S- a motion to compel the P to SEPARATELY state & # each allegation in the pleading (CPLR 3014)
S- a motion for a more definite STATEMENT in the pleading
S- a motion to STRIKE irrelevant, prejudicial, or scandalous matter from a pleading.
A- ARBITRATION & award
R- RELEASE was given by the P to the D either in a signed writing or it was made in open court
E- collateral ESTOPPEL
CE: issue preclusion and it bars a party from relitigating
issue raised in a prior proceeding
R- RES JUDICATA-bars all other pre-adjudicate claims arising out of the same transaction
B- P’s claim against D was discharged in BANKRUPTCY
IF- CE is available if issues are identical & the party against whom CE is being asserted previously had a full & fair opportunity to litigate that issue:
I-Identify Issues-the identical issue was previously decided in an identical action. The pty against whom CE is being asserted had a…F&FO to Litigate hat that Issue
F-Full & Fair Opportunity to Litigate Issue
1. Law of the case
2. Res judicata
3. Collateral Estoppel
L – the motion can be decided as a matter of law
I – there are no issues of material fact to litigated (except damages or a 3211(a) issue)
P – the court can grant partial SJ
S – the court can search the record but only on issues raised on the motion papers
It seeks dismissal of a non-interposable counterclaim (i.e. when a P sues in a fiduciary capacity the D can cc against the P only in the P’s fiduciay capacity & cannot interpose personal cc against the P) for example:
A parent suing on behalf of a child
if the plaintiff is a partnership then the D cannot cc personally against 1 of the partners.
1. Intentional affliction of Emo Distress against gov’t agencies or such a claim between spouses (Civil tort claims)
2. Education malpractice
(a)-NY & majority of states don’t recognize such a claim b/c crts & juries should not determine the validity of Educ. Policies
3. A NY child’s claim against a parent for the parents lack of parental supervision resulting in personal injury to the child
4. A defamation claim where the P does not set forth in detail the defamatory words used the D where the specific words are not set forth in the complaint
scope of a crts review for these are much different in a 3211(a)(7) Motion b/c the crt examines the sufficiency of the pleading whereas in a 3212 Motion the Crt examines the sufficiency of the evidence underlying the pleading.
When a summary judgment motion is made the trial court or the appellate division not only can deny SJ to the moving pty but it can search thee record and grant SJ to the nonmoving party but only on issues or claims that were raised in the 3212 Motion NYAA pg140 the subject of the summary judgment motion before the court.
Example: P moved for SJ against D the Crt Denied P’s motion but in searching the record it granted SJ for the D even though the D had not requested SJ.
Crt will Automatically deny a 3212 Motion unless is addresses ALL pleadings in the action.
1. The party moving for summary judgment must set forth evidentiary facts sufficient to entitle that party to a judgment as a matter of law.
2. The burden of production then shifts to the opposing party to raise a triable if an issue of material fact.
Summary judgment will be granted (full or partial-only on 1 claim) when the court determines there is no triable issue of material fact and that the claim can be decided by the court as a matter of law.
LATEST a SJ can be Made: No motion for summary judgment can be made no later than 120 days after the notes of issue has been filed w/Crt (where the case is placed on the trial calendar after all Pre-Trial Discovery is complete) unless good cause is shown for making the motion later. After 120days from that date a crt will not entertain a motion for SJ unles Good Cause is shown for lateness (very rare) NYAA pg141. CPLR 3212a.
A judge can shorten this 120 day period but not to less than 30 days from filing the note of issue.
If the 120 days for making a SJ motion falls on a Sat, Sun., or public holiday then the time for filing is extended to the next biz day.
This remedy is Ltd to instruments for the payment of $ only If proof o/s of the instrument is needed 2establish the P’s claim, other than proof of nonpayment then the instrument doesn’t qualify for 3213
The procedure for 3213 is to attached a summons for a motion to summary judgment and to have the motion returnable at least 20, 30, or 40 days after service on the D was complete.
Examples for 3213
a) A negotiable instrument (a check, IOU)
b) A guarantee (a surety) on a loan or mortgage note
c) A default judgment obtained from any US court
d) A foreign county judgment. NY is very liberal and generous in enforcing foreign county judgments provided its judicial process is fair (it complies with due process)
1) The court orders otherwise or
2) The motion involves solely an issue of defective service of process.
can be made either during trial (directed verdict) or the motion can be made after the jury’s verdict which is called a judgment N.O.V. This motion asserts that it is impossible for the opponent to win. (i.e.: during trial I move for a directed verdict: No Prima Facie P cannot win b/c he has not proved & pleaded)
It is a SJmotion during trial or immediately after the verdict. Usually it is made after the opponent case has been fully presented unless earlier that party makes a fatal admission.
By making this motion during the trial it does not waive the moving parties right to a trial by jury and it does not waive the right to present further evidence if the motion is denied.
1) Enter a Directed Verdict NOV for the other pty as a matter of law J.N.O.V.
a. -JNOV means SJ to the other pty not withstanding the jury’s verdict.
2) Request a new trial in the interest of justice (start all over again) b/c there was insuff E to support jury’s verdict.
3) Order a new trial only on the issue of damages b/c the amount awarded by the jury was either excessive or inadequate. Here the court must find that the amount awarded by jury deviated materially from what is “reasonable compensation” for the Ps injury. NYAA145-145
Once a pty has stipulated to the agreed amount suggested by the crt She is Prevented from appealing the damages issued b/c by stipulating to the new amount she no longer considered an aggrieved pty BUT this stipulation does NOT PREVENT:
1) the non-stipulating pty from appealing the new amount or
2) the stipulating pty from appealing any othe issue not involving damages. NYAA pg145
The court cannot substitute a new amount for the jury’s verdict but it can order a new trial solely on the damages issue unless a party agrees to a specific increased or decreased amount.