New York Courts and New York Law

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 69-96

CHAPTER 1

New York Courts and New

York Law

§1:01 New York Trial Notebook 1-2

I. CIVIL TRIAL COURTS

§1:01 Trial Defined

For the purposes of this book, “trial” of a civil

action will be considered to be a judicial proceeding

in which issues of law or fact between parties are

determined for the purpose of finally resolving the

issues. Excluded from this definition are other types

of judicial proceedings, such as motions, special

proceedings and hearings, other applications for

relief, arbitrations, and appeals. A jury trial begins

when prospective jury members “are called for

examination as to their qualifications” and continues

“until [the jury] is discharged after the rendering

of the verdict.” Carlisle v. County of Nassau, 64

AD2d 15, 19, 408 NYS2d 114, 116 (2d Dept 1978),

appeal dismissed 45 NY2d 965 (1978). A non-jury,

or bench, trial, before a judge sitting alone, pretty

much begins when the judge says it begins.

This book is about how to try civil cases in the

courts of the State of New York. Special emphasis

will be on trying cases in Supreme Court before a

jury, but many of the principles stated are equally

applicable to trials in the lower courts and trials

before a judge or referee alone. Also, emphasis is

placed on actions for the recovery of money only,

but most trial principles are applicable to trials of

other types of actions.

§1:02 List of Trial Courts

Courts in the State of New York in which civil

trials are conducted are:

• Supreme Court.

• County Court.

• New York City Civil Court.

• District Court.

• City Court.

• Town Court.

• Village Court.

• Court of Claims.

• Surrogate’s Court.

• Family Court.

All other courts formerly in existence, such

as New York City Municipal courts, county

courts in the five counties of New York City,

courts of General Session, Children’s courts, and

Domestic Relations courts have been eliminated

by the adoption of Article 6 of the New York State

Constitution in 1961 and subsequent legislation.

All of the above courts except for town courts

and village courts (collectively called “justice

courts”) are “courts of record.” [NY Const Art 6,

§1b; Jud L §2.] Courts of record have the power

to issue witness subpoenas, administer oaths,

and devise new processes and proceedings to

implement their jurisdiction. [Jud L §2-b.] Under

Uniform Rules for the New York State Trial Courts,

22NYCRR §214.6, clerks in justice courts are

authorized to administer oaths.

NOTE:

A familiar concept is the creation of a

“record” of a case, which must be properly

assembled if an aggrieved party wishes to

pursue an appeal. [E.g., Smith v. Imagery

Media, LLC, 95 AD3d 1204, 945 NYS2d 133

(2d Dept 2012).] However, a case “record”

suitable for appellate purposes may be

assembled even in cases brought in courts

not “of record.”

§1:03 Supreme Court

The Supreme Court has original, unlimited

jurisdiction of all actions at law and in equity that

can be brought in New York [NY Const Art 6, §7;

Jud L §140-b], except for claims against the State

of New York (which are the exclusive domain of

the Court of Claims; see §1:09). “Supreme Court is

a court of general jurisdiction . . .” [Dieye v. Royal

Blue Services, Inc., 104 AD3d 724, 726, 961 NYS2d

478, 480 (2d Dept 2013) (and so had the power to

appoint a temporary estate administrator, and could

do so to avoid delay and prejudice).] “Supreme

Court may entertain all causes of action unless

its jurisdiction has been specifically proscribed.”

Colgate v. Broadwall Management Corp., 51 AD3d

437, 437, 857 NYS2d 539, 540 (1st Dept 2008).

“‘If the legislature shall create new classes of

actions and proceedings, the supreme court shall

have jurisdiction over such classes of actions and

proceedings,’ even though ‘the legislature may

provide that another court or courts shall also

have jurisdiction and that actions and proceedings

of such classes may be originated in such other

court or courts.’” Sohn v. Calderon, 78 NY2d 755,

756, 579 NYS2d 940, 944 (1991), quoting NY