and Removal
Chapter 9 Summons, Service of Process, and Appearance
Chapters 10-13 Reserved
Chapter 14 Parties
Chapter 15 Pleadings
Chapter 16 Motion Practice
Chapter 17 Temporary Restraining Orders and Preliminary Injunctions
Chapter 18 Interlocutory Appeals
Chapters 19-23 Reserved
Chapter 24 All Discovery
Chapter 25 Privileges
Chapter 26 Production of Documents and Other Things
Chapter 27 Depositions
Chapter 28 Physical and Mental Examinations
Chapter 29 Bills of Particulars and Interrogatories
Chapter 30 Notices to Admit
Chapter 31 Discovery Disputes
Chapters 32-35 Reserved
Chapter 36 Motions to Dismiss
Chapter 37 Summary Judgment
Chapter 38 Expedited Judgment: CPLR 3213; 3222
Chapter 39 Default Judgment; Dismissal for Failure to Act; Discontinuance
Chapter 40 Settlement and Alternative Dispute Resolution (ADR)
Chapter 41 Simplified Procedure
Chapter 42 Special Proceedings
ABOUT THE AUTHORS
Michael H. Barr is a partner with Dentons US LLP in New York City. His practice concentrates on complex commercial, class action, insurance coverage, and securities litigation across a broad spectrum of substantive areas, including consumer fraud, environmental, insurance, trade regulation, real estate, professional liability, and contractual disputes.
Mr. Barr is presently serving as national coordinating counsel for an international insurer in defending a series of class actions involving retrospective premium workers’ compensation issues. Over the past five years, he has defended another major insurer against allegations of improper life insurance sales practices in a consolidated multi-district litigation in federal court and before a multi-state task force of state insurance departments.
He has successfully defended a broad array of other companies in bad faith and other insurance coverage actions, including numerous appeals. He has lectured and written on a variety of insurance coverage issues, and has delivered papers at seminars on advertising injury, securities coverage, and bad faith issues. He has also successfully represented investor groups, bank directors and public companies in contested securities and mergers and acquisition cases.
Mr. Barr is a cum laude graduate of Harvard Law School.
Burton N. Lipshie has since 1977 been the Managing Attorney of the 60-lawyer Litigation Department of Stroock & Stroock & Lavan in New York City, and the firm’s national litigation coordinator.
He is responsible for providing procedural expertise in all litigation matters handled by the New York City office, and for creating and running programs on litigation skills and advanced legal writing. He has a general litigation practice, with an emphasis on motions and appellate work.
Before joining Stroock, Mr. Lipshie was an Assistant District Attorney in New York County from 1967 to 1971, and Law Secretary to Justice Abraham Gellinoff, Supreme Court, New York County and Appellate Term, First Department from 1971 to 1977.
Since 1985, Mr. Lipshie has been an adjunct professor at Cardozo School of Law where he teaches New York Practice, Legal Writing, and Moot Court. For nine years in a row he was named “Outstanding Adjunct Professor” and now the award is named after him.
He serves on the Advisory Committee on Civil Practice to the Chief Administrative Judge, the CPLR Committee of the State Bar Association, and the Departmental Disciplinary Committee of the Appellate Division, First Department. He has provided the annual CPLR update at the Unified Court System annual judicial seminars since 1993, as well as the annual seminar for Law Clerks and Court Attorneys, and has delivered the annual Civil Law Update at the Bar Association of the City of New York.
Sharon Stern Gerstman is of counsel to Magavern Magavern Grimm LLP in Buffalo, New York, after spending 29 years working for New York Supreme Court as the Principal Law Clerk for Hon. Joseph D. Mintz of the Eight Judicial District (Buffalo) of the New York Supreme Court (1981-2009), and as a Court Attorney/Referee in charge of ADR for the Niagara County Supreme Court (2010). She is also an adjunct professor at the University of Buffalo Law School, where she has taught New York Civil Practice since 1987.
Mrs. Gerstman is a former member of the ABA Board of Governors and currently serves in the ABA House of Delegates. She is also the Treasurer of the New York State Bar Association and is on its Executive Committee and House of Delegates, and is a past chair of its Standing Committee on Civil Practice Law and Rules.
She is on the Professional Ethics Committee for the Bar Association of Erie County, and has served on its Board of Directors, on its Judicial Screening Committee and as past President of its Foundation. She was President of the Women Lawyers of Western New York.
She has written for various ABA and New York State Bar publications, and has spoken frequently at ABA, NYSBA and Erie County Bar CLE seminars. She has a JD from the University of Pittsburgh and an LLM from Yale Law School.