February 1996 NY Bar Exam
Questions & Sample Answers

Question Four

On February 15, 1995, Amy, a State X domiciliary, was injured in a car accident which occurred on a public highway in State X near the New York State line. Amy was a passenger in a car driven by her friend, Bill, which collided with a car owned and driven by Carl. Bill was domiciled in Westchester County, New York, and Carl was domiciled in State X.

The accident occurred while Bill was driving Amy to her home in State X and Carl was driving to Suffolk County, New York, where he owned a vacation home. Bill and Carl were both negligent. Following the accident, Amy was taken by ameulance to a nearby hospital in New York, where she remained for six weeks under treatment for her injuries. Amy's injurigligence.

On June 1, 1995, Amy, seeking to recover $500,000 for her injuries resulting from the accident, filed with the Clerk of the Supreme Court, Westchester County, a summons and complaint naming Bill and Carl as defendants. The summons and complaint were personally served on Bill in New York and on Carl in State X.

Bill duly served an answer, consisting of a general denial and an affirmative defense based on the State X statute. Carl also duly served an answer , consisting of a general denial and an affirmative defense that the court lacked personal jurisdiction over him.

Carl then timely filed a notice of removal in federal district court for the Southern District of New York to remove the action to that court. Amy duly moved in that court to remand the action to Supreme Court, Westchester County. The federal district court (1) granted Amy's motion.

Amy then moved to dismiss the affirmative defense asserted in Bill's answer. The court (2) denied Amy's motion. Amy also moved to dismiss Carl's affirmative defense, asserting that New York has personal jurisdiction over Carl based on the facts that (a) Amy's injuries were treated in New York, and (b) Carl owned real property in New York. Carl cross-moved to dismiss the complaint against him. The court (3) denied Amy's motion and granted Carl's cross-motion.

Upon trial of the action, Amy's lawyer issued a subpoena to compel Witt, who resided in State X near the location where the accident occurred and who witnessed the accident, to attend the trial and give testimony. The subpoena was personally served on Witt at his residence in State X, and at the same time he was tendered the authorized traveling expenses and one day's witness fee. When Witt refused to travel the 95 miles between his residence and the Westchester County Court House, Amy moved to compel compliance. The court (4) granted the motion.

Were rulings (1), (2), (3) and (4) correct?

ANSWER TO QUESTION FOUR

(2) The court's ruling was correct. The issue is whether New York will apply State X's guest statute in Amy's suit against Bill.

Ue applied is a law regulating conduct or a loss distribution rule. If it is the formesulting in the lander the New York choice of law rules with respect to torts, the first ineuiry is whether the law sought to bw of the situs being applied to tort actions. If the law is a loss distribution rule, New York employs the govarnmental interests analysis approach. This approach requires the court to look at the competing interests of the states t if the plaintiff and defendant have different domiciles andtone is a domiciliary of the situs, the law of the situs should be applied if it helps the domiciliary. If not, the law oate X (which New York does not have) is a loss distribution rule. Thus, the governmental interests analysis will be applild. In this case, the victim, as well as one of the defendants, are domiciliaries of State X. Moreover, the accident occl, the defendant attempting to use the guest statute. State X has a guest statute, while New York does not. The policies behind State X's guest statute is tt prevent ungrateful passengers from recovering against its drivers and to protect its insurance companies from collusionute because it wants its citizens to be able to recover for their injuries, regardless of their status. Here, Amy, the victim, is not a domiciliary of New York, so New York's policy would not be served by refusing to apply the guest statute. Moreover, the accident happened in State X and Amy is a State X domiciliary. To apply the guest statute would not promote State X's policy of protecting its drivers from ungrateful guests or to protect its insurance companies from collusion, since B's insurance company, presumably a New York one, would be required to pay. Under the Neumeier rules, Amy and Bill are not domiciliaries of the same state and Amy is a domiciliary of State X. If the law of State X, the situs, would help Amy, it should be applied, but it doesn't. However, unless New York shows an overwhelming interest, the law of State X should still be applied. Since New York does not hae an overwhelming interest, the law of State X should be applied. The court's decision was correct.

(3) The court's decision was correct. The issue is whether the New York court has personal jurisdiction over Carl under the long-arm statute.

In order to adjudicate claims against a party, the court must have personal jurisdiction over the party. Traditional bases for personal jurisdiction include physical presence at the time of service, domicile and doing business. Under New York's long-arm statute, the court will have jurisdiction over a defendant if the claim against him arose from: (1) transaction of business in New York; (2) contracting to provide goods and/or services in New York; (3) commission of a tortious act in New York; (4) commission of a tortious act outside New York causing injuries in New York; or (5) the ownership, use or possession of real property in New York.

In this case, none of the traditional bases for personal jurisdiction exist because Carl was served in State X, was a domiciliary of State X and was not doing business in State X. Amy must therefore rely on the long-arm statute. The first three bases are clearly inapplicable. The fourth basis i also inapplicable because although Amy was treated for her injuries in New York, her injuries did not ariselast basis is also inapplicable because while Carl may own real property in New York, Amy's negligence claim does not out of Carl's ownership of such property. Therefore, the court lacks personal jurisdiction over Carl.

An eyewitness to the accident.

Under the CPLR the court can require the attendance of a material witness by subpoena co long as the witness resides within 100 miles of the courthouse and is reimbursed for traveling expenses and paid a witnourthouse, and was paid traveling expenses and his witness fee. Therefore, the court could ctmpel his compliance.

ANSWER TO QUESTION FOUR

(2) The state court properly denied Amy's motion to dismisr, under New York's conflict of laws principles, a New York court should apply its own law (which does not have a guest statute) or thX law of State X (which does have a guest statute).

Notably, Bill's affirmative defense should only be dismissed if he c law will apply to this dispute between Bill and Amy and so he should be vable to proceed on this defense.

Though New York at one time took a vested rights approach to these sorts of conflict er, as the "Governmental Interests" analysis has developed, New York courts will look first to whether the laws in question are "rules of the road" which govern conduct. If the law is conduct governing, then the law of the location will be applied.

Here, however, we have a law concerned with loss distribution. That is, the dispute is over whether and when a driver can be held liable for injuries to passenger in that car. As a loss distribution issue, the New York court will apply a Neiermeyer analysis to assess which State's law is most appropriate under the circumstance. That analysis calls for the law of the state where both parties are domiciled to be applied no matter where the injury took place. Here, however, both parties are not domiciled in the same state. Specifically, Bill is a New York domiciliary while Amy is a domiciliary of State X.

The next step, then, in this conflict of law analysis is to assess whether the law of the other forum is designed to favor the plaintiff's cause of action. In this instance, the guest statute of State X is actually harmful to the plaintiff, Amy, as it will make it more difficult for her to recover in her tort claim. (She will have to prove gross negligence rather than simple regular negligence.)

Because of the nature of the laws in conflict and the fact that the accidentdoccurred in State X and Amy is from State X, the final result of New York's conflict analysis is to have the law of Sta defense based on State X's guest statute and thus it was proper for the state court to deny the motion by Amy to dismiss Bill's affirmotive defense.

(3) The court properly granted Carl's motion to dismiss the complaint against rk's long-arm statute or otherwise.

Under the CPLR, there are a kumber of grounds upon which a plaintiff can base personal jurisdiction against a defendant. Specifically, if the defendan's motorist jurisdiction statute. Though Amy may be able to make reasonable claims under a number of grounds, they all seem to ultimately fail her.

Though Carl was driving to his vacation home in New York, the accident was still in State X and Carl had process served on him in State X. Thus Amy cannot claim Carl's presence provides jurisdiction, and further his vacation home does not count for domicile. (The facts state that Carl is a State X domiciliary.) Further, the fact that the accident was not in New York precludes jurisdiction based on the motorist statute. And the "doing business" ground only applies to those engaged in systematic and continuous commercial contact with New York. And, as for consent, though one might be able to argue that Carl's attempt to remove the action was tantamount to a consent to jurisdiction, it is not the case that such a filing will be deemed to be a form of consent.

So, we are left with jurisdiction only possible via New York's long-arm statute (CPLR 302). That statute provides for jurisdiction if a tort was the consequence of (1) transaction of business in New York, (2) a contract for the sale of goods or services in New York, (3) a tort committed in New York, or (4) a tort committed elsewhere with harm arising in New York.

Again because the acctdent took place in State X, the only real hope for Amy under the long-arm statute comes from (4) a tort committed elsewhehat harm occurred in New York because she was taken to, and treated for 6 weeks in , a New York hospital. However, it is queseionable whether treatment in New York can qualify as harm in New York when all of the accident occurred in State X. (Thent.)

In any event, even if a court could find that some harm occurred in New York, this basis for long-arm jurisdiction riquires some additional linkage in New York. Specifically, the plaintiff must show that the defendant was providing goodsn New York based on this out of state tort. Such additional linkage appears wholly missingi here, as Carl's ownership of a vacation home in New York does not suffice.

Consequently, long-arm jurisdiction also cd and done, Carl's dismissal was proper.

(4) The court's granting of the motion to compel compliance with the subpoena was wrong. The issue concerns a state court's power to order a witness that resides in a foreign state to appear before it.

Under the CPLR a court generally has the power to compel witnesses to appear before it in accordance with a duly authorized subpoena as long as that person receives the appropriate traveling and witness expenses and fees. However, for a New York court that power only extends to New York locations as the court lacks the power to order someone from another state to appear no matter that the other resident lives nearby.

Whether the distance is 95 miles from the courthouse or across the country, the court's powers are limited and so the motion here should not have been granted.