NY BAR - NY EXAM SET QUESTIONS
AND ANSWERS
Government subdivisions of the state - ANSWER -They are not the state, and so can be
sued: counties, towns, school districts. They CANNOT be sued in the Court of Claims.
Supreme Court's exclusive SMJ - ANSWER -1) matrimonial actions
2) CPLR Article 78
3) Declaratory judgment action
Matrimonial actions - ANSWER -Where the court is adjudicating marital status, including
divorce, separation, annulment, declaration of validity of the marriage: Supreme Court
has jurisdiction.
Family Court has jurisdiction over custody issues, support.
Statute of Limitations - ANSWER -An affirmative defense, based on the passage of
time, to be raised by the defendant.
When does the statute of limitations begin to run? - ANSWER -When the cause of
action accrues, aka when the injury occurs.
USUALLY, though not ALWAYS, the statute of limitations begins to run from the date of
the injury or breach, even if the plaintiff is unaware of the injury.
Infants injured in utero - ANSWER -Child has no cause of action unless the child is born
alive, in which case the S/L begins to run from the date of birth.
How to satisfy the S/L? - ANSWER -The action must be commenced no later than the
last day of the prescribed period of limitations.
Commencement consists of filing process (summons and complaint, or summons with
notice) with the clerk of the court.
How to compute S/L? - ANSWER -Exclude the day on which the triggering event
occurs, and begin counting the next day.
If the last day for performing any procedural act, such as commencing an action or
serving a paper, falls on a Saturday, Sunday, or public holiday, plaintiff gets until the
end of the next business day to perform the act.
Supreme Court - ANSWER -New York's most important trial court, having general
jurisdiction.
,General jurisdiction - ANSWER -A court with general jurisdiction has original subject
matter jurisdiction over any type of action. The court has the power to hear cases, even
when the parties and the acts at issue happened outside the state.
Exceptions to Supreme Court's jurisdiction - ANSWER -1) Where federal law confers
exclusive jurisdiction on federal courts: bankruptcy, patents, copyrights
2) In claims for money damages in tort or contract against the State of NY
NY Court of Claims - ANSWER -Where you can sue the State of NY for money
damages in tort or contract action. The only defendant in the Court of Claims is the
State of New York; non-state defendants must be sued separately in New York
Supreme Court; this is inefficient, but required by the silly sovereign immunity rules.
Medical Malpractice - ANSWER -S/L applies to doctors, dentists, podiatrists, nurses and
hospitals (hospitals protected against vicarious liability for their doctors, etc. as well,
BUT, you can sue for negligent hiring, which is a separate tort).
S/L expires 2 1/2 years from the date of accrual, which is the date of the malpractice.
Ordinarily, the discovery of the malpractice is irrelevant.
2 exceptions to the med mal rule: 1) continuous treatment; 2) foreign object rule
Continuous treatment rule - ANSWER -Plaintiff gets 2 1/2 years from the end of a
continuous treatment, if the treatment is for the same condition that gave rise to the
medical malpractice.
Foreign object rule - ANSWER -If doctor is responsible for introducing a foreign object
into plaintiff's body, plaintiff gets the longer of either:
1) 2 1/2 years from the date of the operation
2) 1 year from the date P discovers the presence of the object, or should have
discovered the object with reasonable diligence.
Foreign objects are things that the doctor did not intend to leave behind, such as
clamps, sponges, or scalpels. NOT foreign objects:
1) chemical substances
2) prosthetic devices
3) fixation devices
* For these, the period runs not from the day of discovery, but from the date of the
malpractice.
Professional malpractice - ANSWER -Learned professions (architects, engineers,
accountants, attorneys): cause of action for financial loss has an exclusive S/L of 3
years, running from the termination of the services in which the malpractice occurred.
Continuous representation applies here as well.
, Not learned professions (insurance brokers, securities analysts, plumbers): no special
S/L
S/L for falling buildings - ANSWER -Personal injury actions may be brought in a special
action against architects and engineers when action is brought more than 10 years after
the building was completed. Procedure:
1) P must serve a notice of claim on the architect or engineer at least 90 days before
suit.
2) P may obtain pre-action discovery from the potential D during the 90-day waiting
period
3) if D moves for SJ, the burden will be on P to make an evidentiary showing that there
is a substantial basis to believe that D's negligence was the proximate cause of the
injuries.
Municipal tort liability - ANSWER -1) S/L for personal injury or property damages actions
against a government subdivision of the state is one year and 90 days from the date of
the accident.
2) "Notice of claim" prerequisite: As a condition precedent, P must serve a notice of
claim on the potential municipal defendant no later than 90 days from the date of the
accident. (Purpose: to allow the municipal defendant to engage in early investigation
and possible settlement without the need for litigation.) If P fails to file the notice of
claim, the municipal defendant is entitled to have the action dismissed on the ground of
failure to state a cause of action; P must put its compliance in the complaint.
Products liability: causes of action and S/Ls - ANSWER -1) Negligence: 3 years,
running from date of injury, against all defendants in chain of distribution
2) Strict product liability: 3 years, running from date of injury, against all defendants in
chain of distribution
3) Breach of warranty: Governed by UCC: S/L specified for sales is 4 years. It begins to
run when the defendant against whom the warranty claim is asserted made its delivery
of the product.
Indemnity and contribution - ANSWER -S/L of 6 years running from the date of actual
payment of the judgment for which indemnity or contribution is sought.
Original transaction is irrelevant here.
S/L in cases of exposure to toxic substances - ANSWER -Toxic substances: any
inherently harmful toxin that has latent or slow-developing effects. Exposure: any sort of
assimilation into one's body or property.
S/L: 3 years, beginning to run upon the earlier of either
1) discovery of the injury
2) date the injury should have been discovered with reasonable diligence
AND ANSWERS
Government subdivisions of the state - ANSWER -They are not the state, and so can be
sued: counties, towns, school districts. They CANNOT be sued in the Court of Claims.
Supreme Court's exclusive SMJ - ANSWER -1) matrimonial actions
2) CPLR Article 78
3) Declaratory judgment action
Matrimonial actions - ANSWER -Where the court is adjudicating marital status, including
divorce, separation, annulment, declaration of validity of the marriage: Supreme Court
has jurisdiction.
Family Court has jurisdiction over custody issues, support.
Statute of Limitations - ANSWER -An affirmative defense, based on the passage of
time, to be raised by the defendant.
When does the statute of limitations begin to run? - ANSWER -When the cause of
action accrues, aka when the injury occurs.
USUALLY, though not ALWAYS, the statute of limitations begins to run from the date of
the injury or breach, even if the plaintiff is unaware of the injury.
Infants injured in utero - ANSWER -Child has no cause of action unless the child is born
alive, in which case the S/L begins to run from the date of birth.
How to satisfy the S/L? - ANSWER -The action must be commenced no later than the
last day of the prescribed period of limitations.
Commencement consists of filing process (summons and complaint, or summons with
notice) with the clerk of the court.
How to compute S/L? - ANSWER -Exclude the day on which the triggering event
occurs, and begin counting the next day.
If the last day for performing any procedural act, such as commencing an action or
serving a paper, falls on a Saturday, Sunday, or public holiday, plaintiff gets until the
end of the next business day to perform the act.
Supreme Court - ANSWER -New York's most important trial court, having general
jurisdiction.
,General jurisdiction - ANSWER -A court with general jurisdiction has original subject
matter jurisdiction over any type of action. The court has the power to hear cases, even
when the parties and the acts at issue happened outside the state.
Exceptions to Supreme Court's jurisdiction - ANSWER -1) Where federal law confers
exclusive jurisdiction on federal courts: bankruptcy, patents, copyrights
2) In claims for money damages in tort or contract against the State of NY
NY Court of Claims - ANSWER -Where you can sue the State of NY for money
damages in tort or contract action. The only defendant in the Court of Claims is the
State of New York; non-state defendants must be sued separately in New York
Supreme Court; this is inefficient, but required by the silly sovereign immunity rules.
Medical Malpractice - ANSWER -S/L applies to doctors, dentists, podiatrists, nurses and
hospitals (hospitals protected against vicarious liability for their doctors, etc. as well,
BUT, you can sue for negligent hiring, which is a separate tort).
S/L expires 2 1/2 years from the date of accrual, which is the date of the malpractice.
Ordinarily, the discovery of the malpractice is irrelevant.
2 exceptions to the med mal rule: 1) continuous treatment; 2) foreign object rule
Continuous treatment rule - ANSWER -Plaintiff gets 2 1/2 years from the end of a
continuous treatment, if the treatment is for the same condition that gave rise to the
medical malpractice.
Foreign object rule - ANSWER -If doctor is responsible for introducing a foreign object
into plaintiff's body, plaintiff gets the longer of either:
1) 2 1/2 years from the date of the operation
2) 1 year from the date P discovers the presence of the object, or should have
discovered the object with reasonable diligence.
Foreign objects are things that the doctor did not intend to leave behind, such as
clamps, sponges, or scalpels. NOT foreign objects:
1) chemical substances
2) prosthetic devices
3) fixation devices
* For these, the period runs not from the day of discovery, but from the date of the
malpractice.
Professional malpractice - ANSWER -Learned professions (architects, engineers,
accountants, attorneys): cause of action for financial loss has an exclusive S/L of 3
years, running from the termination of the services in which the malpractice occurred.
Continuous representation applies here as well.
, Not learned professions (insurance brokers, securities analysts, plumbers): no special
S/L
S/L for falling buildings - ANSWER -Personal injury actions may be brought in a special
action against architects and engineers when action is brought more than 10 years after
the building was completed. Procedure:
1) P must serve a notice of claim on the architect or engineer at least 90 days before
suit.
2) P may obtain pre-action discovery from the potential D during the 90-day waiting
period
3) if D moves for SJ, the burden will be on P to make an evidentiary showing that there
is a substantial basis to believe that D's negligence was the proximate cause of the
injuries.
Municipal tort liability - ANSWER -1) S/L for personal injury or property damages actions
against a government subdivision of the state is one year and 90 days from the date of
the accident.
2) "Notice of claim" prerequisite: As a condition precedent, P must serve a notice of
claim on the potential municipal defendant no later than 90 days from the date of the
accident. (Purpose: to allow the municipal defendant to engage in early investigation
and possible settlement without the need for litigation.) If P fails to file the notice of
claim, the municipal defendant is entitled to have the action dismissed on the ground of
failure to state a cause of action; P must put its compliance in the complaint.
Products liability: causes of action and S/Ls - ANSWER -1) Negligence: 3 years,
running from date of injury, against all defendants in chain of distribution
2) Strict product liability: 3 years, running from date of injury, against all defendants in
chain of distribution
3) Breach of warranty: Governed by UCC: S/L specified for sales is 4 years. It begins to
run when the defendant against whom the warranty claim is asserted made its delivery
of the product.
Indemnity and contribution - ANSWER -S/L of 6 years running from the date of actual
payment of the judgment for which indemnity or contribution is sought.
Original transaction is irrelevant here.
S/L in cases of exposure to toxic substances - ANSWER -Toxic substances: any
inherently harmful toxin that has latent or slow-developing effects. Exposure: any sort of
assimilation into one's body or property.
S/L: 3 years, beginning to run upon the earlier of either
1) discovery of the injury
2) date the injury should have been discovered with reasonable diligence
