NYLC

Testamentary Trust

A testamentary trust must be executed with the same formalities as a will (EPTL 3-2.1). Like a will, a testamentary trust only becomes effective upon the death of the testator.

Pour-over trust

A testator may direct in his or her will that his assets be poured over into a lifetime trust. This pour-over trust need not be executed with the same formalities as a will and may be amendable or revocable, but it must be in existence before or be executed contemporaneously with the will. The trust must be in writing, signed by the creator and at least one trustee, and either acknowledged like a deed or signed by two witnesses.

Special Proceedings

A special proceeding is used to establish a right or enforce an obligation in a civil matter in an expedited fashion. Statutory authorization must exist for the use of a special proceeding; the most common being proceedings against a body or officer (CPLR Article 78) and the first application arising out of an arbitrable controversy The party who initiates a special proceeding is called the petitioner and the adversary, if any, is the respondent. Leave of court is required to join any other additional parties The pleadings are a petition, answer, and a reply. Any additional pleadings require leave of court Pretrial disclosure is generally not available without leave of court, except for a notice to admit under CPLR 3123

NY Rules of Professional Responsibility

Adopted by ABA and NY Bar Association - promulgated by Appellate Division.

Adopted Children

Adopted children are included in the definition of issue, and are the issue of their adoptive parents. Adopted-out child will not take in the class gift unless that child is specifically named in the will or the gift is expressly made to the issue including those adopted-out. Adopted-out may share in a class gift to issue of his biological family if: 1) the testator or grantor is her grandparent or a descendant of the grandparent; and 2) the adoptive parent is a stepparent, a grandparent, or a descendant of the grandparent.

Prenuptial and post-nuptial contracts

Both are valid and enforceable provided that they are: 1) in writing; 2) subscribed by both parties; and 3) acknowledged or proven in the manner required to entitle a deed to be recorded.

Comparative Negligence/Assumption of Risk

Contributory negligence or assumption of the risk does not bar recovery, but it diminishes the amount of damages otherwise recoverable in proportion to the culpable conduct attributable to the claimant which caused the damages. Culpable conduct (including contrib. negligence and assump. of the risk) is an affirmative defense to be pleaded and proved by the party asserting the defense. Implied assumption of the risk diminishes damages and express assumption of the risk will absolve the D of a duty owed to the P. Participation in sports voluntarily assumes and consents to the risks inherent in and arise out of the nature of the sport generally and which flow from participation.

Expert testimony - expert opinions

Expert testimony is admissible where the conclusions to be drawn from the facts depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. The admissibility of expert testimony that pertains to ultimate questions and issues of lesser significance turns on whether the facts cannot be stated or described to the jury in such a manner so as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable.

Adoption

Family court concurrent with the surrogate's court has original jurisdiction over adoption proceeding. Court must be satisfied that the BIC are being promoted. The records are sealed and may be obtained only for good cause shown, except for child's medical history and information as to the heritage of the biological parents. Effect: -severs all legal ties previously existing with birth parents -parents are relieved of all rights and obligations, including financial support and right of contact.

Defenses related to mental culpability

Did not have intent or awareness to appreciate what you were doing. Mental disease or defect: He lacked criminal responsibility by reason of mental disease of defect, meaning: -at the time of the conduct he lacked substantial capacity to know or appreciate either: nature and consequences of such conduct; or that such conduct was wrong D needs to have some understanding of the legal and moral import of the conduct involved to be held criminally responsible. Extreme emotional disturbance: -only applies to D for murder in 2nd when there is a reasonable explanation or excuse, and only reduces charge to 1st degree manslaughter. -must be supported by proof that the D suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by loss of self-control. -subjective element - D acted under extreme emotional disturbance AND -objective element - reasonable explanation or excuse for the emotional disturbance. Intoxication: -not full defense -only offered when relevant to negate element of crime - can negate knowledge or intent -voluntary intoxication does not negate a "reckless" culpable mental state.

Gifts to classes, children and issue

Dispositions to issue will pass by representation if the instrument was created after September 1992. Under by-representation disposition, issue of deceased issue take an equal share with the other survivors at their level. Prior to this date, dispositions to issue will pass per stirpes. Under a per stirpes disposition, the issue of deceased issue take their parent's share. Class: when a testator disposes of property in favor of a class described as his or her "issue," adopted, posthumous and non-marital children are entitled to share in the disposition. Class gifts to issue, however, are not subject to the anti-lapse statute and are governed instead by EPTL 2-1.2, whereby a disposition to "issue" will pass by representation A genetic child may be included in any disposition to a class

Condition of real property

Doctrine of caveat emptor applies and no duty for a vendor to disclose any information concerning the property with some exceptions: 1) Property condition disclosure statement - every seller improved by a one to four family dwelling used or to be used as the home or residence of one or more persons pursuant to a K must deliver the required disclosure statement to the buyer or buyer's agent prior to the buyer signing the K, and if the seller fails to do so, the buyer receives a $500 credit against the purchase price. The credit can just be given to purchser and gives seller "out" of property disclosure statement. 2) Housing merchant implied warranty - implied in any sale by a builder of a new home 3) if some conduct, more than mere silence, on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property

Recognition of common-law marriage

Does not recognize it, but will as a matter of comity where it is validly recognized under the laws of another state, unless the marriage is offensive to public policy (incest and polygamy) To be valid: -must be valid in jurisdiction where contracted; -parties must have capacity to contract; -must exist proof of present intent to be married evidenced by 1) living together; 2) holding themselves out as spouses.

Proof of lost or destroyed will

If decedent's original will is lost or destroyed, the proponent of the lost/destroyed will must prove: -due execution of the will; -all provisions of the will, by two witnesses or a copy of the will; and -that the testator did not revoke the will

Loans to Directors

Must be approved by a shareholder vote. A majority of shares entitled to vote constitutes a quorum, but shares of directors benefited by the transaction may not vote or be included in the determination of a quorum. If so provided in the COI, the board may determine that the specific loan or guarantee benefits the corporation and either approve the specific transaction or a general plan authorizing loans and guarantees.

Sexual Relations with Client (1.8)

Principle: L is a fiduciary and cannot take advantage of client. L cannot make sexual relations a condition to entering or continuing representation (by L or L's firm) or employ coercion in any way incident to the relationship. -No sexual relations (broadly defined - not just intercourse) allowed in any domestic matters -Rule does not apply if married to C or consensual relationship pre-dates representation.

Application for a Warrant

May be made in writing or orally, and contain: -name of court, and name of title of applicant for warrant; -statement that there is reasonable cause to believe that property may be found at designated place, vehicle or person, or reasonable cause to believe that a person who is subject to the warrant is at the designated premises; -allegations of fact supporting such statement based upon personal knowledge of the applicant or upon information or belief. If based upon information or belief, source of such information and grounds for such belief must be stated.

Amended and Supplemental Pleadings

May be made: -once without leave of court within 20 days after its service -after that, need leave of court. -amended pleading requires an answer within 20 days.

Modification of Custody, Relocation

May be modified upon a showing that there has been a subsequent and substantial change of circumstances affecting the child and that modification is required in the BIC. Factors for determining whether relocation is appropriate: -impact on relationship between child and non-custodial parent; -economic necessity or specific health-related concern justifying move; -demands of second marriage and custodial parent's opportunity to improve her economic situation; -g/f of the parents in requesting or opposing move; -child's respective attachments to custodial and non-custodial parent; -possibility of devising a meaningful visitation schedule for non-custodial parent -quality of lifestyle that the child would have if the proposed move were permitted or denied -negative impact from continued or exacerbated hostility between custodial and noncustodial parents; -effect on any extended family relationships.

Motion for Relief from Judgment or Order

May move to vacate a judgment or order for: -newly discovered evidence; -fraud; -misrepresentation -other misconduct of an adverse party -lack of jurisdiction to render judgment or order; -reversal; -modification or vacatur of prior judgment upon which is current judgment is based.

Unauthorized Practice of Law

May not practice law in a jurisdiction not licensed, or aid a non-L in the unauthorized practice of law.

Delaying Litigation

May not use means that have no substantial purpose other than to delay or prolong the proceeding or cause needless expense

Standard of Care owed to Construction Workers

strict liability for contractors or owners (and agents) -who fail to erect devices so as to give proper protection to workers involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. Statute imposes absolute liability and a P's comparative fault will not reduce the recovery. Exception: one-two family dwelling owners who contract but do not direct or control the work.

Appearing through an Attorney

the L may still withdraw or be changed after appearing on behalf of client.

Will contests - undue influence

the objectant has the burden of proving undue influence Must show: -the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent -[T]he influence exercised [must] amount to a moral coercion, which restrained independent action and destroyed free agency; or -by importunity which could not be resisted, constrained the testator to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist

Restrictive covenants

to be enforced, covenants must be in direct chain of title of the burdened property. Deeds to other lots by a common owner are not in that direct chain of title.

Use/operation of motor vehicle

triggers right to first-party benefits motor vehicle must be proximate cause of injury injury must arise out of use/operation of the motor vehicle

Appeals - Scope of Review

up for review: -non-final judgment or order which affects the final judgment; -incidental rulings made at the tiral; -court of appeals are limited to law, and intermediate appellate courts may review questions of law and fact.

Non-probate transfer - inter vivos gifts

Valid inter vivos gift requires: • Intent on the part of the donor to make a present transfer; • Delivery of the gift, either actual or constructive, to the donee; and • Acceptance by the donee

No-Fault Insurance Law

every owner's policy of liability of insurance issued on a motor vehicle provide for the payment of "first-party benefits" to a person injured in the use or operation of a motor vehicle, other than occupants of another motor vehicle or a motorcycle. Thus, in a two-car accident, an injured party looks to the insurance on the vehicle he was driving or riding as a passenger to recover such items of damage regardless of who caused the accident. Motorcycles are exempt from first-party coverage/benefits, and only pedestrians are covered under such benefits.

Robbery

forcible stealing for the purpose of one or more listed alternatives. The D must intend one of the alternatives rather than the force used have one of the alternative effects.

Remedies - Attachment

form of seizure of D's property by the sheriff, who holds property for satisfaction of a judgment in P's favor. Only available in an action for money judgment and only upon motion demonstrating one of these most recognized grounds: -D is a nondomicilary residing without the state, or is a foreign corporation not qualified to do business in the state; -D resides or is domiciled in the state and cannot be personally served despite diligent efforts to do so; or -D, with intent to defraud his/her creditors or frustrate the enforcement of the judgment rendered in P's favor, has assigned, disposed of, or encumbered or secreted property, or removed it from the state or is about to do any of these acts. Must file order of attachment and papers upon which it is based within 10 days of granting the order

Manslaughter

he recklessly causes the death of another. Recklessly is a defined culpable mental state. A person acts recklessly when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that a result will occur or a circumstances defined by a statute exists, and when that person is aware and consciously disregards that risk. Reckless manslaughter is aggravated to second degree when a "grave" risk of death is evidence evincing a depraved indifference to human life.

Assignment and Sublease

in a residential lease that pertains to a dwelling with less than four residential units, a tenant may not assign the lease without consent of the landlord, which consent may be unconditionally withheld without cause. But if the landlord unreasonably withholds consent, the landlord shall release the tenant from the lease upon the tenant's request with 30 days' notice. If the residential lease consists of a dwelling with four or more residential units, a tenant has the right to sublease, upon complying with the notice provisions contained in the statute subject to written consent of the landlord, which consent may not be unreasonably withheld.

TP Practice

"Impleader" or third-party practice is a procedure whereby a defendant is permitted to proceed against a person not a party, who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant, by bringing in that person so that the original claim and the related claim against the added person may be decided in a single suit. The original party defendant is called the third-party plaintiff, and the impleaded party is called the third-party defendant. A party may commence a third-party action after service of his or her answer. -TP summons' and complaints must be filed with the clerk of the court, and served together with all prior pleadings, on the TP D within 120 days, and the TP must serve and answer on the TPP, and assert any counter-claims or cross-claims. Within 20 days after service of the answer to the TP complaint, P may amend complaint without leave of court to assert the TP D any claim P has against such party.

will contests - testamentary capacity

"[e]very person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property." Generally, courts will look to whether the testator: • Understood the nature and consequences of executing a will, • Knew the nature and extent of the property that he or she was disposing of; and • Knew those who would be considered the natural objects of his or her bounty and had relations with them The proponent of the will has the burden of proving that the testator possessed testamentary capacity

Child Custody

-neither parent has a prima facie right to custody. -Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who is domiciled within reservation of such tribe. -any Indian child not residing with the tribe, the court must still transfer the proceeding to the jurisdiction of the tribe, absent any objection by either petition.

Demand and Waiver of Trial by Jury

-issues of fact on COA for money are only triable by jury unless it is waived. -may demand by serving a demand on the parties and filing a notice of issue containing a demand for trial by jury -if no demand is made, right is waived.

Actions to be commenced within 2 years and six months

-medical, dental or podiatric malpractice from the alleged omission or failure

Notifying Receipt of Property; Safekeeping

-L must promptly notify a C or TP of receipt of funds which the C or TP has an interest -L must safeguard funds and maintain a complete record thereof; -L must promptly pay and deliver that portion of the funds to which the C or TP is entitled; PROMPT means hours or days, not weeks.

Other actions SOL

Art 78 - within 4 months; Municipality - 1 year and 90 days; Wrongful death - 2 years after death

Assault and related offenses

Assault 1) intentional, reckless or criminally negligent actions by D; 2) to cause harm to another. -must have physical injury as a result of the conduct -degrees vary based on the methods and status of victim (e.g., child or police officer).

Judicial/Adjudicative Function - Administrative Agency

- Disciplinary (e.g., tier hearings) and beneficiary (e.g., SSI) Requirements: -time/place of hearing -statement of matter asserted - notice to party of matter involved to prepare defense -hearing given in reasonable time (no specific definition for reasonable) - some statutes specify. Absent statutes, timeliness is judged by whether delay in hearing has prejudiced party requesting hearing (e.g., witnesses unavailable). -site of hearing must be convenient -interpreter of deaf (not for language - executive order issued by Cuomo that provides for that); -Rules of evidence do not apply, privilege does -each agency may make own rules for discovery or forbid discovery. -Under SAPPA Art. 4 - some disclosure applies if license can be revoked. -Where federal standards are involved - they would set standards for hearing that take place under program (e.g., medicaid, special education, clean-water hearings). Standard of proof: -substantial evidence - less than preponderance of evidence in civil cases. -means only inference is reasonable or plausible and not necessarily most probable. Decisions of agency: -must be in writing -must be in findings of fact and conclusions of law -can be adopted by administrative law judge (final findings in agency) -can be conclusive under doctrines of collateral estoppel or res judicata - there has to be full opportunity to litigate on merits and procedures in place similar to those in a civil proceeding such as inquiry to standard of proof, testimony under oath, opportunity to present witnesses, cross-examination, etc. case-by-case decision made. -cases outside administrative realm may have effect on administrative agency - decision on administrative court can be conclusive on agency. -All persons appearing at hearing can be accompanied and represented by counsel.

Cross-Claims and counterclaims

- a counterclaim need not arise out of the transaction or occurrence of which the P's claim arises, nor otherwise be related to P's claim. - Every counterclaim in New York is permissive, even if its subject matter relates to plaintiff's claim. Cross-claim: A cross-claim is a cause of action by one defendant against another. A cross-claim may be asserted between defendants for any cause of action at all, whether or not related to the plaintiff's claim

Motion to Dismiss

-After adequate notice, may be treated as one for summary judgement; May be made: -before service of the responsive pleading (only 1 pre-answer MTD may be made); -if the D makes a pre-answer MTD and fails to include lack of PJ or lack of jurisdiction where service was made, those defenses are waived. Waived if not raised by pre-answer motion or defense in the answer: -documentary evidence; -lack of legal capacity to sue; -another action pending; -defenses - such as collateral estoppel, release, res judicata, SOL or SOF An objection based upon lack of subject matter jurisdiction (paragraph 2), failure to state a cause of action (paragraph 7), or failure to join a necessary party (paragraph 10) may be raised at any time by motion or in a subsequent pleading. These objections may be raised even if a pre-answer motion was served and the defense was not included and even if an answer was served without raising the defense. Service: An objection that the initial pleading was not properly served is waived if, having raised such an objection in the responsive pleading, the objecting party does not move for judgment on such ground within 60 days after serving the pleading Extends answer time: Service of a notice of motion to dismiss a cause of action before a responsive pleading is due extends the time to serve a responsive pleading until ten days after service of notice of entry(was filed with clerk) of the order determining such motion

Discovery in Administrative Proceedings

-Agency can subpoena information - subpoena must be issued by statutory authority and must have reasonable cause for subpoena. -administrative searches - can enter to do inspection (e.g., dept. of health inspections) -has to be statutory authority to issue the subpoena, that there is reasonable cause for the subpoena, and that the information is connected to one of the agency's functions. If party refuses to comply with agency's subpoena, then the agency has to go to Supreme Court for enforcement.

Advertising

-Cannot be deceptive or misleading -Can make statements reasonably likely to create an expectation of results, and comparing the L's services with the services of other L's, and describing quality of L's services, as long as such statements are not false, deceptive, or misleading AND can be factually supported by L. -Can use testimonials by Cs with C's written consent -Can use paid endorsements by actors as long as it's disclosed -Must be labeled "attorney advertising"; with disclaimer that "prior results do not guarantee similar outcome" -fees set forth in advertising must be honored.

CLE's

-Every new L must complete a minimum of 32 hours within first 2 years of admission to bar. Must include - 16 hours of ethics and professionalism; 6 hours of skills; 7 of practice management and areas of professional practice. All must be CLE Board approved. -must certify on registration form and retain certificates of attendance -Every other L (not newly admitted) must complete minimum of 24 hours every two years with at least 4 hours of ethics. May be earned with non-traditional formats, as well as formal courses, and can also be earned for speaking and teaching activities, judging law school competitions, legal writing, and performing pro bono legal services.

Inability to Consent

-K of an infant is binding on the other contracting party so long as the infant does not elect to disaffirm it. A K made by a person after he/she has attained the age of 18 may not be disaffirmed by him on the ground of infancy. Exceptions to the voidability of infant contracts are from loans from a bank or a contract for necessaries (e.g., food).

Prohibition against commingling and misappropriation

-L in possession of any funds or other property belonging to another person in connection with his/her practice of law is a fiduciary -L must not misappropriate or commingle such funds. -L must keep funds belonging to another incident to the L's practice of law in a special account separate from any of the L's business, personal, or fiduciary account (i.e., accounts held as executor, guardian, trustee) -Funds must be kept in a NYS bank that agrees to provide dishonored check reports to the L's Fund for Client Protection -Out-of-state bank may be used with written approval of C if the bank provides dishonored check reports (if you bounce a check, there's a report filed to disciplinary committee). -Funds belonging in part to the L and in part to the C must be kept in the separate account, but the L may withdraw the part belonging to the L unless C disputes (if C disputes, must first resolve).

Compromise of Infant Claims

-L must apply for court approval of settlement of infant claim -Any sum collected by L for infant's claim must be deposited in special account apart from personal account -Statement of payment received must be delivered (or sent by certified mail) to infant's guardian; -Court must approval any withdrawal or payment from the special account.

Fee Disputes

-L must attempt to resolve fee disputes through arbitration program if C requests -Arbitration decision is final and binding, but either side may request a de novo review by courts No mandatory arbitration if: -criminal matter -dispute less than 1K or over 50K -claims for relief other than adjustment of fees -claims involving substantial legal questions, including malpractice or professional misconduct -L fee set aside by statute, rule, or court order; -If claim is over 2 years old -L is not admitted to practice in NY and has no NY office -No material service rendered in NY -Request for arbitration not made by C or C's representative.

Communication with represented person

-May not communicate with party L knows is represented without prior consent of that L, but L may direct C to communicate with represented person provided advance notice is given to represented person's counsel.

Engagement Letters and Retainer Agreements

-Must be given to C prior to representation or within a reasonable time IF impracticable to do so at the commencement or if the scope of retainer is not yet clear Must set forth: -scope of legal services; -fees; -expenses; -billing practices; and -right to arbitrate certain fee disputes -No non-refundable fees permitted, though "minimum fee" arrangement may be allowed (can't be disguised as non-refundable). Exceptions to engagement letter: -Fee under $3000; -Services are the same as others previously rendered to and paid for by client (e.g., if you've handled small real-estate transactions and are now handling a large real-estate transaction, that is a separate matter requiring new engagement letter); -domestic relations matter (separate rule - more detailed statement required) (e.g., divorce, separation, annulment, custody, child-support, or alimony); -attorney is admitted in another jurisdiction and has no office in NY; or -no material portion of services are to be rendered in NY.

Non-meritorious claims and contentions

-Must only assert claims with a basis in law and fact and one that is not frivolous. It is frivolous if: -L knowingly advances a claim or defense that is unwarranted under existing law (except GF arguments to modify existing law) -conduct has no reasonable purpose other than to prolong or delay the resolution of litigation or to harass or maliciously injure another; -knowingly asserts material factual statements that are false -L must sign every paper submitted to the court which is a statement that it's not frivolous. -If found frivolous, L is subject to sanctions not to exceed $10,000.

Communications with Client (1.4)

-Must promptly inform the C of material developments, including settlements or plea offers -Client's right to decide whether to accept a settlement offer or plea bargain.

Actions to be commenced within 3 years

-Recover damages for PI; -injury to property; and -malpractice, other than medical, dental or podiatric malpractice.

COL - Estates

-Relating to wills that dispose of real property, the law of the jurisdiction where the real property is located governs. -In wills relating to personal property, the law of the jurisdiction in which the decedent was domiciled at death governs. --If it's over whether the property is real or personal, the law of the state where the asset is located is determinative.

Handling Domestic Relations Matters (Separate Rule)

-Statement of Rights is more detailed and must be shown to client before representation and prior to execution of written retainer agreement (C must sign acknowledgement); -No contingent fee in most DR matters -L may not obtain a confession of judgment or promissory note, taken a lien on real property or otherwise obtain a security interest from the C to secure payment of the L's fee unless the retainer agreement so provides, an application is made to the court, notice of the application has been given to the C's spouse, and the court grants approval.

Formation of a Lease

-a lease for a longer period than one year is void unless in writing subscribed by the party to be charged. -every written residential lease must be written in a clear and coherent manner, using words with common and everyday meanings and must be appropriately divided and captioned in its various sections. -a lease cannot prohibit occupancy by dependent children of a tenant or a tenant's spouse or contain a clause requiring tenants to remain childless.

Scope of Discovery (Disclosure)

-all matters material and necessary in the prosecution or defense of an action regardless of the BOP. -obtainable upon notice stating the circumstances or reasons such disclosure is sought or required. Exempt from disclosure: -privileged information; -work product (only if shows substantial need and is unable without undue hardship to obtain substantial equivalent by other means). Expert witness: -who they will call; -subject matter expert will testify on; -substance of the facts and opinions which expert is expected to testify; -qualifications of each expert; -summary of the grounds for each expert's opinion. Accident reports: -full-disclosure required when prepared in the regular course of business, unless prepared by a P/O for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution. Amend/Supplement: -where response was no longer correct or incomplete, or was incorrect or incomplete at the outset. Materials: -can obtain full disclosure of films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving another party.

Matrimonial Actions - pleadings and service of process

-all pleadings must be verified -service of process must be by personal delivery absent a court order -D must be served with a copy of the "automatic orders" simultaneously with service of the summons. The orders remain in effect during the pendency of the action and prevent either party from unilaterally 1) changing the economic status quo of the relationship by disposing of property, incurring debts, removing the other party or children from medical coverage, or changing beneficiaries from existing insurance policies.

Who may adopt

-an adult single person; -an adult married couple together; or -any two unmarried adult intimate partners

Actions to be commenced within 6 years

-breach of contract, express or implied; -action for fraud; and -action for which no limitation is specifically prescribed by law

Partial revocation

-by another will or a writing executed and attested with the formalities of a will. -no partial revocation by a physical act

Solicitation

-can't solicit Cs in person, by phone, texting, social media, etc. unless party is a close friend, relative, or existing client. -other solicitation is permitted, but must be filed with appropriate disciplinary committee. -cannot solicit wrongful death or personal injury cases UNLESS it is at least 30 days after the incident.

Intestacy - child conceived after parent's death

-child conceived using the genetic material of a deceased person is a distributee of the child's genetic parent -genetic child may be included in the disposition to a class described as "issue," "children," "descendants," "heirs," or any other term included in a will, trust, or other instrument created by the genetic parent -parent must have written said instrument within 7 years of his death and such instrument must provide consent for the use of his genetic material. -child must be conceived no later than 24 months after the genetic parent's death, or both 33 months after genetic parent's death.

Required Consent for Adoption

-child if over 14 y/o; -parents of a child conceived or born in wedlock; -mother of a child born out of wedlock; -father of a child born out of wedlock; -any person or authorized agency having lawful custody of a child Consent is not required of a parent who has abandoned the child - an intent to forego parental or custodial rights manifested by a failure for a period of six months to visit or communicate with the child. Ability to visit and communicate is presumed under DRL.

Juvenile Delinquency

-child less than 16 y/o; -has committed acts which would constitute a crime if committed by an adult; -who is not criminally responsible for such conduct by reason of infancy; and -whom the court determines that supervision, treatment, or confinement is required Person in Need of Supervision (PINS) -person less than 18 -required to attend school; -habitually truant or incorrigible, ungovernable, or habitually disobedient; -beyond lawful control of parent or who commits certain penal law offenses. -PINS cannot be detained in a detention facility.

Officers: election, authority, and removal

-elected by board and may be removed with or without cause. -if stated by COI, officers may be elected by the shareholders instead of board, removed (w or w/o cause), and may be suspended by board for cause. Duties: shall perform in GF with the degree of care which an ordinarily prudent person in a like position would use under similar circumstances

Spousal maintenance

-employ a mathematical formula based on parties' respective incomes to determine maintenance. -has discretion to determine duration -cap up to a certain income, but court can consider factors to determine whether to apply formula or deviate. Concept: upon divorce, the less income spouse will receive some kind of maintenance can approximate pre-separation standard of living. For modifications a party must show: -inability to be self-supporting; -substantial change in circumstances, including financial hardship; -upon actual full or partial retirement of the payor if the retirement results in a substantial change in financial circumstances, including retirement; -termination of child support.

Burglary

-enters or remains unlawfully; -building or dwelling; -intent to commit a crime; -first, second, and third-degrees - determined by injury, location, and weapons.

Appeals - appeals to the Court of Appeals

-from any order of the appellate division which finally determines an action originating from any of the trial level courts where there is dissent by at least two justices on a question of law

Intestacy - non-martial children

-full inheritance rights from mother and other's family. -rights extend to their issue as well -can inherit from birth father only if paternity is established by: 1) order of filiation declaring the person to be the child's father or mother and father acknowledged paternity under PHL; 2) father files a witnessed and acknowledged affidavit of paternity with the Putative Father Registry; or 3) paternity is established by clear and convincing evidence, which may include a DNA test, or if father openly and notoriously acknowledged the child as his own

Grand jury testimony/immunity

-only P puts on evidence to determine whether a crime was committed (low burden) -must be indicited or waive indictment for felony complaints -g/j can also return less serious charges -no judges because it's only an accusation. judge's however can review the minutes. -no defense counsel. D is not allowed UNLESS he is going to testify, and then an L can be present but an L cannot speak or object. -D charged by felony complaint may testify on his own behalf in the grand jury and to have L present. Decision of whether to hear other witnesses on behalf of Ds rests with grand jury. -every witness in g/j proceeding must give any evidence legally requested, regardless of any protest or belief that it may incriminate oneself. Witness who testifies @ grand jury is granted immunity, unless witness agrees to waive it. Granted "transactional" immunity, which protects the witness from prosecution for the offense or offenses involved

Child support

-parents are responsible until the child is 21 -courts follow the Child Support Standards Act -pro rata based on each party's income. -educational expenses may be awarded -fault is excluded from consideration -cannot release each other from obligation -may opt out or deviate from CSSA as long as the parties include all of the statutory recitations in writing - a court is not bound by an agreement that fails to provide for adequate support for the children. -most courts will apply the pre-separation standard of living when the combined income exceeds the cap. -CSSA must be rigidly followed CSSA Add-ons (pro rata): -child care expenses -health insurance -unreimbursed health expenses Modification: -must establish agreement was unfair or inequitable; -unanticipated and unreasonable change in circumstances; or -needs of child are not being adequately met. Court may modify when: -cannot apply retroactively and arrears can't apply retroactively -three years have passed since order was entered, modified, or adjusted; or -there has been a change in either party's gross income by 15% or more since order was entered, modified, or adjusted. -reduction in income shall not be considered as grounds for modification UNLESS it was involuntary and the party has made diligent attempts to secure employment commensurate with his/her education, ability, and experience.

Voluntariness

-resolved @ pre-trial hearing and if not suppressed, may re-litigate at trial -statement given subsequent to an arrest in one's home which was predicated on probable cause but w/o a warrant or exigent circumstances must be suppressed, absent attenuation.

Art. 78 Review

-review of agencies decisions -starts at appellate division Conditions for review: (1) standing: 1) party must show some harmful effect, whether economic or non-economic; and 2) the interest sought to be protected must be arguably within the zone of interest to be protected by the statute under which the agency has acted; (2) exhaustion of administrative remedies - litigant must take every opportunity in administrative forum before going to court. (3) ripeness - party sought all relief avenues open within the agency without satisfactory result (4) finality - final decision of agency Review of Agency Actions: -procedural basis for review; -discretionary decisions - entitled to deference for matters interpreting agency's legislation governing agency. only set aside of arbitrary or capricious or an abuse of discretion. if penalty was consistent in law and evidence. Will send back to agency for new punishment consistent with law. -rules and policy determinations - arbitrary and capricious standard. must establish that a regulation or policy is so lacking in reason that it is essentially arbitrary -administrative adjudications - determinations of fact after a hearing required by law to be on the record must be supported by substantial evidence. Subsequent review is confined to the administrative record containing only the proof adduced at the hearing. -Courts usually defer to agency in their actions.

Types of Tenancies

-tenancies for years; -periodic, month-to-month, year-to-year; -tenancy at will(can remain in property so long as LL agrees to it); or -tenancy at sufferance (can remain in property so long as LL agrees to it).

Attorney for the Child

-will be appointed where child needs attorney and child doesn't have one. Minors who are the subject of family court proceedings should be represented by counsel. -mandatory in any proceeding involving a JD, PINS, and Abuse and Neglect. No financial means test and reimbursement by parents to state is not required. The L should be guided by the wishes of the child ONLY WHEN the child is capable of knowing, voluntary, and considered judgment. IF the child lacks capacity, or following that child's wishes is likely to result in substantial risk of imminent or serious harm to the child, the L can advocate for a position contrary to the child's wishes and in such cases must inform the court of the child's articulated wishes.

Business Corporations -Formation and Nature

1) Certificate of Incorporation - file with the secretary of state; contains certain detailed information, including the corporate name, county where office is to be located, corporate purpose, specific information about shares to be issued, duration if other than perpetual, designation for agent for service of process 2) Adoption/amendment/repeal of by-laws - requires a majority vote of shareholders or, if provided in the certificate of incorporation or by-law adopted by shareholders, by requisite vote of the BOD.

Warrantless Searches

1) PO must have reasonable ground to believe that there is an emergency; 2) search must not be primarily motivated by intent to arrest; and 3) there must be a reasonable basis to associate the emergency with the area to be searched Vehicle: Where the PO have reason to believe that the vehicle may contain evidence related to the crime for which the occupant was arrested; or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein.

Prohibited acts under GOL

1) no deceptive acts (acts likely to mislead a reasonable consumer acting reasonably under the circumstances) or practices in the conduct of any business, trade or commerce or in the furnishing of any service; 2) wagers or stakes dependent on any race or unknown contingent event are unlawful and all K or on account of any property thus wagered or staked are void 3) loans carrying annual interest rates of more than 16% are prohibited, subject to limited exceptions. 4) contractual exemptions from liability for negligence are disfavored. 5) landlord's cannot exempt themselves from liability for their business (i.e., for tenants). 6) K of contractors performing any type of construction (including alterations) of a building that purports to exempt owners/contractors from liability caused by their own negligence is against public policy and void.

Probable Cause for Informant

1) veracity or reliability of the source of the information; 2) basis of the informant's knowledge.

Adverse Possession

10 year statutory period (including for easement by prescription). Need court ruling to establish adverse possession. Presumption of occupancy by a cotenant terminates after ten years of exclusive occupancy by the other cotenant, who thus may acquire title by adversely possessing for 20 years. Requires: Claim of right - reasonable basis for the belief that the property belongs to the claimant, but a claim of right is not required if the ownership cannot be ascertained from the records. De minimus, non-structural encroachments, including fences, hedges, shrubbery, plantings, sheds, and acts or lawn mowing across the boundary line of an adjoining owner are all deemed to be permissive and non-adverse.

Defendant's Appearance

A D appears by serving an answer, making a motion, or serving notice of appearance. If served by personal delivery, has up to 20 days to appear from the delivery. -most other cases, no later than 30 days after service. -appearance by D confers jurisdiction over D unless an objection is raised in accordance with CPLR 3211(a)(8)

Mutual mistake v. Unilateral Mistake

A K enter into under mutual mistake of fact by the parties is voidable and subject to recession or reformation. The mistake must be so material that it goes to the foundation of the agreement. The mutual mistake must exist at the time that the K is entered into and must be substantial, and any court-ordered relief is reserved only for "exceptional situations." Unilateral mistake - is insufficient basis for reformation or rescission, in the absence of a showing of fraud, duress, or similar inequitable conduct.

Power of Attorney

A Power of Attorney (POA) permits another person (an agent) to complete financial transactions on a principal's behalf. A durable POA survives the principal's incapacity and a nondurable POA does not survive the principal's incapacity. The statutory short-form POA, if executed properly, is durable. A non-statutory POA is permitted as long as executed in the same manner required for a statutory short-form POA The POA must be signed and dated by the principal (who must have capacity) and by the agent and their signatures must be acknowledged in same manner as required for the recording of a deed. The agent does not have to sign the POA at the same time as the principal. In order for the principal to grant the agent various authorities, the principal must place his or her initials in a bracket preceding each specific authority. If the principal wishes to grant his or her agent authority over all of the matters enumerated in the form, the principal need only place the initials inside the bracket enumerated "(P)" and does not need to initial the other lines. Placing an "X" or other mark rather than the principal's initials is invalid and does not serve to grant to the agent any authority unless a principal lacks capacity for a standard signature and routinely signs his or her name with such a mark.

Peremptory challenges and challenges for cause

A challenge to the favor, the most common kind of challenge for cause, is an assertion based on any fact that tends to show a juror will be biased in the trial of a case. Grounds for challenge to the favor: -juror is employ of party to the action; -if party to the action is a corporation, that juror is a shareholder or stockholder; -juror is a shareholder, stockholder, director, officer, or employee or in any manner interested in any insurance company issuing policies for protection against liability for damages for injury to person or property.

Non-probate transfer - Totten Trusts

A bank account in the name of the decedent payable on his or her death to a named beneficiary that may be revoked or modified at any time by will. The trust must be described in the will as being in trust for a named beneficiary in a named financial institution. The will need not mention an intent to revoke or modify the trust, but must dispose of part or the whole of the trust account in order to effect a revocation or modification of the trust. The beneficiary has no vested right in the trust, only an expectancy that he or she might receive the trust in the future.

Proof of lost will, presumption of revocation

A copy of a lost or destroyed will may be submitted for probate only if it is established that: -the will has not been revoked; -was properly executed; and -all of the provisions of the will can be clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete. Presumption: when a will previously executed cannot be found after death of the testator, there is a strong presumption that it was revoked by destruction by the testator. Proponent of lost/destroyed will has burden to show that the testator did not destroy the will with intent to revoke it.

Establishing paternity

A court on its own or by the motion of any party, may order the mother, the child, and alleged/putative father to submit to DNA tests. Such tests are admissible unless timely objection is made and if they show a paternity of a 95% or more certainty, a rebuttable presumption of paternity. Equitable estoppel in paternity: -will not be ordered if the court finds that it is not in the BIC

Competency of attesting witness-beneficiary

A disposition to an attesting witness is void unless there are two other disinterested attesting witnesses who are available to testify an interested witness remains a competent witness and may be called to testify as to the validity of the will If the interested witness is also an intestate distributee, the witness would then take either his or her intestate share had the decedent died without a will, or the disposition, whichever is less.

Creation of a lifetime trust

A grantor may create a trust of real or personal property for any lawful purpose Required: -person or entity must intend to create a trust; -trust must have at least one definite and ascertainable beneficiary who is not the trustee; and -grantor who delivers corpus to the trustee. Who may create a trust: any person or entity may make a lifetime trust. A trust must be: • In writing; • Executed by the creator of the trust and at least one trustee; and • Acknowledged like a real estate deed for recording or executed in the presence of two witnesses, who must then sign it.

Irrevocable Trusts

A lifetime trust is irrevocable unless the trust instrument expressly provides that it is revocable.

Special relationship/special duty (municipality)

A municipality's duty to provide police protection is a duty owed to the public at large, and not to any particular individual or class of individuals. A municipality's provision of police protection is generally regarded as a resource-allocating function, best left to the discretion of policy makers. Accordingly, a municipality may not be held liable for injuries resulting from a failure to provide police protection. Exception when a "special relationship" exists between the municipality and the claimant. Elements of special relationship: -assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; -knowledge on the part of the municipality's agents that inaction could lead to harm; -some form of direct contact between the municipality's agents and the injured party; and -that party's justifiable reliance on the municipality's affirmative undertaking.

Necessary and Proper Parties

A necessary party is a person who ought to be a party if complete relief is to be accorded between parties to the action or who might be inequitably affected by a judgment in the action (CPLR 1001). Necessary parties must be joined in the action if they are subject to the jurisdiction of the court, otherwise if they are not and they do not consent to the jurisdiction of the court, the court, when justice requires, may allow the action to proceed without them. The permissive joinder of claims by multiple plaintiffs as well as the joinder of multiple defendants by a plaintiff is permitted if the claims: • Arise out of the same transaction, occurrence, or series of transactions or occurrences; and • Have in common any question of law or fact Parties may be added at any stage in the action by leave of court or by stipulation of all parties who have appeared, or one time without leave of court within 20 days after service of the summons or within the time period for responding to the summons or within 20 days after service of a pleading responding to it.

Service of Process

A nondomicilary who commences action in NY is deemed to have designaed his attorney as an agent upon whom process may be served. A D can use this statute to acquire jurisdiction over the P in a separate action. -service must be made within 120 days. If service is not timely made, the court, upon motion, must dismiss the action without prejudice as to the defendant not served, or upon good cause extend the time for service. -Art 78 - service must be made no later than 15 days after SOL expires Personal service is effectuated by: 1) personal delivery; 2) deliver-and-mail service (to a person of suitable age of discretion at place of business, dwelling place, or usual place of abode); 3) service upon an agent (must be a designated agent); 4) affix-and-mail service ("nail and mail" - summons and complaint affixed to door to place of business, dwelling place, or usual place of abode); or 5) court-ordered service. Partnership: -serving any of the partner -managing or general agent of partnership; -person in charge of the partnership office Domestic/Foreign Corporation: -serving an officer, director, managing or general agent, cashier, assistant cashier, or by service upon a registered agent or secretary of state. Domestic or Foreign LLC: -any member of LLC if management is vested in its member; or -manager if the management is vested in managers -secretary of state Outside NY: -same manner as service made within the state by the same parties authorized to make the service

Notice of Pendency

A notice of pendency may be filed in an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property. It prevents a potential transferee or mortgagee of the property from acquiring the status of innocent purchaser for value while the action is pending by placing a cloud on the marketability of the defendant's title for the duration of a lawsuit.

Standing to Contest

A person has standing to contest probate of a will if probate would adversely affect his or her interests.

Renunciation

A person who disclaims a gift (renounces interest in decedent's estate) is considered to have predeceased the decedent. In order for the disclaimer to be valid, it must be: -in writing; -signed and acknowledged before a notary; and -accompanied by a separate affidavit stating that no consideration was received for the disclaimed by a person whose interest will be accelerated. Beneficiary must renounce a disposition within nine-months of a transfer, and the disclaimer is irrevocable.

No-contest clauses

A testator may include in his or her will an "in terrorem" or no-contest clause, which prevents a disposition from taking effect if the will is contested by the beneficiary, even if the beneficiary has probable cause for the contest. Such a provision will be enforced, subject to certain exceptions, including that: • The beneficiary objects on the grounds of forgery or revocation by a later will, • A guardian contests on behalf of an infant beneficiary, • The beneficiary objects to the court's jurisdiction, refuses to join in the probate petition, or waives service of a citation, • The beneficiary provides information pertinent to the probate of the will, or • The beneficiary conducts preliminary examinations under SCPA 1404 to evaluate the merits of his or her objections to probate.

Advancement

A testator may satisfy part or all of a disposition or intestate share by making a lifetime gift to the beneficiary. The gifts must be: 1) accompanied by a writing; 2) executed contemporaneously with the gift and signed by decedent or acknowledged by the donee that the donor intended the gift to be an advancement; and 3) decedent must intend to substitute the gift for the donee's share of the estate.

Terminating a Trust

A trust may be terminated upon the consent of all interested persons during the grantor's lifetime and with his or her consent. However, a court may terminate a trust, upon application by a trustee or beneficiary, if it finds that: • Continuation of the trust is economically impracticable, • The express terms of the disposing instrument do not prohibit its early termination, and • Such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries When the purpose of a trust ceases, the trust terminates and the estate of the trustee also ceases. Likewise, with respect to creditors who obtain an order directing the debtor to convey a property to a trust, such trust or assignment terminates ten years after the property was conveyed, unless otherwise prescribed in the instrument or by law

Verification of Pleadings

A verification is a statement by a party under oath that a pleading is true to the knowledge of the deponent. With minor exceptions, pleadings need not be verified, but if a pleading is verified, each subsequent pleading must be verified, unless the matter to be verified is privileged. If a counterclaim, cross-claim or third-party claim in an answer is separately verified, it is given the same effect as if it were a separate pleading Mandatory: Verification of a complaint in a matrimonial action (see Matrimonial and Family Law, II. E.) and a petition in an Article 78 proceeding (see Civil Practice and Procedure, XI.B.) is mandatory.

Negligent supervision/entrustment

Actions between parents and children are actionable to the same extent that such actions are actionable when brought by non-family members. However, a parent's negligent failure to supervise a child is not actionable by the child, and TP tortfeasors are not entitled to contribution from parents for liability resulting, in part, from negligent supervision of the child. Exception: -when the parent has breached a duty owed to TPs by negligently permitting an infant child to use a dangerous instrument.

Family Offense Proceedings

Acts that constitute a family offense: -disorderly conduct; -harassment; -sexual abuse; -stalking; -criminal mischief; -menacing; or -assault must occur between members of same family or household or persons who are or have been in an inmate relationship regardless of whether such persons have lived together at any time. Remedy: -order of protection -duration may vary depending on the circumstances

Birth-parents' rights post-adoption

Agreements for post-adoption contact with biological family are judicially recognized and may be enforced only if the terms of the agreement are incorporated into a written order and the court determines that the K is in the BIC. Family court does not have inherit discretionary authority to provide for contact with the child by a biological parent whose parental rights were terminated in a contested proceeding

Statute of Frauds

All of these agreements MUST be in writing: 1) one year performance Ks 2) sureity 3) marraige 4) promise to pay a debt discharged in bankruptcy 5) K to pay compensation for services rendered in negotiating a loan or purchase/sale/exchange/renting/leasing of any real estate or interest therein. However, it is not required if the K is to pay compensation to an auctioneer, attorney at law, or duly licensed real estate broker or real estate salesmen. 6) interest in real property, except for a lease not exceeding one year 7) lease over a year. -use of electronic signature has the same effect as a written signature.

Claims against Municipalities

An action for negligence or wrongful act of D cannot be maintained unless a notice of claim has been served in accordance with the General Municipal Law: -Must be served within 90 days after the claim arises (also applies to actions for property damage, personal injuries or wrongful death against any political subvision of the state, public authority or public benefit corporation that is entitled to receive a notice of claim) or, -wrongful death - 90 days from the appointment of a representative of decedent's estate. -must be in writing -sworn on behalf of claimant; -setting forth: name and address of claimant/L; nature of claim; time when place where and manner in which the claim arose; and items of damage or injuries claimed to have been sustained. May extend time to serve notice of claim, but cannot exceed the SOL for commencing an action against a municipality (1 yr, 90 days) or wrongful death within 2 years from death of decedent. Considering whether to extend the time: -whether municipality or insurance carrier had actual knowledge of facts constituting claim within 90 days of event; -whether claimant was infant or incapacitated; -whether claimant justifiably relied on settlement representations of a representative of the municipality; and -whether the delay substantially prejudiced the municipality in maintaining its defense on the merits.

Actions to be commenced within 1 year

An action to recover damages for intentional torts, such as assault and defamation; -action upon an arbitration award.

POA authority to make gifts

An agent may not make gifts in excess of $500 in the aggregate in any calendar year and if the principal wishes the agent to make gifts in excess of an annual total of $500 for all gifts, the principal must: (1) initial a statement in the statutory short-form POA; and (2) simultaneously execute a separate Statutory Gifts Rider in the exact wording as set forth in GOL § 5-1514. The principal must sign the Statutory Gifts Rider in the presence of two witnesses or acknowledge his or her signature before two witnesses.

Consideration Exceptions

An agreement to modify or discharge an obligation shall not be invalid for lack of consideration if expressed in a writing signed by the party against whom enforcement is sought. Past consideration - a promise based on past consideration is enforceable if there is a writing signed by the party to be bound, and the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed. The consideration would have to be sufficient - consideration would have to have been given to a party to the K Consideration is not required for any assignment if it is in writing and signed by the assignor When an offer to enter into a K is made in a writing signed by the offeror stating that the offer is irrevocable during a stated period of time, the offer is not revocable during such period because of the absence of consideration. If such a writing states that the offer is irrevocable but does not state any period of time or irrevocability, the offer is irrevocable for a reasonable time. Have to put the promise to offer to hold it open in writing - it will be binding.

Limitation on Contribution in Workers Compensation Context

An employer is not liable for contribution or CL indemnification to any TP for injuries sustained by an employee acting within the scope of his employment unless the employee has sustained a "grave injury" as defined as: -death -permanent and total loss of use or amputation of arm/leg/hand/foot; -loss of multiple fingers, toes, index finger; -paraplegia or quadriplegia; -total and permanent blindness or deafness; -loss of nose or an ear; -permanent and severe facial disfigurement; or -an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

Breach and Remedies

Any breach of a lease by the tenant gives the LL the right to commence a special proceeding to recover possession of the property. If the T abandons leased property, the LL has no duty to mitigate damages by re-letting. if a residential lease provides that in any action or summary proceeding the LL may recover legal fees from the T, there is implied in the lease a covenant to pay legal fees incurred by the T in a successful defense.

Voting by Shareholders

Any corporate action, other than the election of directors generally requires a majority of votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon, unless otherwise provided. Statutory exceptions: -majority of total # of shares being required to approve an amendment to the COI and 2/3 of votes cast to approve a merger. Unless otherwise provided, an abstention shall not constitute a vote case.

Interrogatories

Any party in an action may serve upon any other party written interrogatories, subject to two limitations: (1) Interrogatories cannot be used if a bill of particulars is demanded of the same party; and (2) in an action seeking damages for personal injury, property damage or wrongful death predicated solely on a cause of action for negligence, interrogatories cannot be used without leave of court if a deposition is conducted of the same party.

Security Deposits

Any security deposits by the T are held by the LL in trust, may not be commingled with the LL's personal moneys and are not an asset of the LL. If the LL deposits the security in a bank, he or she must notify the tenant, providing appropriate information. If the deposit is in an interest-bearing account, the LL may retain 1% for expenses, and any balance is held for or paid to the tenant. If a rental is in a building containing six or more family dwelling units, the LL must deposit the security in an interest-bearing account If title to a leased property is transferred to a new owner, the LL must transfer any deposits to the new owner.

Appeals - time to take appeal

Appeal of right - 30 days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry; Motion for permission to appeal - 30 days, computed from date of service by a party upon the person seeking leave to appeal of a copy of the judgment or order to be appealed and written notice of entry.

COL - Contracts

Applies a "center of gravity" or "grouping of contacts" inquiry. The spectrum of significant contacts is considered in order to determine which state has the most significant contacts to the particular contract dispute. Significant contacts involve: -the place of contracting, negotiation, and performance; -the location of the subject matter of the contract; and -the domicile or place of business of the contracting parties. Also - when the policies underlying conflicting laws in a contract dispute are readily identifiable and reflect strong governmental interests, those governmental interests may be considered.

Child Protective Proceedings (CPP) - abuse and neglect

Applies to any parent or other person legally responsible (i.e., child's custodian or guardian) for a child's care who is alleged to have abused or neglected a child under 18.

Proceeding Against Body or Officer

Article 78 is the vehicle for judicial review of most administrative action in New York. The determination sought to be reviewed must be final, and the petitioner must exhaust his or her administrative remedies before seeking judicial relief (CPLR 7801). CPLR 7803 contains a list of issues that may be raised in an Article 78 proceeding: • Whether a body or officer has failed to perform a duty enjoined by law; • Whether a body or officer has proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; • Whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion; • Whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. Art. 78s: -must be commenced in supreme court; -commenced by filing a petition with the clerk of the court of the county in which the proceeding is commenced -SOL is four months after the determination to review becomes final and binding upon petitioner. -petition and answer must be verified -reply must be served -objections to point of law may be raised either in the answer or in a motion to dismiss, made within the time allowed for the answer. -determinations should be made on the papers, unless there is a triable issue of fact raised.

Pro-bono services

Aspire to provide at least 50-hours of pro-bono legal services each year to poor persons, and to contribute financially to organizations that do so.

Right to Counsel

Attaches: 1. when formal judicial proceedings begin, regardless of whether the D has retained or requested an L. 2. uncharged individuals who have retained a L in the matter at issue or, while in custody, have requested a L. When attaches: -D cannot be questioned in the absence of counsel; -D cannot be interrogated on ANY subject matter, regardless of whether it is related or unrelated to the subject of the representation -once an L enters a proceeding, a D cannot waive right to counsel.

Custody Standard

BIC -must consider domestic violence is proven by a preponderance of the evidence. Factors: -ability to provide for child's emotional and intellectual development; -quality of home environment; -parental guidance provided -child's preference Courts are not bound by the existence of a prior agreement and may change it when it's in the BIC

Affirmative and ordinary defenses (criminal law)

BOP Ordinary defense: must be proven beyond a reasonable doubt. Affirmative defense D must prove by a preponderance of the evidence Alibi -not a defense where the D bears burden of proof -P has burden of disproving alibi beyond a reasonable doubt Entrapment -affirmative defense -engaged in conduct because he was induced or encouraged to do so by a public servant. -must be an active inducement, and creating a mere opportunity alone is insufficient. -must show that you did not have a predisposition to commit that crime -D is entitled to dismissal of charges where the government's conduct was so egregious and deprivative as to constitute a violation of the DP clause. Justification -defense -conduct that would otherwise constitute an offense is justifiable when the conduct is authorized by law or necessary as an emergency measure to avoid imminent injury. -may use physical force if the person reasonable believes necessary to defend himself or TP from what he reasonably believes to be the use of imminent use of unlawful physical force by such other person -may not use physical force if he provoked the other person's conduct with intent to cause physical injury or if he was the initial aggressor and has not effectively withdrawn from the encounter. -may not use physical force unless the D reasonably believes the other person is using or is about to use deadly force and he cannot retreat with complete safety. No duty to retreat if in own home and was not initial aggressor. In so proving, D may admit prior acts of violence ONLY IF they were known to D at time of incident. Renunciation -D withdrew from participation in such offense prior to the commission of the offense; and -made a substantial effort to prevent the commission of the crime.

Will contests - mistake

BOP: Objectant A will is entitled to probate even if the decedent was mistaken concerning extraneous facts which might otherwise have caused the decedent to make a different disposition, unless the mistake of fact was the product of undue influence Where the mistake affects the decedent's testamentary intentions, however, the will may be denied probate

Will contests - fraud

BOP: Objectant Shown that: 1) the proponent knowingly made a false statement; 2) caused decedent to execute a will; 3) that disposed of his property in a manner different from the disposition he would have made absent that statement.

CPP - termination of parental rights

By reason of permanent neglect: a child who is in the care of an authorized agency and whose parent or custodian has failed for an enumerated period of time substantially and continuously to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child Once a finding of permanent neglect: -all rights and obligations between child and parent or custodian are severed and child may be available for adoption

Conflicts (1.7)

Cannot represent person or entity with interests adverse to current client, even on unrelated matters. Differing interests: interests that will adversely affect either the judgment or loyalty of the L to the C. L cannot handle a matter where the L's business, property or other personal interests create significant risk that the L's judgment will be adversely affected - personal stake in the matter, where your personal interests could be affected. Exception: L reasonably believes he/she can provide competent representation, representation is not prohibited by law, both Cs give informed consent confirmed in writing. "Reasonable belief": based on what an objective observer/independent L would believe. Unwaivable conflicts: L simultaneously representing opposing parties in the same proceeding.

Misconduct and Discpline

Cannot violate or attempt to violate rules of prof. conduct, nor engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or conduct prejudicial to the administration of justice. -Cannot discriminate in practice of law including in hiring, promoting, or otherwise determining conditions of employment on the basis of age, race, national origin, sex, disability, marital status, or sexual orientation.

Number of jurors and verdicts

Civil - six persons; -verdict must be rendered by not less than five-sixths of the jurors constituting a jury.

Hearsay - former testimony

Civil: The trial testimony of any witness taken at a prior trial involving the same parties and arising from the same subject matter may be used by any party to contradict or impeach that witness if he or she testifies in the subsequent civil action A party's prior trial testimony is admissible as evidence in chief when it is offered by any party who is "adversely interested" when the prior testimony is offered, including the prior trial testimony of any person who, at the time the testimony was given, was an officer, director, member, employee, or managing or authorized agent of a party Exception for testimony given at a prior trial of the same subject matter by a witness, provided the court finds: • That the witness is not available because of death, age, sickness, infirmity or imprisonment; • That the witness is more than 100 miles from the place of trial, or out of state, unless the absence was procured by the party offering the testimony; • Attendance cannot be procured despite diligent efforts of the party offering the testimony; or • Exceptional circumstances exist making its use desirable. Don't need to prove unavailability: -party -officer, director, member, employee, or managing or authorized agent of a party -doctor For criminal, testimony related to a prior criminal trial, preliminary hearing, or hearing, may be received when the witness: • Is unable to attend by reason of death, illness or incapacity, • Cannot with due diligence be found, or • Is outside the state or in federal custody and cannot with due diligence be brought before the court The "subsequent proceedings" at which such testimony may be admitted include "[a]ny proceeding constituting a part of a criminal action based upon the charge or charges which were pending against the defendant at the time of the witness's testimony and to which such testimony related" and any post-judgment proceeding challenging conviction(s) based on that charge

Confidentiality (1.6)

Confidences - information gained from any source (not just client) relating to representation protected by a/c privilege, if revealed would be detrimental or embarrassing. -a/c privilege - communication between l/c about or providing legal advice. L and L's employees must take reasonable care to protect client confidences. -L may not use information to harm client; help L to detriment to C; or help TP to detriment to C. Exceptions: -C consents; also implied if it's customary or routine or reasonable under the circumstances for the representation of the client. L may disclose: -prevent C from committing a crime -withdraw an opinion based on false information that is being relied upon by a TP or is being used to further a crime or fraud -prevent reasonably certain death or substantial bodily harm; -secure legal advice about compliance with the Rules; -Defend the L against accusation of wrongful conduct or collect a fee.

Traditional Bases for Jurisdiction - Personal Jurisdiction

Corporation subject to general personal jurisdiction - only if it is incorporate in the state or maintains its principal place of business Long-arm basis: -transacts any business in NY or contracts to supply goods or services here; -commits a tortious act within NY, except for a COA for defamation; -commits a tortious act outside NY, except to a COA for defamation, if the D 1) regularly does or solicits business, or engages in any other persistent course of conduct in NY; or derives substantial revenue from goods used or consumed or services rendered in NY, or 2) expects or reasonably should expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce; or -owns, uses or possesses real property in NY

Search and Seizure with a Warrant

Court may issue a warrant: 1) directing the officer to search the designated premises, vehicle or person for the purpose of seizing designated property and delivering to court that issued warrant; 2) directing officer to search designated premises for the purpose of arresting a person who is the subject of an arrest or bench warrant where designated premises is the dwelling of a TP who is not subject of the warrant. Personal property is subject to seizure pursuant to a warrant is reasonable cause exists to believe that it is: -stolen; -unlawfully possessed; -has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense; or -constitutes evidence or tends to demonstrate that an offense was committed. Warrant: -must direct search of a designated or described place, vehicle, or person

Jurisdiction - Appellate Courts

Court of appeals - appellate court and highest court in the land that is limited to questions of law. Except for death penalty and where appellate division reversed or modified on new facts and directed entry of judgment on new facts (can review fact then). Appellate Divisions - intermediate appeals court divided into four departments. Appellate divisions should accept the decisions of sister divisions as persuasive authority, but are free to reach a contrary result. If the appellate division has spoken on a particular issue, and the Court of Appeals has not spoken on that particular issue, the holding of that appellate division is controlling statewide. If two have reached contrary holdings, then the other departments may chose one of the two. Appellate Terms of the Supreme Court - established in the judicial 1st and 2nd departments to handle certain appeals from the courts of lesser jurisdiction.

Accomplice testimony

D may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the D with the commission of the offense.

Separate property

Defined as: -property acquired before the marriage, or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; -compensation from personal injuries; -property acquired in exchange for the increase in value of separate property, except to the extent that such appreciation was due in part to the contributions of the other spouse; -described as separate property in an agreement between parties.

Impeachment - inconsistent statements

Depositions: at the trial of a civil action, the deposition of a deponent — party or nonparty — may be used by any party "for the purpose of contradicting or impeaching" the deponent. Prior trial testimony: prior trial testimony of a witness may be used by any party to contradict or impeach that witness if he or she testifies in a subsequent civil action involving the same parties and subject matter, so far as admissible under the rules of evidence. Prior statements by a witness: any party may introduce proof that any witness has made a prior statement inconsistent with his or her testimony if the statement was made in a writing subscribed by him or her or was made under oath.

Unconscionability and Illegality

Determination of unconscionability is a matter of law. It requires some showing of an absence of meaningful choice on the part of one of the parties together with K terms which are unreasonably favorable to the other party. The party must demonstrate that the K was both procedurally AND substantively unconscionable when made. Substantive considers whether the K terms are unreasonably favorable to one party. Procedural looks to evidence of the K formation process. To determine which applies, a court must assess such factors: -size and commercial setting of transaction; -whether there was a lack of meaningful choice by the party claiming unconscionability; -the experience and education of the party claiming unconscionability; and -whether there was disparity in bargaining power

Vicarious Liability

Dram shop laws - creates a COA in favor of a person injured in person, property, means of support or otherwise by an intoxicated person as against any person who, by unlawfully selling liquor or procuring liquor for such intoxicated person, caused or contributed to such intoxication. Requires a commercial sale of alcohol. An unlawful sale may be to a minor, a visibly intoxicated person or a habitual drunkard. -owner of a vehicle is vicariously liable for death or injury to a person or property resulting from the negligent use or operation of the vehicle by a person using or operating the vehicle with the express or implied permission of the owner. The statute creates a strong presumption of permissive use that can only be rebutted with substantial evidence sufficient to show the driver of the vehicle was not operating it with the express or implied permission of the owner. As a general rule, parents are not vicariously liable for the torts of their minor children. However, the parent of an infant over 10 is liable for damages caused by the infant who willfully, maliciously or unlawfully damages, destroys or defaces public or private property - limited to the sum of $5,000.

Negligent Misrepresentation

Duty to speak with care exists when the relationship between the parties is such that one may justifiably rely upon the other for information. Liability in a commercial transaction may be imposed where there is a special relationship between parties giving rise to an exceptional duty regarding commercial speech and justifiable reliance on such speech. Whether the relationship between the parties is such that the reliance is justified is generally a question of fact, with consideration given to whether the person making the representation held unique or special expertise; whether a special relationship of trust or confidence existed between the parties; and whether the speaker was aware of the use to which the information would be put and supplied it for that purpose. Accountant may be liable to a party who does not have privity where the party relies to his detriment on inaccurate financial reports prepared by the accountant if: 1) the accountant was aware that the financial reports would be used for a particular purpose; 2) in furtherance of that purpose, a known party was intended to rely; and 3) there was some conduct on the part of the accountant linking him to that party, which evinces the accountant's understanding of that party's reliance.

LLC - Professional Relationships and Liabilities

Each member of a PLLC is personally liable for any negligent or wrongful act or misconduct committed by him or her or any person under his direct supervision or control while rendering professional services on behalf of the PLLC, but such members are not liable for the negligence of other members if they did not supervise them or personally participate in the questioned actions with them, nor are they responsible personally for the contractual debts and obligations of those other members (except to the extent of their contributions or their obligations to make contributions). PLLCs are governed by the regulatory and licensing scheme applicable to the profession of the members.

Registered LLP

Each of its partners must be a professional, and at least one of them must be authorized by law to render such professional service within NY. The authorizations and restrictions for an RLLP are the same as a PLLC. The formation of a RLLP requires the filing of a certificate of registration with the secretary of state containing detailed information, including the name, the address of its principal office, the profession to be practiced, and designation of secretary of state as agent for service of process. An RLLP must meet the same statutory publishing requirements as an LLC. Publishing: Must be published once a week for 6 weeks in the county in which the principle office is located. One printed weekly and daily (chosen by county clerk). Must file certification of registration status statements with secretary of state every 5 years to maintain status. Liability: Each member of an RLLP is personally liable for any negligent or wrongful act or misconduct committed by him or her or any person under his or her direct supervision or control while rendering professional services on behalf of the RLLP, but such members are not liable for the negligence of other members if they did not supervise them or personally participate in the questioned actions with them. Nor are they responsible personally for the contractual debts and obligations of the RLLP except to the extent at least a majority of the partners have otherwise agreed. RLLPs continue to be governed by the same professional regulatory and licensing scheme applicable to the individual partners prior to registration.

Judicial Notice

Every court must take judicial notice for the following: -the common law, constitutions, and public statutes of the US and every state of the US; -official compilation of the NYCRR; and -all local laws and county acts. Discretion for: -private acts and resolutions of the United States Congress and the NYS Legislature; -ordinances and regulations of agencies or governmental subdivisions and the laws of foreign countries.

Warranty of Habitability

Every written or oral lease for residential property is deemed to contain a warranty of habitability. Any agreement by a tenant waiving or modifying his/her rights under the statute is void and contrary to public policy.

Relevance - habit

Evidence of habit or custom and practice may be admitted to establish that a person performed a certain act. The party seeking to introduce such evidence must establish that the habit or custom or practice is "a deliberate and repetitive practice by a person in complete control of the circumstances" as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstance" (id. at 389).

Commencement of an Action

Except in town and village courts, actions are commenced by a paper filing, or electronic (where authorized) of a summons and complaint or summons with notice with the clerk of the court in the county where action is brought. Special proceeding - by the paper filing or electronic filing of a notice of petition, and petition with the clerk of the court in the county where the special proceeding is brought.

Hearsay - admissions

Exceptions and must prove that evidence is reliable An admission is defined as an act or declaration of a party which constitutes evidence against the party at trial. "[A]dmissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever, whenever or to whomsoever made" Employee: The hearsay statement of an agent is admissible against his or her employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority AND agent is authorized to speak for party at that time and on that particular subject.

Public Disclosure - Administrative Agencies

Freedom of Information law (FOIL) - allows broad access to documents held by state and local governments (excluding the courts and legislature). All records kept, held or filed with an agency must be made available for public inspection and copying. Each entity subject to FOIL is required to adopt regulations compliance with the law by giving times and places for obtaining records, the persons from whom the records can be obtained, and copying fees. Open Meetings Law - requires public bodies (except judicial/quasi-judicial proceedings/political committees) to conduct all portions of any meeting in venues open to the general public on reasonable advance notice to the public, unless the public body calls an executive session. -An executive session may be called only by a motion on majority vote of the public body in public session, and the motion must identify the general topics to be discussed in the executive session. The permitted topics for executive sessions include discussions regarding proposed or pending litigation, matters involving law enforcement and criminal investigations, employment, and proposed acquisition of real property when publicity would affect the property's market value. Reporting and recordkeeping requirements: minutes must be taken at all open meetings (including executive sessions) and must include all matters voted upon, and must be made available to the public under FOIL.

Expert testimony - scientific evidence

Frye test to determine scientific evidence's reliability: whether the accepted techniques; when properly performed; generate results accepted as reliable within the scientific community.

Abatement

Funeral expenses, debts, taxes and administration expenses retain priority over dispositions under a will and distributions in intestacy. Unless otherwise provided by a testator, if the assets of the testator's estate are insufficient to pay all obligations of the estate and distributions under the will, the interests in the estate will abate in the following order: • Distributive shares in property not disposed of by will, • Residuary dispositions, • General dispositions (EPTL 1-2.8), • Demonstrative dispositions (EPTL 1-2.3), • Specific dispositions (ratably) (EPTL 1-2.17), • Dispositions to the decedent's spouse that are eligible for the estate tax marital deduction. The testator may, however, provide for a different order of abatement.

Incorporation by reference

Generally not recognized. I.e., a will may not incorporate by reference any document that was not signed and attested with the formalities of a will. Exception: testator may direct in his will that the assets be poured over into a lifetime trust. Pour-over trust need not be executed with the same formalities as the will, but must be in existence before or be executed contemporaneously with the will. Trust must be in writing, signed by the creator and at least one trustee, and either acknowledged like a deed or signed by two witnesses.

Grounds and Defenses for Divorce

Grounds: -cruel and inhuman treatment (5 yr SOL); -abandonment; -imprisonment (5 yr SOL); -adultery (5 yr SOL); -living separate and apart pursuant to a legal judgment of separation; -living separate and apart pursuant to a separation agreement; -irretrievable breakdown (no-fault). To establish no-fault, only must 1)state under oath that the relationship has been broken down; 2) for a period of six-months or more prior to commencement of action. Before granted: -all economic issues of equitable distribution; -payment or waiver of spousal support; -payment of counsel fees; -custody and visitation MUST be resolved by parties or court. Defenses: 1. procurement - helps to get the adultery going 2. connivance - conniving to commit the adultery (both parties) 3. forgiveness 4. recrimination - D commits adultery, and then P goes out and does it too.

Impeachment - Specific Instances of Conduct

Guilty knowledge of a defendant may be proved by evidence of his or her complicity in similar offenses so as to support the inference that the act charged was not innocently or inadvertently committed Admission is warranted only where evidence of the acts involved in the crimes charged is equivocal so that intention is not easily inferred from the acts alone.

Minority Shareholder's right to petition for judicial dissolution

Holders of 20% or more of the outstanding shares of a privately owned business corporation may seek dissolution of the corporation on the grounds that: 1) the directors have been guilty of illegal, fraudulent, or oppressive actions toward the complaining shareholder; or 2) the assets of the corporation are being looted, wasted or diverted for non-corporate purposes by its directors or officers or those in control. -The court must consider whether liquidation is the only feasible means for a shareholder to obtain a fair return and whether liquidation is reasonably necessary for the protection of the rights of any substantial number of shareholders

Deadlock among directors or shareholders

Holders of 50% or more of the outstanding shares of a corporation may seek dissolution of the corporation on the grounds that: 1) directors are divided respecting the management of the corporation's affairs that the votes required for the election of directors cannot be obtained; or 2) shareholders are so divided that the votes required for the election of directors cannot be obtained; or 3) there is internal dissension and two or more factions of shareholders are so divided that dissolution would be beneficial to the shareholders.

Hearsay - statements for purposes of medical diagnosis and treatment

Hospital records fall within the business records exception to the hearsay rule as long as the information relates to the diagnosis, prognosis or treatment of a patient or the records are otherwise helpful to an understanding of the medical or surgical aspects of the hospitalization. What's relevant: whether the statements at issue were relevant to the diagnosis and treatment of the patient.

Equitable Distribution

Identify items of property Classify as marital or separate Evaluate items of property Distribute -Compulsory financial disclosure is required by both parties through a sworn statement of net worth -must consider 14 distinct factors and set forth what factors they relied upon in their opinion. -in lieu of equitable distribution, may make a distributive award to achieve equity and make an order regarding exclusive use and occupancy of martial home and its household effects.

Holdovers

If a term of lease is longer than one month, the tenant's holding over does not give the landlord the option to hold the tenant to a new term equal to the term of the lease. The LL may proceed to remove the tenant as permitted by law, but if the LL accepts rent for any period subsequent to the lease expiring, a month-to-month tenancy is created.

Revival of revoked wills

If a testator executes a will that is revoked by a later will containing a revocation clause, the first will cannot be revived by the testator merely revoking the later will. A prior will or disposition may be retrieved by: -executing a codicil that incorporates the provisions of the will by reference; -writing executed with the will formalities declaring a revival of the old will; or -re-execution and re-attestation of the prior will in accordance with will formalities.

Revocation

If a trust is revocable (see EPTL 7.1.16, 7-1.17 [a]), written notice of revocation must be delivered to at least one other trustee within a reasonable time if the person executing the revocation is not the sole trustee If a trust is irrevocable, the grantor must execute an instrument in writing acknowledged or proved in the manner required for the recording of a conveyance of real property, with the consent of all living beneficiaries, executed in like manner

Revocable Trusts

If a trust provides that it is revocable, a grantor may amend or revoke the trust in a writing that is executed and acknowledged with the same formalities as the initial trust instrument. Additionally, the grantor may revoke or amend a lifetime trust in his or her will, provided that he or she specifically refers to the trust. The governing instrument can eliminate the need for formalities, but all revocations or modifications must be in writing.

New Action Following Termination

If an action is commenced and terminated in any manner than on the merits, a P may commence a new action upon the same transaction or occurrence within 6 months, and service upon the D must be effected within such 6-month period.

Imputed disqualification (1.10)

If one person at the L firm has a conflict, then they all do. -When a L leaves a firm, the other L's at the firm cannot represent a C with interests adverse to the former L's C IF any of the L's at that firm obtained confidential information about that C. -When the L is at a new firm, the new firm cannot represent a C in a matter substantially related to or the same matter as a matter being handled by L's former firm if the interests of the former firm's C are materially adverse to those of the new firm's client UNLESS the L has no confidential information material to the matter being handled by the new firm. -C/former C can waive disqualification by informed consent confirmed in writing; -Firm must keep records of engagements and implement conflicts check system.

Relevancy - character evidence

In New York, a defendant may establish his or her good character only by showing his or her general reputation in the community. The opinions of those who know the defendant personally and have firsthand knowledge of his or her character are inadmissible Evidence of good character in a civil case may be admitted only after a person's good character has been directly called into question by evidence of bad character. Evidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith or had the propensity to do so

Charitable Trusts

In New York, a disposition for charitable purposes is valid despite the lack of a definite or ascertainable beneficiary. The state Attorney General represents beneficiaries of charitable trusts. A charitable trust will not fail for lack of a trustee. Rather, title will pass to the court with jurisdiction to appoint a trustee. A charitable trust may be reformed under the cy pres doctrine. In order to reform the charitable trust, a court must find the following three conditions: • The gift or trust is charitable in nature; • The language of the will or trust instrument indicates that the donor demonstrated a general, rather than specific, charitable intent; and • The particular purpose for which the gift or trust was created has failed, or has become impossible or impracticable to achieve.

Spouse's elective share and testamentary substitutes

In New York, a surviving spouse has the right to take $50,000 or one-third of the balance of the net estate, whichever is greater. The net estate consists of: • Property in the decedent's name that could pass under a will (net probate assets), • Property that passes in intestacy, • Testamentary substitutes, and • Debts owed to decedent.

Relevancy - uncharged crimes

In New York, evidence of a defendant's prior uncharged crimes is inadmissible to prove criminal propensities, but may be admitted under certain circumstances where the probative value of the proof outweighs its possible prejudicial effect. Evidence of other crimes is therefore admissible to establish: • Motive, • Intent, • Absence of mistake or accident, • Identity (in limited circumstances); and • Common scheme or plan A two-part inquiry is required to determine the admissibility of evidence of a defendant's uncharged crimes or prior bad acts: 1) the proponent must identify some material issue to which the evidence is relevant. 2) the court must weigh the probative worth of the evidence against its potential for prejudice.

Alienability of trust interests and spendthrift trust provisions

In New York, most trust interests are fully transferable and alienable, but income interests are not alienable (i.e., spendthrift protection), unless otherwise provided in the trust instrument a grantor may provide that a trust remainder is inalienable and therefore beyond the reach of creditors (spendthrift provision). Notwithstanding a failure of the trust instrument to state otherwise, any income in excess of $10,000 in a given year may be transferred to certain family members

How contribution is Claimed

In a separate action or by cross-claim, counterclaim, or TP claim in a pending action. SOL on a claim for contribution is 6-years, running from payment.

Funding a trust

In order to be sufficiently funded, the assets must be transferred through recording a deed or completing the registration of the stock certificate. If the asset is not recordable or registrable, the grantor must assign the asset to the trust in writing Exceptions: -only pension and insurance trusts need not be sufficiently funded

Entitlement to and exclusions from coverage for first-party benefits

Insurer may exclude from coverage a person who: -intentionally causes his own injury; -is injured as a result of operating the vehicle while intoxicated or on an illegal drug; -while in the course of a felony, seeking to avoid arrest, speeding in a race, or occupying a known stolen vehicle. Can be resolved through arbitration or lawsuit.

Culpable Mental States

Intent involves: -words -actions -probable consequence of conduct OMISSION - failure to do what the law requires to do -no time requirement (i.e., premeditation). It is analyzed at the moment the offense occurred. To be held criminally liable, the D must act: 1) intentionally (conscious objective to cause such result or engage in such conduct); 2) knowingly (aware that conduct is of the nature described in offense, or circumstances described in offense exists); 3) recklessly(aware and consciously disregards a substantial and unjustifiable risk); or 4) with criminal negligence (fails to perceive substantial and unjustifiable risk that certain result will occur).

Constructive Trusts

It is an equitable remedy and its purpose is prevention of unjust enrichment. Four elements: 1) confidential or fiduciary relationship; 2) promise, express or implied; 3) transfer of the subject res made in reliance on that promise; and 4) unjust enrichment. The absence of any one factor will not itself defeat a constructive trust when otherwise required by equity.

Title - Concurrent Estates

Joint tenancy - (everyone owns the whole if they survive) may be created by a deed in which one or more of the grantees is also a grantor even though unities of time and title are technically not satisfied. Disposition to persons not legally married but described as husband and wife creates in them a joint tenancy unless expressly declared to be a tenancy in common (set by percentages by number of tenants).

Referrals

L cannot compensate a person or organization to recommend Cs, but can accept referrals from legal service organizations, bar associations, and other non-profit organizations and can enter into arrangements with other Ls to refer Cs to each other. -splitting fee - as long as C consents, and it is in proportion to work performed, or acceptance of joint responsibility of representation. Total fee must be reasonable.

Withdrawal (1.6)

L cannot help client misuse legal system: -Must withdraw when he/she knows or reasonably should know that the client is acting "merely" to harass or maliciously injure someone. -Covers bringing or continuing an action, conducting a defense, asserting a position, or taking any other steps (inside or outside courthouse) -cannot resign if client is prejudiced by resignation.

Competence

L may not handle a matter he/she is not competent to handle, without associating with a L who is competent to handle it. L may not also intentionally: -fail to seek objectives of C through reasonably available means permitted -prejudice or damage C during course of representation.

Bookkeeping; Records

L must keep records of the following for 7 years: -Any deposits, withdrawals or disbursements of funds that concern the L's practice -retainer agreements; -statements/bills to Cs -copies of retainer and closing agreements filed with Office of Court Administration. Who may sign on account: -only signatory must be a NY lawyer - not secretary, paralegal, etc. -when you write check, must be written to specific payee and not to cash. -If firm dissolves, former members must agree to retain records for 7-year period. -must be produced in connection with proceeding if required. subject to discipline if not produced.

Statement of Client's Rights

L must post statement in office (includes government entities) that C has the right to: - courteous and competent representation; -be charged reasonable fees and have them explained before or within reasonable time of engagement; -be informed at the outset how fee will be computed and the manner of billing; -be kept informed of the status of matter and have questions answered promptly.

Organization as Client

L representing an organization does not represent its individual constituents. -Organization is a legal entity that acts through its officers, directors, employees, and other constituents; -if interests of the organization and any of its constituents differ, the L must make it clear that he/she represents the organization and not the constituents; -If a constituent is engaged or intends to engage in an action that either violates a legal obligation to the organization or violates a law (which violation may be imputed to the organization) and is likely to substantially injure the organization, the L must proceed as is reasonably necessary in the best interests of the organization. -L must act in a manner that minimizes the disruption to the organization and the risk of revealing information relating to the organization to persons outside the organization. What to do: -talk to person and ask them to reconsider - suggest a separate legal opinion be sought - then - go up to higher authority in organization. If no change: -L may withdraw and may reveal confidential information if a 1.6 exception applies.

Prohibited Fees

L shall not charge: -contingent fees in criminal cases; -nonrefundable retainer fees (but may have minimum fees if explained) -contingent fees in most DR matters.

Non-legal Services and cooperative business arrangements

L who provides non-legal services to a person that are not distinct from legal services being provided to that person is subject to the Rules for both the legal and non-legal services. also subject to the rules if the person reasonably believes that the non-legal services are subject to the l/c relationship. -may not offer non-legal services as part of the law firm

Management by Members or Managers - LLC

LLC's may be managed by their members or by managers appointed or elected by the members. Unless its articles of organization provide that the LLC will be managed by managers, the LLC will be deemed to be managed by its members, in their capacity as members, in proportion to their shares of the LLC profits (default rule - can change in operating agreement). If the AOO provide for management by managers, such managers will hold offices and have responsibilities accorded them by members as provided in the operating agreement, and any action to be taken by a vote of the managers requires a majority vote.

Duties and Liabilities of Officers and Directors

Liability: directors are jointly and severally liable if they vote for or concur in a declaration of dividends or purchase of shares contrary to the voting rules for loans to directors. There is also a COA against a director or officer for self-dealing or loss or waste of corporate assets. Prudent person standard and BJR: -Generally, courts will not second guess a corporation's judgment if exercised in good faith, on the basis of available information, after reasonable investigation. -In performing the prudent person standard, they are entitled to rely on information, opinions, reports, or statements, including financial statements prepared or presented by: -one or more other officers or employees of the corporation or any other corporation of which at least 50% of the outstanding shares of stock entitling the holders to vote for the election of directors is owned directly or indirectly by the corporation, whom the officer believes to be reliable and competent in the matters presented; or -counsel, public accountants or other persons as to matters that the officer believes to be within such person's professional or expert competence, so long as in relying he shall be acting in GF and with such degree of care, but the officer shall not be considered to be acting in GF if he has knowledge concerning the matter in question that would cause such reliance to be unwarranted. -information presented by a committee of the board upon which he does not serve, so long as in so relying he shall be acting in GF with such degree of care, but will not be in GF if he has knowledge concerning the matter in question that would cause such reliance to be unwarranted. Rebut presumption: -show BF -conflict of interest An officer who so performs his duties shall have no liability by reason of being or having been an officer or director of the corporation

Real Property Mortgages

Lien theory: -a mortgage creates a lien on the property, it does not transfer title Transfers: -mortgage always follows the note (obligation to pay the mortgage), and an assignment w/o the note is void. If lender loses the note, he loses the ability to foreclose. An assignment of the note will transfer the mortgage even if the assignment is silent as to the mortgage. Enforcement: Lender has choice - foreclose on mortgage or lawsuit on note. since most of the value of the property is in the mortgage, almost all will foreclose. Once they chose to foreclose, they cannot bring a suit under the note (except under certain circumstances). A mortgagee may bring legal action on the note. Execution of a judgment cannot be obtained on the property - the mortgaged property cannot be acquired by the lender to pay off the note. Must satisfy the judgment by other property. The mortgagee may not then bring a foreclosure action until execution has been returned wholly or partially unsatisfied. Foreclosure or Sale - a mortgagee may bring an action for foreclosure or sale. Mortgagee may not then bring a separate action to sue upon the note (the debt) without leave of court. Ownership of Note - the assignee of a mortgage must allege and prove ownership of the note at the time the action is commenced. Doctrine of standing. Legal standing means must have physical possession of note and mortgage. Residential foreclosure notices - there are statutory notices (e.g., must serve on a colored paper other than white) that must be served on the mortgagor and any tenant in addition to the summons and complaint, explaining in detail the significance of the action to them. If the mortgage is a high-cost, subprime, or non-traditional home loan, there is an additional notice which must be given at least 90-days before commencement of the action. Redemption - mortgagor has right to redeem by paying into court the full amount due and the costs of action until the foreclosure sale takes place. After the sale there is no right to redeem (when hammer falls at auction sale). Deficiency judgment - P may move for a deficiency judgment (if go through foreclosure action and does not get all of the money owed) if made within 90 days of the delivery of the deed to the purchaser at the sale. The amount is the sum of 1) judgment with interest; 2) all prior liens and encumbrances with interest, minus the greater of 1) market value as determined by the court; or 2) foreclosure sale price.

Non-probate transfers - life insurance

Life insurance assets do not pass under a will or in intestacy, but rather by beneficiary designation. Thus, an insurance beneficiary's rights are not affected by laws governing the transfer of property by will or intestacy. Designation of a beneficiary must be done by a signed writing. The insurance carrier may also set forth the rules in its contract on how to designate a beneficiary and the carrier must agree to the designation of the beneficiary

Fairness to opposing party or counsel

May not: -suppress evidence L is legally obligated to produce -advise or cause a person to hide for purposes of making the person unavailable as a witness; -knowingly use perjured testimony or false evidence; -disregarding rules of tribunal, except in a GF effort to test validity of such ruling; -assert before tribunal personal knowledge of facts when not testifying as witness; -ask question L has no reasonable basis to believe is relevant and is intended to degrade witness or other person; -threaten to present criminal charges solely to obtain advantage in civil matter -pay witness contingent on content of testimony or outcome of matter; -may pay reasonable compensation for loss of time and related expenses incurred in testifying.

Professional notices, letterheads and signs

May use websites, professional cards, letter heads or similar professional notices provided that they do not violate any statute or court rule. -May not practice under trade name, a name that is misleading as to the identify of the L, or a firm name containing names other than Ls in the firm. Telephone #s with domain names are permitted.

Scope of Authority (1.2)

Means (L) Decisions: -waive or fail to assert rights or positions only if doing so won't prejudice the client's rights. -agree to reasonable requests made by opposing counsel on matters such as scheduling, continuances (small matters). -may refuse to participate in conduct the L believes is unlawful.

LLC - Operating Agreement

Members of an LLC must adopt a written operating agreement, analogous to the by-laws of a business corporation or the partnership agreement of a partnership, before, at the time of, or within 90 days following the filing of the LLC's AOO to be effective upon formation of the LLC or at such later time as provided in the operating agreement. The operating agreement may eliminate or limit the personal liability of manager to the LLC or its members for money damages arising from breaches of the duty of care but not for acts taken in bad faith or for pecuniary gain. The operating agreement may be amended from time to time, but no amendment may adversely affect a member without that member's consent.

Mistake of Fact or Law

Mistake of fact: Relieved of liability unless mistake of fact negates culpable mental state required for offense OR -if statute permits mistake of fact as defense. -reasonable AND honest belief Mistake of law: only if mistaken belief is based upon an official statement of the law where the law was INTERPRETED as unlawful. usually still guilty under MOL, unless: -you're working as an informant; -judge says you can do it To use as defense: -actor MUST have tried to learn the law; -actor relies on validity of law that he tried to learn; -mistake of particular law

Professional Service LLC

More professions may join a single PLLC than a PS corporation. Single purpose PLLCs are required for some professions, including physicians, veterinarians, social workers and mental health practitioners. If the PLLC engages in multiple permitted professions, at least one member of the PLLC must be licensed in NY to practice such profession. All professional services must be rendered by licensed individuals. Formation of a PLLC requires a filing of AOO with the secretary of state containing detailed information, including profession to be practiced and the individuals who are to be its members or managers. Certificates of authority issued by the licensing authority must accompany the filing of the formation documents. A PLLC must meet the same statutory publishing requirements as an LLC.

Types of Pleadings

Must be a complaint and answer, a reply to a counterclaim, an answer to any complaint, interpleader complaint, or TP complaint, and an answer to a cross-claim. No other pleadings permitted w/o court order.

Testamentary Substitutes

Must be exercised within two-years of decedent's death, but court may extend upon showing of good cause. -may be waived as long as it's in writing, signed, and acknowledged before a notary. -decedent cannot satisfy elective-share by creating a testamentary trust of the elective share-amount and directing that all income be paid to the spouse for life, with the remainder payable to others. Includes: • Gifts causa mortis made before and after marriage; • Totten Trusts (EPTL 7-5.1 [d]), including bank accounts in testator's name in trust for another and payable-on-death securities; • Survivorship estates: including joint tenancies, tenancies by the entirety, joint bank accounts, and survivor bank accounts to the extent of decedent's contribution; • Employee pension, profit sharing, and deferred compensation plans (if the plan is a "qualified" plan under IRS 401 and payable to the surviving spouse, only one-half is considered a testamentary substitute); • Lifetime transfers in which decedent retained the power to revoke such disposition or a power to consume, invade or dispose of the principal, or name new beneficiaries, with the exception of life insurance; • Property over which decedent retained a presently exercisable general power of appointment; and • Gifts in excess of the amount of the annual gift exclusion made within one year of death The one-third share is reduced by property received by intestacy, testamentary substitutes, and bequests under the will. The elective share is paid ratably, unless otherwise directed by the will, by the decedent's beneficiaries, such as intestate beneficiaries, beneficiaries under the will, and beneficiaries of testamentary substitutes.

Limitations of Time for Commencing an Action

Must be interposed (initiatory papers are filed with the clerk) within SOL period and the court cannot extend such time Borrowing statute: -if nonresident P claim accrued outside of NY, the claim must be timely under both NY and place of accrual. An out-of-state claim that accrues in favor of a NY resident will be governed by the NY SOL, regardless of the other state's statute. -If Plaintiff was a NON-RESIDENT of NY when the out-of-state claim arose, NY court will apply SOL of state with shorter SOL (e.g., if NY's SOL is shorter, it will apply NY's SOL). -If Plaintiff was a RESIDENT of NY when out-of-state claim arose, NY Court will apply the NY SOL, regardless of which SOL is longer. Several Ds: Commencement as to one preserves the action of the others when they are united-in-interest. When claims claims are united-in-interest: -claims arose out of the same conduct, transaction, or occurrence; -D reasonably should have known that the P made a mistake in failing to timely identify the proper parties; and -D and the party originally sued have such a unity of interest that, by reason of their relationship, the D can be charged with such notice of the action that he wiill not be prejudiced in defending the case. Interposed: claim asserted in amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed provided the original pleading gave notice of the same conduct, transaction, or occurrence. Discovery from wrong: action must be commenced within stated limitations period from the wrong itself or two years from the discovery of the wrong, whichever is longer.

Responsive pleadings

Must either deny statements A party in its answer must either deny statements known or believed to be untrue and/or specify statements of which he or she lacks knowledge or information sufficient to form a belief. An allegation not addressed by either kind of denial is deemed admitted. A party must specifically raise as an affirmative defense any matter which, if not pleaded, would be likely to take the adverse party by surprise or would raise fact issues not appearing on the face of a prior pleading.

Registration of Attorneys

Must file a registration statement with the Office of Court Administration every two years, and pay a registration fee of $375 with each filing.

Rule Making Function - Administrative Agency

Must submit a notice of proposed rule to the secretary of state for publication and afford the public an opportunity to submit a written comment. A rule is not effective until it is filed with the secretary of state and published in the state register -Promulgates through notice and comment (SAPA 202). -Notice must provide basis of law for regulation, text of regulation (or summary if more than 2K words long), must contain effect analysis -effective for at least 180 days, must finalize within 1 year or else void. -Can petition SAPA to see if it applies to them, and if they disagree may attack under an Art. 78 proceeding. -may require public hearing before adoption of regulation - e.g., environmental regulation. Rule-making begins with notice of public hearing, with date/time/place of hearing and handicap access. This is in addition to other SAPA hearings. At public hearing - information provided and further comments from public, and agency may testify and say why agency is seeking to impose regulation. Once become law: Administrative rules are published in the New York Code Rules and Regulations (NYCRR); and the State Register

Wills - execution requirements

Must: -be signed at the end by the testator or person on the testator's behalf on the testator's presence and by his direction; -testator must sign his name and include an address; -at least two attesting witnesses must sign at the end of the will in the testator's presence. -testator must sign in the presence of the attesting witnesses, or testator may acknowledge his signature to them; -attesting witnesses must sign within a 30-day period of each other.

Landowner Liability

NY has abandoned the common law distinctions among invitees, licensees, and trespassers, and instead adopted a single standard of reasonable care under the circumstances. A landowner must act as a reasonable person in maintaining the premises in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. No duty to keep premises safe for entry or use by others for hunting, fishing, boating, hiking, cross-country, or other recreational activities or to give warning of any hazardous condition on the property. A landowner can be found liable, however, for willful or malicious failure to guard or to warn against a dangerous condition or generally for injury suffered where permission to use the property was granted for consideration.

Recording Act (Real Property)

NY is a race-notice jurisdiction whereby an unrecorded conveyance is invalid against a BFP who purchases for value and first records without knowledge of any prior unrecorded instruments for purposes of the recording act, a mortgage is a conveyance. Judgments are not protected by act, so a mortgage prior in time to judgement retains priority even if it is unrecorded.

Termination of monthly/month-to-month tenancy

NYC - a tenant cannot be removed on grounds of holding over unless, at least 30 days before expiration of the term, the LL serves notice, in writing, in the same manner as a notice of petition in summary proceedings, that the LL elects to terminate the tenancy. Outside NYC - either LL or T may terminate by notifying the other at least one month before expiration of the term.

Other Courts - Jurisdiction

NYC Civil and Criminal Court - Civil has jurisdiction for amounts under $25,000, and summary proceedings and the Criminal Court has jurisdiction over misdemeanors and violations. District, City, Town, and Village courts - have jurisdiction where amount does not exceed $15,000. Town and village have jurisdiction where amount does not exceed $3,000. All have jurisdiction over misdemeanors and violations.

Non-probate transfers - retirement benefits

No statute or laws governing the transfer of property by will, gift or intestacy may impair or defeat the rights of beneficiaries of pension, retirement, profit-sharing or other specified benefit plans. Thus, the right of a person entitled to receive money or other property pursuant to such a plan may not be defeated by a testamentary disposition. Rights under a retirement plan are however contractual rights and therefore limited by the provisions of the contract.

Definition of hearsay

Oral or written out-of-court statements offered for the truth of the matters they assert are hearsay. They may be received into evidence only if they fall within one of the recognized exceptions to the hearsay rule, as long as the proponent demonstrates that the evidence is reliable. In determining reliability, a court must decide whether the declaration was spoken under circumstances which render it highly probable that it is truthful

Limitation on liability of joint and several tortfeasors for non-economic loss

Non-economic loss - pain and suffering, mental anguish, and loss of consortium. A defendant whose proportionate share of the fault is 50% or less is liable for P's non-economic loss only to the extent of such proportionate share. If the D is <50% liable, then he is liable for the entire non-economic loss share. Proportionality will be determined by culpability. Exceptions: -a tortfeasor held liable for having violated a non-delegable duty, such as is imposed on owners and contractors by Labor Law or on liability arising under doctrine of respondeat superior; -actions requiring proof of intent, such as torts like fraud or assault; -ownership, use or operation of a motor vehicle; -product liability action manufacturer -worker has sustained a grave injury; -unlawfully releasing hazardous substance into the environment

What's required for a Motion

Notice of motion specifying date, time, place of motion, the papers on which it is based, relief sought, and ground upon which the movant believes itself entitled to the relief.

Share of after-born or pretermitted child (omitted children)

Omitted child statute: a child born after the execution of the testator's will shall succeed to a portion of the testator's estate if the after-born child was left unprovided for by any settlement or without any mention in the will. If the testator has no child living when he or she executes his last will, the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate. If the testator has one or more children living when he or she executes his last will and no provision is made therein for any such child, an after-born child is not entitled to share in the testator's estate. If the testator has one or more children living when he or she executes his or her last will, and provision is made therein for one or more of such children, an after-born child is entitled to share in the testator's estate, as follows: -The portion of the testator's estate in which the after-born child may share is limited to the disposition made to children under the will; -The after-born child shall receive such share of the testator's estate as he or she would have received had the testator included all after-born children with the children upon whom benefits were conferred under the will, and given an equal share of the estate to each such child; -If the intention of the testator was to make a limited provision only to the testator's children living at the time the will was executed, the after-born child succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate

2nd Degree Murder

depraved indifference murder, which occurs when under circumstances evincing a depraved indifference to human life, one recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

Jurisdiction for matrimonial actions

Over the individual defendant: -NY's long-arm statute -P must be a resident or domiciliary of NY and either- 1) NY was the matrimonial domicile before separation; 2) D abandoned P in NY; or 3) claim for economic relief accrued under NY law. "Marital res" - Jurisdiction over the marriage itself (for the purposes of granting divorce, only deal with status of whether their married or divorced), NY requires as a prerequisite to commencement of matrimonial action that: -both parties be residents of NY at the time the action is commenced AND the COA occurred in NY; or -one of the parties is a resident of NY for one continuous year immediately preceding the action if: 1) the parties were married in NY; 2) the parties resided as spouses in NY; or 3) the COA occurred in NY; or -one of the parties is a resident of NY for two continuous years immediately preceding the action

Limited Liability Companies

Owners = members. Same liability as shareholders of the corporation. Not personally liable, and tax benefits of a partnership - not treated as a separate taxable entity. Formation: -Must file articles of organization with secretary of state containing information including company name, county where located, company's purpose, duration, and designation of secretary of state as agent for service of process. an LLC is formed at the time of filing the initial articles of organization. At the time of formation, an LLC must have at least one member. -must publish a copy of its registration or a notice containing its substance in two newspapers (selected by county clerk) in the county in which its principal office will be located, once a week for a period of six consecutive weeks, and file an affidavit of such publication with the secretary of states within 120 days following the effective date of the LLC registration. Failure to company does not invalidate any contract or other act of LLC; however, LLC will be prevented from maintaining its name any action or special proceeding in NY until the defect is cured. Operating Agreement: -matters of business, affairs, if managers are appointed - rights, limitations, and responsibilities of managers. Effective upon formation, or at a later time if provided for in agreement.

POA termination

POA terminates when: • The principal dies; • The principal becomes incapacitated, if the power of attorney is not durable; • The principal revokes the power of attorney; • The principal revokes the agent's authority and there is no co-agent or successor agent; • The agent dies, becomes incapacitated or resigns and there is no co-agent or successor agent; • The purpose of the power of attorney is accomplished; or • A court order revokes the power of attorney The power of attorney also terminates when the authority of the agent terminates, which can occur when: • The principal revokes the agent's authority; • The agent dies, becomes incapacitated or resigns; • The power of attorney terminates; or • The agent's marriage to the principal is terminated by divorce or annulment

Intestacy - Disqualification of Parent or Spouse from Inheritance

Parent: if he fails to support the child or abandons the child while the child is >21. Abandonment means settled purpose to be rid of all parental obligations or forego all parental rights. May regain right to inherit if he resumes duties and continues fulfilling them until 21. Spouse: -if the marriage was void under DRL -parties were legally separated or divorced under final decree -surviving spouse has abandoned or refused to support the deceased spouse and such abandonment or refusal to support continues through the time of death.

Formation and Nature - Partnerships

Partnership - association of two or more persons to carry on as co-owners a business for profit (intent - even if actual sharing is not present). "Person" includes individuals, partnerships, corporations, and other associations (other legal entities). -no formalities - written agreement only if it's over a year. Determining if a partnership exists: -participation in profits is prima facie evidence of a partnership (not if its paid as rent, interest on a loan, etc.); -conduct, intention, and relationship of the parties; -sharing of profits, sharing of losses, ownership of partnership assets, joint management and control, joint liability to creditors, and intention of the parties. Liability: All members are jointly and severally liable for everything chargeable to the general partnership, and jointly liable for all other debts and obligations of the partnership to the extent that the partnership assets are not adequate.

LP

Partnership formed by two or more persons having as members one or more general partners and one or more limited partners. Limited partners are not personally liable for the obligations of the partnerships and may not participate in the management of the LP's business without potentially losing their LL status. Formations of a LP requires the execution by the general partners of a partnership agreement and the filing of a certificate of a LP with the secretary of state containing detailed information, including the name, the county where located, the names and addresses of each general partner, its duration, and designation of secretary of state as service of process. Must meet same publishing requirements as LLC. Notice requirement: Certificate of the limited partnership must be published once a week for two weeks in a row in two newspapers in the county in which the principle office is located, one printed weekly and the other daily (as chosen by the county clerk). Must file proof of such publication within 120 days of formation with NY Dept. of State. If they don't cannot initiate any action, other than defending itself, until the defect is cured. General partners - liable for ALL LP's obligations. Limited partners - not personally liable for partnership obligations, only liable for their personal contributions. Liable to pay capital or make other contribution. Cannot manage partnership without forfeiting LP partnership status.

Invasion of Privacy

Person whose name, picture, or voice is used for purposes of advertising or trade without that person's written consent may seek an injunction and sue for damages. If the person's picture is used in connection with the reporting of a newsworthy event or matter of public interest, right of privacy is not transgressed.

Wrongful Death Actions

Personal rep. of the decedent's estate may bring an action to recover damages due to injury resulting in the decedent's death as against a person who would have been liable to the decedent if death had not ensued. Damages are exclusively for the benefit of the decedent's distributees. Proceeds are not assets of decedent's estate to be distributed accordance with the decedent's will or laws of intestacy. Lesser burden of proof (also for amnesia cases)

Entitlement to Amount of Contribution

Persons subject to liability for the same personal injury, property damage or wrongful death may claim contribution among them, regardless of whether an action has been brought or judgment rendered against the person from whom contribution is sought. The amount of contribution that may be recovered is the excess paid by the person seeking contribution over and above his equitable share of the judgment recovered by the injured party. Equitable shares are determined in accordance with the relative culpability of each person liable for contribution.

Venue

Place of trial is the county in which either P or D resides at the time of the commencement of action, or if neither party resides in the state, any county designated by the P. A corp is a resident of the county in which its principal office is located. A partnership is deemed a resident of the county in which it has its principal office as well as where the partner suing or being sued actually resides. Municipal - county in which such municipal D is located Real property - county where it is situated.

Separation agreements

determines the rights and obligations of each party to the other under DRL. Valid and enforceable - will set aside only upon a showing of: -unconscionability; or -manifestly unfair to the spouse because of the other's overreaching.

Non-probate transfer - joint tenancies

Property can be owned by an individual or by more than one person as: • Joint tenants, • Tenants in common, or • Tenants by the entirety. A disposition to two or more people creates a tenancy in common unless otherwise specified

Municipal tort liability - proprietary v. governmental functions

Public entities are immune from negligence claims arising out of the performance of their governmental functions, including police protection, unless the injured person establishes a special relationship with the entity creating a specific duty to protect that individual. However, when the state acts in a proprietary capacity as a landowner, it is subject to the same principles of tort law as is a private landowner.

Effect on Release from Liability

Release given to one of two or more persons liable or claimed to be liable in tort for the same injury or wrongful death reduces the claim of the injured party against the other tortfeasors by the greatest of the amount stipulated in the release, the amount of consideration paid for the release, or the amount of the released tortfeasor's equitable share of the damages.

Propriety of Encounters Initiated by POs

Requesting information - must be supported by an objective, credible reason, not necessarily indicative of criminality. Detention - where a PO has reasonable suspicion that a particular person was involved in a crime, the officer is authorized to forcibly stop and detain the person. Frisk - can frisk outer garment when there is reasonable suspicion that a person is about to, is in the process of, or has committed a crime. Can do a protective pat-down search for weapons, only. Arrest - where an officer has probable cause to believe that a person has committed a crime whether or not in the PO's presence. Seizure (under NY law) if the PO action results in a significant interruption of the individual's liberty of movement. -cannot seize contraband detected through a PO's sense of touch during a protective pat-down search.

Criminal facilitation

Require: D to believe that he is rendering aid to another who is committing a crime.

Professional Service Corporations

Requirements: -all provide the SAME professional service -filing COI with secretary of state with information including the profession and a list of individuals who are to be its shareholders, directors and officers, all of whom must be licensed in the profession. -all services rendered must be rendered by licensed individuals and any document signed must be signed by such licensed individuals. Professional relationships and liabilities: -limited liability -each shareholder or member of such corporation is liable for any negligent or wrongful act or misconduct committed by him or any person under his direct supervision or control. They will not be liable for those members that they did not supervise or personally participate in the questioned actions with them, nor are they responsible personally for contractual debts and obligations (except to the extent of their contributions or their obligations to make such contributions). Professional service corporations are governed by the same professional regulatory and licensing scheme applicable to the individual members prior to formation. no publication requirements.

Attempt

Requires: -intent to commit the object crime; -conduct dangerously close to commission of crime -completion is not required

Serious Injury Determination (Insurance Law)

Serious injury means injury resulting in: -death -dismemberment; -significant disfigurement; -a fracture; -loss of fetus; -permanent loss of use of a body organ, member, function or system; -permanent consequential limitation of use of a body organ or member; -significant limitation of use of a body function or system; or -medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute a person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident

Management and Control (businesses)

Shareholders: Right to dissent and be paid for shares - gives shareholders (no minimum interest required) the specific right to petition the courts for fair cash value of his/her shares. Appraisal rights if -shareholder opposes a plan of merger or consolidation to which the corp. is a party. -if shareholder opposing the transfer or disposition of all or substantially all of the assets not in the regular course of business, other than a transaction for cash in combination with the dissolution of the selling company, and to the shareholder of a target company opposing a share exchange. -if shareholder opposes certain amendments to the COI that alter, abolish, or impair shareholder preferential rights, redemption rights and preemptive rights, or that exclude or limit voting rights. Dissenting shareholders must follow the procedures and time limits. Must file a written objection to the action, including demand for payment of fair value of his shares if the corporate action is taken. Upon consummation of the corporate action, the corporation must timely make a written offer to each shareholder who has filed a notice of election to dissent to pay for his shares at a specified price, which the corporation considers to be their fair value. If the corp fails to make a timely offer of payment, OR if the dissenting shareholder fails to agree with it - then the corporation may initial a special proceeding to fix the fair value of their shares; if it fails to do so, the shareholder may initiate the proceeding.

Per se Defamation

Slander is not actionable unless the P suffers special damage. Four established exceptions (slander per se): -charging P with a serious crime; -that tend to injury P in his trade, business or profession; -P has a loathsome disease; or -imputing unchasity to a woman. Damages need not be alleged or proven. In libel, similarly damages are presumed where a statement charges a person with committing a serious crime or tends to cause injury to a person's profession or business.

Privileges

Spousal immunity and marital communications: a spouse remains incompetent to give testimony against the other spouse in a matrimonial action based on adultery, except to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense. Both spouses are entitled to invoke a privilege for confidential communications in all civil and criminal proceedings Attorney/Client: Unless the client waives the privilege, an attorney, or any person who obtains evidence of a confidential communication made between the attorney and the client in the course of professional employment, may not disclose such a communication. For privilege to apply, the communication must be made for the purpose of providing legal advice or services in the course of a professional relationship. extends to the attorney's own communications to the client. Likewise, corporations may invoke the attorney-client privilege for confidential communications with attorneys relating to their legal matters. For the privilege to apply when communications are made from client to attorney, they must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose. Physician/psychologist-patient: prohibits disclosure of any information acquired by a physician "in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity." The privilege applies to information communicated by the patient and obtained from observation of the patient, unless the information would be obvious to laymen. The privilege applies to information contained in a patient's medical files and expert testimony sought to be introduced at trial. placed "on the same basis" as under the attorney-client privilege. Self-incrimination: A witness is, however, entitled to avoid testifying to self-incriminating facts. The objection may be raised only to specific questions that the witness believes would require incriminating answers.

Corpreal (showup/lineup) identification

Strongly disfavored, but permissible if exigent circumstances require immediate identification, or if absent exigent circumstances when they are spatially and temporally proximate to the commission of the crime and not unduly suggestive. -P has the burden of showing the reasonableness of police conduct in a pretrial identification procedure -D bears burden that procedure was unduly suggestive and any that is proven to be must be suppressed.

Defenses against Application of Foreign Law

Substantive/procedural dichotomies: -uses COL to determine which substantive law to apply. Thus, if a time limit is a substantive law of another state, NY should apply that law but if is a procedural rule of another state, NY should apply NY's rule. A NY court will apply NY choice of law principles to determine whether a foreign state time limit is a substantive or procedural rule. Substantive law that imposes a time limit is a "statute of repose" but procedural is a SOL. Local public policy: -in cases between foreign legislation and NY public policy, NY public policy prevails. Likewise, a statute or rule of another state that gives the courts of that state exclusive jurisdiction over certain cases does not divest NY courts of jurisdiction. The public policy exception permits the court to refuse to enforce otherwise applicable foreign law that would violate some fundamental principle of justice, prevalent conception of good morals, or deep-rooted tradition of the common weal.

Jurisdiction - Trial Courts

Supreme Court - has general original jurisdiction of all cases in law and equity without monetary limitation unless its jurisdiction has been specifically proscribed. Has exclusive subject matter jurisdiction over matrimonial actions, and in NYC it hears all felonies. Court of Claims - exclusive jurisdiction over tort and K claims against the State. County Court - for counties outside NYC and has jurisdiction over monetary claims that do not exceed $25,000, summary proceedings to recover possession of real property, and all criminal hatters (but hears primarily felonies). No equitable powers. Has jurisdiction over appeals from district, city, town, and village court, except where an Appellate Term of the SC has been established to hear those appeals. Surrogate's Court - jurisdiction over all wills, trusts, and estates matter, and concurrent jurisdiction with the SC over wrongful death actions. Has full equity powers in matters over which is has jurisdiction. Family Court - jurisdiction over child abuse and neglect, spousal and child support, paternity proceedings, parental rights proceedings, family offense proceedings, juvenile delinquency, and custody and support proceedings when referred by SC.

TPB Contracts

TPB must establish: -existence of a valid K between the other parties; -K was intended for its benefit; and -benefit was direct rather than incidental Intended beneficiary: -if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either: 1) the performance of the promise will satisfy an obligation of the promise to pay money to the beneficiary; or 2) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance A party will be deemed an intended beneficiary where the anticipated benefit is sufficiently immediate, rather than incidental, to indicate the assumption by the King parties of a duty to compensate them if the benefit is lost. An incidental beneficiary is a beneficiary who is not an intended beneficiary. Intended B - an intention to benefit a TP must be derived from the K as a whole. Thus, where performance is rendered directly to a TP, it is presumed that the TP is an intended beneficiary of the K.

Non-probate transfers - joint bank accounts

The deposit of funds in a joint account creates prima facie evidence of intent to create a joint tenancy with the right of survivorship. Rebut presumption by providing direct proof that: 1) no joint tenancy was intended; or 2) substantial circumstantial proof that the joint account had been opened for convenience only.

Remedies - Injunction

The preliminary injunction: Is a court order that seeks to safeguard rights asserted by the plaintiff in a pending action or special proceeding until the case can be fully adjudicated on the merits. Preliminary injunctive relief may be granted upon two grounds: • The defendant threatens to harm plaintiff's rights in the subject of the action and such harm could render the judgment ineffectual; • The plaintiff seeks a judgment restraining the defendant from injurious conduct that would also injure the plaintiff if committed during the course of the action. A preliminary injunction is not available, however, in an action seeking solely money damages. A temporary restraining order provides immediate injunctive relief while the court determines the motion for a preliminary injunction Procedure: -a motion in a pending action, which must be made on notice to the defendant (CPLR 6311). The notice of motion may be served with or after the summons or at any time before a final judgment. -Supporting affidavits and other evidence must show that the underlying action falls within one of the grounds for a preliminary injunction specified in CPLR 6301 (CPLR 6312). In addition to the specified statutory requirements, courts also require a showing of: • The likelihood of success on the merits of the action, • The threat of irreparable injury, and • A balance of equities in plaintiff's favor

Hearsay - Present sense impressions

The present sense impression exception to the hearsay rule is available when the statement describes or explains an event or condition and was made while the declarant was perceiving the event or condition, or immediately thereafter, and the content of the statement is corroborated by independent proof. Time lag: only allows "marginal" time lag, and does not apply after events being described have come to an end. The declarant's descriptions need not be corroborated by a witness at the scene with an equal opportunity to perceive the event, but there must be some evidence to assure the court the statement sought to be admitted was made spontaneously and contemporaneously with the event described

Bill of Particulars

The purpose of a bill of particulars is to amplify the pleadings (not to obtain evidence) and is available between parties in an action (CPLR 3041). Obtaining one: -serve written demand on the party -party who is served must serve a timely response, and if any particulars are objectionable, include in the response a statement of objections for particulars not being responded to with reasonable particularity. -must still respond in full within 30 days of service of demand. May be amended once without leave of court before notice of issue is filed. If party fails to comply, party seeking particulars may move to compel compliance, or if failure is willful, seek penalties. Court may also find that demand is improper or unduly burdensome, and may subsequently vacate or modify the demand. Personal injury - a party may serve a supplemental bill with respect to claims of continuing special damages without leave of court at any time up to 30 days If a pleading is verified, any bill of particulars in respect of it must also be verified. In a negligence case, the bill of particulars must be verified whether or not the pleading is verified

How the trustee holds property

The trustee holds legal title to trust property and co-trustees share legal title jointly with right of survivorship. When a sole trustee dies, the trust property vests in a court, which can then appoint a successor trustee, unless the trust otherwise provides.

Rule against Perpetuities

The rule against perpetuities limits the ability of owners to control future disposition of their property. In New York, the rule against perpetuities, which applies to both real and personal property, but not charities, applies two rules in determining the validity of a disposition of property: (1) the suspension of the absolute power of alienation - any estate in which the conveying instrument suspends the absolute power of alienation for longer than lives in being at the creation of the estate plus 21 years is deemed void; and (2) the remoteness of the vesting of the estate - no estate in property shall be valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the estate and any period of gestation involved. Beneficiaries of a trust must be definite and ascertainable within the perpetuities period.

POA - standard of care

The standard of care to be exercised by the agent is defined as "observing the standard of care that would be observed by a prudent person dealing with property of another" and exercising a fiduciary duty to act in the best interest of the principal. An agent's fiduciary duties include: • Acting according to any instructions from the principal or, where there are no instructions, in the best interest of the principal, and to avoid conflicts of interest; • Keeping the principal's property separate and distinct from any other property owned or controlled by the agent; • Keeping a record of all receipts, disbursements, and transactions entered into by the agent on behalf of the principal and to make such record and power of attorney available to the principal or to third parties at the request of the principal; • Not making gifts to one's self without such authority under the Statutory Gifts Rider.

Impeachment - conviction of crime

To impeach testimony: the conviction may be proved, for the purpose of affecting the weight of his or her testimony, either by cross-examination, upon which he or she shall be required to answer relevant questions, or by the record. Criminal D who chooses to testify: may be cross-examined concerning prior "criminal, vicious or immoral acts" that bear logically on that individual's credibility as a witness. A D can get an advance ruling about the prior crimes that the prosecution can question him about, and the judge has discretion to determine if the probative value outweighs the prejudicial effect.

Interaction with TP

Truthfulness: -must not knowingly make a false statement of fact or law to TP -misrepresentation can occur if the L incorporates or affirms a statement of another person that the L knows is false

Homicide

Types of homicide: -murder -manslaughter -criminally negligent homicide Degree depends on: -how death occurred; -mental state of actor; -state of victim Conduct which causes the death of a person under circumstances. Various degrees of homicide depend on how the death was caused, who the victim was, and the mental state of the actor. Transferred intent is incorporated in each of the intentional homicide crimes if you meant to shoot A but you shot B instead. Intentional murder 1st and 2nd: intent to cause the death of another, he causes the death of such person or TP -intent requires a conscious objective or purpose to cause a particular result, or to engage in particular conduct. Person acts with intent to cause the death of another when that person's conscious objective is to purpose or cause the death of another.

Custody Enforcement

UCCJEA - indian child is not subject to the UCCJEA Home-state for residency of 6 months or more.

Lapsed legacies

Under New York's Anti-Lapse Statute, if a testator makes a disposition to his or her brother, sister or issue in a will, and that beneficiary predeceases the testator, the disposition passes to the issue of the predeceased brother, sister or issue Ineffective residuary: the ineffective disposition will pass to the other residuary beneficiaries, ratably, unless the testator has provided otherwise or unless the anti-lapse statute applies to the lapsed portion.

Ademption

Under the "identity" theory of ademption, when a testator makes a specific disposition of property and the property is not part of the estate at the testator's death, the disposition fails. When devised property changes form: [a] conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it Destruction of disposition: if a specific disposition of property is damaged or destroyed before the decedent's death and the insurance company reimburses the executor after the decedent's death, the beneficiary is entitled to that money.

Non-probate transfers - Transfer on death brokerage accounts

Under the Transfer-on-Death Security Registration Act, an owner of securities can register them in his or her own name and, upon death; they pass to the designated beneficiary.

Hearsay - Business Records

Under the business records hearsay exception, a business record may be admitted to prove the truth of its contents. The requirements under this exception are as follows: • The document must be "made in the regular course of any business," • At the time of the act or occurrence recorded or within a reasonable time thereafter, • Where it was the regular course of such business to make that record, and • The person who made the record must have had actual knowledge of the act or occurrence or must have received his or her information from someone within the business who had actual knowledge and was under a "business duty" to report the event. The lack of personal knowledge by the maker may affect its weight but not its admissibility. -need to admit original - can admit copy if copy is made in ordinary course of business. -electronic - have same force and effect as print. Certification procedure: The certification must be sworn in the form of an affidavit and signed by the custodian or other person charged with responsibility for maintaining the records. As of 2014, certification of a nonparty's business records, as a substitute for incourt testimony, is permitted without the need for production pursuant to subpoena.

Risk of Loss (real property)

Unless otherwise expressly provided: -the seller cannot enforce the contract and the buyer is entitled to recover any portion of the price paid IF: 1) neither legal title nor possession has been transferred to the buyer; and 2) if all or a material part of the property is destroyed; 3) without any fault of the buyer or taken by eminent domain -if neither legal title nor possession has been transferred to the buyer and if only an immaterial part of the property is destroyed or taken, neither party is deprived the right to enforce the K but there will be an abatement of the purchase price -if legal title or possession of the property has been transferred, the buyer bears the loss.

Directors

Unless otherwise provided, directors are elected by a plurality (more votes than any other candidate) of votes cast at a meeting of shareholders that are holders of shares to vote. May be removed by a vote for cause, or if provided in by-laws or COI, without cause. Conflict of Interest: -a transaction entered into by the corp and one of its directors in which the director has a substantial financial or other interest is not void or voidable by reason alone of the director's interest or by reason alone that such director is present at the meeting of the board which approves such K or that such director's votes are counted for such purpose IF: 1) material facts are disclosed in GF or known to the board, and the board approves such K or transaction by a vote w/o counting the vote of such interested director, or by a unanimous vote of the disinterested directors; OR 2) material facts are disclosed in GF or known to the shareholders entitled to vote thereon, and such K is approved by vote of such shareholders. If not approved using the methods above, a K is still not voidable if the party/ies establish that the K was fair and reasonable to the corporation at the time it was approved by the board or shareholders

Basic Economic Loss (Car Insurance)

Up to $50,000 per person of the following: -all necessary medical and related expenses, provided that the need for such services is ascertainable within one year of the date of the accident; -loss of earnings, up to $2,000 per month for up to three years from the date of the accident; -all other reasonable and necessary expenses, up to $25 per day for not more than one year from the date of the accident. First-party benefits are payments to reimburse an injured person for basic economic loss, less 20% of lost earnings and amounts paid under state or federal law in disability or workers compensation benefits. To the extent economic losses exceed "basic economic loss," they are recoverable.

Change of Venue

Upon motion, court may change venue on the grounds that venue was improperly placed, an impartial trial cannot be had in the proper county, or if convenience of material witnesses and the ends of justice will be promoted by change. Inconvenience: A court, even if it has jurisdiction, can decline to entertain the action if it finds, upon examining all relevant factors that the forum is seriously inconvenient for the trial and that a more appropriate forum is available.

Negligence Per Se

Violation of a state statute that imposes a specific duty constitutes negligence per se. Violation of a municipal ordinance or administrative rule or regulation constitutes some evidence of negligence

Types of custodial arrangements

sole, joint legal and joint physical. Courts are unwilling to award joint custody in the absence of a showing that the parents are able to cooperate in the decision-making process.

Revocation due to divorce

What is revoked upon divorce, annulment, voided marriage, or dissolved on grounds of absence: -dispositions to former spouse; -nomination of former spouse as executor or trustee -appointments of property in his favor under power of appointment Former spouse is treated as having predeceased the testator, and thus the disposition passes to the alternative beneficiaries.

Tolling

When a COA accrues against a D and the D is absent from the state, the SOL is tolled until the D returns. If the D leaves the state after a COA accrues and remains out continuously for more than four months, that absence is not part of limitations period. -infancy and insanity - does not run during entire period of disability. Must be under the disability at the time the COA accrues. Maximum toll for insanity is 10 years, and 10 years for an infant's cause of action for medical, dental, or podiatric malpractice. For other cases, there isn't a limit. -Where a P dies before expiration of period, representative has a year from date of death to sue; when D dies before suit, 18 months are tacked onto whatever limitation period remains.

Criminally negligent homicide

When a person engages in conduct which creates or contributes to a substantial and unjustifiable risk that a result will occur or a circumstance defined by statute exists, and when that person "fails" to perceive that risk in a situation where the offender has a legal duty of awareness and causes the death of another.

When a defense or counterclaim is interposed

When a pleading containing it is served, and it is not barred at the time the claims asserted in the complaint were interposed. If it arose out of same transaction or occurrence, not barred even if time barred

Admissibility of Extrinsic Evidence and Parole Evidence Rule

When parties set down their agreement in a clear, complete document, their writing is enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic/parole evidence is not admissible to create an ambiguity in a written agreement which is complete and unambiguous on its face. Whether a writing is ambiguous is a question of law to be resolved by the courts.

Motion for Summary Judgment

When: -after the service of defendant's answer; -120 days following the filing of the note of issue. -if court grants it after "good cause" is shown for extension What must be shown: -by evidence -there is no defense to the claim, or defense has no merit; -prima facie case of judgment as a matter of law

Employment Contracts

Where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason. Exceptions to at-will dotrine: -if assurances of job security are made by the employer, coupled with express provisions in an employee manual limiting the employer's ability to terminate at will, and the employee relies on those assurances, a K may be implied.

Dependent Relative Revocation

Where the intention to revoke a will is conditional and where the condition is not fulfilled, the revocation is not effective. Applies usually: Where the testator cancels a will with the intent to make a new testamentary disposition, and the new disposition is not made or fails for some reason.

Intestate Succession

Will be distributed as follows: -if spouse and issue - $50,000 and one-half of the residue to the spouse and remainder to issue by representation -spouse and no children - the whole to the spouse -issue and no spouse - the whole to issue by representation -surviving parents if no spouse or issue -issue of parents (by representation) if no spouse, issue, or parent -if grandparents and their issue are only survivors, one-half of estate goes to paternal grandparents and other half to the maternal grandparents. Issue of grandparents includes only children and grandchildren. If no children or grandchildren of the decedent's grandparents survive decedent, the estate passes one-half to the great-grandchildren of the maternal grandparents, and one-half to the great-grandchildren of the paternal grandparents.

Larceny

With the intent to deprive another of property, he wrongfully takes property. Degrees vary on value of property.

In-Court Identification

Witness's prior identification may be established by another person if the identifying witness is unable to identify the D at trial. -in-court identification may be permitted notwithstanding an unduly suggestive pretrial identification procedure only if the P can demonstrate that a source independent of the pretrial identification procedure exists for the witness's in-court identification.

Revocation - by physical act or subsequent writing

Writing: by another will - a writing of the testator clearly indicating an intention to effect such revocation, executed with the same formalities as a will. Physical act: burning; tearing; cutting; canceling (writing across words); obliterating; or mutilating. Testator may destroy it himself or direct another to do so in his presence and in the presence of two witnesses other than the person destroying the will. Whether a marking is sufficient is a question of fact for the courts. Revocation is effective only if intended by the testator, and also revokes the codicils to the revoked will.

Arbitration

Written agreements to submit a controversy to arbitration are enforceable Party resisting arbitration may only do so on ONLY these three grounds: 1) whether a valid agreement to arbitrate was made; 2) whether any conditions precedent in the agreement have been complied with; and 3) whether the claim is barred by SOL Brought by special proceeding Arbitrator: -must be sworn before hearing a dispute; -parties are afforded right to be heard, present evidence, and cross-examine witnesses; -not bound by rules of evidence; -each party has right to be represented by counsel during proceeding Moving to vacate or modify award: -misconduct; -bias -excess of power; -procedural defects -must show that he was prejudiced by particular impropriety

Appeals - taking an appeal

by serving the adverse party a notice of appeal AND filing it in the office where the judgment or order of the court of original instance is entered. Notice of appeal: -must contain name of the party taking the appeal; -judgment or order appealed from; and -court to which the appeal is taken.

Negligent Infliction of Emotional Distress

Zone-of-danger rule: a P in the zone-of-danger if the P is exposed to an unreasonable risk of injury due to the D's conduct. P may recover damages for injuries suffered in consequence of shock or fright resulting from the contemporaneous observation of serious physical injury or death of a member of the P's immediate family, where the D's same conduct was a substantial factor in causing injury to the P's family member. Medical malpractice resulting in the miscarriage or stillbirth entitles the mother to damages of emotional distress, even absent of an injury independent to the mother.

COL - Torts

[Governmental] Interest analysis to determine which of the two competing jurisdictions has a greater interest. Under the interest analysis, two factors are used: 1) what are the significant contacts and in which jurisdiction are they located; and 2) whether the purpose of the law at issue is to regulate conduct or allocate loss. Conduct-regulating - govern conduct to prevent injuries from occurring. If this law is at issue, the jurisdiction where the tort occurred has the greatest interest in regulating conduct (thus, the law will control). Loss-allocating - consequences of the tort. If conflicting loss-allocating rules (consequences of dealing with tortious activity) are at issue, other factors are taken into consideration, mainly the parties' domicile (based on prior guest statutes). Three rules apply to loss-allocation cases: 1) when the parties to the lawsuit share a common domicile, the loss-allocation rule of the common domicile will apply. 2) where the parties are domiciled in different states and the local law favors the respective domicilary, when a defendant's conduct occurred in the state of his/her domicile and that state would not impose liability, the D should not be exposed to liability under the victim's domicile. Conversely, where the P is injured in the place of his/her domicile and would be entitled to recover, the D should generally be unable to interpose the law of his/her domicile to defeat recovery. [If the event occurred in the domicile of one of the two parties, and that party is protected by that law, that law will apply]. 3) If the event didn't occur in the domicile of either party, or if it did, the domicile law doesn't protect that party then most of the time the governing law will be that of the place where the accident occurred, unless displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multistate system [what would be the appropriate result taking into account the governmental interest analysis] or producing great uncertainty for litigants.

Mediation

a TP neutral mediator assists parties to reach a mutually acceptable agreement. Process is private and confidential and participation is voluntary.

Presumption of legitimacy

a child born of married parents or a child born to a married couple by artificial insemination is the legitimate child of both parents. A child born of parents who were not married at the time of the child's birth but later become married is the child of both parents - who are living together for 10+ years. Legitimacy is not affected by subsequent separation or divorce.

Resulting Trusts

a grantor or testator holds an equitable reversionary interest in property that was not disposed of in the trust.

Impeachment - Character for Truthfulness

a party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness's answers concerning collateral matters solely for the purpose of impeaching that witness's credibility. Extrinsic evidence permitted, including other witnesses: to show that the witness has a bad reputation in the community for truth and veracity

Competency of Witnesses

a witness-spouse is not excused from giving testimony about matters that might be damaging to the party-spouse; however, spouses are entitled to invoke a privilege for confidential communications in any type of proceeding a witness's convictions may be used on cross-examination to impeach his or her credibility. Impeachment is limited to crimes, i.e. felonies or misdemeanors. If the witness denies the conviction, it can be proven by extrinsic evidence. Dead man's statute - any person "interested in the event" may not testify in his or her own behalf against certain protected persons with a specified relationship to a decedent or mentally ill person concerning a transaction or communication with the decedent or mentally ill person accomplice - a defendant may not be convicted upon the testimony of an accomplice without the support of corroborative evidence tending to connect the defendant with the commission of the offense. Child >9 - rebuttable presumption that a child less than nine years old is incapable of giving sworn testimony. To overcome the rebuttable statutory presumption, the infant witness must demonstrate sufficient intelligence and capacity to justify the reception of his or her testimony, and that he or she knows, understands and appreciates the nature of an oath before the trial court may permit the sworn testimony

Judicial notice of adjudicative facts

courts accept an adjudicative fact as true without the offering of evidence by the party asserting the fact. New York limits judicial notice of adjudicative facts to those incapable of dispute because they are either: • Generally known within the community where the court sits or • Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Speedy-trial

after criminal action is commenced, D is entitled to a speedy trial. CPL requires the P to be ready and announce readiness for trial within a prescribed time frame. Under NY, the D need not put on any proof where the delay is great enough.

Sex offenses

all involve a sexual act committed without the victim's consent.

Marital property

all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or matrimonial action, regardless of the form in which title is held. Includes inter-spousal gifts and professional practices. Appreciation in value of separate property during the marriage due to the non-titled spouse's direct or indirect contributions, as parent and homemaker, is also considered marital property. Must consider direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse.

Warrantless Arrest

allows a police officer to arrest a person for a felony or misdemeanor without a warrant where the PO has reasonable cause (equivalent of probable cause under the 4th amendment) to believe that a person committed a crime, whether or not in his presence.

Notice of Claim requirement (municipality)

an action may not be maintained against a municipality on the grounds of negligence or wrongful act unless a notice of claim has been served within 90 days after the claim arises, or in a wrongful death, 90 days from the appointment of a representative decedent's estate. The notice of claim must be in writing, sworn to by or on behalf of the claimant, setting forth (substantial compliance): -name and address of claimant and claimant's attorney; -nature of claim; -time when, place where and manner in which the claim arose; and -items of damage or injuries claimed to have been sustained. The court may extend time to serve the notice of claim (SOL - 1 year and 90 days; wrongful death is 2 years after death) after considering all relevant facts and circumstances, including: -whether public corporation or attorney acquired actual knowledge of the claim within time to file notice or a reasonable time thereafter; -infancy, incapacity or intervening death of the claimant; -whether claimant justifiably relied on settlement representations made by public corporation; -whether claimant made an excusable error concerning the identity of the public corporation against which the claim could be asserted.

Health Care Proxies

any competent adult to appoint a health care agent by a health care proxy that is signed and dated by the adult in the presence of two adult witnesses, who must also sign and who cannot be the appointed agent. The agent's authority commences upon a determination that the adult lacks capacity to make health care decisions. The agent's decisions must be consistent with the known wishes of the principal (e.g., by the adult having executed a living will or having expressed such beliefs) including religious and moral beliefs If the principal's wishes are not reasonably known or cannot reasonably be determined, the agent may act in accordance with the adult's best interests. However, if the adult's wishes regarding the administration of artificial nutrition and hydration are not reasonably known and cannot with reasonable diligence be ascertained, the agent shall not have any authority to make decisions regarding these measures. If the agent does not know the adult's wishes concerning life-sustaining treatments, they are not authorized to make any decisions regarding those measures. The proxy may be revoked by notifying the agent or a health care provider orally or in writing, any other act evidencing a specific intent, execution of a subsequent health care proxy, and divorce from the agent unless the principal specifies otherwise

who may be adopted

any person, minor, or adult

Surrogate parenting contracts

are void and unenforceable in NY

Real Property Contracts

are void unless in writing and signed by the party to be charged. A land purchase option constitutes the creation or grant of an interest in real property, and thus falls within NY's statute of frauds, requiring a writing signed by the party to be charged.

Availability of Action for non-economic loss

in any action by one covered person against another covered person, there is no right of recovery for non-economic loss (i.e., pain and suffering), except in the case of a serious injury or for basic economic loss. A "covered person" is a pedestrian, owner, operator or occupant injured through the use or operation of a motor vehicle. In an action by a covered person against a non-covered person (e.g., manufacturer of a defective seatbelt), basic economic loss is recoverable, but the insurer who paid first-party benefits to reimburse the covered person for basic economic loss has a lien against any judgment to the extent of the benefits paid.

Prima Facie Tort

infliction of intentional harm; resulting in damage; without excuse or justification, by an act or series of acts which would otherwise be lawful.

Felony murder (also 2nd degree murder)

occurs if during or in immediate flight from the commission or attempted commission of a statutorily specified felony (i.e., robbery, burglary, kidnapping, arson), a participant in the crime causes the death of a person other than the participant. Each participant in the time, irrespective of whether they caused the death, may be guilty of felony murder under such circumstances.

Title - Tenancy by the Entirety

one party may convey or mortgage his or her interest, but the grantee or mortgagee (or purchaser at a foreclosure sale) takes subject to the survivorship right of the other party. If the tenancy by the entirety is subsequently terminated by divorce, the interest of the grantee or purchaser at the foreclosure sale will be that of a tenant in common. Divorce - changes to tenancy in common.

Oral/Holographic wills

only permitted in limited military circumstances

Photographic identification

precludes admission of evidence in government's case-in-chief of a pre-trial photographic identification of the D, regardless of whether it comports with DP. -no right to have L present

Double-jeopardy

previous prosecution precludes a subsequent prosecution.

Will contests - due execution

proponent of will has burden of proving due execution

Exempt from creditors

provides that property in the trust principal is exempt from creditors. However, the trust's income is exempted only to the extent of 90% (CPLR 5205 [d] [1]). Thus, as non-exempt property, a judgment creditor can levy against 10% of the trust income

Codicils

requires same formalities as a will, and if not, it is ineffective and the will remains as originally executed. -revocation of a will also revokes all the codicils to the revoked will.

Visitation of non-custodial parents and others

visitation is typically granted to non-custodial parent absent exceptional circumstances; -reasonable visitation rights are also granted to grandparents - they have standing where either or both parents of the child are deceased or where equity would see it fit -only child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent. -intervention by state in the right and responsibility of a natural parent to custody of her child is warranted if there's a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunately or involuntary extended disruption of custody. or other extraordinary circumstances.

Criminal solicitation

when with intent that another engage in criminal conduct, he solicits, requests, commands, importunes, or otherwise attempts to cause such other person to engage in such conduct.

Conspiracy

when with the intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct -the agreement is the crime AND one of the parties taking a step to effectuate that crime Elements: -intent that crime be committed; -agreement that the crime be committed; -overt act by one of the co-conspirators to effectuate the crime