Combo of NY BAR Review cards by smjr1920
Judgment of Previous conviction
A jdugment of a previous felony conviction is admissible to prove any fact esential to sustaining that judgment.
Ways to authentic handwriting documentary evidence
Comparison by an expert or the trier of fact, or Lay witness (non-expert) with personal knowledge of the claimed author's handwriting may testify as to whether the document is in that person's handwriting; a lay witness must have already been familiar with the handwriting OR Unique identifiers - like habits of spelling , grammar, or usage.
Maintenance MODIFICATION
File a petition for modification IF either NO Sep K, OR a MERGED SEP K into Divorce Decree, then Permissible upon showing of SIGNIFICANT change in circumstances (payer got laid off, injured, recently graduated school & can now get job) (e.g. in the needs of the dependent spouse OR in the financial abilities of the obligor that justifies the requested modification) OR, where INDEPENDENT Separation agmt - standard is that EXTREME hardship must be shown Prospective only - encourages people to get to ct. early upon a change in circumstances
Maintenance ENFORCEMENT
Property can be seized & sold Wages can be attached Seize drivers & professional licenses Jail for judicial contempt
F.O.B.
"Free on board." F.O.B. [location] - location = where risk of loss passes to buyer.
Rule statement for Mitigation of Damages
(1) Under the CL, there is limitation on the plaintiff's recovery due to P's failure to avoid harm that his reasonable efforts could have avoid. Thus, P must **** his/her ***** by taking reasonable efforts to avoid the harm he endured. (2) Otherwise, the plaintiff's failure to take reasonable efforts avoid the harm or its aggravation means that (a) in a contributory negligence jurisdiction, P is barred from recovery for any additional harm caused by his aggravation of the injury, OR (b) in a COMPARATIVE-Negligence jurisdiction , the failure to mitigate is accounted for only in reduction of damages, but P's failure does not categorically bar recovery.
Differences between Nuisance and Trespass
(A) About use/enjoyment, continuous conduct/effect, no physical intrusion required. (b) About possession, can be one-time, episodic, or continuous, require physical intrusion
Stays
--Only internal to litgiations --Preserves status quo, temporarily
Motions Affecting a Prior Order
--To Reargue (w/in 30 days of service of prior order) -- TO Renew -- To vacate (note: May be backdoor to testing Jurisdiction and Venue!), modify, or Resettle - generally within thirty day
Counterclaims
-A substantive COA that a def has against a plaintiff. - Need not rise out of same transaction or occurrence - In NY, always Permissive (unlike Feds' where some ARE compulsory
Laches (i.e. did you sleep on your rights)...think adverse possession, or prescriptive easement, or termination of easements
-equitable defense - NOT based on passage of a specific time period. BUT BASED on PREJUDICE!
10 year SOL
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5 ways to Terminate a Case BEFORE and WITHOUT a Trail
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7 year SOL
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Accident Reports
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Adding or Dropping Parties
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Additur
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Admissibility Standard for Character
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Affidavit of Merit
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Affirmative Defenses (as in Federal Rules) (18 of them)
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Amending or Supplementing Disclosure (2 key rules)
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Amendment of ANswers to Interrogatories
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Arbitrator (Oath, Duties Powers,
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Article 78
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Attachment
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Attorney-Cleint Privilege
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Authentication of Tangible Evidence - ANcient Documents NY
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Authentication of Tangible Evidence - Standard of Proof in NY
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BOD - Removal WITHOUT Cause
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BOD - Replacement of a New Director
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BOD - Term, Selection, and Resignation
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BOD - Voting Reqs.; Quorum Rules; Required Votes Voting Agremeents (generally unenforceable b/c independent judgement MUST be exercised
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BOP for Attachment remedy AND PROCEDURE/TIMING
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Balancing Test for Relvance
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Burden Shifting
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Business Torts
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Business records
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Can SILENCE count as ACCEPTANCE?
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Challenge
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Character evidence of defendant
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Clergy-pentitent privilege
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Co-conspirator hearsay exception
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Commencing Actions - Defenses and Counterclaims
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Compulsory Joinder - Rule 19, Page. 60 -61)
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Conditional Relevance
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Dividend rules - Dividend Equlity and the Record Date
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Duty of confidentiality
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Dying Declarations in NY
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Eight ways for A PRINCIPAL to terminate an Agent's ACTUAL Authority
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Enforcement of CUSTODY and VISITATION
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Enforcement, Modification, and Vacating of Arbittration
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Evidence of Victim's Character when offered by Criminal Defendant
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Exceptions to the Duty of Confidentiality
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Federal law - Forum Non Conveniens, p. 34
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Five Year SOL
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For K-based liability from Agent's actions - Estoppel against P
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Forfeiture by Wrongdoing
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Forfeiture by wrongdoing exception
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Former testimony in Civil Actions in NY
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Former testimony in Criminal Actions in NY
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Forum Selection clause - and court permissive right
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Interpleader under FRCP Rule 22, p. 62
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Intervention AS OF RIGHT (RINT) (rule 24), p. 61
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Joinder of Claims Rule 18, Pg. 64
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Jury Trials are permitted for WHICH types of Actions (i.e. When jury try the iSSUES OF FACT)
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Jury view
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Jury, Size, Selection, and Challenges (2 Bases), Alternate Jurors
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Key Article 9 Terms
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Lawyer's General Duties
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Legislative Jurisdiction
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Motion to Compel
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Motions for Summary Judgment
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Motions to Dismiss
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Motions validity and service
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NJ Distinction - for time of Service
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NY rule on admissibility of Prior Convictions for IMPEACHMENT purposes
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NY rule on admission of prior inconsistent statements
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Neglect to Prosecute (Neglgect by a
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New York rule on admissibility of prior bad acts
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Not in State, OR In State Under a False Name
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Notice Pleading - defined
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Notice of Deposition
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Notice of Pendency (Lis Pendens)
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One Year time period
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One year 6 month (18 month) time period
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Organization of NY Court System (SMJ and then the Appeals from that Court)
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Other circs where P or Agent can unilaterally terminates the AGency relationship
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PHysician-Patient Privilege
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Pedigree Exception
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Peremptory Challenges
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Perfection - different methods
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Perfection by Filing a Financing Statement
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Prior bad acts for propensity
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Procedure for Impleader
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Procedure for Motion to Dimiss
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Procedure for bringing Article 78
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Professional Competence
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Professional Journalist Privilege
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Prosecutor's Right to Rebut Character Evidence Offered by Criminl Def.
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Protective Orders
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Provisional Remedies
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Psychotherpaist Patient privilege
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Public Records
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Quasi-Ks based on Restitution Theory
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Rape Counselor-Client privilege
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Receivership
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Replevin
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Reqs for Oral Q-based Depos
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Request for Admissions
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Requests for Admission
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Requirements to Reach a Verdict, p. 95
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Right of First Refusal
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Right to Jury
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Rules for determining TAV - City, Town VIllage, School Dist, or Dist Corp
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Rules for determining TAV - County
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Rules for determining TAV - New York City
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Rules for determining TAV Partnership and Unincorporated Business
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Rules for determining TAV for Corporations
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Rules for determining TAV for Executor, Admin, Trustee
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Safe harbor rule (3 circs to "cleanse" the self-dealing transaction)
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Sanctions
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Scope of Discovery
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Self-Dealing: 3 circs
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Service by First Class Mail
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Service for In-Rem or Quasi in Rem Actions
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Service of Process
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Service outside of NY
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Social Worker-Client privilege
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Special Conflicts of Interest
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Special Rules affecting SOL Period - Additing a Def
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Special Rules affecting SOL Period - Arbitration
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Special Rules affecting SOL Period - Court Stays
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Special Rules affecting SOL Period - Death of a Potential Party
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Special Rules affecting SOL Period - Discovery rules (see the SOL rules)
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Special Rules affecting SOL Period - Military
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Special Verdict
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Standard for Admission of Scientific Evidence
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Statements Against interest
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Statements for Medical Diagnosis or Treatment
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Time to Respond to an Amended Pleading
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Timing of Discovery
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Timing of Response
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Timing of Service o...f Interrogatories (When to serve)
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Usurpation of a Corp Opp - another basis for breach of duty of loyalty
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Verdict (required; permissive; and types) and Verdict forms
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Victim's Past Sexual Conduct in NY
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Videotaped Depositions
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Voluntary Dismissal
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When are jury trilas NOT required (4 types)
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Where a 20 Year time period / SOL
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Withdrawal of a member
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Withdrawal under NEW YORK for Accomplice Liability (note: NOT possible for Conspiracy)
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Work Product Doctrine
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Written Interrogatories
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collateral
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Motions to Dismiss in Malpractice Cases / Affidavits of Non-Involvement
... The affidavit must assert that the defendant was not involved in the treatment or care at issue. The affidavit must assert that the defendant was not required to provide care. AND If the affidavit is inaccurate or false, the court can sanction the party. - NOTE: Abuse of this process can lead to reinstatement of the claim against the provider, either upon motion, or upon court's own inititive, AND such reinstatement NOT barred by SOL defense that was NOT valid at time original action was filed - COurt can also impose sanctions - AND MUST refer to matter to the Attonrey General -AND to appropriate professional licensing board for further review.
Court of Appeals Scope of Review, etc.
... APpeals as of Right where: At least two judges dissented to the appellate division order on a question of law and the dissent was in favor of the party taking the appeal. OR The only question on appeal involves the federal or state constitutionality of a New York statute. OR The appellate division order directly involves the construction of the federal or state constitution. OR From a court OR A non-final determination of an appellate division
Defenses by Pre-Answer Motion
... NOTE: These 6 above can be raised in the answers itself, BUT if what is raised is either (lack of PJ, Insufif proccess or Insuff SOP, AND asserted in the ANSWER itself, then you MUST (1) file motion to dimiss, (2) w/in 90 days, AFTER service of the answer, OR ELSE YOU WAIVE THESE particular assertions!!
Threshold reqs for a negligence claim:
1) D's fails to exercise care of RP in his shoes would exercise 2) D acts in a way that breaches the general duty to prevent FORESEEABLE risk to anyone is P"s shoes 3)and D's breach MUST BE THE CAUSE of P's injuries.
Non-corporeal ID procedures (e.g. photo spreads)
1) NO right to counsel, whether pre-orpost-indictment 2) But prosecution must turn over the display to defense
Defenses to SL
1) NOT CN (only to Negligence) 2) CF for reducing recovery (akin in N tort) 3) AOR or KNOWING CN (akin in N tort) 3) Statutory Privilege Performance of ESSENTIAL PUBLIC SERVICE (but may be still negligently liable)
REMEDY for IMPERMISSIBLY suggestive, AND toherwise Not reliable In-Person identification (e.g. from a line-up
1) NOT admissible, if ID OUT-OF-COURT 2) BUT, IF In-COURT ID, and Prosecution proves with CCE that ID at trial was made from sources INDEPENDENT of lineup, THEN ADMISSIBLE. 3) AND IF illegal ID admitted, then appeals court applies HARMLESS error-
What are defenses to negligence per se?
1) NOT mere compliance with the statute (but note compliance with preemptive fed law may bar common law tort actions) 2) IMPOSSIBLE compliance 3) Violation justified by EMERGENCY 4) Reasonable violation, under the circs. (D's physical disability, incap, is a child, or exercised REASONABLE CARE IN ATTEMPTING to follow the statute) 5), Def is REASONABLY UNAWARE of the factual circs under which the statute imposes a duty 6) Statute/ordinance is extremely vague or ambiguous. 7) Violation by PLAINTIFF (Contributory negligence per se) 8) OR, Complying w/Statute might be MORE DANGEROUS than noncompliance.
Request for Admissions
1) NOTE: Can't use it for information you don't already know 2) Really for STREAMLING trial 3) Failure to respond to This REQUEST, IS AN ADMISSION (i.e. 30 days late) 4) Certification: ATTORNEY OF RECORD signs the response to this request to assert there is a REASONABLE basis, AND that the position is taken in GOOD FAITH. 5) But has NO ISSUE Preclusive (or collateral estoppel) effect - so can't be used in any other future litigation.
CL Marriage - is it recognized in NY?
1) NY ABOLISHED this arrangement. 2) HOWEVER, UNDER US Const.'s FULL FAITH AND CREDIT CLAUSE, NY DOES RECOGNIZE this performed (1) BEFORE 1933 (2) IN ANY STATE THAT RECOGNIZES THIS TYPE OF MARRIAGE, which is the date that NY abolished this right.
Minority Rule's factors (Judge Andrews)
1) Natural, continuous sequence bet. cause and effect 2) was the conduct a substantial factor in producing the harm 3) Direct connection, w/out intervention? 4) Was the cause likely to produce the effect 5) Could Def have FORESEEN harm to P 6) Is the cause TOO REMOTE in time and space?
Factors to determine whether there is a startling event
1) Nature of the event (event's nature) 2) Appearane, behavior, or condition of the declarant (declarant's look and actions) 3) The declarant's age and profession 4) Content of the declarant's statement itself 5) Declarant's physical proximity to OR psychological perspective of the event 6) Unsoliticited statement, OR response to a question (response = reflection! NOT an EU!)
Same Sex Marriage in NY (4 Key points)
1) No federal constitutional, statutory, or CL recognition of this right for this certain group 2) NY provides a statutory right, effective July 24, 2011 for this group to exercise the right 3) NY recognizes this right granted or act performed in other states 4) but NOT out-of-state civil unions for purposes of New York-based divorce actions.
Intent req for an express trust
1) No special lange required 2) Selttlor need only intent to split up title into equitable and legal title to property 3) MUST manifest either Before, OR at the time of the property's conveyance. NOTE: Owner either 1) Settlor expresses just mere wish or desire (i.e. just precatory language, which if, in a trust instrument, reflects a poorly-drafted trust instrument. 2) Failed gifts (that MAY be construed as a trust, to save the gift)
Statute of Frauds: the threshold Question
1) a barrier that some contracts must meet in order to become "real" (legally binding). 2) to prevent false assertions about a contract (in unusual or unique circs) that was never really created, 3) UNLESS the party asserting rights under the K can meet the higher and special form of proof required (typically, a writing signed by Def on purported deal.
Duress
1) an Improper threat that 2) deprives a party from making a meaningful choice to contract.
Contents of COI - what MAY be in the COI
1) enumeratecorporate powers that copr possesses, OR just rely on what BCL allows as IMPLIED powers 2) Exculpatory charter provision (absolves the DIrectrom from Pers Liablity for NEGLIGENT biz decision (BUT NOT bad faith, illegal, OR done for improper personal benefit 3) AND, other provision so long as LEGAL and RELATION to corp's biz or affairs
Consent under NY Law
2) if person operates a car 3)THEN, Def deemed to have consented to blood, breath, urine, or salive test for drugs and alcohol 4) IF cop has REASONABLE GROUND to beleive the D was operating the vehicle while INTOXICAED.
COMPLETE Diversity Rule
2--AND, depends on the
"Plain Feel" Exception
4A's warrant requirement NOT violated where during a valid frisk: A) in MBE: ANYTHING they can obviously identify, by FEEL, can be seized . B)--BUT in NY: ANYTHING they can obviously identify, by FEEL, can be seized . ONLY IF REASONABLE BELIEF that the item is a weapon.
NOT hearsay
801d1 - Prior witness statements (a) Prior Incon statement, made under oath at trial (b) Prior consistent statement to rebut charge of motive to fabricate (must be made BEFORE motive alleged, NOT after the charge) (c) Prior Witness ID 801d2 - Party Opponent Admissions
What is a demonstrative bequest or legacy?
A GENERAL devise that is satisfied from a particular source.
Define Choice of Law Clause
A K clause that defines which jurisdicitons law will apply in event of dispute between the contracting parties
Unilateral K and the acceptance that will suffice
A K in which the offeror promises to do something ONLY in return for completed perf.
Pre-Marital K is
A K with 1) consideration 2) Consent 3) Lack of Duress AND 4) If child support and CHild Custody covered, then MUST BE DECIDED BY COURT TO BE IN THE BIWOC)
Novation
A New k with exact terms as original K, but promoter is REPLACED by corp as a party to the K. AND 3P is NOT under obligation to agree to such a new K
Who has Standing to sue for TTL?
A P can sue for this IT if he is anyone with the right of POSSESSION (actual, constructive, incl. owner, lessee, or adverse possessor.
Repetitive Questions
A Q that has been asked and answered. Not permitted, UNLESS judge allows some repetition, paritcularly on Cross-Examination.
Impleader (Third-Party Practice)
A joinder procedure by which a party against whom a claim has been asserted (usually the defendant) may bring in a new party who may be liable to the original party for all or part of the claim. Original defendant becomes third party plaintiff while Impleaded Party becomes Third Party defendant - The TPP's claim must be sufficiently connected to main claim - TPD must be laible to TPP for ALL or FOR PART of Plaintiff's claim against the TPP
Partnership by Estoppel and liabilities to purported partner, partnership, or to a particular partner
A person is treated as if he were a partner in a partnership despite the fact that he is not in fact such. Results 1) To impose liability on the purported partner who is not really a partner 2) To impose liability on the partnership due to the actions of the purported partner 4 elements to recover damage against the PURPORTED PARTNER 1) Must be rep, oral or written, or via conduct, that person is a partner 2) The rep
Who are intended beneficiaries?
A person to whom D is liable if 1) legal or biz transaction 2) to which person is a part of 3) is prepared negligently 4) AND Def could foresee the harm of completing the transaction.
What is an Heir?
A person who (1) survives the decedent and (2) takes according to rules of intestate succession, meaning they fall within, from order of priority (i) Immediate family members (e.g., spouse, descendants/issues (children, grandchildren), (ii) THEN, ancestors (e.g., parents, grandparents), (iii) and THEN collaterals (e.g., siblings)) are usually the primary intestate takers
Definition of Invitee
A person who is on the property with the permission or consent of the landowner, or occupier and also comes onto the land for a particular purpose, thus leading to LP to owe a HIGHER standard o CARE to his person. Either one of Business or Public. And stays w/in Scope of LP's invite, or else becomes a
What does not count alone as PC , under NY Law
A person's flight upon an approaching officer, without more, does NOT create probable cause to arrest.
Life imprisoned inmate's marriage is...
...VOID, unless the inmate is released upon paroled or discharge.
What looks like Burden shifting from Prosec to Def on the elements of the criminal charges?
...WHere jdge instructs jury that it SHALL be presumed something, and that something goes to an element of the charged crime.
Depo of a Mere W can be used as
...used as a prior inconsistent staemetn to IMPEACH inconsistent testimony at trial. OR, where the W does NOT testify, and --is dead --or beyond court's subpoena power --or oterhwise unavailable --or W is more than 100 miles from place of trial
If there's no factual cause...
..then you have no proximate cause.
Type of third parties to look out for:
1) 3PBs 2) Assignee 3) OR, Delegation
Private necessity (PN)
1) A QUALIFIED privilege to use another's prop to (a) save lives or (b) MORE valuable prop, for a LIMITED NUMBER of people. 2) D must be preventing a threatened injury from a source of nature or other independent cause (i.e. D had NO control!) 3) NOT connected w/the Plaintiff Result: D can use P's prop to save his own life or save MORE valuable prop than P's prop. 4) INCOMPLETE privilege, b/c if P's prop is damaged during D's necessary acts, then P can recover ACTUAL damages. But NOT nominal damages (i.e. NOT for the offense to P's security and autonomy in P's property).
FIVE ways to establish Factual Cause
But-for test (no good for multiple D's and can't discern whose was required for, or in fact did cause, the harm; patient would've died anyway under bad or good med diagnosis); OR Substantial Factor Test; OR Concurrent tortfeasors contributing to an INDIVDIUAL injury; OR Alternative Causation; OR Concert of Action
Termination of a Trust - 2 flavors
By Consent or WITHOUT Consent note: AND may not be terminated by a court simply because the expense of administering the trust is uneconomical
Liability of FEDERAL Government and Its Officer
By statute, this government waives its immunity in tort actions, EXCEPT for: 1) certain ENUMERATED TORTS 2) Discretionary govt. planning or decision-making functions (NOT operations) 3) Law-abiding and govt-informing Govt contractor in a products liability case 4) Certain TRADITIONAL governmental activities 5) PUNITIVE DAMAGES.
Physical and Mental Exam (toughest to get; so invasive)
CAN be Required only of a party or a person in the legal custody or control of a party. NOT of a mere W AND, only if the physical or mental CONDITION is PUT in CONTROVERSY AND ONLY for GOOD CAUSE SHOWN
What are the Five WAYS TO CREATING AN EASEMENT?
CAN be created as: 1) Express 2) By Estoppel (from a license) 3) By Necessity 4) By Implication 4) Or by Prescription
SJ/LAJ basis - DEFAMATION Exception
CANNOT be based on commission of a tortiout act (i.e. the defamation) BUT CAN be based on the OTHER BASES for Long-Arm Statue jursidiction (e.g. Transactig Biz in NY basis)
EQD FOLLOWING ANNULMENT
CHILD SUPPORT MAINTENANCE ATTY FEES MUST STILL BE HANDLED AFTER THIS, EVEN IF NOT A DIVORCE.
Defenses against non-breaching party's suit (where formation and enforceability are not at issue)
Equitable defense like: laches or unclean hands
Negligence Per Se (heavily tested!!)
Exists where: 1) Criminal OR regulatory statue (or admin reg or local ordinance) imposes A SPECIFIC DUTY UPON D, for protecting/benefiting others; 2) D neglects to perform that duty; 3) D is liable in negligence to ANYONE in the CLASS of people intended for the statute's protection; 4) For any accidents or harms of the type the statute (lawmakers or admin agency) was INTENDED to protect against AND 5) such accidents/harms were PROXIMATLEY caused by D's violation of the given statute/ordinance
EXCEPTION to Foreseeable type of risk rule: Eggshell/Thin Skull/Shabby Mill RUle
Extent of damages never need to be foreseeable
For ITPJ, when is the privilege of Parental Discipline available to D?
For these ITs, D can assert this privilege if: 1) D is a parent (or educator with parent's unrestricted permission) 2) D uses reasonable force or imposes reasonable confinement 3)AND, D's force or conf is NECESSARY to discipline her child (factors: child's age, gravity of child's behavior)
Against ITPJ, when is Defense of Property allowed
For these ITs, D can enjoys this privilege if D 1) uses REASONABLE FORCE to defend realty or chattel (incl. (a) prevent or terminate another's UNNECESSARY INTRUSION on land; or (b) reclaim WRONGFULLY taken chattel) 2) reasonably believes the forces is necessary to prevent the tortious harm the realty or chattel 3) DOES NOT use DEADLY FORCE (e.g. not even a deadly device) 4) AND, if mistaken about an intrustion, the mistaken belief was a REASONABLE one.
Against ITPJ liability, when is a "Defense of Others" allowed?
For these ITs, D can exercise this privilege if D 1) use REASONABLE force 2) had reasonable BELIEF that the other party would be entitled to also use such reasonable force (e.g. to use SD) 3) use force that is reasonably PROPORTIONATE to expected harm to the other party 4) and has reasonable belief if acting on a MISTAKEN belief of third-party's endangerment.
Against ITPJ liability, when is D LIABLE for the injuries to bystanders (3Ps)?
For these ITs, D is LIABLE for bystanders' injuries when 1) D is NOT acting in self-defense 2) OR, D DELIBERATELY caused bystanders' injuries. 3) D was not NEGLIGENT w/respect to bystander.
Is an Initial Aggressor entitled to self-defense against ITPJ liability?
For these ITs, such a D is NOT entitled to self-defense privilege. EXCEPTION: P responded w/DEADLY force to D's NON-deadly force.
EXPRESSED Consent Defense to ITPJs (4 kinds and whether valid or not)
For these ITs, the following consents are valid defenses 1) Express Consent (and D stayed w/in scope) 2) Mistaken Consent not caused/known(and then acted on) by D 3) Fraudulent consent to merely a collateral matter 4) Consent under Duress as to threat of only future action (NOT present action)
For itpj, when is a PRIVATE CITIZEN entitled to Arrest Privilege?
For these ITs, this party has this privilege to use force (e.g. battery or FI), if: 1) to make an arrest 2) in case of ACTUALLY committed FELONY 3) and he has REASONABLE GROUNDS to suspect the arrestee committed it. 4) and holds NO MISTAKE as to COMMISSION OF THE FELONY 5) and, if mistaken as to felon's identity, that mistake must be reasonable.
For itpj, when is a COP entitled to Arrest Privilege?
For these ITs, this party must 1) have reasonable belief that FELONY was committed 2) that person he arrests COMMITTED that FELONY Not relevant whether this party was mistaken as to commission of a felony.
For FI, when is D's intent established?
For this IT, D must act w/Purp to confine, or KSC that confinement will result. NOTE: If no I or KSC, then possibly liability for Negligence grounds to this tort, but not its IT type.
For ITB, when is D's contact OFFENSIVE?
For this IT, D's contact is*****when a person of ordinary sensibilities (a reasonable person) would find the contact to be this*****. Exception (D knows P is hypersensitive, & D acts anyway)
For Assault, is P required to be aware of D's acts (incl. threat to act)?
For this IT, P must be aware of or have knowledge of D's acts.
For Battery, is P required to be aware of D's acts (incl. threat to act)?
For this IT, P need NOT be aware or know of D's acts.
For ASSAULT, when is HOBC considered IMMINENT
For this IT, bodily harmful contact or offensive contact is****when it occurs without significant delay.
IISED - when is DEF liable? - 3 elems
For this IT, def is liable when: 1) D intentionally OR recklessly 2) [D] acts with extreme OR outrageous conduct 3) and D's acts caused SEVERE ED to the PLAINTIFF
For IISED, what is NOT EOC?
For this IT, following is not enough to have ***** exist: mere insults, threats or indignities.
For IISED, how is intent established
For this IT, intent is where either: 1--D intended to cause the tort OR 2--D acts w/ Recklessness as to the risk that D would cause this tort
For Assault, are mere words enough?
For this IT, mere words are NOT enough to find this IT, unless the MWs are couple w/conduct or other circs showing D can put P in state of apprehension.
Causation for Battery exists when?
For this IT, the act must actually result in the HOC (e.g. def must initiate the chain of events that causes contact), DIRECTLY OR INDIRECTLY, and the D's act is a substantial factor in causing the HOC.
PRIVILEGES to defend against ITPJs (5 types)
For this IT, these****are: Self-Defense; Defense of Others; Defense of Property; Parental Privilege; Privilege of Arrest
For IISED, when is D's language considered EOC?
For this IT, this **** is more likely established if: 1---D's language and conduct are abusive and either a) D is in position of power or influence OVER P (e.g. cops, bosses, proprietors; mail carriers) b) OR P is a member of group w/known heightened sensitivity (young kids, pregnant, elderly)
For Assault, Are THREATS of FUTURE harm considered imminent
For this IT, threats of future harm are NOT considered imminent, and thus this IT is not established.
What is False Imprisonment (i.e. when established)?
For this IT: a. Def intends to confine or restrain another b. Within Def's fixed boundaries c. Def's actions directly or indirectly result in the confinement d. The victim is either conscious of the confinement, or harmed by it.
4 Damages rules for ASSAULT
For this IT: 1--Not required for P to prove actual damages; 2--Can get NOMINAL damages; 3---when proper, P gets PUNITIVE damages; 4--if physically harmed b/c of the assault (e.g. heart attack after the assault), may get ACTUAL Damages from physical harm.
Intent required for Assault
For this IT: D must intend to cause (1) P's apprehension of IMMINENT HOC, OR (2) actual HOC w/ the Victim
For FI, When does time of confinement matter?
For this Tort, Time of confinement is immaterial, EXCEPT for determining the damages recoverable to P.
What counts as Contact for an ITB?
For this Tort, you have****when anything is CONNECTED TO PLAINTIFF'S PERSON. Can be direct or indirect
Criminal Nuisance
Here a person MUST: (i) knowingly, (ii) maintain a premises, (iii) where persons gather to engage in unlawful conduct, OR, (i) knowingly or recklessly, (b) by conduct unlawful or unreasonable, (iii) maintain a condition, (iv) that endangers the health or safety of numerous persons. AND (v) elevated to first-degree IF there is a sale of controlled substances as the unlawful conduct.
Disclosure (NY's Discovery rule)
Here full disclosure is required of all matters that are MATERIAL and NECESSARY to teh PROSECUTION or DEFENSE in the matter. - Note: Courts with Broad Discretion Limitations: MUST be timely raised, OR ELSE they are WAIVED.
Defenses to LIABILITY (i.e. Enforcement under the K)
Here, the party assert there is some supervening event or change in circs AFTER K formation. RESULT: The K's party should be discharged from his duty to perform his contracted promise. And Is not liable on the basis of that contract. 1) Impracticability 2) OR, Frustration of Purpose 3) OR, Rescission 4) OR, Release 5) OR,(for delivery of goods) Destruction or Injury to Identified Goods
Anticipatory Repudiation under UCC
Here, this is established only if: 1) Buyer has reasonable grounds for insecurity about the seller's performance 2) Buyer demands ADEQUATE ASSURANCE of performance 3) AND, Seller DOES NOT respond to that demand WITHIN A REASONABLE TIME RESULT: If all 3 met: then Buyer can treat the failure to respond in reasonable time as ANTICIPATORY REPUDIATION, and seek recovery options where proper:
Rule for making Jury Selection Challenges
D must show 1) Group exlcuded is a DISTINCTIVE group in the community (i.e. violates the cross-section req 2) and, the group was not fairly repped inthe venire; 3) and underrep resulted from systematic exclusion of the group in the selection process Rule statement: In order to challenge a jury on the basis of violation of the cross-section requirement, it must be shown that a distinctive group in the community was not fairly represented in the venire from which the jury was chosen due to the systematic exclusion of the group from the selection process. BUT: Prosecution can rebut by showing the disproprotionate exclusion MANIFESTLY AND PRIMARLY ADVANCES a SIGNIFCANT INTEREST
SOC for Bailees (temporary takers of possession)
IF bailor receives SOLE benefit from bailment, then Bailee's duty is a LESSER duty of care. Liable only if Bailee is GROSSLY negligent. (lower ground) IF BAILEE receives the sole benefit from the bailement, then BAILEE must exercise EXTRAORDINARY care for bailor's prop. Liability for even SLIGHT negligence. (higher ground) If MUTUAL BENEFIT, then bailee exercises the ORDINARY or General Duty of Care (e.g. think middle ground)
Definition for a Design Defect
Depends on jurisdiction this is determined by either: 1) Consumer Expectation Test (Does (I) prod have a condition (ii) not contemplated by ordinary consumer, (iii) that is unreasonably dangerous to that consumer? OR 2) Risk-Utility Test ((1) do the product's risks OUTWEIGH ITS BENEFITS, (2) AND was there a reasonable alternative design available, (3) AND did the failure to use that design has rendered the product not reasonably safe; AND (4) the alternative design was economically feasible)
SNP determination
Depends on the positivity or negativity of the surplus (in latter, solvency must exist) Surplus: Amount determined by looking at the corporation's BALANCE SHEET Surplus = Total Assets - Total Liabilities - Stated Capital Net Profits - Amount determined by looking at corp's profit/loss (or income) statement
Can the initial counterparties revoke or modify away the third-party's right to enforce the contract?
Depends on whether (a) THE THIRD PARY knows about the promise, AND (B) has changed her position in reasonable reliance on the promise. RESULT: If so, the 3PB may be able to make out a claim under promissory estoppel. AND, The parties CANNOT MODIFY OR REVOKE the Third-party's right ot enforce the K.
Where If K rights are ASSIGNED TWICE?
Depends on whether the assignee has paid consideration for the rights
Jury Instructions
Directions given to the jury by the judge just before she sends the jurors out to deliberate and return a verdict, explaining the law that applies in the case and spelling out what must be proven and by whom.
Conversion Tort (CT) (intent, act, the item)
IT is established if 1) D intentionally wants to deprive plaintiff of possession of chattel, OR wants to interfere with P's chattel in way so serious to deprive P of using that chattel (not necessary to intend damage) 2) D either deprive P of possession, OR interferes so as to deprive P of use. 3) the item is a chattel--tangible personal prop OR intangibles that are REDUCED TO PHYSICAL form (e.g. promissory note).
Past Recollection Recorded (Recorded Recollection)
If W can't testify about amatter b/c of inadeqeuate memory, but a record exists, then that record may be read to jury if: 1) the record concerns a matter about which the W once had knowledge; 2) The record was prepared by W when the matter was FRESH in W's memory 3) record accurately refelct W's knowledge; and 4) W states that now she insufficient recollection of the event to testify fully and accurately (aeven after consulting the writing whil eon the stand)
wHEN CAN DV pop up in certain matters?
In 1) Fault ground of Cruel and Inhuman Tremant 2) Mandatory consideration for CHild Custody 3) Discreationary consideration for Child Custody 4) IF Extreme version of this for Mainteance 5) Basis regrading change in Jurisdiction to decide previous child support or custody award 6) Or relocation 7) Or basis of family offenses
NY approach to jury size
In FELONY trilas: must have 12 jurors and up to 4 alternaties
Right of Reverter - is it self-executing (i.e. automatic?)
In NY, this future interest does not transfer to its Grantor automatically, unlike in other jurisdictions, rather, the Grantor, upon the occurrence of the stated condition, MUST file a petition with the court to restore possession of the property
MODERN TREND FOR SOC
Disregard the level of care, and the relationship. FOCUS ON CIRCS, in light of which D's conduct is measured by standard of reasonable care.
Termination by consent in two circs
Either in REVOCABLE IVT (lifetime trust) - terminated by the settlor, pursuant to the terms of the trust OR IRREVOCABLE trust Can be terminated with the consent of the SETTLOR; AND the BENEFICIARIES. NY: A remainder in heirs or next of kin does NOT create a beneficial interest requiring consent.
Domestic Relations Cases Requirements imposed on ME
In such cases I'm required to: 1) Provide my prospective client a statement of Client's Rights and Responsiblities AT INTIAL CONF, and BEFORE signing written retainer K 2) IF going to rep client, then provide a written reatianer 3) Signed by me 4) Signed by the client (reflects informed consent) 5) Retainer sets for nature of relationship 6) Detail s the fee arrangement 7) AND IF I want security interest or lien on client's property for fee deficit collection, THEN (a) MUST include prior NOTICE in that SIGND Retainer (b) Plus ontice to the adversary and (c) Plus COurt Approval
Special Provsion for Federal Venue, p. 32-33
In sutis begin in state court and removed to federal cour, venue is automatically proper in the DISTRICT WHERE the STATE court sits, even if that would otherwise not be so.
What is a Trust?
It is an instrument created by a SETTLOR for managing property whereby BIFURCATED TRANSFER exists: one person, as a trustee, owns property via legal title, for the benefit of another person, called the beneficiary, who hold equitable title. AND, it can be created either inter vivos (during the lifetime of its creator) or upon the deceased settlor's death as part of his will.
Defenition of USURY:
It is the act of lending money at an interest rate in excess of the legal limit. If a bank or association is a usurious lender, only the interest, not the principal, is forfeited.
Definitiotn of K Remedies
Meant to compensate the nonbreaching party for actual economic losses. Actual economic losses are calculated depending on how the contract was formed (e.g., through consideration or through promissory estoppel) and what type of contract it was (e.g., sale of goods versus services).
How to measure SOL Commencement of Action date is, for SOL purpose...
Measured from Time of Accrual, to the Day the Action is COMMENCED (For SOL purposes, this is THE DROP DEAD DEADLINE DATE!)
Permissive Joinder of Claims
NEED Not be related, just need a common defendant
Is Granting Land enough for state action?
NO
Oral Depositions
NO LIMIT, UNLIKE FRCP PROVIDE 10 days
Availability of Interrogatories
NO limits, but courtr can limit this number o protect party from annoyance, expense, aembaraassment, or oppression.
Catch-All Exception
NOT in NY, must either 1) meet one of the exceptions OR 2) be a civil matters, and where writings necessary to determine the issue, 3) then admissible either as impeachment OR as substantive evidence, IF Statement must be written under conditions that assure accuracy and truth; Statement must be necessary to fairly adjudicate the issue ; but victim statements are USUALLY NOT admissible.
Corp by Estoppel doc?
NOT recognized in NY So, a person who THINKS he's dealing with a corp does NOT estop that person from suing the defective corp's OWNER PERSONALLY.
Commencement of an Action and Service of Process
NOTE: Develop THREE LINES of Ways(i.e. Courts) where commencement of action is estabished
Name of NY statute that governs
NY Domestic Relations Law
Quorum Reqs
NY: Majority of all outstanding voting shares will establish this. Def: This is the CRITICAL MASS of shares required to be present (in person or by rpoxy) at the SH meeting, in order for SHs to take legally binding action on the corp When a certain class or series of SHs are entitled to a separate class vote, then need majority of shares of such class/series. COI or BYLaws can specific a quorum as less as 1/3 (no lesser) of all voiting OUTS shares ONLY COI can provide for a majority GREATER than a simple majority Once QRM met, not broken if SH leaves.
BPER (2nd step) e.g. POE, or CCE in civil cases; Crim has PBRD
AFter BPOC, this requires you to persuade the fact find (or jury) that you actually each element of the case.
At CL, is Legal Impossiblity a defense to Arson
AT CL, YES. Mistake to what element is
SOC for COMMON CARRIERS AND INKEEPERS
AT CL: mostly hold this class of Ds to UTMOST/HIGHESTduty of care (i.e. liable for even "slight negligence") to their customers or guests Majority: Still higher than GDOC, but now liable only for ORDINARY negligence RST: General Duty of REASONABLE Care based on SPECIAL relationship, and regarding risks arising out that relationship between D and its customers/guests
What are the ways to INVOLUNTARILY TERMINATE Parental Rights before securing adoption?
Abanonment for at least 6 month before the adoption action OR Pemanent neglect for period of ONE YEAR OR ABUSE of the child or a sibling. BOP standard (on the party seeking the termination) : Clear and Convincing Evidence
Privilege goal
About protecting relationships OUTside of the trial or case, so certain evidence that may help at ril is excluded in order to protect those relationships.
Foreign Country Divorces (NY as minority approach)
Absent Fraud or a STRONG violation of public policy: 1) a FOREIGN divorce is recognized, and; 2) a party cannot attack the judgmenet's valididty, IF: (a) the party properly appeared in the FOREGIN-BASED action; and (b) petitioning spouses met the resient req of teh FOREIGN country, BUT 3) NY does NOT recognize mail-order divorces, OR EX PARTE FOREIGN DIVORCES
Mod under UCC
B/c no PED followed, this is allowed under UCC WITHOUT ADDTL C, so long as 1) Made in GOOD FAITH (honest-in-fact, not bad-faith or exploitation; one side using illegit; trying to extract more than what already Ked for)
Offers to Pay medical expenses
Bars evidenc of actual payment for or offers to pay med expenses to sho liability; BUT statements made accompnaying the payment of or offer to pay expenses are admissible.
NECESSITY
Under CL, 1) Force of Nature 2) Caused Def to commit what would otherwise be a crime 3) THEN, may be justifiable
Definition of Reasonable Suspicion
This is a justification and standard that 1) is less than probable cause, 2) and thus it need not be based on PERSONAL knowledge. 3) and can be based on informant's tip, IF that tip also has sufficient indicia of reliablity.
What is a Fee on Limitation
This is a present fee simple estate that is a defeasible fee limited by specific DURATIONAL LANGUAGE, so that: (1) this defeasible fee terminates automatically upon the happening of a stated condition (2) AND full ownership of the proeprty is returned to the garnator. (3) AND remains alienable, devisable, and descendible, But still subject to the stated condition. - so long as - while - during - until
what is a CHATTEL for purpose of Conversion?
This is either 1) tangible personal property, or 2) intangible property that has been reduced to a physical form.
When is a restraint on alienation valid?
This is enforceable IF (1) it is for a LIMITED TIME; and (2) for a REASONABLE PURPOSE RESULT: Any attempt to transfer the property will be rejected.
Mistake of the Law "Ignorance of the law is NO excuse"
This is generally NOT a defense to criminal liability.
Once you establish a Duty, then you establish...
Once this threshold is established, then assess WHAT level or kind of STANDARD of Care should be EXERCISED.
Bilateral K and the acceptance that will suffice
One in which a promise by one party ie echagned for a promise by the other party. When an offer requires this, then that offer can be accepted by either: a) a return promise (expressed) OR b) the offeree simply commencing perf, which operates as a promissory act, or an implied promise by the offerree (effect: Offeree MUST complete perf. Can't abandon, or else possible Breach).
Number of Votes
One vote per one share, UNLESS changed in COI AND if More than one stock CLASS or SERIES, then COI MUST delineate voting powers
Peremptory challenges
Only 3 to each side
Physical and Mental Examinations
Only for an action in which the physical or mentl state or blood relationship of a party is in question (e.g. paternity action 1) ONLY the party Or agents, employees, and those in party's control 2) Mental or Physical State must be GENUINELY in controery 3) and more...
Forms of Motions
Oral or in writing Ex parte On Notice Served Notice Expedited
Unchangeable rule of Partner Duties - Unlimited Liability, Agency Duties, Profit and Loss Sharing; No Comp generally, Capital Contrib; Reimbursement entitlement; indemnification
Partners are personally liable where partnership does NOT have assets to pay a judgment.
K Liability rule
Partnership acts through it agents (partners, and employees, if any), and each partner has the ability to bind the partnership to a K, so long as the partner, at time of K formation, acts with ACUTAL or APPARENT AUTHORITY
THREE types of SPOUSAL MAINTENANCE (SPM); and the test;
Pendente Lite - IMMEDIATE Support ONLY during the divorce action, and before finalization of divorce decree. OR; short term SPM (PREFERRED IN NY) OR LONG -TERM SPM - as long as indefinitely TEST IS THE ACTUAL LIVING STANDARDS (FACTOR-BASED, BUT ALSO A CATCH ALL FACTOR - ANYTHING JUST AND PROPER) and note: interplay between SPM and EQD
Fee Sharing
Permitted where 1) Lawers NOT in the same firm 2) Kick MUST be disclosed to client in writing 3) (a) Referring lawyer MUST ACTUALLY provide services, OR (b) have joint responsibility for the matter
Transfer of Membership Interests
Perosnal Prop, so transferable, subjec to reasonable restrictions Transferee is NOT entitled to partiicipate in management, just acquires financial or economic rights (right to share in P/Ls and to get distributions) Default rule -Need holders of a majority of membership interests consent to transferee beocming a member can transferee gain management and control attributes of the transferred interests.
Rule statement for Strict liability against a Possessor of a Wild Animal
Person who possess this item will be held strictly liable for harm done by such item, even if he took precautions to either confine the item or to prevent the harm IF: 1) the harm arises from a dangerous propensity 2) that is either (i) a feature to such animal, or (ii) of which the owner has reason to know 3)AND owner has control over the animal 4) and P does NOT KNOWINGLY do anything to bring about P's injury NOte: D still liable even if P fearfully reacts to sight of unrestrained item.
General rule on Jurisdiction and Ex Parte Divorces VS. NY APPROACH
Personal jurisdiction over a non-resident defendant is not necessary for a court to grant a divorce terminating the marriage when the court has jurisdiction over the marriage itself (referred to as an ex parte divorce). BUT NY APPROACH: New York grants full faith and credit to a valid divorce from another state even if the grounds would have been insufficient had the party filed in New York.
Damages for CT
Plaintiff can seek either: 1) Damages for full value of CONVERTED prop 2) OR, action for REPLEVIN to recover the chattel.
Retraction of Repudiation under CL
Possible where: (1) Notice is sufficient enough to allow for the performance of the promisee's obligations. AND (2) BEFORE the promisee either: (i) acts in reliance on the repudiation, (ii) signifies acceptance of the repudiation, or (iii) commences an action for breach of contract.
Presumptions - Rebuttable Presumption
Procedural devies of STATE law Effect is to shift the burden of PRODUCTION, where 1) Upon prov of prelim facts 2) then Jury is Told to ACCEPT the presumed fact 3) Then shift Burden of Production 3) BUT can be overcome by conrary evidence (i.e. allowed to present such ev. 4) AND IF done, then the "Bubble Burst", presumption has been rebutted and eliminated.
Manufacturing Defect
Product differs from all others that came off the same assembly line, and product failed to perform as safely as an ordinary consumer would expect. -STRICT LIABILITY ... CAREFUL INSPECTION, ETC DOES NOT MATTER
Scope Of Discovery
RELEVANCE is the standard exceptions for Evidentiary Privileges (atty-client) AND, Work Product Rule (docs and things, not information, and NOT if there is necessity)
NY recognize which other JT
REcognizes TBE, which stop a spouse from unilaterally conveying the property. Property held under TBE can conveyed ONLY with the consent of BOTH spouses
Suspect Class
Race, National Origin, Alienage
ACP in NY
Recognized, with two exceptions (i.e. about dead people) - Not estate's beneficiary (b/c not the estate attorney's client
What is the firefighter's rule?
Recovery is Barred from D's negligent conduct where 1) certain emergency profs, like cops or firefighters 2) suffer injury caused by D's N conduct, 3) BUT, the injury is also an INHERENT RISK of that prof's job.
Certification Req - Rule 11
Requires Attorney's signature , proper legal and factual bais to file warranted by existing law or non-silly arg for change in the law allegations have evidentiary support or reasonably based on lack of ino or belief (i.e. for denials) filing made after reasonable inquiry and good faith If not true: attorney can pay cost for improper filing. An attorney must sign the documents. attorney may be sanctioned for a false certification.
Consent
Requires SH to get consent of all other SHs or the Corps' before selling to other NOT enforceable if the SHs or Corps have sole and absolute discretion to keep their consent. Only enforceable is reasonably withheld
Products Liability (Rest)
Restatement 2d Torts §402 (A) A commercial seller is strictly liable for any defective condition unreasonably dangerous existing at the time of sale. Class of Plaintiffs--- any foreseeable user, consumer, or bystander. Privity is not required.
For Incompetents - Domicility
Retains parents' domicile for lacking cap to choose one's own Prior Choices - Keeps the domicile previously selected before the loss of one's legal cap to chose.
5th Amendment
Right against Self-Incrimination. Miranda. Due Process. Incorporates 14th to Feds.
Negative Easement
Right to prohibit another from doing something on his own land. Within SOF. In U.S., can't be acquired by prescription. Four traditional types: 1. Those that prevented blocking windows; 2. Those that prevented blocking air that flowed in a defined channel; 3. Those that prevented blocking water that flowed in a defined channel; 4. Those that prevented removing support from a building.
Vicarious Admissions (Statement by a Party Opponet's Agents) Whether or not the Declarant is available.
Statements made by a party's agents, employees, or speaking agents (e.g., PR reps, lawyers) will be treated as a party's statement (if the statements were made within the _scope of employment).
Statments made for purposes of medical diagnosis or treatment
Statements that describe a declarant's medical history or past or present symptoms are admissible if made for the purpose of getting medical diagnosis or treatment. o Statement of the cause or source of a medical issue is admissible if it is reasonably pertinent to diagnosis or treatment.
My Legs (SOFs)
Statue of Frauds Marriage > 1 Year Land Executors (to pay estate debt out of personal funds) Goods > $500 Surety (pay the debt of another person)
Three sources for Choice-of-law determinations
Statutes OR, K provisions or Case Law
Tenant's liability
T is liable b/c assume duty owed by lessor once T occupies the land, and the DANGEROUS conditions are within T's control. In latter, does not matter if the LP has liability.
Relevance -FRE 402
THRESHOLD - Evidence must be relevant to be admissible, and admissble ad such, UNLESS excluded by a specific rule (LOW threshold) STANDARD - ANY TENDENCY to make any fact of Consequence more or less PROBABLE than the fact would be without the evidence. Definition - To be relevant, MUST be both probative, AND material Probative (related to some issue in the case) Material (having a tendency to prove or disprove some fact).
Remedies for unmarketable Title, NOT due to Seller's Fault And buyer's remedies
THe Seller's remedies here, assuming no fault by the seller: 1) Reocvery purchase of moneys paid] 2) Expense of Title Examination 3) Nominal Damages vs. BUYER'S REMEDIES Recover down payment Can walk awy from the PSK, not required to close Reocover Payment for expenses to the title search
Common fact pattern that test the creation of power of acceptance
THese are 1) Invitations to deal (NOT offers, b/c these are prelim comms that still reserve a final round of approval with the speaker, i.e. no power of acceptance conferred to the speaker's listener; e.g. Advertisements) 2) Ads, UNLESS they are Reward Ads OR AD that are a) very specific, and b) leave NOTHING open to negotiation (such has how acceptance can occur).
Compound Questions
THese are Qs that require an swer to several questions. NOT permitted
NY Rules on FOREIGN DIVORCES
THese kind of divorces are enforceable in NY if: 1) Finalized in foreign country 2) Parties properly appeared to that action in the foreign country 3) and the Petitioning spouse was a RESIDENT of that county. 4) AND such divorce was NOT EX PARTE 5) AND NOT a mail order one
UNILATERAL MISTAKE
THis is a msitake that lets the adversly affected party rescind IF: 1) She can prove all of the elements of mutual mistake; PLUS 2) a The mistake would make the K unconscionable; OR b) the other side (i) knew of the mistake, (ii) had reason to know of the mistake, OR (iii) caused the mistake.
Separation K - which court has jurisdiction over this
The SUpreme court has jurisidction, b/c this is a K
Delegation
The Transfer of DUTIES AND OBLIGATIONS under a K
Definition of Assignment (on MBE, also refers to Delegation)
The Transfer of Rights under a K
Recall Recorded Recollection...if you use a letter (with multiple statement from diff declarants) to refresh recollection, is that allowed or not?
This IS allowed, provided the proponent does not seek admission of the evidence. Otherwise, propopent (who MUST be the ADVERSE party, see rule 803(5), supra) MUST find a proper hearsay. exception for admitting EVERY statement, per 805.
Who can bring TTC?
This IT can be brought by anyone with possession or immediate right to possession.
Trespass to Chattels (TTC) established when:
This IT exist when D: 1)D intentionally interferes with plaintiff's right of possession... 2)....to a tangible personal property (TPP) 3) and D's deliberate interference occurs either by (a) dispossessing P of the TPP or (b) D's using or intermeddling w/P's TPP NOte: Mistake NOT a defense
ASSAULT
This IT is P's reasonable APPREHENSION of an IMMINENT HOBC caused by 1) D's action, or D's threat, and 2) w/D's intent to cause either the contact or the apprenension of that contact.
Intent for TTC
This IT requires intent that D intended to do the interfering ACT, not the intent to interfere with P's possession of P's TPP.
What is a Gift
This a promise that does not induce the recipient to suffer a detriment or make a promise in bargained-for exchange. ANother type of this: It is conditional.
Waiver of 6ARC, MBE
This action: 1) Establishes right to proceed pro se 2) And can be done ONLY IF a - Voluntary (you weren't coerced) b - Knowing (e.g. you were first told the Miranda Warnings/specifically right to counsel) c- and Intelligent (e.g. you understood that) RESULT: VALID
AOR - Unreasonably proceeding in face of KNOWN, SPECIFIC RISK
This affirmative defense is available to D if 1) P voluntarily encounters 2) and unreasonably encounters 3) a known risk 4) that is also specific
Class Actions, definition, pg. 68-69
This an action where the court authorizes a single person or a small group of people to represent the interests of a larger group. This is governed under FRCP Rule 23 and teh Class Action Fairness Act of 2005.
What are 3 DIfferent ways to TERMINATE a Marriage?
This arrangement, when valid, only terminated by: (1) Annulment (2) Divorce (3) Death of one spouse or both spouses
Burden of Proof (2-step)
This burden comprises TWO disntnct ones that both must be met: 1) Burden of Pleading (procedural, not evidentiary) 2) Burden of Production 3) and then Burden of Persuasion
Promising not to sue (e.g. setlement of legal claim)
This can be C if 1) There is an HONEST BELEIF in the legal claim's valdidty (Subjective; Honest-in-fact) 2) AND a REASONABLE BASIS for that belief (Objective test)
TEST for Satisfyng SOF
This can be met either by: PERFORMANCE OR HAVING A WRITING
1st Degree AGGRAVATED harassment in NY
This is 2nd degree, provided it is motivated by the victim's race, national origin, gender, religion, age, disability, or sexual orientation, COMBINED with: i) Over $50 in damages to religious premises; ii) A previous conviction of aggravated harassment within 10 years; iii) Placement of a swastika or a noose on a building without permission of the owner; or iv) Setting a cross on fire in public. N.Y. Penal Law § 240.31.
NY Rule for Holdover Tenant's conversion to IMPLIED month-to-month tenancy
This is CREATED if 1) From a Holdover tenant 2) Tenant continues to pay rent during holdover 3) AND LL accepts the payment of rent. And TERMINATED only with notice within 30 days of intended last month
Remedies for Conversion
This is FMV of the goods At the time of the buyer's dominion and control over the goods
Mayhem
This is INTENTIONAL BODILY MUTILATION (i.e. a Specific intent crime!) The intentional and wanton removal of a body part that would handicap a person's ability to defend himself in combat. The meaning of the crime later expanded to encompass any mutilation, disfigurement, or crippling act done using any instrument. For a defendant to be guilty: 1) he must act intentionally, and 2) the resulting injury must be extremely serious.
Is P's "Coming to the Nuisance" AFTER D a defense?
This is NOT a defense, even if D
6ARJT in NY law
This is NOT waivable in NY where D faces a charge of FIRST-DEGREE murder
What is a CREDITOR B?
This is a 3PB where the promisee strikes a deal with promisor in order to repay at some earlier debt to the third party.
What is a Divorce
This is a COURT-GRANTED, LEGAL DISSOLUTION OF a Marriage. Jurisidction -- Supreme Court holds EXCLUSIVE jurisdiction over Divorce and Equitable Distirbution Matters.
Personal Jurisdiction
This is the court's authority over of the person or property before the court, governed by applicable New York statutes, and the US Constitution's Due Process Clauses In form of General, OR Specific BOP first on DEF, in DEF's PLEADINGS IF DEF proves court LACKS this, then Burden SHIFTS TO PLAINTIFF to prove Court has this over Def If NOT Raised timely by Def (i.e. IN THE PLEADINGS stage, pre-answer motion or answer), then Def WAIVER ALL objections to lack of this! Aside: Three forms of consenting to this 1) By Statute (esp. Specific, also Gen) 2) By Waiver (Spec or Gen: the pleadings say NOTHING!) 3) By Contract (K's FORUM SELECTION clause)
What is Curtilage?
This is the land closely associated with a dwelling - buildings and yard associated with a dwelling like a house, garage, front yard, and back yard. 1) BUT NOT OPEN FIELDS 2) Or anything else BEYOND the curtilage.
Liability of highly-ranked officials (lawmakers, judges, prosecutors, and certain exec cabinet officials)
This party is usually ABSOLUTELY IMMUNE from PERSONAL liability if performing their official functions.
If there are conditions in a contract, and the party subject to the conditions ASSENTED to them?
This party mUST exercise GOOD-FAITH, because the court is gonna imply it if there's a dispute!!
VL rules for AUTOMOBILE OWNERS
This party may be VL for acts of driver or user to whom car or other prop was entrusted if: 1) owner knew or should've know of driver's NEGLIGENT PROPENSITIES. 2) OR, family member was driving the car with permission (need statute or CL's fam purpose doctrine) 3) OR, ANYONE driving the car with permission (need statute)
Duty for Completing Performance for Purchaser of a Foreclosed Property
This party must stilll complete performance even where the Defects of title were APPARENT b/c he or she had NOTICE at the time the party bidded on this property.
When are Rescuers foreseeable plaintiffs?
This person becomes a foreseeable plaintiff when he comes to the aid of another, whose negligent conduct places either a rescued party or the person himself in danger. NOTE:Mitigation of this person's(comparative liability purposes): where the person's efforts to aid are unreasonable.
Confidential Marital Communications
This protects communication made DURING a marriage Held by BOTH spouses (so long as comms kept confidential Invokable in Civil AND CRIMINL casess Scope: Invocable EVEN AFTER the marriage has ENDED (as long those comms were MARITAL comms, not PRE- or POST- comms.) Excptions CMI does not apply if a spouse is suing the other, OR when one spouse is charged with a crime against hte other spouse or children of EITHER of them.
When is a Doctor FREED FROM TORT LIABILITY for FAILURE TO PERFORM an ABORTION? (4 elements)
This relief from a certain liability is avaialble to the defendant IF: 1) He's a licensed Doctor 2) He refused to participate in an abortion 3) Refusal based on Religious beliefs, OR personal beliefes 4) AND Physician files such information on his religious or personal beleifs withthe PROPER ENTITY at which the doctor practice.
Kidnapping (civil, international)
This relies on Hague Convention (civil)
Exceptions to Physical Injury req. of NIEDRPH
This requirement need not be met where: 1) D misinformed someone that a family member has died; or 2) negligent mishandling of a corpse.
Definition for BARGAINED-FOR Consideration
This requires a deal in which 1) the parties exchange promises 2) involving EITHER (a) Some legal detriment [to promisee] (refraining from something you have a legal right TO DO, or doing something you have a legal right NOT to do); OR (b) benefit [to promisor] between the parties; 3) And EITHER the detriment OR benefit were a bargained for exchange 3) Regardless of the objective value of the benefit to the promisor. (courts do NOT evaluate the ADEQUACY of the consideration).
Physical Invasion for TTL
This result does NOT require D herself to physically enter the land (including OVER OR UNDER, OR ACROSS the LAND's SURFACE). Rather, it can be either 1) D's herself 2) OR,
Mistake of FACT (commonly tested on the bar)
This type of mistake (and DEFENSE) exist if the defedant's mistake NEGATES the REQUIRED MENS REA.
Definition for IMPLIED warranty of Merchantability
This type of warranty provides that ordinary purposes for which it is being sold. PLUS, The seller must be a merchant with respect to the kind of goods at issue.
When does a Retrial VIOLATE the Double Jeopardy Clause?
This violates the Double Jeopardy clause where it occurs: 1) After reversal DUE TO insufficiency of th evidence 2) AFter a mistrial WITHOUT manifest necessity for declaring that mistrial 3) OR, After mistrial, IF the jury hangs WITHt a judge declaring an ACQUITTAL afterwards
Double Jeopardy under NY Law, and 3 exceptions
This violation occurs in NY if 1) THere are crimes arising out of a single or same transaction 2) They are NOT tried together HOWEVER, No such violation if 1) One crime concerns possession, And the other concerns use; 2) OR, Each offense has DIFFERENT elements (e.g. conspiracy vs. burglary) 3) OR, Each offense involves the death or injury to DIFFERENT victims.
What is the DUE Process right to Fair Trial
Under 14A (to States) and 5A (to Feds), there a guarantee to a fair trial: (1) for A criminal defendant (2) to an impartial judge (3) an impartial jury (4) AND, consideration ONLY OF EVIDENCE PRESENTED AT TRIAL.
Administrative Searches (i.e do NOT violate the 4A) (Long LIST!!)
Under 4A, the following searches do NOT REQUIRE a warrant before conducting them: 1) Search of a business in a highly-regulated industry 2) Search of a student by school officials 3) Drug testing of a railroad worker who is involved in an accident
Additonal Rquirements for the Warrant, AFTER establishing Probable Cuase
Under 4A, this must 1) Have PC 2) State objects or place to be searched 3) and do so with SUFFICIENT PARTICULARITY 4) And that search does NOT go beyond the warrant's scope 5) But NOT necessary to specify the manner of execution
Merger rule, under CL
Under CL and MBE, If a crime is completed, you CANNOT charge def with both 1) the underlying crime and with either 2a - solicitation or 2b - attempt BUT 3) you can charge the SEPARATE crime of CONSPIRACY
Definition for a Homicide
Under CL and NY PL, this is the unlawful killing of another human being.
Defense of Property CL Rule and NY Rule
Under CL and NY, you can only NON-DEADLY FORCE to assert this defense.
Indemnification and VL
Under CL, a D who discharges VL (i.e. pays off his VL) is ENTITLED to indemnity from the actual wrongdoer who was mainly responsible for the harm. This indemnity is a complete reimbursement, recoverable when: 1) there is a PRIOR indemnification agreement; 2) OR, SIGNIFICANT DIFF between each def's blameworthiness so that EQUITY requires shift of loss to MORE blameworthy D (NOTE: rejected in Comparative Negligence systems , just apportion damages based on relative fault); 3) OR significant ADDTL HARM is later caused by ANOTHER tortfeasor (e.g. pay for addtl harm of doc's malpratice) 4) OR, for Strict PL, each supplier has right of indemnification against ALL past supplies in the DISTRIBUTION chain.
PCN doctrine's effect on P's actual recovery
Under NY CL,, to determine P's actual recovery, P's full damages are 1) calculated by the trier of fact 2) then reduced by proportion that P's fault bears for the total harm 3) appears numerically as P's full damages - (P's full damages * Percentage of fault attributable to P) = P's reduced damages (e.g. P's actual recovery)
Whch court has jurisiction or the power to grant divorces, and refer incidental matters (support, custody, or parenting) to the FAMILY court?
Under NY CPLR 105(p), the NY SUPREME Court grants these judgments, and makes these referrals.
NY statutory "Equitable Share" Rule on JSL for NON-ECON Damages
Under NY CPLR 1601, a tortfeasor who is FOUND 50% OR LESS at fault is responsible for only his "equitable share" (relative culpability of each contributor to the total liability for NON-ECON DAMAGES) of P's nonecon damages (pain and suffering)
What is a marriage license?
Under NY DRL 1) This is an authorization from the government for two eligible persons to get married. 2) Imposes NO waiting period 3) Effective 24 hours after it is ssued 4) BUT expires after 60 days.
Recrimination
Under NY DRL, this defense exists when (1) AFFIRMATIVELY PLED (2) AND, BOTH spouses committed a marital wrongdoing of LIKE CONDUCT (i.e. both parties are guilty of the same offense THAT would justify a divorce). DEFENSE TO: 1) ADULTERY, OR ANY OF THE MARITAL WRONGDOING ALLEGED
Connivance/CONSENT
Under NY DRL, this defense is a consent of a participation in the marital wrong. Elements: 1) a marital wrong 2) BUT moving party CONSENTED to it. RESULT: 1) COMPLETE DEFENSE to ADULTERY 2) DEFENSE TO ABANDONMENT
NY Rule for Emergency Profession's Liability (i.e. CL's Firefighter's Rule)
Under NY General Obligations Law and General Municipal Law, this CL rule has been abolished, and thus professional fighters and police officers are no longer barred recovery for injuries suffered in the line of duty. Under the statutes and NY case law, to secure recovery under NY's statutory abolition of the firefighter rule P must: 1) Be either a firefighter or cop; AND 2) have suffered an in-the-line-of-duty injury (ILODI); AND 3) pursue this suit against any person OTHER THAN his employer or cow-worker; AND 4) sue for either (I) D's culpable conduct (e.g. incl. CL negligence and SL) or (II) D's STATUTORY violation 5) that RESULTED in the ILODI.
Maintenance Mod Topic - Interference with parenting time
Under NY DRL: If custoidal parent willfully interfers with other parent's lawful visitiaotn rights, then maintiancance award can BE SUSPENDED for the custodial parent. NOT Suspendible for CHILD SUPPORT
Who are HEIRS? and WHat happens if there NO identifiable heirs?
Under NY EPTL, this is person who must: 1) survive the decedent 2) and be listed as one of the surviving persons entitled to inherit under the EPTL'S intestate distribution scheme which prioritizes (surviving spouse, then descendants, anscestors, then collaterals (DEFINE ALL): 1) Surviving spouse and issue of the D 2) THEN, PARENTS of the decedent 3THEN, D's SIBLINGS (or If deceased, their ISSUE); 4) and THEN, D's GPs (or, if deceased, their issue). BUT, if NO HEIRS: Then D's undistributed property MUST ESCHEAT to the State.
Definition of Intestacy
Under NY EPTL, this is: 1) the DEFAULT STATUTORY DISTRIBUTION SCHEME, 2) When a person dies (Decedent) 3) and he dies WHOLLY OR PARTIALLY INTESTATE (i.e. fails to effectively dispose ALL of his property through nonprobate instruments, OR a will) 4) and individuals entitled to D's prop, upon D's death, are called his HEIRS 5) Goal is to carry out the probable intent of the average intestate decedent 6) RESULT: D's ESTATE is distributed "by representation".
NY Law on Promise of Reward: hen is it enforceable?
Under NY GOL, this promise is enforceable if: 1) Is a promise to pay for return of lost or mislaid property 2)AND, that Promise was in writing, OR published in another manner by the promisor (i.e. Oral promises to reward are NOT enforceable in NY!) RESULT: 1) Promisee who completes perf is entitled to the benefit of the completed perf. (i.e. the payment)
NY rule on recreational facilities and releases
Under NY General Obligations Law (GOL), owners and operators of RECREATIONAL FACILITIES CANNOT disclaim liability via Ks, aplications, or tickets for damages caued by THEIR EMPLOYEES, IF the USER pays a fee or other compensation for the use of the facility. Such agreements are VOID as against public policy.
non-delegable duties
duties that cannot be transferred to another (exception to independent contractors)
Excavation liability
excavating landowner strictly liable for damage cause by excavation if the land would have collapsed in it's natural state. Liable if excavation done negligently, even if land would not have collapsed in its natural state.
When there are multiple actors...two acts by the court:
for this circumstance that led to P's injuries, Court may: 1) Shift Burden of Proof from P 2) Hold all parties Jointly and Severally Liable
Motion for Judgment as a Matter of Law
formerly called the Directed Verdict 1) Must be made at close of plaintiff's case 2) and again at the close of all the evidence. Results If granted, akin to the granting of a Summary Judgment Motion, entitled to judgement as a matter of law
803(8)(b), with an exception!
matters observed pursuant to a duty imposed by law •Duty to report •Except in criminal matters observed by the police or offered by the prosecution
Apprehension (Assault)
means knowledge. D does not have to have fear for his safety... shrimpy guy threatens muscular guy --> STILL ASSAULT. not fear, just knowledge. BUT if the P knows the gun is unloaded(/it is a bluff) then NO RECOVERY. If you don't know one way or another... CAN recover.
does conspiracy merge?
no.
Does the Prima Facie Case for BATTERY require damages?
no. requires A) Act that brings about harmful/offensive touching B) Intent to do the act, and C) Causation.. Nominal Damages are ok.
What is NOT a statement?
non-assertive conduct; implied assertions
First-Degree Rape
Under NY Pen Law, Threshold Element: Sexual intercourse (WITH intent to do so), AND then EITHER: i) By force; ii) With a person who is incapable of consent by reason of physical helplessness; iii) With a person who is less than 11 years of age; or iv) By a person who is 18 years of age or older with a person who is less than 13 years of age. N.Y. Penal Law § 130.35.
NY law: First-Degree Reckless Endangerment
Under NY Pen Law, this crime occurs when defendant acts with DEPRAVED INDIFFERENCE to HUMAN LIFE, and recklessly engages in conduct that creates a grave risk of death to another person. (so, 3 elements)
Endangerment against incompetent, physically disabled,
Under NY Pen Law; Committed when a person knowingly acts in a manner likely to be injurious to the welfare of a person unable to care for himself due to physical disability or mental disease or defect
NY law: Second-degree Reckless Endangerment
Under NY Pen law, this crime occurs when a defendant 1) RECKLESSLY engages in conduct 2) that creates a substantial risk of serious physical injury 3)to another person.
if Statute is Silent on MR?
Under NY Penal law, this does NOT establish strict liability. Rather, rosecution must prove he acted either Purposely, Knowingly, OR Recklessly
Fourth Degree Arson a crime against property and the DEFENSE
Under NYPL, this crime is defined as: i) RECKLESS damage to a building or motor vehicle;AND ii) By intentionally starting a fire or causing an explosion. DEFENSE to this CRIME: 1) Def had a PROPRIETARY interest inthe property
Settlement Offers or Negotiations
o A settlement offer or statements made during the course of a settlement offer are not admissible to prove liability for, invalidity of, or the amount of a DISPUTED claim. o Neither party may disclose the statements.
IMP Test 3 - Bias, Interst or Inclination (common)
o General term to cover anything that might influence a witness's testimony or might incline a witness to remember events in a certain way (e.g., relationship with a party, interest in the outcome of the case; being paid $$ to testify, getting immunity or plea d deal from prosecution) o Can take place on cross-examination or through extrinsic evidence
Imp Tech 4 - Lack of Sensory Competence (common)
o Impeachment by showing a deficiency in witness's capacities to perceive, recall, or relate information (e.g., witness didn't see the event; it was dark; not wearing glasses; drunk) o Can be approached through cross-examination or extrinsic evidence
False Imprisonment - damages
o Plaintiff is eligible for nominal damages, even if they have suffered no actual physical or mental harm. They may also recover for mental suffering, humiliation, loss of time, inconvenience, etc. Where actual malice can be shown punitive damages may be awarded as well.
Other Hearsay exceptions where D's abilaibltiy is IMMATERIAL
o Records of vital statistics; o Records of religious organizations; o Marriage and baptismal certificates, and other family records; o Records and statements affecting an interest in property; o Statements in ancient documents; o Market reports and commercial publications; o Judgments as proof of matters of personal or family history, or boundaries.
Restirctions on Competence (i.e. who can NOT be a W)
o Some states have certain competency requirements, e.g., minimum age for a child to be competent as a witness. o A judge is PROHIBITED from testifying as a witness in a trial over which she is presiding. o A juror may not testify as a witness in a trial in front of the jury in which he sits. o After the trial, the losing party may want to get testimony from a juror about what went on during the deliberations to secure grounds for appeal.
False Pretenses
obtaining title to property of another by means of representation one knows to be materially false; made with intent to defraud
Personal Opinion as to D's Reputation
ok to prove good character.... if the trait is involved in the case (reputation for honesty in shoplifting case)
Fifth Degree Arson a crime against property
Under NYPL, this is defined as: i) Intentional damage to the property of another;AND ii) Without consent;AND iii) By intentionally starting a fire or causing an explosion. N.Y. Penal Law § 150.01. Defense: 1) No element met (e.g. WITH consent!)
RST 3D approach: NO SF
Under RST 3D, instead of this, each cause or act is regarded as a factual cause of D's harm.
Permissive Joinder - Definition Elements and Analysis (p. 58-59
Under Rule 20a1, FRCP allows for joining parties to existing litigation, where 1) Threshold 1: SMJ (if only Div J, then need both COMD and 75K) 2) Threshold 2: PJ (recall Bulge provision that resolves this) 3) Threshold 3 (venue) 4) Any number of plaintiffs assert claims jointly, severally, or in the alternative 5) those claims arise out of the same transaction or occurrence 6) and there is a common question of LAW OR FACT 7) and per above, no party can be
State's Duty to Disclose Exculpatory Evidence under MBE approach
Under SCOTUS, states must provide MATERIAL evidence favorable to D that would 1) negate D's guilt 2) Or diminish culpability 3) or dimiish punishment Result: IF prosecution fails to disclose (intentional or not), then grounds for reversal, IF D shows: (1) evidence was exculpatory AND (2)D was prejudiced from failure to disclose
When a particular precautions warranted under SOC
Under SOC, these are determined based on a fact finder's weighing 1) likelihood and gravity of P's injury 2) burden of taking the certain precautions
SOF and Agency Law - Equal Dignity Rule
Under SOF and Agency Law, You need a signed writing to authorize an AGENT to form a K that is subject to SOF.
What can a parent recover as result of tortious injury to her child?
Under Statute, This party may recover: 1) for loss service 2) loss of child's companionship (in WDA if CHILD DIES, BUT only in small # of jurisdictions, damages for injured, but living, child)
Under UCC, New terms in purported acceptance control ONLY IF exist the ALL of the following circs (i.e. they must be true)
Under UCC 2-207, ALL of the following must exist: 1) BOTH parties are merchants 2) AND, The new term does NOT MATERIALLY alter the deal 3) AND, The initial offer did NOT EXPRESSLY limit acceptance to its terms (i.e. NO conditional acceptance) 4) AND, the OFFEROR does NOT object w/in a reasoanble time to the NEW NOTE: Very tough to have new terms, in the acceptance, govern the contract
Buyer's Recovery under UCC for goods not delivered
Under UCC, Art 2, this party can recover the return of any payments made on the goods he purchsed from the other party Basis: Restitutionary interest.
WHen does Acceptance Plus Breach exist??
Under UCC, This tricky circ occurs where 1) Seller tries to accept 3) BUT does by SHIPPING THE WRONG GOODS
How UCC treats "counteroffers"
Under UCC, there is an abandonment of the Mirror Immage Rule, and replacement of that rule with UCC 2-207 The UCC is more forgiving of acceptances to do not exactly match the offer's terms, thus, 1) even if purported acceptance does not match exactly the offer's terms; 2) it can still count as a legal acceptance, 3) Regardless of whether the parties are merchants for the purpose of 2-207.
Wrongful Death Actions
Under an applicable *****state statute, this action can be brought to recover losses suffered due to decedent's death, IF: 1) the action is brought by decedent's spouse, next of kin, or personal rep; 2) the recoverable damages are (i) loss of support (income) due to D's death (ii) loss of companionship, society, and affection EXPERIENCED BY the SURVIVING FAMILY (iii) but NOT Pain and Suffering 3) the recovery is what the deceased would have recovered had he lived. Note: Decedent's creditor have no right to bring a claim against this damages recoverable from this action.
Manufacturing Defect
Under both 2nd & 3rd Restatements- there is SL for manufacturing defects: -Thus, a product has a product flaw or manufacturing defect when it disappoints consumer expectations -Liability imposed whether or not the manufacturer exercised the utmost care in the manufacturer and distribution of the product
Limitation on WDAs or SAs brought by decedent's surviving family
Under comparative-fault jurisdiction, there is a reduction in the amount of damages recoverable in these actions by surviving family, for interference with the family relationship, where the decedent was comparatively negligent; and in contributory negligence jurisdictions, the damages are eliminated when the decedent is contributorily negligent.
When is a warrant NOT required
Under constitutional law: Generally cops DO NOT need an arrest warrant, PROVIDED there is Probable Cuasesuch as when 2) person commits a crime in the police's presence 3) officer has reasonable and articulable belief someone committed a felony 4) OR, There is Probable cause AND exigent circumstance
Damages Rule for Cost of Repairs to Personal Property
Under majority view of the CL, P can calculate damage for to tortious harm to this type of property as the cost of repairs, SO LONG AS the cost of repairs do not exceed the value of the property.
Under the CL, What counts as definite and certain terms?
Under the CL, this is established where the K states 1) the parties 2) the subject matter, 3) The price and 4) the quantity BUT NOT: 1) Vague terms
Employer's VL for Employee's tortious conduct during DETOUR vs. during FROLIC
Under the CL, this principal may be liable for the agent's tortious conduct during DETOUR, but NOT during latter's frolic, because the detour is only a minor deviation from the scope of employment, while the frolic is an unauthorized and substantial deviation from the scope of employment.
Rule Statement for Vicarious Liability (4 points to make)
Under the CL, this tort is a form of strict liability, in which one person is liable for the tortious actions of another. It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly responsible for the injury.
Minority/RST rule statement for Proximate Cause
Under the RST approach, the causation question is whether the plaintiff's harm was within the "Scope of liability" of the D's conduct, with D's liability limited to those harms that result from the risks that made D's conduct tortious.
RST approach to Attractive Nuisance
Under the RST, a landowner or land possessor is liable for harms to victim caused by rom nuisance on LP's land
Construction Contracts and Promissory Estoppel
Under this theory, an agreement to AVOID revoking a sub-bid offer is ENFORCEABLE against the SUB-CONTRACTOR RESULT: 1)Sub-Con can't revoke the Bid. 2) BUT, B/C Sub-Bid is ONLY an outstanding offer, the GENERAL contractor is NOT bound to accept that bid should GEN CON be the successful bidder to the GENERAL contract. 3) Result to ; General Con can shop around for lower price among sub-cons)
Interlocking Directorates
What coprs have, when one or more directs sit on boards of two coprs.
Consideration
What must exist on BOTH sides of the bargain. hus
ENTRAPMENT definition; and Majority view
When Law enforcement induces someone to commit a crime; NOT induced by a private civilian. 1) The crime was induced by a Govt officla or agent 2) and D was NOT predisposed to commit the crime
Goods to real estate
When real prop involved, UCC applies here if 1)Sales of "structures to be removed from the land," "minerals," "or the like" are governed by Article 2 when severance is to be made BY THE SELLER. OR 2) Sales of growing crops or timber to be cut, separate from a sale of the land on which the crops or timber grows, are governed by Article 2, REGARDLESS of whether severance is made by the buyer or the seller. OR, 3) Aside from those things described above, the sale of other things that can be removed from the land without material harm to the land (such as fixtures) fall under Article 2 regardless of who severs.
When is a restraint on alienation VOID?
When this restraint on TRANSFER of OWNERSHIP is ABSOLUTE, it cannot be enforced. RESULT: The property can be transferred, despite violating the the restraint. Note: Restraint on USE is generally permissible. (e.g. Covenants, Defeasible Estates).
Personal Service within New Jersey (IPJ 1) w/ 2 exceptions (but ONLY 1 for NJ)
Where 1) D voluntarily present in NJ 2) While in NJ, D is given SOP. 3) NOT, If D's presence in NJ is procured by for force or fraud. 4) BUT PERMITTED for Def who enters NJ SOLELY to be in the judicial proceeding
What is Seizure for 4A persons
Where A) an officer, with physical force or show of autohrity, restircts a person's movement, OR B) IF the cop's actions do not clealry show intent to restrain, then ask whether a REASONABLE PERSON in DEF's Circs would believe he was not free to leave.
Illusory Promise
Where 1) the promisor does NOT clearly commit to the deal 2) there is no consideration 3) NO WAY for the PROMISOR to breach 4) BUT NOT Satisfaction Contracts (ie. these are real Ks with C; like buy me a video game that satisfies my appetite for strategy gaming). 5) ALSO NOT REQ Ks or OUTPUT Ks (because there IS a way to breach)
Fighting Words Doctrine
Words that have a direct tendency to cause acts of violence by the person to whom the remarks are made
Interrogatories
Written Questions Asked and so Answered in Writing Under Oath Can used against ONLY a party NOT a mere witness Presumptively limited to 25 interrogatories (i.e. unless court allows more) note: Data Dumping (SUpplying Records w/the Answers is okay if relative cost substantially similar for both parties)
BOD's Resolutions
Written record of the BOD's resolve that corp take certain action -Documents corp's authority to engage in certain actions
void title
a thief or a person who acquires goods from someone under physical duress or guardianship has no title and therefore no one can become a good faith purchaser
Intentional Torts
a wrong committed upon the person or property of another, where the actor is expressly or impliedly judged to have intended to commit the act that led to the injury
Cases that demo 803(3) about THEN-state of Mind
adkins v brett (evidence of Convo between plaintiff and wife, wife felt at the time: distate for plaintiff...admissible as then-SOM) Hillmon - intent at the time for future conduct, OK; if intent at time for future conduct w/3rd party--NEED Corroboration Shepard v. United States (Dying Mrs. Shepard's statements about who poisoned her was not admissible for DD, OR for then-SOM, b/c her words spoke to past act, NOT forward one, AND to a past act BY a 3rd party no les!) Pheaster (kidnapped teenager, never found, his statements--about intent to go meet up with someone--passed as being then-SOM, esp. wi/ his GF's corroborative testimony (she met def BEFORE while he met Larry). PAST events (GF's words) show greater chance of the FUTURE conduct by Larry to happen.
Short and sweet rule definition for Marital Property
all property acquired during a marriage except gifts, inheritances, personal injury awards, and property agreed between the parties to remain separate. Includes professional licenses. RESULT: Such property IS SUBJECT to equitable distribution
CF and JSL
always involves comparing the fault of a plaintiff with the fault of one or more defendants.
Hearsay
an (1) out-of-court statement, (2) intended as an assertion, (3) offered to prove the truth of the matter asserted." OCS - Oral (speaker is declarant) or written (writer is declarant); NOTE: Testimony of a witness regarding her own out-of-court statement is potentially hearsay, even though it is the witness's own statement. AND Intended to make an assertion: Includes NON-verbal conduct BUT TRACK WHAT Purpose is the statement being offered? If offered to prove something other than the truth of the matter asserted, it is NOT hearsay. BUT If the declarant is being used as though she were a WITNESS, and the jury is asked to rely on the declarant's statement as proof of the matter asserted, then the statement is hearsay.
Goods
as all things movable and tangible at the time they are identified as the goods to be sold under the contract between the buyer and the seller. Article 2 applies to the sale of tangible things such as auto parts, toys, gasoline, etc., but it does not apply to the sale of real property, services (e.g., window cleaning, country club membership), or intangibles (e.g., intellectual property, goodwill). Note: Not
States approach to jury size and decision
at least 6 people If six only, then unanimous If seven or more, just a substantial majority
Incidental Damages
awarded to the non-breaching party as compensation for commercially reasonable expenses incurred as a result of the other party's breach. In the sale of goods, such damages may include the cost of inspecting, transporting, caring for, or maintaining custody over goods.
To which ITs does TI NOT apply?
can't use this doctrine for IISED!
Specific Acts....
cannot be used to prove good character of a criminal D. but can be raised in cross examination to impeach witness's credibility.... can bring it up, but cannot produce evidence to prove... can ask "have you heard...? etc"
Express Conditions
created by language in the contract. Look for magic words like: "only if," "provided that," "on the condition that," "only in the event that," etc. MUST BE strictly adhered to--UNLESS the condition is somehow excused (e.g. NOT enough if you got sick before meeting the condition to enjoy the bonus! Those were the conditions!!)
Lawyer's responsibility in situation for Emergency Legal Assistance
p.
Other Statutes that ALLOW REMOVAL in certain circs
p. 15
Other Statutes that PROHIBIT REMOVAL in certain circs
p. 16
NJ Distinction - Motions to Dismiss in Malpractice Cases
p. 51 (and other NJ distinctions post p.51)
Removal based on FED Q (hint: quaity of P's complaint!)
proper only if the FQ appears ON ITS FACE in the PLAINTIFF's Well-Pleaded complaint
Full Faith and Credit for Child Support Orders Act
provides that full faith and credit must be given to another court's order for child support if the court had subject matter and personal jurisdiction over the parties, and the parties had reasonable notice and an opportunity to be heard.
Motion for Summ J IN LIEU of COMPLAINT
rare - where only on action - based on an instrument for payment of money (e.g. can test negotiable and nonnegotiable instruments) - OR a prior judgment
Consequential Damages
reasonably foreseeable losses to a nonbreaching party that go beyond expectation damages. Ex as loss of profits. TEST: 1) if they were the natural and probable consequences of breach, 2) OR if they were "in the contemplation of the parties at the time the contract was made," 3) OR were otherwise foreseeable.
Reliance Damages
recovered if a non-breaching party incurs expenses in reasonable reliance upon the promise that the other party would perform., REGARDLESS of whether the breaching part or defent benefits from the non-breaching party's expenditures. Can choose over expectation damages, but then the damage award is mitigated by any losses that plaitniff would have suffered, if the K had been performed.
Proper Purpose (for Inspection/copy of corp records) vs. Improper Purpose
relatest to SH's interest IN the corp MUST provid
What is a VOIDABLE marriage
rule: This is a marriage that IS VALID UNTIL (1) AN annulment is obtained by at least one of the parties with STANDING to do so (E.G. AN eligible spouse) SEEKS to LEGALLY void this marriage via (2) JUDICIAL decree (unlike VOID marriages!); and (3) AND within the statute of limitations (SIX years IF NO specific SOL is stated) RESULT: CAN seek to void, and thus seek court's annulment (but see the nuance to each circumstance under which a marriage is voidable)
Offers to pay evidence in NY
same as FRE but and depart
FEDERAL Exceptions to State LAS on PJ in Fed Court
see p. 19
Rule 4k2
see p. 20
who is a public invitee
someone welcomed to enter or remain on the land for purposes for which the land is held open to the public. One form of invitee
A covenant is
something less than an interest in land.
What is NOT for the TOMA?
statement sought for admission as circumstantial evidence of-- State of Mind Notice or Knowledge Legally operative (significant) language where the statement is an element. Impeachment purposes (track what the statement concerns...may lead to the impeachment rules of 607, 608b, and 609a)
Defense to a mortgage
subject to the same defenses as the underlying obligation secured by the mortgage (e.g., mistake, duress, failure of consideration, or fraud). In addition, the following valid defenses can affect the application of all or part of this instrument.
Effect of non-superseding intervening
such a foreseeable cause means all causing actors are held J/S L.
Definition of loss avoided
the beneficial effect of the breach due to the non-breaching party's ability to salvage or reallocate resources that otherwise would have been devoted to performing under the contract. NOTE: subtracted only if the savings results from the injured party not having to perform rather than from some unrelated event.
Larceny by trick
the crime of larceny where the owner of the property is tricked into giving possession of personal property, but not title to the property, to the offender.
Robbery
the taking of property from a person's possession by using force or threats
5 REQUIREMENTS FOR establishing TESTAMENTARY CAPACITY to execute a will (note lesser cap than that for executing a contract)
the testator must BE CAPABLE of Knowing(but NOT necessarily have Actual Knowledge!): the nature of the act; the nature, character, and value of his property; the natural objects of his bounty; the fact that he is executing a will; and the plan of the attempted disposition.
Deposition of an adverse party is admissible as....
this can be an admission against interest.
What makes embezzlement different from larceny
this crime is different for larceny because the def is ALREADY in LAWFUL possession of the property, at the time of that given crime's required specific itnent.
Void K is...
this exists where the entire transaction is a nullity, as if no K existed between the parties
Punitive Damages
very rarely available in contract actions. Some statutes apply them for the purpose of punishing fraud, violation of fiduciary duty, and acts of bad faith, and for deterrence. Under the Restatement 2nd, NOT recoverable "UNLESS the conduct constituting the breach is also a tort for which punitive damages [can be recovered]."
Forum's Effect from a Joinder of VClims
vneue transfer if at least one aprty or at least one claim)
Compelling ARbitration vs. Stay of Arbitration
vs. Party Opposing this may preserve the right to litigate by TIMPELY applying to the court for a Stay, filed within 20 days of service of the "Demand for arbitration notice."
Jury Instructions Appeal
when challenged on appeal, the key issue is wheather taken a a whole the instructions fairly state the controlling law. Inadverdent or technical errors will rarely constitute reversible error.
D acts recklessly
when he consciously disregards a substantial or unjustifiable risk that a prohibited result will follow and this disregard constitutes a gross deviation from the standard of reasonable care.
Persons Subject to Disclosure
• Any party • Any officer, director, member, agent, or employee of a party • Anyone who previously had a cause of action or defense associated with the action • Anyone who: o Is about to leave the state; o Lives outside the state; o Lives more than 100 miles from the place of trial; or o Is so infirm that she is unlikely to attend the trial. • A medical professional (doctor, dentist, or podiatrist) who has provided care to a party or who has been retained by a party as an expert witness • Any other person upon notice stating the reasons for disclosure
Mutual Mistake of basic assumption - Result?
K is voidABLE
DB in NY - for un authorized corp
ONly if 1) the biz dealing 2) in NY 3) Systematic and Continous 4) WIth a fair measure of permanence and continutity E.g. of Met: 1) Sales rep 2) Off
Subst Interf for PUBLIC nuisance is...
OT -- offensive, inconvenient, or annoying to a NORMAL, reasonable person in the community (no exception for specially sensitive or "THICK-SKINNED" plaintiff...only the damages amount may be affected).
Complaint
---must state facts upon which the claim is based showing the pleader is entitled to relief. ---must include a demand for judgment for the relief to which the pleader deems herself entitled. ---Different types of relief or relief in the alternative may be demanded in the same pleading like this.
Subsequent Remedial Measures in NY - two rules
- Allows in SL cases that claim a manufacturing defect - and blocks in PL actions for asserting design defects or needs to war
Materially Alter
- Change the remedies available to a party
Exceptions that allow admission of VIctim's Conduct in a CIVIL case
- Evidnece of past sexual conduct OR predisposition is admissible if its probative value SUBSTANTIALLY outweighs the danger of harm to any victim and unfair predjucie to any party. Evidence of REPUTATION is admissible only when placed at issue by the victim
Private Nuisance (frequently tested on MBE)
1) A thing or activity that 2) SUBSTANTIALLY AND UNREASONABLY INTEFERES 3) w/ANOTHER's use or enjoyment of his land (anyone w/possessory interest) 4) w/D's intentionally, negligently, or recklessly causing the interference; OR interference resulting from ABNORMALLY DANGEROUS CONDUCT
Due Process Requirements
1) Notice 2) Opp to be heard 3) Either a domiciliary or 4) If not a domiciliary, then MUST have a connection between the state, the non-Dom, and the case
Farm Products
1) ONLY where the debtor is FARMER, 2) and are crops, livestock, or products of livestock
7 areas with Substance-Specific Rules
1) Torst 2) Contracts 3) Property 4) Inheritance 5) Family Law 6) Workers' compensation 7) Insurance litigation
Presumption - definition
A conclusion that the fact trier is REQUIRED to draw upon party's proof of an underlying fact or set of facts. If rebuttable, then can be overcome by conrary evidence (i.e. allowed to present such ev. If conclusive, then NOT rebuttable with contrary evidence (i.e. no burden shifted, since not even allowed to prove the contrary!)
Crossclaims
A cross-claim is a cause of action by one defendant against one or more other defendants in the same action. Can also have between co-plaintiffs
Procedural Unconscionability
A defect in the bargaining process itself, such as a hidden term (surprise) or an absence of meaningful choice (no other contracting option);
Indemnification
A defendant may be entitled to institute an indemnity suit for full reimbursement of the damages from a member of the original suit or a third party. Indemnification generally occurs when one party is deemed responsible for that defendant either by law or contract.
Collusion
A defense to FBD, that occurs when BOTH spouses conspire to fabricate grounds for divorce 1) BOTH spouses involved 2) Conspiracy 3) Fabricated grounds for divorce
Subagent's roles
A principal is as responsible for a subagent's actions as he is for an agent's actions. A subagent owes a duty of loyalty to both the agent and the principal. An agent is responsible to the principal for the actions of the subagent.
For K-based liability from Agent's actions - Ratification by P
A principal's ratification of a contract may be either express or implied. A principal must have knowledge of the material facts involved in the agent's transaction in order to ratify the transaction. A principal may ratify all of the contract entered into by his agent, who does not have actual, apparent, or inherent authority. A principal's ratification must occur before the third party to the contract withdraws from the contract.
Definition of a Defective Product, for PL purposes
A product is this when, at the time of the sale or distribution, it contains either (1) a manufacturing defect, (2) a design defect, OR (3) inadequate instructions or warnings (e.g. failure to warn)
Liability depending on whether product was CONSUMED or only "USED"
A seller that provides both products and services generally is liable if the defective product is consumed, such as food at a restaurant, but not if the product is only used
Adoptive Statements in NY
A shrug by a def whose accomplice named him as as a perp is and
It's all my fault
Admissible
RULE: MARITAL PROPERTY IS and BOP to prove what is NOT marital Prop
All Property acquired (1) by EITHER party and (2) DURING the marriage, (30 REGARDLESS of who holds TITLE and (4) regardless of who worked If a spouse claiming property is NON-M (and thus NOT subject to EQD), then spouse has BOP to prove that.
Definition for Wild Animals
An animal that, as a species or a class, is not by custom devoted to the service of humankind in the place where it is being kept.
What is a Motion?
An application for a court order
who is a business visitor
Another form of invitee---someone invited to enter or remain on land for a purpose connected to business dealings w/land possessor.
Common Carrier
Any carrier required by law to convey passengers or freight without refusal if the approved fare or charge is paid (airline, train, etc.).
Intra-family immunity
Applies only to PERSONAL injuries, NOT property damage.
Venue (for federal courts)
Asks whether this district court is the proper place to hear and administer the action The defendant has the obligation of asking which district court is the proper one for hearing the case. When: This must be raised by the defendant at the FIRST OPP, which is either (a) a pre-answer motion to dismiss if filed, OR (b) the def's first answer or responsive pleading WHERE (hint: P's residence NOT relevant, only D's, for FEDERAL law purposes): 1) Where any def resides, IF all DEFs reside in the SAME state 2) OR, Where the claim AROSE (i) (i.e. substantial part of the events or omissions on which claim is based, or (ii) where a substantial part of the property that is the subject of action is located; 3) OR, IF neither (1) or (2) applies; then in ANY district where ANY def can be served; 4) BUT, Unlike most state venue rules, the PLAINTIFF's residence does NOT count.
Default rule - five matters are special biz matters, requiring (unless agreement says otherwise) unanimous consent
Assignment of Pship prop
For which Torts must harm be proven?
Assuming AIC, you need this proven for FI (if P is NOT aware of the confinement); IISED (if P is not intended victim and NOT an IFM of the 3PV)
SPJ
Based on long arm statutes, that typically can reach very far, but only for claism arising out of Def' contacts with the forum state, and So long as the claim arises out of the transaction occurring withint or involving the state
Knock-Announce Rule
Before making an arrest, cops MUST Knock and Announce before making an arrest in a home, even with a warrant
Indemnification
Can be Express or Implied Expressed - Complete shfiting of All damages not just in part. - ENTITLED to FULL reimbursement - CAN be premised on a K (unlike with Contribution) Implied - arises by operation of law (to avoid unjust enrichment or simple unfairness, or someone discharges a duty, but between another party, that other party should have discharged it (i.e. vicariously liable party should get to recover fully from the main wrongdoer)
"Trust Property" Req
Can be any actual property interest BUT NOT mere expectancy (e.g. NOT trust profits.)
Due Process Clause
Clause in the Fifth Amendment limiting the power of the national government; similar clause in the Fourteenth Amendment prohibiting state governments from depriving any person of life, liberty, or property without due process of law.
Two types of INTENDED Bs (i.e. and 3PBs)
Creditor Bs and Donee Bs
Intent necessary for ITs
Def acts with Purposeful result; OR Def acts with knowledge of substantial certainty for the result
Defendant's Good Character
Def permitted to introduce evidence of his own good character as being inconsistent with the type of crime charged, PROVIDED THAT: 1) The evidence is of his GOOD character 2) AND is RELEVANT to the crime (e.g. a peaceful nature related to an assault crime, BUT NOT to a FRAUD crime) 3)AND PROVEN EITHER WITH a) Opinion testimony b), OR Reputation testimony c) BUT NOT SPIOC Result/RISK 1) Def brings such evidence, then he OPENS THE DOOR to a Prosecutor's rebuttal and attack on Def's character, using opinion or rep testiomny 2) BUT, NOT merely where D takes the stand
HOw a Def WAIVES the 5A privilege
Def takes the stand
Rule statements for Defenses
Defenses to a divorce are applicable only if: (1) the action is a fault-based divorce defended against (2) and the defense is affirmatively plead (3) and applies to the specific fault basis
Amendment to a pleadings, As of Right
Done within 21 days after serving the pleading, OR, if a responsive pleading is required, 21 days after service of the responsive pleader or after the service of a motion under Rule 12, whichever is earlier Can only be done ONCE.
REMEMBER the ANALYTICAL APPROACH for Jurisdiction
FIrst 1) SMJ? 2) PJ? (First Statutory basis? THEN US Const. ) 3) Venue 4) No FNC application
For ITPJ, when is D NOT allowed to recapture his chattel by force? And what is the alternative?
FOR these ITs, D cannot recapture the chattel by force if 1) force is unreasonable, OR 2) the chattel was not wrongfully taken (e.g. lawfully held, like bailment) RESULT:D can reclaim chattel only through PEACEFUL means, and ONLY after the bailment's period for LAWFUL possession has expired past what D consented to.
Def's domiciled or incorporated in NJ (IPJ 2)
For NATURAL person, Domicility in NJ - IPJ (must define Dmociility- 1) estbalished presence, 2) intent to remain permantnelty) (Note: So SOP need not be in NJ, can be wherever you are located!) For CORPS - incorp in NJ, establishes IPJ over a corp.
Consent to IPJ (IPJ 3) by an out-of-state D;
For P's - exists b/c you file the lawsuit For D - can be express (e.g. via contract)
NY treatment of Professional License (frequently tested on the BAR EXAM!)
For THIS MP, NY looks at two things, IN ORDER TO VALUE this MP: 1) The present value of this MP 2) AND the future value of this MP, specifically: the creer potential enhancement of that MP
Termination of NATURAL Parent's Rights (i.e. the other side of the coin to an ADOPTION!)
For an adoption to be valid, the parental rights of the biological parents must be terminated. Termination may be voluntary or involuntary.
SH FIDs
GEnerally, NONE to corp or SH, when not controlling SHS. To be a controlling SH, need not own more than 50% of outstanding shares. IF CONTROLLING SHs, then FID where Selling his controlling interest to an outsider or Seekign to eliminate other SHs from the corp; OR Receiving a distribution denied to the other shareholders; OR seeking to dissolve the corp.
Written Deposition
Given in writing to a hearing officer who asks the questions orally
Scientific Works
Generally NOT admissisible when offered for their trust, but may admissible for other purposes
Example of Conversion
Good-faith purchase of STOLEN property (i.e. this is a WRONGFUL ACQUISITION)
Amendment to pleadings by Leave of Court
Generally, this can be sought by the court, and should be FREELY GRANTED
If the rights are ASSIGNED FOR CONSIDERATION (hint: First in time) (but not the exception: "Later in time")
HERE, the FIRST assignment for consideration will typically hold LIMITED exception: the LATER assignment takes priority if: 1) Second assignee does NOT know of the initial assignment 2) AND that second assignee is first to obtain (a) payment, or (b) a judgment.
If the rights are ASSIGNED WITHOUT CONSIDERATION (hint: Last in time)
HERE, the LAST assignment controls
Conflict of Interest as a basis for an IAC claim under 6A, and to OVERTURN conviction based on such a claim
Here, D must show 1) An actual COI 2) that such COI ADVERSLEY AFFECTED HIS ATTORNEY's performance RESULT IF MET: Overturn the D's conviction.
Proximate caustaion and pre-existing conditions?
Here, a pre-existing condition does NOT break the chain of causation
Intro of Eidence - General Rule around Role of judge and jury
Jury deicdes Q of Fact , AND WEIGHT and CREDIBILITY of the evidence BUT Judge decieds Prelim, Factual Q regarding evidence's ADMISSIBILITY(using prelim hearing) NOTE: Judge not bound by FRE in prelim hearing (e.g. can consider Hearsay)Adm
Seller and Chain of Distribution
Included are the manufacturer of the product, its distributor, and its retail seller.
IMP Test 2 - Prior Inconsistent Statements See FRE 613 and Rule 806 in outline.
Inconsistent statements with present testimoney, either Cross-ex, OR via Extrinsic Evidence (either testimony by other W, OR by Document) NOTE: Need not happen before the impeachable W takes the stand But NOT for a collateral matter (no relevance to case, other than merely to impeach)
Negligence Per Se
Liability where harm to plaintiff is caused by defendant violating a statute enacted to protect the public safety
Merger Doctrine
Limited as long as there is some other beneficiary, even a contingent remainder beneficiary, and the court may even appoint a co-trustee to avoid this doctrine, otherwise, when trustee nad B are the same, then the equitable and legal interest MERGE, causing the trust to become an outright gift.
Pre-Trial Conference
Mandatory FOR the ATTORNEYS who WILL CONDUCT the TRIAL
Examples of ADAs
Mining; Blasting; Using Explosives; Fumigations; Excavating Hazardous waste disposal; Gasoline storage in residential areas; toxic chemicals and gases; storage of large quantities of water and other liquids; CROP DUSTING; BUT not items that fall or dropped from Aircraft AND NOT Airplane Crashes
Does NY have Stat Right of Redemption?
New York does NOT have this RIGHT for the mortgagor.
Damages for TTL
No Proof of actual damages necessary
Accrual of an Action rules
Non-Tort/Non-K
NJ distinction of Service of Processs
See Pg. 43-44
SOC in Emergency Circs
So long as D's conduct did not cause the emergency, can be expected to exercise LESS than RPP SOC.
Withdrawal from conspiracy
Some Js: No getting out of the conspiracy conviction, Some Js and MPC: Yes if Voluntary and complete and Must successfully thwart the crime from succeeding
Licensees - Traditional Approach
Someone who enters the land of another w/ LP's express or implied permission or with a privilege. Includes: 1) Social guests (even if invited) 2) Tolerated entrants (e.g. children who routinely cut back and forth across LP's land) 3) Emergency personnel (cops, firepeeps, EMTs)
Quasi In Rem J
Subject to the same minimum contacts test as PJ
Mandatory Joinder of PARTIES
TO join a NECESSARY PARTY - Party MUST be joined if Joinder is Possible
Corbin Test
Takes into account: 1) specific circumstances of the transaction 2) would the parties naturally include extrinsic matter?
when is CONSENT REQUIRED from any Parent?
That parent must have Substantial and continuous or repeated contact with the child.
How a W waive the 5A privilege
The W discloses the requested,self-incriminating information
n order for an amendment of a pleading to relate back to the date of the filing of the original pleading, what must occur.
The amendment must concern the same conduct, transaction, or occurrence as the original pleading.
Residuary or Residual Gifts
The balance of the estate after all the general and specific gifts have been made.
What does it mean for a decedent's property to ESCHEAT to the state?
This happens if 1) Decedent dies without a will 2) and Decedent is not survived by any persons who could take under intestate succession rules.
Waiver of Conditions
The party receiving protection can do this by either words or by conduct OR where the party receiving protection wrongfully interferes or hinders the occurrence for the condition (GOOD FAITH TEST) Note: You cannot WAIVE a condition if YOU are NOT the persons intended to be protected or entitled to protection under that Condition.
Burden of going forward
The party that must provide required evidence in order to avoid directed verdict. Usually plaintiff, although potentially defendant for affirmative defenses and presumptions. No directed verdict for criminal cases - unconstitutional.
The Trustee?
The person who holds legal title, and has fiduciary duties attendant to his responsibility for managing the res (property) in the trust.
3 ways for acceptance where a buyer contractually requests that a seller ship goods under Article 2 of the UCC
The seller may accept the buyer's offer by prompt shipment of conforming goods. (return perform ance) The seller may accept the buyer's offer by a promise to ship goods. (return promise) OR The seller may accept the buyer's offer by prompt shipment of nonconforming goods. (acceptance PLUS breach!)
What are issue?
These are the decedent's surviving children and/or grandchildren.
Due Process Limits
The significant contact to meet and not exceed this limit can be: 1) the tort happened in NY 2) The K was formed or breached in NY 3) The property sits in NY; or 4) The defendant lives in NY. NOT enough that the action was brought in NY's courts, nor is it enough that plaintiff once lived in NY
Common law murder, if in the FIRST Degree
Then such murder ALWAYS requires an Intent to Kill (or Intent to commit SERIOUS Bodily Injury).
If you are subject to LAS
Then, here you CAN be served in ANOTHER Jurisdiction
Doctrine of Judicial Notice FRE 201 (scope of this doctrine to certain facts) procedure
The court's acceptance of a fact as true without requirement formal proof Under FRE, Applies ONLY to ADJUDICATIVE Facts AND this Position by the Court is undertaken only if either 1) (a) a party so request that position and Court is provided with necessayry informaiton to act on that request OR 2) the court takes this poiion of its own accord 3) AND, in either scenario, this occurs AT ANY TIME during the proceeding INCLUDING on APPEAL! 4) NOTE: Are Objectionable by the opposing party IF timely request made for opp to be heard, whether before OR after the court takes this position.
Which has more weight when determining the term of a contract that governs the parties?
The evidence of an EXPRESS term, is always GREATER THAN evidence of trade usage or custom in this situation.
WHat is Active Appreciation
The increase in value of separate proeprty that occurred (1) DURING THE MARRIAGE AND (2) BEFORE THE FILING OF DIVORCE PRoceedings. Result: Considered Marital Property
Factors tending to show property is the partnership's property
The property has been improved upon by the partnership. The property is listed as an asset in the partnership books. The partnership pays the taxes on the property.
Proximate causation
The resulting crime must have been the foreseeable result fro mthe def's conduct.
Results for establishing D failed to live up to EITHER of the IMPLIED warranties
The results are 1) D breached his implied warranty 2) Not necessary to D is at fault for the breach 3) P can recovery damages for (a) personal injury (b) prop damges (c) and for PURELY economic loss But note UCC's restrictive provisions (only recovery for the Purchaser or member of purchaser's family or houseld), vs. relaxed version (ANY FORESEEABLE Victim)
In order for a statement made by a suspect to be inadmissible due to the failure of the police to give the suspect Miranda warnings, which of the following is required?
The suspect must have been in custody when the statement was made. AND; The suspect must have been subject to interrogation when the statement was made.
MONEY DAMAGES
The typical remedy in K law, includes EXP REL RST LIQ (see the K) PUN AND a duty to mitigate
Trial By Jury
There is no right to a trial by jury when the remedy sought is an injunction. When a case has overlapping legal and equitable issues, the legal issues are tried first. Typically, a demand for a jury trial must be made no later than 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. Peremptory challenges cannot be based on race or gender.
Reliance Damages
These damages are intended to put a party in the same econ position that it would be in if the K had never been created. These would have to be elected in alternative to EXP Damages. NOTE: Reliance Damages can also include Restitution Damages.
Punitive Damages
These damages are rarely awarded, unless the breach amount to some extraordinary wrongdoing that amounts to tort liablity (e.g. wanton and willful misconduct, like fraud)
In NY, rule for Termination of a Tenancy at Will
This can occur for this type of lease, only if the landlord gives the tenant 30 day's written notice LL's election for this event to occur for this type of lease.
Wrongful Birth Claims
This is a claim that asserts: 1) failure to diagnose a birth defect 2) or wrongful pregnancy (i.e. failure to perform a contraceptive procedure).
The Answer - 4 items
This is the responsive pleading to any form of a complaint: - contains responses - may also contain affirmative defenses - may contain a counterclaim (to which Plaintiff issues a REPLY) -without this, a failure to respond amounts to an ADMISSION!
What is an easement APPURTENANT
This is tied to or runs w/ the land. So the holder of this is benefited in her USE of land. (Benefited as you use it. But if you don't use it, you lose it).
When is an Offeror's revocation of his offer EFFECTIVE?
This takes effect only UPON RECEIPT by the offeree.
Procedure of Disclosure in General
Timing Amending or SUpplementing Court Supervision (Generally not, but only in three situations) - Protective Orders, Orders Compelling Disclosure; Disclosure Sanctions
Elements for a Misrep note: 2 flavors (WITHIN the elements0
To assert defense of MISREP 1) must have a misrep 2) OF A FACT 3) that misrep is EITHER MATERIAL, OR FRADULENT (intentional) 4) AND that misrep is made under circs whether it is JUSTIFIABLE to RELY on the rep.
Which standard for physicians?
Traditionally, this prof need only to have followed LOCAL custom. TODAY, some courts now require: 1) the MEDICAL SPECIALISTS to follow NATIONAL standard 2) but the GENERAL practitioners to follow same or similar local standard.
Delegation
Transfer of duties under a K
Learned Treatises (scientific, historical, or medical)
Treastise easbalished as a reliable autohrity by either testimony of W other expert or judicial ntoice AN expret releid on docu duriect direct ex or brought to attention on cross
Rule for PARASITIC DAMAGES
Under CL, this type of damages is awarded to P who: 1) is victim of a tort that causes physical injury 2) and suffers emotional distress
Defense of Property, NY rule/gloss
Under NY, You can use DEADLY force here, ONLY to prevent ARSON
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) - Home State and the power it has
Under this Act, the home state is either 1) where child lived for 6 months, OR since birth if the child is less than 6 months old, OR; 2) where the child resided in the last six months and one parent continues to reside.
5A protection is?
Under this Amendment, NO person shall be compelled in any criminal case to be a W against himself. WHO? Protects individuals, BUT NOT corporations WHAT? Testimony, BUT NOT physical evidence or identifications, such as? blood, urine samples handwriting breathalyzers measurements voice identifications Business records (like tax returns
A landowner's liability to off-premises victims
Usually not owed to person NOT on the premises, and harmed by only a NATURAL condition on Landowner's premises (exception: TREES in URBAN areas). BUT, duty generally owed to such victims for 1) for ARTIFICIAL Conditions 2) and on-premises activity by the owner, or someone under owner's control.
Paternity by Estoppel TWO instances
Usually seen in a SUPPORT ACTION. Using doctrine of equitable estoppelThe courts MAY DECLARE paternity of a child, regardless of whether the man and the child are biologically related, when (1) it is in the best interest of the child and (2) when the man has taken on the role of father and has established a bond with the child. AND Under NY DRL, NY presumpes paternity of a child born in wedlock or conceived shortly before wedlock.
Unavailable Declarant Rule in NY
VARIES according to the exception that applies.
Distributions - Authorization and Limitations (New York's Legal Capital Rule
W/in BOD 's discretion, unless abuse of discretion or distribution in bad faith
Trustee Admin and Trustee Duties
Where T has all the powers over the prop as if it wer his own, unless otherwise provided, so long as udner Trust instruemnt direct (e.g. Contract Sell or lease Transfer) Trustee owes aboslute duty of loyalty and good faith to the Bs (no self-dealing, UNLESS a Bank is acting as Trustee. Thus can deposit the trust assets in that bank's own institution). Duty to not commingle funds Duty of Prudence (SOUND INVESTING) - See also UnPrudInvestAct - duty to invest consistent with MODERN portfolio theory: Diversity investments; Account for risk tolerance and investment horizon of the Bs; (i.e. It requires the trustee to act as a prudent investor would. It creates a duty of sound investing. It requires the trustee to make informed decisions regarding the investment scheme.) Keep a combination of stock and bonds, risk and security. May have duty to sell and diversity a portfolio EVEN if the trust directs otherwise (i.e. go to court to seek a modification of the trust). ALso dity to disclose Duty to Account for trust assets
SOC under RST3d approach
Where: a. Negligence is the failure to exercise reasonable care under all circs, b. THEN, Whether a person acts without reasonable care depends on weighing 3 factors i. Foreseeable likelihood that D's conduct will cause the harm ii. Foreseeable severity of any harm that may result iii. AND, burden of precautions to eliminate or reduce the risk of harm.
Unilateral Offers v. Bilateral Offers
Which one depends on the offeror's manifestation of what type of offer he makes (ie. acceptance via UNDER MODERN APPROACH When there is ambiguity as to whether offeror wants an action, or a return promise, as the acceptance, then, acceptance can be done either way (i.e. a Uni K OR a Bi K can be formed).
Are necessity privileges available against damages for chattel torts?
Yes. can use these privileges against damages for TTC or CT
For which Torts is Harm NOT required to be proven?
You do not need this element proven for Battery; Assault; FI (if P is aware of confinement); IISED (if P is an IFM to 3PV, or is the intended victim); TTL
Pour over trust (POT)
a form of inter vivos trust, except it is funded with trust property at death of the settlor.
SOF under CL the writing or memo req. The elements, and 8 (EIGHT!!) important caveats (i.e. flexibility in meeting this req)
i) Be in writing; ii) Be signed by the party to be charged (i.e., the person against whom enforcement is sought); and iii) Contain the essential elements of the deal. NOTE: a) The memorandum need not be formal (i.e., receipts or correspondence can serve as memoranda). b) The essential elements MAY BE IN MORE THAN writing, BUT only if one of the writings references the other(s). c) The memorandum need not be delivered. d) Even if it is lost or destroyed, it still operates to meet this rule, e) and memo's prior existence can be proved by oral evidence. f) Memo does not need to be written at the time a promise is made g) can be subsequently reduced to writing h)does not have to be addressed to the promisee to be enforceable by the promisee.
False Imprisonment
i) D commits an act of restraint. [threats are sufficient. taking someone's purse and saying "I will not give it back if you leave" will also count. An omission or a failure to act by D CAN be an act of restraint if D had a pre-existing duty.(wheelchair needed - but left on plane). P MUST KNOW OF RESTRAINT AT THE TIME OR SUFFERS HARM AS A RESULT. ii) P must be confined in a bounded area.
Durational Residency Reqs for a MATRIMONIAL ACTION (NY DRL)
i) If the parties are residents of New York and the cause of action arose in New York, there is no durational residency requirement; ii) Either party must have one year of continuous residence in New York and one of the following conditions must be met: a) The parties were married in New York; b) The parties resided in New York as spouses; or c) The cause of action arose in New York; iii) If none of the above requirements can be met, one of the parties must have two years of continuous residence in New York preceding the filing of the complaint.
treatment of drunk driving , in MBE
uNDER CL, treat as involuntary homicide
Pure Several Liablility
where it operates, involves comparing the levels of fault of the co-defendants. However, unlike contribution, the issue is how much the plaintiff will receive from each defendant.
PRESENT SENSE IMPRESSION [803(1)] State v. Jones
i. Declarant is available as a witness ii.Statement is describing/explaining an event or condition (need not be startling) iii. Statement made while perceiving or immediately thereafter (2-3 mins after the event) iv. Declarant has personal knowledge
EXISTING STATE OF MIND [803(3)]
i. Declarant is available as a witness ii. Statement of the declarant's then existing state of mind, emotion, sensation or physical condition iii. Not a statement offered to prove the fact remembered or believed (unless it relates to the execution, revocation, identification, or terms of the dclarant's will) iv.
What is another way that a proponent of a biz record's admission can satisfy "the duty to report" element?
You can substitute this 803(6) element with one of the other Hearsay exceptions! For instance: - Party Opponent Admissions - 801d2A-E - W's Prior Statements - 801d1A-C
For Minors - Domicility
Domiciled where their parents are domiciled UNLESS legally emancipated child NY: Domicile typically follows the father, WHEN there is a CHOICE. Age: Minor status ends at age 18. After 18, can choose her domicile by choice.
NY Approach #1 - Most Significant Relationship Test (aka the Grouping of Contacts" Test) or the Center of Gravity Test.
While approach is to find place with closest connection to the relevant issue, Court focuses on the policy objectives behind competing laws of different states. Courts still ask three questions 1) What is the precise issue in controversy? 2) What policies do the relevant state laws aim to serve 3) What state's interest is MOST signfiicant given those policy concerns. Used Mostly In CONTRACT disputes!! Step 1 - If there an ENFORCEABLE COL clause, then follow that clause! Step 2, If NO clause (or NOT enforceable), then use the TEST here!
803(8)(c) , but ONLY in certain case, OR against certain party
factual findings resulting from an investigation (including opinions or conclusions) - Made pursuant to authority granted by law AND EITHER - Only in civil cases. - OR only against the government in criminal cases
NY COL for insurance litigation
...
What is an exculpatory statement
A declarant's statement that exculpates the accused who offers the declarant's statement for admission. The declarant's statement also likely exposes himself or another to criminal/civil liability.
Procedure for Admission under 803(5)
A. The declarant must be present to testify to the foundation for admitting the recorded recollection B. The recorded recollection "...may be read into the record but may not itself be received as an exhibit unless offered by an adverse party."
Neumeier Approach (only where law allocates loss, e.g. limits liablity, grants immunity, dictates contribution, etc.)
Again where tort is about loss allocation issue: Same Domicile Rule - apply the law of that shared domicile OR Split Domicile Rule - then apply the law of the place of injury (w/ exception for when
Personal J, via In Personam Jurisdiction
BECAUSE NO LAS in NJ, this is met by either (5 circs) 1)Personal service in New Jersey while voluntarily present (i.e. no fraud or force) 2) Entering a general appearance without objecting to personal jurisdiction 3) Contractual consent to personal jurisdiction 4) Domiciled (NPs) or Incorped (Entities) in NJ 5) OR MCs ----- AND FOR 14A purposes (i.e. circ 5): The defendant has "minimum contacts" and purposeful availment with the jurisdiction. The exercise of jurisdiction is fair and reasonable. The defendant is notified and has an opportunity to be heard.
Cases re: Pub Records
Beech Aircraft - JAG jet crash accident report admissible under 803b(c) (fact finding can be reasonably inferred opinions or concl) OATES - gloss on public records--against def in crim case, EVERY declarant and authory must testify! U.S. v Grady (Strictly routine records, not law enforcer's observations of the accused actions...so okay under 803(B)
Other "sorta" procedural rules (i.e. may be construed as substantive)
Burdens of Proof (but NOT when clear that the burden is intended to SHAPE a party's SUBSTANTIVE rights) SOL - (NOT necessarily in all settings, such as 1) Rights - the SOL restricts a statutory right and NOT JUST a statutory remedy. 2) Prescription/adverse possession - IF SOL vests as a result of prescription or adverse possession, then deemed substantive and thus, foreign law will control; AND 3) Borrowing statutes (i.e. barrings suits that would be precluded in other stats' courts by those states' SOL). --NY's applies only if the COA accrue OUTSIDE NY state. -If the out of state COA accrues IN FAVOR of NY res, then NY law still will control.
corps - Domicility
Domiciled in the State in which they are Formed/Incorporated.
Full faith and credit clause req
FFC recognizes the marriage, unless running afoul of very pwerful public policy. e.g. bans on incest, bigamy, marrying kids; AND in some states (per DOMA?) same-sex marriages.
Fam Law - Marriage and Property
For pre-marital property, law of the SIUTS controls for real prop; AND the law of the Domicile controls for personal property For real prop acquired DURING the marriage, then the law of the situs controls. and Recall Property acquired AFTER the marriage: Not marital property!
Statutory Limits
In direct limit on COL, where, for example, Federal Laws give exclusive jurisdiction over certain disputes to federal courts (e.g patent disputes, antitrust and bankruptcy matters).
FRE 805 (MUST STATE WHEN THIS APPEARS!)
Multiple Hearsay, or Hearsay within Hearsay BUT NOT a problem for pub. records (w/multiple hearsay) sought for admission in a CIVIL ACTION!..remember, the auto deference of trust for pub record
Fam Law - Divorce
NY courts apply the law of the plaintiff's domicile in such proceedings
Public Policy
Ny courts will REFUSE to apply laws that are contrary to the own public policy. BUT the concerns must be FUNDAMENTAL, and STRONGLY HELD. More than a mere variance. Thus, forum court, must CLOSELY scrutinize the foreing law, and the forum state's public policy. Must be repugnant. NOTE: Under GI approach, this defense is NOT incorporated, so the forum state applies its OWN public policy affirmatively, to decide that it will apply its OWN law.
Worker's Comp
SCOTUS: Any state with a legit interest may apply its law, which may be where 1) the employment relationship was entered 2) OR, the injury occurred 3) The principal employemnt took place; or 4)
Case that demos FRE 805
Sana v. Hawaiian Cruses (defendant's insurer's report, multiple hearsay, but OK, and trustworthiness not at issue, b/c insurer with no incentive to produce the report FOR the plaintiff (Sana), who wanted to bring that report in. PLUS, insurance aganet had duty to prepare report.
Cases that demo Statements against interest 804b3
State v. English (statement to popo by 3rd party, against his PENAL interest, and exculpatory for def, was NOT admissible...need coroboration) GM McKelvey (Ohio) (written and signd confession were admissible statements against their pecuniary interests--Classic 804b3 example) US v Barrett (neutral stmtn with statement against interest - all come in..insider knowledge can show statement against interest--the insider knowledge can be corrobation for the statement against interest being one that exculpates the def seeking to admit it) Williams v US (statements that curry favor of police--are collatt stmnts, just narrative, and not against interest, thus collatts not allowed if no statement against interest (i.e. self-inculpatory statement, not non-self inculp)
Hillmon Rule
Statement of present intent can be used as circumstantial evidence to prove that the declarant did the act he stated • Contemporaneous statements of an out of court declarant's intent can be admitted to show state of mind
When are exculpatory statements admissible against the declarant of such statement, pursuant to FRE 804b3, and the rationale.
These statements are only permissible if there is corroborating evidence. Rationale [for applicable FRE as well]: the declarant would not want to lie about something AGAINST their interests. Rather, they'd lie to serve, not undermine, their own interests!]
NY - Choice of Law Defense - Defense to Application of Foreign Law
This defense says it inappropriate to apply ANY law that is NOT NY's own law. Three flavors 1) Procedural 2) Contrary to Public Policy 3) Penal Laws
Family Law - Marriage
Valid so long as in compliance with the law of the state where marriage took place.
Individual's Domicile by Operation of Law
Where people cannot choose their domicile by choice (due to lack of legal cap), then this is the other means.
EXCITED UTTERANCE [803(2)] truck insurance, lira (the throat doc), and state v jones (man bites dog)
i. Declarant is available as a witness ii. Statement relates to a startling event or condition iii. Statement made under the stress of excitement caused by the event or condition (immediately thereafter not required) iv. Declarant has personal knowledge
NY COL for Property
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NY COL for Worker's Compensation
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PJ over Matrimonil actions
See also Fam Law handouts 1) Can be granted in a divorce, EVEN without jurisdiction over the NON-Domiciliary 2) AND marital status treated as a RES, over which court asserts in rem jurisdiction
NJ Distinctions for In Personal Jurisdiction
See p. 26
Borrowing Statute
See p. 34
NY rule on Introduction of Evidence of Character for Untruthfulness or Truthfulness
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NY rules on expert Ws
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NY's 6 rules as to Witness Competence
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NY's Voucher Rule, and Exceptions
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NY's rule as to W's exposure to Liability
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Permissive Joinder Rule for establishing Supplemental Jurisdiction
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Personal Jurisdiction
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Physical and Mental Exams
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Plea Negotiations in NY
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Present Sense Impression in NY
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Prior Bad Acts of Defendant
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Prior Statement of Identification in NY
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Prior Statements of Testifying W - in NY 3 rules
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Service of Process Reqs
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Service on Corporations
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Service on Individuals - 4 flavors
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Service on LLCs
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Service on Partnerships
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Service on Unincorporated Associations
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Statements of Condition
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Statute of Limitation for Arbitration
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Statutes of Limitations
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Statutory Consent (as basis for GJ)
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Stay Pending Appeal (Automatic, and Discretionary, and Continuation)
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Stock Dividends NOT as a distribution
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Subject Matter Jurisdictions
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SuppJ in cases based on FQJ
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TEA Business Records
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TEA of Newspapers and Periodicials
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TEA of Testimony of Subscribing W
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Tangible Evidence Authentication - Writings in NY
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Three Year Sol
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Time for Filing Answer
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Time for Service
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Transitory Action Venue
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Treasury stocks
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Trial by Judge (Bench Trial)
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Two Year time period
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Two Year, 6 month SOL
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Bringing Felony Charges under NY Law
(Prelim UNLESS GJ indictment secured first) -- Defendants charges with felonies are ENTITLED to PRELIM hearings, UNLESS charges are brought by grand jury indictment
Library records
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Mandatory Disclosures
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Measure of EXPDs in Real Estate Ks
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Measure of EXPDs in Sales of Goods Ks
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Pure Notice
"no conveyance or mortgage of real property shall be good against a subsequent purchasers for value without notice unless the conveyance is recorded" A BFP prevails over the prior interest who fails to record EVEN if the subsequent purchaser (BFP) fails to record himself.
BOD Composition Reqs
# Qualifications: At least 18 years of age, and IF provided, whatever COI says
UCC 2-207- To determine whether a "definite and seasonable acceptance" was created.
"A definite and seasonable expression of acceptance [or a written confirmation] which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, UNLESS acceptance is EXPRESSLY MADE CONDITIONL upon assent to the additional or different terms." Example 58: You send a purchase
Race Notice
"any conveyance of an interest in land (O to A) shall not be valid against any subsequent purchaser (B) for value, without notice thereof, whose conveyance is first recorded (B)" Subsequent BFP wins if - (i) grantee NOT recorded, (ii) BFP takes without notice AND (ii) records before the prior grantee. HYPO: On March 1, O conveys to A, a bona fide purchaser who does not record. On April 1, O conveys the same parcel to B, a bona fide purchaser, who does not
Contract Modification
(1) Common Law Rule: new consideration is required to modify contract from both sides. Performing duty under old contract is not new consideration (2) Article 2: Consideration not required to modify, but a good faith rason for modification must be shown.
Comparative contribution
(1) Def paid more than his share because of joint and several liability (2) Ultimately split up the judgment based on relative fault
Preservation of a Future Interest Rules (3 of them)
(1) Under NY EPTL, to [1] provide record notice of the interest and [2] for an owner to preserve his future interest: (a) must file a declaration of intention to preserve restrictions on the use of land (i) NOT LESS THAN 27 years, (iii) BUT not more than 30 years, AFTER the future interest was created. (b) AND the holder of the interest must re-file that declaration after every 9 to 10 years, UNLESS (i) the holder of the interest has ALREADY RE-TAKEN possession (ii) UNDER THE CONVEYANCE
Mesure of EXPDs in Construction Ks
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Derivative Suits
- Brought on behalf of corp FOR A HARM SUFFERED BY THAT CORP. - Broughtly only by (a) any RECORD or Beneficila SH, (b) Holder of trust certificate -STANDING RQ: holder at time of action brought, AND at time of transaction of which complained - MUst name Corp as nominal Def - Real Def usual - ANy recovery goes to the corp - Court CAN awared plaintiff SH reasonable expenses (like reasonable atty's fees) - Pre-litigation WRITTEN, PARTICULARIZED Demand on BOD, UNLESS FUTILE (factor test for futility: disinterested/independent, whether transaction complained of was product of a valid exercise of the director's Business Judgment). (so, get around this demand by showing Directos are SELF-interested in transaction, OR causing harm to the corp - Settlement or discontinue of the action requires court approval.
Miscellaneous aspect of Appeal
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NJ Law - Change of Venue , p. 34
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NJ law - Forum non Conveniens - p. 35
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NY COL for Fam Law
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NY COL for Inheritance
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NY COL for K
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Adjudicative Facs
- Facts that the JURY would have to decide, because those facts that you ordinarily, but for JN, would have to prove, UNLESS the facts are NOT subject to REASONABLE DISPUTE, such that A) The Facts are Generally KNOWN within the court's TERRITORIAL jurisdiction (well-known in a community, not per se everyone) B) OR Facts that CAN BE ACCURATELY and READILY Determined by SOURCES whose accuracy cannot reasonbly be questioned. C) BUT NOT MERELY Judge's own personal knowledge. Result if A or B: Can use JN b/c no real reasoanble dispute. AND IF done so in a CIVIL Case, THEN COURT MUST instruct jury that it MUST accept the fact as proven BUT in A CRIM case, MUST instruct jury that it MAY or MAY not accept the fact as proven. (b/c prosec must bear BOP of ENTIRE case, all elements of crime, no "partial summ j" against D) Result if NOT: THere is A REAL dispute about the issue, and so cannot use JN
Appeal - Decisions Subject to Review
- Final judgement (plust non-final one that necessarily affect final one) - Order denying a new trial or hearing - Rulings to which appellant objected or had no opp to reject - Charges to the jury (for failure to charge) - Jury verdict as to inadequate or excessive amounts
Child-to-Parent privilege
- Not from Parent to Child
DEPOS on ORAL Qs
- The person to be deposed must be given at least 20 days' notice of the deposition. - Any NON-party to be deposed must be given a SUBPOENA at least 20 days before the deposition. - When a party seeks to depose a member of an entity, the entity can choose to send a different representative upon 10 days' notice. - A deposing party may require the deponent to produce tangible items in the deponent's custody or control.
Amended Pleadings - Requirements
- Timely at time of filing this - EXCEPTION, unless original pleading gave NOTICE of the events ON WHICH NEW CLAIM (featured in your AMENDED pleadings) is based. - ANd thus
Prelimary Hearings - Key principles
- When concerning ADMISSIBLITY of Evidnce, this MUST be held outside of the hearing of the jury in 3 instances: 1) Detemrining admissibility of a confession in a CRIMINAL trial 2) When def in a crim case (a) is a W; AND(b) Crim D request the prelim hearing; AND 3) When INTERESTS OR JUSTICE otherwise require (e.g. Unfair prejudice)
SJ/LAJ basis - Real Property Based Actions
- arising from ownership, use, possession of real prop IN NY - causes action can be K breach, Equitable Remedy, or Negligence
Third Party Defendant's Rights
- can assert against TPP any defense which TPP has aginst original plaintiff - NOT improper service of summons, complaint, summons w/notice, or notice of peitiotn and peitiotn - NOT jursidiction over TPP - CAN appeal, even if TPP does NOT.
Special Needs Trust
- provides EVEN greater asset protection and ongoing asset management, especially for an incompetent beneficiary.
Challnege for cause, juror's seating
- unlimitd number of th
SJ/LAJ basis - Contract to Supply Goods and Services in NY
--A defendant who purposefully seeks to benefit from the New York commercial market by agreeing to ship goods or perform services in New York can reasonably expect to be sued in New York on causes of action arising from the contract. --A claim for personal injuries sustained by a plaintiff who uses goods in New York but is not in privity with the defendant may still sue in New York if the defendant: 10 | © 2013 Themis Bar Review, LLC | New York Civil Procedure o Could have foreseen that the injury would occur in New York; and o Derived substantial revenue from interstate commerce
SJ/LAJ basis - Tortious Acts INSIDE NY
--The CONDUCT must occur w/in NY State --defendant MUST be physically present in NY when act is performed. --NOT necessary for the consequence or injury to occur in NY
what can be Adequate provocation
--Threat of serious battery (not trivial) or deadly force Discovery of spouse in act of adultery BUT Words (even highly insulting language) are not enough to count as "adequate provocation." AND The defendant cannot have had any time to "cool off" - make sure defendant was still acting in the heat of passion when he or she committed the killing.
4 ways to WAIVE a Jury Trial Right and when it does NOT occur
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Amendments as a Matter of Course
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And if no Safe Harbor rule, when still considered a a fair and reasonable transaction Note: The last analytical steps after 1) Breach of DOL or DOC 2) A COI or Self-Dealing 3) No Safe Harbor (in any 3 circ) 4) So, what the court will or won't do.
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Appeals - Rules concerning Time of
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Authentication of physical evidence
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Automatic Disclosures
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BOD - Meeting Reqs.
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BOD - Removal FOR Cause
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Conflict of Laws
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Consumer Goods
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CounterClaims or COC under under Rule 13
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Cross Claims under Fed RCP, pg. 66
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DEFAULT rules of Partner Duties
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Deadlines to Pleadings
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Def's Past Sexual Conduct in NY
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Defaults (NY will test this!)
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Defendan't bad character
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Definition fo Diversity J, 2 elements
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Definition for 3PB
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Definition for a 3PB K and requirements for bringing a 3PB K-based action
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Definition of domiciliary
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Demands for Addresses
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Denials
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Depos on Written Questions, and The Procedure
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Devices to Create or Destroy Diversity Jurisdiction
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Disclosure Sanctions
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Distribution (3 points)
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Dividend
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Expert Witnesses
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Eyewitness IDs
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False Confession Expert Testimony
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Fictitious Party Rule and Relation Back
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Final Judgment Rule (and not Partial Final Judgment rule)
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First Option Restrictions
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Four Year SOL
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Four month time period
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General Appearance with out Timely Objection to IPJ
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General Rule of Lawyer's Professional Responsbitlity
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Grounds for Summary Judgment
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Habit Evidence
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Handwriting comparison
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How to DEMAND a jury trial
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If Attachment was improper (i.e. defendant's remedies)
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Immunity
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Impeachment
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Implied-InFact K based on Restitution Theory
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Independent Professional Judgement - Conflicts of Interests
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Inspection of Propery and Document
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Instructions (in Jury Trial)
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Interlocutory Orders
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Jury Size
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Service of Process
...Sheriff can P's attonrey or agent Private Process Server Any competent adult who has NO direct interest in the lit Process may be served on an individual defendant or on any competent member of his household over 14 years old. Service of process may be completed using certified return receipt requested mail if reasonable attempts to personally serve the party failed. NOTE: The person serving the party may voluntarily file proof of service. (ie. SOP's validity is NOT affected, if proper, by failure to file proof of service). HOW 1) To Individuals: a) to D DIRECTLY, b) OR left at the abode w/ a competent houlsed member at least 14 years of age 2) OR, on a partnership (to any General Partner) 3)Corp a) any Off, Dir, Trustee, Managing or General agent b) A
Words CAN negate..
..immediacy. Ex: Words are conditional ::Shake fist in face:: "If you were my best friend, I'd beat the crap out of you" Ex: Words indicate the threat is a future one::Shake fist in face:: "Just you wait until tomorrow"
"Apparent Ability is sufficient...
..to trigger an apprehension of a battery"
Where is JOINT AUTHORITY established?
1 - Roommates 2- Spouses 3 - Homeowners and Guests (only when HOMEOWNER gives the consent)
NY Rule for Tenancy at SUFFERENCE's conversion to periodic, month-to-month tenancy
1) A Tenancy at Sufferance created 2) Landlord accepts the rent And TERMINATED only with notice within 30 days of intended last month
What gives rise to an inference of UNDUE influence
1) A confidential relationship between the testator and the beneficiary under the will AND 2) Suspicious circumstances, such as a will prepared in secrecy or with haste
Elements of an Assignment (under CL)
1) A present intent to transfer rights IMMEDIATELY 2) Assignment for C (makes it IRREVOCABLE), but if no C, then Revocable (under CL, UNLESS PE applies, OR the obligor/transferor ALREADY performed his duties under the K) Note: Ditto for NY, except can have irrevocable even w/out C when: A signed writing by the transferor (e.g. assignor) or his agent
UCC's SOF, and 5 Ways (i.e. the rule, and 4 "exceptions")
1) A signed writing 2) no need to mention the price 3) Must mention the quantity of goods sold (b/c K only enforceable under UCC SOF for quantity mentioned) Exception to SOF: 1) Part Perf BUT ONLY for the quantity DELIVERED or ACCEPTED. NOte: Track what quantity the writing lists, despite what either party says VERBALLY. Thus: A written sale of goods contract that contains the wrong quantity can be enforced for the quantity mentioned. OR 2) CUstom-made or specially manufactured goods (EXEMPTED from the Statute of Frauds), ONCE the MAKER makes a SUBSTANTIAL BEGINNING toward manufacturing such custom-made goods. RESULT: These Goods are EXEMPTED. Need not satisfy the SOF) OR 3) Judicial Admission(e.g. statement in a pleading or during testimony) (trigger: a party against whom Goods K is enforced ADMITS in pleading or at trail OR 4) If both are merchants, AND (i) irrespective of signature of charged merchant, (ii) AND the charged merchant FAILS to object to a CONFIRMING memo W/IN 10 DAYS.
Public Necessity
1) ABSOLUTE privilege for private citizens or public officials. 2) Must REASONBLY intrude or destroy private land 3) AS NECESSARY to protect large number of peeps from public calamity 4) AND as long as necessity or emergency persists. 5) and must have REASONABLE BELIEF that necessity existed even if original entry not necessary
Remedies for Breach
1) ANTICIPATORY REPUDIATION (tied to COnstructive COndition of Exchange) (and in UCC, tied to PTR) 2) MONEY DAMAGES (EXP, RELIANCE, RST, LIQUIDATED, PUNITIVE) 3)EQUITABLE REMEDIES (SPEC PERF, DAMAGES)
how to establish a family offense (Elements)
1) Action filed in either Family Court, OR Criminal Court 2) the victim is alleging victim of DV in the form of either: (a) Assault (b) Attempted Assault (c) Stalking (d) Harassment (e) menacing (f) OR endangerment; AND 3) files this action to keep the offending party away from (a) place of work; (b) place of education, or (c) home;
To determine whether UCC or CL applies over Mixed K
1) All or Nothing Rule (but limited exception if the K is a divisible K) OR 2) the predominant purpose rule (which subject matter plays a BIGGER role) Goods more likley if the service can be done by anyone ---e.g. Services or Land more likely (land is unique, and goods not severable; services unique if a highly skilled person carrying out the return perf or promise you sought).
TYPES OF Marital Property under NY DRL
1) All property acquired during marriage regardless of how asset titled & who works 2) Includes professional licenses/degrees earned DURING marriage (and extent to which spouse contributed financially or otherwise to that degree's acquisition) (BUT advanced earnings cannot be double counted for ALIMONY purposes) 3) All businesses, salaries, stock options, lottery winnings, VESTED pension rights, professional licenses, gifts from spouse 4) Commingled assets (i.e. the sep prooperty becomes marital property and then EQD applicable when commingled for A JOINT PURPOSE (think Bank accounts) (COMMINGLING SHOWS INTENT TO CREATE MP) 5) Stock plans as party of payment for work DURING the marriage (NOT stock plans as FUTURE incenteive)
Individual's Domicile by Choice
1) Any person OF LEGAL CAPACITY (e.g. of sufficient age and sound mind) may establish domicile by choice (i.e. Physical Presence and Intent to Remain) 2) Via Physical Presence AND INTENT TO REMAIN --Phys Pres - Where person actually AND physically is, even if for a short time. --Intent (voluntary [e.g. not incarcerated!], not compelled); critical element; use circumstantial evidence (e.g. voting recs, realty ownership, tax payments, driver's licennse). Need NOT establish permanency.
Five Ways to establish Factual Cause IF the first basis can't be established...
1) But-for (MUST ASSESS FIRST!) 2) Substantial Factor (which D's acts were substantial factor for P's given injury/injuries) 3) Concurrent Tortfeasors' acts that produce SINGLE injury 4) Alternative Causation(2 to 5 Ds) (IF V suffers a SINGLE injury; AND only on of the D's act was the FC, or else just hold JS/L) 5) Concert of Action (Ds' ACT to COMMON PLAN)
Waiver of 6ARC in NY 2 Distinctions
1) Establishes right to proceed pro se 2) And invocable ONLY IF a - Voluntary (you weren't coerced) b - Knowing (e.g. you were first told the Miranda Warnings/specifically right to counsel) c- and Intelligent (e.g. you understood that) AND A) If D is repped by an attorney, then MUST be done in front of such counsel to be valid B) If (i) a D had a lawyer FOR A PRIOR CHARGE, AND (ii) now D suspected of a NEW and UNRELATED charge, then (iii) can be done OUTSIDE the presence of that attorney to the past/unrelated charge).
Third-party consent - 3 elements; and types of 3PC that permit warrantless search in D's ABSENCE
1) Can be given to search any area over which that 3P has JOINT control 2) BUT NOT over area where def has EXCLUSIVE control 3) OR, REASONABLE BELIEF that cops were given this by someone who has APPARENT authority, EVEN IF person does not have ACTUAL authority 4) UNLESS the defendant is physically present and objects to the search. A third party can consent to a search of an area over which the third party has joint control (actual or apparent authority) with the defendant unless the defendant is physically present and objects to the search. Examples: 1) Parent has power to permit the search of a room of her child (EVEN ADULT child) i 2) Spouses 3) Roommate 4) Homeowner and guests, when HO gives the consent 4) BUT NOT Landlord to Tennts (or vice-versa) 5) NOT hotel managers and guest who are still registered as having the room 6) AND NOT where lacking JOINT CONTROL 7) AND NOT where, even if w/JOITN CONTROL, the D is PHYSICALLY present and EXPRESSLY refuses consent.
If Miranda is violated
1) Can't use the statement in prosecution's case in chief 2) BUT CAN use to IMPEACH D, IF that satement is VOLUTNARY and Trustworth 3) Does NOT require suppression of physical fruits of statemetns that were unwarned BUT still voluntary 4) Does not require suppression of subsequent voluntary, Post-Miranda statements by def, UNLESS (i.e. exception to this exception to Miranda violation) circs make it clear that the "question first, warn later" approach was an INTENTIONAL attempt by cops to circumvent Miranda. NOTE: If evidence admitted in violation for the 5A, as found by a court on appeal, then the HARMLESS ERROR test applies.
Contents of COI - what MUST be in the COI
1) Corp Name (diff. from other existing NY corps, and type of corporate entity) 2) Corporation, Incorp, or Limited (to later public they deal with a limited liability entity) 3) Statement of Corp's puprose (Specific or Generic ok) 4) Corp Duration (if LIMITED , then MUST state it, OR ELSE your COrp has PERPETUAL EXISTNECE!) 5) County location for Office of Corp IF in NY, OR, IF NOT, then REgistered Agent (w/ statement that such agent is corp's agent to accept service of process 6) Authorized Shares (State aggregate number of shares of stock that corp allow to issue, and par value, if any, of those shares) 7) Sec of State Designation (if NY domicilied PrPoB (to receive service of process against the corporation (plus address where Sec can send copy of any process it receives)
Exceptions to Contributory Negligence's total bar against P's recovery and when NOT a defense to D's own liability
1) D's Last Clear chance to avoid harming P, and did not. 2) D knew/should have known that P was a helpless P, and could have avoided harming P 3) OR, D ACTUALLY Knew that Pwas inattentive/oblivious at time P negligently contributed to P's own injuries. 4) OR, D committed an IT 5), or D committed GROSSLY negligent act 6) or D committed RECKLESS act.
Remedies for Nuisances
1) Damages (typical) - all resulting harm recoverable, even if D's conduct has utility that outweighs the resulting harm. 2) Past and future damages (for continuing and permanent nuisance) 3) temporary damages (damages before trial and within SOL) 4) Injunctive Relief (only if money damages not adequate, so balance equities, e.g. no I.R., if D's conduct has more utility than harm, but I.R. if D solely want to cause "spite nuisance" ) 5) Abatement (Priv. Nuisance - after D gets notice of nuisance, and D still refuses to act, then REASONABLE self-help; Pub. Nuisance - SAME, BUT ONLY FOR UNIQUE injury, otherwise then only public authority)
Elements for Pub Nuisance
1) Def conduct was intentional, negligent or reckless 2) Def conduct was unreasonable 3) or D's conduct actionable under principles governing abnormally dangerous acts Note: D can assert defenses akin to those for private nuisances
How to Invoke and the result
1) Def does NOT take the stand 2) RESULT: Prosecution CANNOT sk D to testify, AND Can't comment on the def's failure to testify
Duress under CL and NY
1) Def does a crime 2) BECAUSE OF 3) unlawful threat by another 4) Def has reasonable bleief that only way to avoid DEATH OR SBI 5) to HIMSELF OR to ANOTHER is to violate the law Under CL: NOT a defense to Murder; Under NY: Is an AFFIRMATIVE defense to Murder
Threshold Qs for 4A application
1) Def must have standing (i.e. OWN rights were violated) 2) GOVT ACTOR, OR a private civilian ACTING as INSTRUMENTS OR AGENTS of police 3) The Def MUST have a reasonable expectation of privacy in the person, effects, or property subjected to a search by police.
Fiduciary Duties - BCL
1) Director Must perf his duties as director, and as comm mber in GOOD FAITH, and Degree of care that an ORDINARILY purdent person in a LIKE posision would use under similar circs (good faith action and reasonable actions) 2) Duty of Care - In making biz decision, must act with knowledge/skill of an ordinarily prudent person handlign his own property ANd for any special knowledge/skills
Defenses to Warranty Claims
1) Disclaimer (generally, but NOT against limits on consequential damages for personal injury from consumer goods, b/c unconscionable; and only if consistent in the case of an Express Warranty) 2) Tort Defenses (AOR, CF to reduce recovery, NOT CN unless P knew the risk and encountered it unreasonably) 3) Product misuse in implied warranty, where product fit for "ordinary purposes" 4) and Generally if P FAILS TO PROVIDE NOTICE OF BREACH w/in SOL (OR reasonable time period)
Ways to analyze and apply SOF
1) Does this rule apply? Only if the purported deal is for (run through Mr SOUR in your head!): • Marriage: A contract made in consideration of marriage (like a prenup). • Suretyship: A contract promising to guarantee (or pay) the debt of another. • One Year: A contract that by its terms cannot be performed within one year from its making. (INTERPRETED NARROWLY: Test is whether there is NO POSSIBLE WAY THAT THE K can be perfed w/in 1 year? --If REMOTELY POSSIBLE, even if Difficult (or chronologically implausible or improbable) to perf w/in 1 year, then SOF does NOT apply. (e.g. teach me for AS LONG AS I LIVE. I could die w/in 2 weeks or a day from now, so my deal is NOT subject to SOF!!) --BUT, if NOT POSSIBLE WHATSOEVER TO PERF the K until AFTER 1 YEAR, then SOF DOES APPLY Thus the TEST is NEITHER: Whether the contract was actually completed within one year, NOR: Whether the contract is likely to be completed within one year BUT ONLY: WHether the K COULD BE completed within one year. • UCC: Applies to goods contracts for a price of $500 or more • Real property: A contract for the SALE OF AN INTEREST in real property.
Defense to Battery
1) Elements are not established, OR 2) Plaintiff's Consent to D's contact or causing apprehension
Where PER does NOT apply as a bar to EE (4 circs)
1) Evidence relevant to a DEFENSE against K FORMATION 2)OR, Even if totally integrate, EE introduced of SECOND, SEPARATE DEAL (i.e. separate bargained-for exchange) 3) OR, Extrinsic Evidence that does NOT contradict the writing (but rather is "NATURALLY OMITTED" from the writing) 4) OR Even if TOTALLY integrated, EE presented of a PRIOR COMMUNICATION that is DESIGNED to interp an AMBIGUOUS term in the Final agreement.
Marital Ks are VALID where:
1) Fair 2) Reasonable 3) Voluntary agreement (i.e. no duress) 4) and Made with full Disclosure by BOTH parties (i.e. no fraud or material misrepresentations)
System for Distributing a Testator's Estate
1) Figure out how is the NET estate worth, which is EVERYTHING testator controls AND could have spent in his lifetim. 2) Figure out what the surviving spouse is entitled to inherit (UNLESS she waived her elective share under a valid PRENUP K following adequate disclosure) AND 3) After knowing what spouse is allowed to inherit, AND actually inherits, ten all T Bs must contribute proprotionally to the spouse's share, AND then T Bs get the difference as their testamentary shares.
Commencement of Proceedings
1) First file a complaint (i.e. not comenced by needing BOTH SUMMONS and Complaint served on D) 2) Then court assignes EACH action to one of the fourth litigation 3) THen court gives P a TAN w/in 10 day
SOC for Bailors
1) First, a person must temporarily take possession of another's person prop 2) Bailor (the giver) has duty to inform (i) GRATUITIOUS bailee only of known dangerous defects in personal , but (ii) HIRED bailee of defect of both what BAILOR knew of should have known v/ reasonable diligence
Grand Jury Proceedings in NY
1) GJ made up of 16 to 23 PEOPLE 2) AT least 12 grand jurors need for the indictment 3) UNLIKE MBE approach, Indictments MUST be supported by LEGALLY SUFFICIENT evidence that is otherwise admissible at trial. 4) Def may seek opp to testify before GJ, but only if they waive immunity. 5) IF Ws granted TOTAL immunity, then NO right to counsel. 6) IF Ws testifying without immunity, then MAY have an attorney present during their testimony.
Admissibility of IN-PERSON or Corporeal Eyewitness ID (line-up), two prong test
1) Had D show ID was IMPERMISSIBLY SUGGESTIVE? (i.e. in light of features of lineup-ed peeps) AND, IF even so suggestive, THEN: 2) Was the testimony nonetheless RELIABLE? FACTORS a - Witness' opp to view D AT TIME of crime b - W's DEGREE of attention AT TIME of crime c- Accuracy of W's description BEFORE the ID AND, d - level of certainty
Three Qs to ask yourself on the MBE
1) Has an ENFORCEABLE K been formed? (I.e. Contract Formation) 2) Has the K been PERFORMED (OR, has the HAS the BEEN EXCUSED)? (Contract Performance) 3) What are the Remedies for BREACH? (Contract Remedies)
EXAMPLES of UNFORESEEABLE CONSEQUENCES (i.e. superseding causes)
1) Human actor that intervenes as Grossly negligent, Reckless, or Intentional OR 2) Unforeseen natural event of unprecedented proportions (e.g. Acts of God/Force of Nature), 3) Criminal Acts (unless this is Foreseeable)
Elements to satisfy submission of former testimony in criminal case into a subsequent civil case
1) Impossibile to obtain testimony of W who testified in crim case (i.e. Declarant is UNAVAILABLE) 2) An opp to cross-ex the W by party against whom testimony is sought to be used in the civl case, OR by one whose motive and interest in cros ex was the same 3) Identity of issues
3 main features to Probating a Will in NY
1) In New York, there is informal and formal probate. 2) New York's formal probate procedure is called notice probate, which requires notice to all potentially interested parties. 3) Only directly interested parties who stand to benefit financially may contest a will, such as beneficiaries under the will or a prior will.
Parental right to revoke Consent to adoption
1) In Private Placement adoption, - in EXTRA-judicial consent (i.e. not given before a judge - BUT where consent given before a judge, CANNOT revoke that consent 2) In AGENCY placement adoption, can revoke within 30 days.
EXCEPTIONS to the EXR
1) Inevitable Discovery Rule - Evidence inevitably discovered through LAWFUL means 2)independent source doctrine: Evidence discovered in party by an INDEPENDENT source, UNRELATED to the tainted evidence. 3) Attenuation principle: passage of time, and/or itervening events are long enough, that court can find that cahin of cuasation between primary tain and derivative evidence has BEEN BROKEN; 4)OR, GOOD FAITH EXCEPTION (NO GFE in NY!!) (if cops act in GOOD FAITH on a warrant that later is invalid , BUT "EXCEPTIONS to this Exception: a - No reasonable officer would have relied on the affidavit b- warrant was defective on its face (prima facie defective) c-warrant was improerply executed d- OR magistrate had WHOLLY abandoned his judicial role 5) Back-office police negligence - Where cops' admin staff was merely negligent in failing to remove an arrest warrant from recs, AND such negligence is ISOLATED and NOT SYSTEMTIC OR RECKLESS. 6) Knock-and-Announce - If search otehrwise valid, failure to comply with this rule does NOT bar admission of evidence from that Knock-less search 7) In-court identification by W of the D ("Exception" to THIS exception -- BUT LIVE Testimony inadmissible, IF there is SUFFICIENT LINK bet the illegal police conduct and the testimony). AGAIN, NY does NOT allow GFE exception to this Rule!
Typical reqs for Express Trusts
1) Intent 2) Trust property 3) Valid Trust purpose 4) Beneficiaries And in NY: Must have in writing, signed by the settlor AND trustee AND either (a) notarized (b) OR executed in the presence of the two SUBSCRIBING Ws Thus: Oral declarations of trust are MOST LIKELY invalid in NY.
Statements that violate the 5A; and Results for evidentiary admissiion or exclusion purposes
1) Involuntary statements 2) OR volutnary statements obtained in violation of Miranda Warnings RESULTS: Involuntary ones: 1) NOT for Prosecution's case-in-chief 2) NOT for impeachment purposes 3) NOT allowed to use any "fruits of the poisonnes tree that is the involutnary statements Voluntary Statments made in VIolation of Miranda 1) Can't be used for the case-in-chief 2) BUT can be used for Impeachment purposes 3) AND CAN use the fruits of the unwarned but voluntary statements.
Necessity Privileges for TTL
1) Private Necessity; or 2) Public Necessity Only against ITs to PROPERTY; available only when D seeks to prevent injury that is SUBSTANTIALLY more serious than D's invasion or interference itself.
Under CL, 7 ways to Terminate an Offer (and add to your K-Sales flash cards!) Hint: L I D ID C C R R
1) LAPSE of an Offer (3 circs where a lapse occurs); 2) INCAPACITY or DEATH; 3) ILLEGALITY, or DESTRUCTION (of subject matter); 4) Counteroffer by Offeree (i.e. terminates original offer, PLUS continuing negotiations w/an offered substitute bargain); 5) CONDITION (W/IN the OFFEROR's offer) to the Acceptance FAILS ; 6) REVOCATION of the Offer, BEFORE acceptance (unless an Option K, or Promissory Estoppel, or Beginning/Part Perf, or a Firm Offer {merchants only , or NY's Irrevocable Offer for non-merchant AND 7) REJECTION (terminates OFFER, and unlike Counteroffer, NO further negotiations. TOTAL CUT OFF OF NEGOTIATIONS)
Intermediate Scrutiny - Burden
1) LAW IS UPHELD if it is SUBSTANTIALLY RELATED to an IMPORTANT government purpose 2) government has the burden to meet intermediate scrutiny
Strict Scrutiny - Burden
1) LAW IS UPHELD if the law is NECESSARY TO ACHIEVE a COMPELLING government purpose 2) government has the burden to meet strict scrutiny
One of 2 effects of DEFECTIVE Incorp
1) Lack of good faith effort to incorp - you are promoter and face personal liability for the "nonexistent" corp's role OR 2) If GOOD Faith effort to incorporate to comply with NY BCL formation req a) Owner must make GFE (e.g. prepare and sign a COI , AND then ATTEMPT to deliver it to the DOS for filing AND b) Owner MUST operate the biz as if it were a corp AND c) Owner MUST not know that the incop req HAVE NOT been meet. I.E. Good faith effort to incorporate AND, Owner operates business as if a corporation AND, Owner believed he was fulfilling statutory obligations REsult if GFE :Biz becomes a De Facto Corp; Owner becomes a De Facto SH, and thus NOT liable for obligations inucrred in the corp's names (i.e. Onwer gets LL!)
Where there is NO Joint AUthority
1) Landlords and Tenants 2) Hotel Managers and Guests who are still registered as having the room; 3) Employers and lockers of employees)
Impossibility, 2 flavors
1) Legal Impossibility - If DEF attempts what he thinks is a crime, but is not in fact a crime, thus there's NO criminal liability 2) Factual Impossibility - NOT a defense to Attempt Crime.THIS is where: If a def fails to commit a crime, b/c it was factually impossible, he can still be criminally liable for attempt.
Speedy Trial right - tested with four factors
1) Length of delay 2) Reason for delay 3) Def's assertion of right 4) Prejudice to the defendant NOT how likely def would be convicted
Paternity - Key Features
1) MAY be court-ordered 2) A test of blood of the child and BOTH parties to this proceeding to determine Paternity. BUT this is NOT CONCLUSIVE evidence of Paternity) 3) Under FAM Court Act, FAMILY COURT has EXCLUSIVE jurisdiction 4) This must be established with CLEAR, CONVINCING EVIDENCE 5) Brought before kid turns 21, BUT this SOL is WAIVED WHERE(a) father acknowledged paternity in writing, or (b) paying support 6) Under NY DRL, Presumed that the father is the husband to the woman, UNLESS husband is impotent, sterile, not cohabitating at time of conception Note: NY finds presumption even for ART kids, if (1) husband consnet in writing, excecuted and acknowledged to the ART procedure, AND (2) such ART was done by a licensed, certifying doc
3 Part Test to determine whether peremptory challenges was impermissibly based on race
1) MOVING party must make PRIMA FACIE case of discirmination (race or gender) 2) THEN party who exercised the Peremp challenge, must give a RACE-NETURAL explanation for the strike; 3) AND MOVING party has ultime BOP that (a) the proffered reason for the strike was pre-textual, AND (b) strike was instead motivated by purposeful discrimination.
Fam Court's Jurisdiction (and whether exclusive or concurrent)
1) Matters involving UNMARRIED adversarial parties (EXCLUSIVE IN ALL OF THE UNMARRIED PARTNERS MATTERS) 2) Child Protection 2) Juv Delinquency (Excl) 4) Adoptions (Excl) 5) PINS (excl.) 6) Paternity (Excl.) 7) Abuse and Neglect (Excl.) 8) Child Support (Concurrent w/Sup Ct,), if parties married 9) Maintenance (Concurrent w/Sup Ct), if parties married 10) Child CUSTODY (Concurrent w/ Sup Ct)
Defenses Motions against the Complaint
1) Motion to Dismiss 2) Motion for Judgment on Pleadings (rare) 3) Motion for more definite statement 4) Motion to strike (scandalous, prejudice, that are NOT relevant to case at hand) 5) Answer
Ks covered under NY's statutory adoption of SOF 10 Types of Ks are subject to NY's SOF.
1) Mr SOUR Ks 2) A subsequent or new promise to pay a debt discharged in bankruptcy; 3) The assignment of an insurance policy or a promise to name a beneficiary therein; 4) A contract to pay compensation for services rendered for NEGOTIATING real estate transactions, 5) A contract to pay a finder's fee for introducing a party to a transaction; and 6)OR An agreement to change, modify, or discharge a contract or other obligation involving real or personal property. 8) BUT NOT: (i.e. EXPRESS Exception to 4th above) Contracts with LICENSED REAL ESTATE BROKERS (think two elems: must be a real estate broker, AND must be licensed)
Attorney-Client Privilege
1) Must be a confidential communication between client and attorney for purposes of providing/obtaining Legal AId or Legal Rep Confidential - 3P who is NOT necessary party, destorys the privilege Lawyer acting AS a lawyer (i.e. licensed attorney) FOr purpose of legal adivce Client holds this, but Attorney MUST assert this. EXCEPTIONS: No privilege if comm for planning future crime or fraud NOR for disputes between attonrey and the client. NOR merely Fee arrangements and payments (generally NOT within this privilege.
Motion to Dismiss
1) Must be filed PRIOR TO the ANswer! 2) May dispose the action in WHOLE OR IN PART 3) AND one of the following bases 1. Doc defense (I have the doc) 2. Lack of SMJ 3. Lack of Legal Cap to sue 4. Pendency of another action obetweenthe same parties 5. Affirmative Defs a- Arbitration b-collateral estoppel c-Discharge in bankruptcy d-Payment e-Release f-Res judicata g-Statute of Frauds 6. Counterclaim not properly interposed ( 7 .Failure to state a cause of action (even if whatever P says is true, STILL LOSE Exception: Extrinsic evidnece establish, w/out question, the P's basic premise can't be true AND NOTE: Leave to amend complaint should be freely granted 8. Lack of PJ (any type) 9. Lack of service (in rem and quasi-in rem caes 10. Non-joineder of necessary parties NOTE" Granting or Denying this Motion is appealable AS A MATTER OF RIGHT (unlike federal rule!)
Favorable LL Provisions under NY Law (4)
1) NO duty to mitigate damages - don't have re-let or re-rent premises in face of T's breach 2) Double Rent to LL if (i) LL sends written demand for tenant to leave (and w/in termination rules for given type of tenancy/leasehold) and (ii) T remains in possession 3) DAMAGE RECOVERY for T's acts or negligence resulting in damage to prop. 4) Can withhold consent arbitrarily for ASSIGNMENTS 5) Can withhold consent, but ONLY REASONABLY, NOT ARBITRARILY, for T's request to sublease. (And failure to response means implied consent for the sublease!)
Negligent Infliction of Emotional Distress MBE
1) Negligence creating injury or risk of injury 2) Plaintiff in the "zone of danger" - threat of physical impact 3) Severe emotional distress manifesting itself in tangible, physical symptoms
Defenses to Private Nuisance
1) No elements met 2) P's own negligence (or comparative, for damages reduction purposes) 3) P's assumption of risk 4) NOT D's compliance with a statute, ordinance, or reg (but may establish reasonableness or unreasonableness of D's interference w/P's land use/enjoyment) 5) NOT P's acquiring the prop w/knowledge of the nuisance (relev only for damages purposes; so D doesn't win as matter of law, still issue of fact).
Contents of COI - what MUST NOT be in the COI
1) No state police, chamber of commerce, or board of trade 2) Not financial institution related terms UNLESS you get permission of NY Superintendned of Banks, or of Insurance, as proper
Collateral Attack on Jurisdiction leadng to an EX PARTE divorce
1) Non-Resd Def must show (A) P was NOT domiciled in the divorcing state AT time of judgment's issuance OR (B) P left the state's domicile immediately after getting the divorce judgmeent 2) Non-res Def precluded if (A) court had Jurisdiction PJ and SMJ over the parties (B) AND the def litigated, OR had OPP to litigage 3) Equitable Estoppel in NEWY to bar this collateral attack (while not per se validating either the divorce judgement or the subsequet remarriage) IF either: (i) the party procured an ex parte divorce, (ii) the party assisted another party—whom he later married—in procuring an ex parte divorce, (iii) the party relied on the ex parte divorce of a spouse by remarrying, OR (iv) an inordinate period of time has elapsed since the entry of the divorce.
What are the FIVE TYPES of VOIDABLE marriage for annulment purposes in NY?
1) Not Age of Consent - Under NY DRL, Underage at time of the marriage (brought by either the underage party, his parents, OR his legal guardian, but NOT the LEGAL AGE partner), and NOT once or after the party has attained the legal of consent to marry. FACTORS: Court weighs the leikliehood of a successful marriage, parties' maturity, and their conduct. 2) OR Mental Incap -- , Marriage entered into by one or more parties lacking Mental Capacity(brought DURING the illness by (a) any interested relative the ill party, or (b) by the opposite spouse UNAWARE of the illness at tiem of the marriage, OR (c) the ill spouse AFTER lucidity restored AND NOT cohabitating post-recovery with the opposite spouse, but NOT from a spouse of NORMAL INTELLIGENT). ---NOTE: Mental Incap as Mental Retardation: Then action maintainable ANY TIME DURING LIFETIME of EITHER spouse, by (a) interested relative of ill party, or (b) court-designated person; OR 3) Physical Incapacity (can't make kids when you married)-- If (A) one party is "NATURALLY and INCURABLY" IMPOTENT or UNABLE TO PROCREATE atitme of marriage; (B) Brought by either (a) non-afflicted spouse OR (b) INCAP party IF INCAP party (i) did not know of his condition, OR (ii) was aware but not aware that it was INCURABLE) AND (C) SOL of 5 years- Action brough within FIVE YEARS from DATE OF THE MARRIAGE; (D) BUT NO right to trial by jury like other annulment actions NOT based on this ground. 4) K DEFENSES (FMDCP) - Fraud, Misrep, duress, coercion, or Force - 1) Only based on PRESENT FACTS; 2) IF fraudulent consent or Duress, NO pre-action Cohabitation; 3) Not merely concealment of defects of morals, charcter, habits, fortune, or temper; 4) but CAN be claims about religious belief or intent to bear kids (i.e. material misreps); and 5) SOL is THREE YEARS FROM DATE OF DISCOVERY; and 6) higher burden of proof (b/c we like marriages) and 7) brought by either (i) the party who consent b/c of the fraud, (ii) her parent; OR (iii) her legal guardian AND; 5) Marriage w/ an INCURABLE MENTAL ILLNESS FOR 5 YEARS- 1) Incurable illness' onset was AFTER the marriage; 2) Med testimony and exam required to establish the illness's incurable nature; and 3) illness had for STATUTORY PERIOD of FIVE YEARS; and 4)action brought by either non-afflicted spouse, OR person acting on ill spouse's behalf. 5) NOTE: Spouse of the ill party can also file for CONVERSION DIVORCE
Class Actions
1) Numerosity, so joinder impracticable 2) Predominance (of common lQs of law or fact applying on to class's individual members) 3) Class re's claims or defenses ARE TYPICALITY of the claims or defenses of the class 4) Rep of class FAIRLY and ADEQUATELY rptoect class's interests 5) Superiority - class action better than other available metnhods for fair efficient adjudication of the controversy
What are the 7 areas in which NY has distinctions
1) Offer 2) Acceptance 3) Consideration 4) Infancy 5) Public Policy 6) Assignment 7)and in SOF
The "Plain View" Exception to the Warrant Requirement
1) Officer is IN a house 2) For a LAWFUL purpose 3) Incriminating Character of the evidence is immediately apparent 4) BUT NOT, IN NY: a) on mere basis of ALLEGED OBSCENITY. Result: MUST HAVE A WARRANT Note: If NOT in PV, then would be an exploratory search, NOT valid if done WITHOUT a WARRANT!
Incorp procedrue
1) One or more incorps prepare and sign a doc called Cert of Incorp 2) Deliver to NY DOS for filing 3) Incorp is ANY Naturual Person over the age of 18 (usually just the promoter, or any attorney hired to do this) a) NO liability for merely signing/delivering COI to NY state b) NO liablity for pre-inc Ks (UNLESS also the promoter!)
Five situations that limit offer's revocation (5th is obvious)
1) Option K (NY, don't need extra C, but non-merchants only) 2) Promissory Estoppel 3)Partial Perf (but not in NY) 4) UCC's FIrm Offer (merchants only)(NY: written offer not among merchants) 5) ACCEPTANCE (e.g. Promise given for Bi K, or completed perf for UniK)
Damages rule for FI (3 to note)
1) P doesn't have to proof actual damages when P is aware of the confinement 2) If P is NOT aware of the confinement, then P DOES have to proof actual damages 4) Punitive Damages possible.
Common areas WITHOUT AN REP
1) Place that's not considered a search for 4A purposes 2) Anything you view, smell, or hear from public property, INCLUDING from AIRSPACE 3) Areas BEYOND the curtilage of a home 4) Prison Cell (but strip searches MUST 1( have reasonable suspicion 2)concealign evidence under clothing; & 3) search conducted in a REASONABLE manner. 5) Your garbage left on the curb and other abandoned property 6) Your
How to analyze Child SUpport Q
1) Premise: All parties in NY 2) If parties move out of NY, can issuign court maintain jursidciton, and modify the order 3) If child or def out state, can the order be enforced 4) Is there a new state that can accept the initial petitoin from P (in home state), AND then reigster that peititon under NY Famly support Act 5) n
SJ/LAJ basis - Transacting Biz in NY
1) Quality and Quantity of the Def's Act Quality: was NY at the CORE of the action? 2) Signle act can satisfy the reqs 3) Def need not be physically present NOTE: Transacting Biz need not amount to DOING BIZ in NY. (lesser standard is transacting biz, like hiring attorney NOTE: ID the CAUSE OF ACTION!
Privileges - NY's prereq
1) Requires confidential communication - NOTE: if the asserter/holder KNOWS that the communication is NOT considered private (e.g. EMPLOYEEE EMAIL!), then the privilege does NOT attach. 2) Not communicated to an UNNECESSARY third party 3)NOT WAIVED 4) okay
What are SPECIAL CLASSES of Foreseeable Plaintiffs?
1) Rescuers 2) Intended 3P Beneficiaries 3) AND, Fetuses
Examples of admissible evidence to prove Custom:
1) Safety codes 2) professionals (docs, attys, electricians) - must show same skill, know, and care as other practitioners within the SAME community. (NOTE: if the prof's care is consistent with this prof comm's custom, then NOT liable, as MOL)
Sources of guidance on matters of state law, to federal courts
1) State Const 2) State statutes 3) State common law (ie. state's highest court are authoritative) --if the SHC is silent, then Feds MUST TRY to guess what the SHC would do if face with that question --OR, the fed may look to lower state courts opinions for insight --OR, may try to ask for input vai certification of the question to the State's court (even highest) itself.
Favorable Tenant Provisions under NY Law (Six)
1) TREBLE DAMAGES, IF LL wrongfully use self-help b/c evicting T found to be wrong. 2) DEMAND BEFORE RE-ENTRY (when authorized in the lease) with Commercial Leases - 3)NEW INCOMING T's Remedies of either (a) Sue Holdover T, or (b) Void Lease, where prior T stays in possession (i.e. Holdover T) 4) No rent payment in face of destroyed premises (if T is not to blame?) 5) NO to a "No Kids" clause - UNLESS for exclusively over-55 facilities 6) Entitled to LL's Duty to Good Repair of Prop. 7) Entitled to non-arbitrary withholding of LL's consent for T's subleasing 8) LL's Failure to respond to request for SUBLEASE (NOT for Assignment!) is deemed CONSENT to the SUBLEASE
Uniform Vendor and Purchaser Risk Act in NY
1) The RISK of LOSS w/ the SELLER, 2) UNTIL (1) Buyer takes possession or (2) Title is Transferred.
6 ways of Terminating An Offer (i.e. looking at actions of either offeror, or the offeree)
1) The offeror REVOKES the offer, but ONLY BY EXPRESS communication TO THE OFFERREE (i.e. definition of revocation) OR 2) A CONSTRUCTIVE REVOCATION ---(i)Offeree learns that (ii) the offeror has taken act totally inconsistent w/ ability to continue King. (but not inconsistent where the item is NOT unique (i.e. NOT sale of land, but a sale of goods in abundant quantity) OR 3) REJECTION - The offeree rejects the offer. OR 4) The offeree makes a COUNTEROFFER. (but not mere counter-inquiry or mere indecision) OR 5) DEATH of Offeror -- The offeror DIES (but this BEFORE K formation, NOT after a K was formed). OR 6) Reasonable POT - Reasonable amount of time passes. (BUT watch OUT for offeror's "Revival" via a NEW offer!) Look to the subject matter of the K. On MBE: Look for SEVERAL WEEKS or MORE (and esp. if circs alter the context, like market price)
A STOP and Frisk
1) This first act is VALID under 4A where a-- police conduct LIMITED detention for questioning b--and done so IF cops have reasonable suspicion (personal knoweldge OR informant's reliable tip) c-- based on articulable facts that detainees were OR are involved in a crime AND 2) the second act is VALID under 4A where a--there is a pat-down of someone's outerclothing, and b-- permissible IF c-- Reasonable suspicion that the suspect was involved in CRIMINAL ACTIVITY d---AND this cop's action is NECESSARY FOR SAFETY. e- AND in MBE: ANYTHING they can obviously identify, by FEEL, can be seized . f--BUT in NY: ANYTHING they can obviously identify, by FEEL, can be seized . ONLY IF REASONABLE BELIEF that the item is a weapon.
Effects of Proper Incorp
1) This is a DE Jure Corp -Properly formed under the law. - ONCE the COI is received by DOS - AND FILED by DOS 2) AND Limited Liability 3) But SH can lose ther investment, NO more than their Investmene 4) Creditos can't go after personal assets of SHS if Corp lacks money to pay creditors 5) BUT NOT IF Court pierces the corporate veil
Assignment
1) This is a TRANSFER OF RIGHTS under a K 2) ALMOST ALL K rights can be transferred, b/c such a transfer are PRESUMPTIVELY VALID 3) can be Partial (i.e. transfer of future or unearned rights, like for money to be received) 4) BUT two limits (ie. disallowed) a--NOT valid if causes other K party's duty a MATERIAL CHANGE Or, b-- INCREASE MATERIALLY the BUrden of of Risk posed, by the K, on the Transferor
Definition of Acceptance (5 elements)
1) This is a manifestation of a willngness to ENTER into the agreement by the offeree. 2) This is governed by the OBJECTIVE test. 3) And because the Offeror is master of the offer, offeree can only do this by following the rules or terms of the offer. 4) AND party tryigng to accept must KNOW about the offer , REGARDLESS of whether the offeror makes it open to all, like in a Reward Ad (e.g. tested where there's a reward, but you didn't know about, even though you performed? Too bad, You didn't accept, so no K) 5) AND the offeree must be the specific audience for that offer. 6) and YOU must GENERALLY communicate your acceptance to the OTHER party in order for it to become effective (UNLESS MAILBOX rule applies)
ANticipatory Repudiation
1) This is where a party choose to not completely perform its obligation on the contract before the performance is due. This is ordinarily done by a breaching party who has substantially performed, but chooses not to complete performance. This must be Clear and unequivocal 2) Under the common law, a party's FAILURE to SUBSTANTIALLY perform on a contract gives the other party an excuse to withhold its own performance. RESULTS of establishing this: 1) The NON-breaching party (e.g. incl. a substantially perf party) can a--ignore repudiation and demand other party's performance c--OR, sue immediately for damages 2) BUT, if the non-breaching party has COMPLETED his ENTIRE PERF AND IS ONLY WAITING for PAYMENT (i.e. the failure to pay is the repudiation), THEN YOU MUST WAIT until the deadline prescribed in the K (i.e. you can't sue early on your COMPLETED perf; can sue early ONLY for SUBST. perf.)
RULE for ACTUAL Damages for N Tort
1) Under CL, actual damages are those damages that result from plaintiff's actual harm as personal injury, or property damages, but not as economic loss unrelated to personal injury or property damage. 2) Further, nominal damages are not recoverable here, unlike for intentional torts, and 3) attorneys fees and interest from the date of the damage are NOT recoverable in negligence tort actions.
NJ rule on Superior Court's Jursdiction
1) Under NJ Const. Art. 6, Sec. 3, P 2, these courts (law and chancery divisions) are courts of GENERAL JURISDICTION 2) so, have Original SMJ over ANY civil action, federal or state law-based action 3) AND have CONCURRENT jurisdcition with Fed COurts on actions based on fed law. 3) EXCEPTION to their SMJ: IF EXCLUSIVE jurisdiction on the law in question is given to a--another NJ state court (state or fed law) b--OR to a federal court (i.e. fed law) then this court lacks power to hear and decide the case (i.e. Implicates Removal vs. Remand)
What are 4 BASES OR WAYS TO HAVE A VOID Marriage in NY, for an annulment decree?
1) Under NY DRL, BIGAMY, a prior valid existing marriage (e.g. bigamy) 2) Under NY DRL, Enoch Arden marriage (GFB that other spouse is dead, b/c of 5 year absence, and 3x weekly published petition) 3) Incest-based marriage (MARRIAGE TO PARENT, BLOOD SIBLING, Aunt, or Uncle); EXCEPT first cousins!) 4) Marriage w/an Incarerated Person SERVING LIFE IMPRISONMENT w/out parole or discharge.
EXCEPTIONS to the NY Scaffold Law
1) Under NY Labor Law, this statutory requirement does NOT apply and there does not attach liability to (I) owner of one and 2 family dwellings (II) professional engineers, architects, or landscape architects W/OUT direct control of the work other than for planning and design). AND 2) Under Case law, No liability attaches if (I) P was the sole proximate cause of the accident, OR (II) (a) the safety devices were available on-site, (b) the worker new of such devices, but (c) still chose NOT to use the devices)
Acceptance WITHOUT communications Acceptance by Silence
1) Unilateral Reward offers or contest 2) Unilateral Offers in which parties are geo close (Offeror can just see that perf has occurred) 3) A past history of slience serving as acceptance (offeree should reaosonably notify the offeror IF offeree does not accept) OR 4) Offeror says that acceptance MUST come via silence, AND (IMPORTANT!!) offeree intends to accept the offer by silence.
What are the ways to CONSENT to voluntarily terminate Parental Rights (i.e. BEFORE ADOPTION can occur)
1) Voluntary Consent (that is either irrevocable in judicial consent context, or not revoked after 45 days in private placement, non judicial context, or not revoked after 30 days in agency placement context) NOTE: child over 14, need his cosnent too. 2) No registry by putative father (but have just the bio mom's consent) 3) Unwed father's consent (and ontice to him) required ONLY if heled himself out as Pop and supported the mother.
Removal Jurisdiction Why, What/Where, Who, When, How (see other slide)
1) WHY: Basis s 1441a 2)WHAT/WHERE: Allows for a case from state court to be remove to federal DISTRICT court 3) WHO: Only DEFENDANT may remove 4) WHEN: a) In ALL jurisdictional Circs, proper only if the case could have originally been brought by the plaintiff in federal court. b) AND, IF based on diversity jurisdiction, proper only if the case was originally brought in a state of which no defendant is a citizen. c) BUT, IF based on FQJ, then proper only if the FQ appears ON ITS FACE in the PLAINTIFF's Well-Pleaded complaint
When does 6A Right to Counsel (6ARC) NOT apply? 8 circs.
1) Warrantless arrests 2) Witness viewing photo iIDs 3) PRE-charge investigative lineups 4) Taking of (i) fingerprints, (ii) handwriting samples, (iii)voice samples, or (iv) voice or blood sample 5) Preliminary hearings to determine PC to detain the Def; 6) Discretionary appeals 7) Post-Conviction proceedings (parole or probation) 8) Photo spread or arrays
New York courts ARE required to take judicial notice of the laws of a foreign country IF (3 elements)
1) When a litigant makes a request to the court to take judicial notice of the laws of the foreign country; AND 2) and provides notice to each adverse party of his intent to do so; AND 3) When a litigant provides the court with sufficient information relevant to its determination of whether to take judicial notice of the laws of the foreign country.
Examples of NO acceptance, even under UCC's relaxed rule that repalced MI Rule
1) You accept far later than the what the original offeror (usually the buyer) wanted to receive acceptance or purchase order. 2) You agree to sell me something entirely DIFFERENT than what I WANTED (offered to buy)!! 3) You put in an EXPRESS CONDITION to your assent/acceptance (see the UCC 2-207 "Unless acceptance EXPRESSLY MADE CONDITIONAL" provision!)...Here, the condition is A MAJOR Part of the acceptance (ie. you're not gonna accept my offer unless I accept your condition!) 4) BUT NOT where the condition is NOT a major or material part of the agreement (e.g., the condition is buried among terms that practically match yours, but for that clause).
Definition for a Manufacturing Defect (and the test)
1) a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. 2) The test for the existence of such a defect is whether the product conforms to the defendant's own specifications.
Definition of a counteroffer
1) acts as a rejection of the original offer 2) and creates a new offer. 3) BUT, exception exists for an option holder, who has the right to make this DURING the option period without terminating the original offer. e.g. the offerree conditions his acceptance, or adds new terms to what the offeror provided in the offer.
Maintance Mod topic - Arrears for Mainteance. Treated?
1) are not discharged by death, cohabitation, or remarriage. 2) NOT modifiable if REDUCED to JUDGMENT 3) but IF not reduced to judgment, Modifiable upon showing of GOOD cause: (a) for the party's FAILURE to request a MOD BEFORE ACCRUAL of the Arrears
Definition of Child Support (4 key features)
1) defined as the payment by one parent to the other for the support of a common child. 2) Under NY Fam Court Act, Both parents, custodial and non-custodial, are legally required to support their minor children 3) This obligation extended to the child's age of 21.(i.e., unemancipated and, in NEW YORK, 21 years of age or younger). 3) May be brought by a minor child under the NY Fam Ct Act 4) 4) Can be continued INDEFINITELY for a child INCAPABLE of SELF-SUPPORT 5) the CHILD'S RIGHT cannot be contracted away by the parents or guardians 6) AND IF Child not capapble of supporting oneself b/c of mental or physical challenges, then may be entitled to support from the parents on an ONGOING basis for REST of CHILD'S LIFE.
Statutory Rape under CL
1) exual intercourse with a female under the age of consent. 2) It is a strict-liability crime. NOT DEFENSES: 3) Consent by the UNDERAGE female is not a defense. 4) A defendant's Mistake of Fact (even if Reasonable) concerning the victim's age is not a defense.
Definition of Expectation Damages
1) intended to put the injured party in the same position as if the contract had been performed. 2) arise naturally and obviously from the breach and are normally measured by the market value of the promised performance less the consideration promised by the non-breaching party. 3) To CALCULATE: subtract the contract price from the market value of performance. The market value of performance is whatever it reasonably costs to get the performance that was promised in the contract. [...] = loss in value + other loss - cost avoided - loss avoided 4) AND Must be FORESEEABLE 5) AND the NON-breaching party must be able to prove them with reasonable certainty.
Full Faith and Credit for Child Support Orders Act (for enforcement of order modified) in one jurisdiction, and check for any conflict with existing orders in another jurisdiction)
1) makes it the responsibility of each state to enforce the terms of an order entered in another jurisdiction. 2) A state cannot modify the order unless state seeking to modify has jurisdiction to enter the order and the original court no longer has exclusive continuing jurisdiction because child no longer lives there or none of the CONTESTANTS reside in the
Definiton for an Intended Beneficiary
1) one to (a) whom the promisee wishes to make a gift of the promised performance (e.g. a DONEE B) or, (b) to satisfy an obligation to pay money owed by the promisee to the beneficiary (e.g. a CREDITOR B). The promisee must have an intention (explicit or implicit) to benefit the third party, or the beneficiary is incidental.
Definition for an incidential beneficiary
1) one who benefits from a contract even though there is no contractual intent to benefit that person. 2) AND THUS, has no rights to enforce the contract. EXAM NOTE: On the exam, if the promise indicates that the promisor will pay the third party directly to relieve the promissee from a debt, then the third party is likely an intended beneficiary. In contrast, if the promisor is to pay the promissee in order that she may pay the third party, then the third party is most likely an incidental beneficiary.
UCC's FIrm Offer (4 elements) and result
1) sale for goods 2) Offeror MUST be a merchant (define!!) 3) Merchant makes ASSURANCES that offer will remain open; 4) AND assurances are set forth in AN AUTHENTICATED writing (DEFINE)
Child Support Modifications and Jurisdiction,
1) when there is a substantial change in circumstances regarding the child's needs (e.g. inadequate support, and Best Interests of the Child, FACTORS) OR parent's financial situation (INVOLUNTARILY JOB LOSS, UNFORESEEN changes, . 2) Only events that have occurred subsequent to the initial award are relevant. 3) Child support arrears cannot be modified, even when they have not been reduced to judgment. N.Y. Dom. Rel. Law § 236. 4) Fault and noncompliance with visitation are not grounds for modification of child support. 5) AND NOT Child support arrears, regardless of the circumstances, even if they have not been reduced to judgment. 6) Private, non-adjudicated agreements are NEVER enforceable 7) CAN'T nullify or cancel NONPAYMENTs of Child support (e.g. arrears) 8) A court can't modify another court's child support order unless either (1) the parties and the child no longer in that court's state, OR (2) the parties EXPRESSLY OK theo ther state to exercise jurisdiction)
Common areas/items where this REP
1)Home 2) Store's Private Areas 3) A private business office 4) Hotel Room 5) inside of Luggage
Rational Basis - Burden
1)LAW IS UPHELD if it is RATIONALLY RELATED to a LEGITIMATE purpose 2) challenger has the burden to show no rational basis
Party Admission
1)Party's own stmt (2) stmt which party manifested a blief or adopted the truth in (3) Stmt by someone authorized to make it for party (4) Stmt by agent concerning a matter w/i scope of employment made while still in relationship (5) Stmt of co-conspirator made during/in furtherance of conspiracy
Heart Balm Actions ( 4 Key Points)
1)Under NY Civil Rights Law, NOT recognized in NY, AND THUS YOU CAN BE JILTED, AND HAVE NO CAUSE OF ACTION 2) Under NY CR Law, party is affirmatively barred from either (a) attempting to file this action, (b) threatening such action, and (c) trying to settle a claim of such action 3) Under case law and the USCON's FFC Clause, out-of-state judgements from this action ARE ENFORCEABLE in NY State courts. 4) Permissible Recovery (IF a K BROKEN) -- can still sue for (1) Deceit due tofactual misrep (that INDUCED COHABITATION, AND NO PRE-MARRIAGE COHABITATION) about (a) party's capacity to marry, OR (b) Legitimacy of the solemnization; OR for (2) Return of Gift where (a) the marriage was called off; (b) neither party was already married; and (c) the sole consideration for the gift was the contemplation of that marriage
Elements for a BATTERY (ITB)
1--Def's Harmful or offensive contact w/PERSON of ANOTHER 2--D acts w/intent (P or KSC) to cause the HOC, OR apprehension of HOC (AHOC)
Fed Q Jurisdiction 5 POINTS to MAKE (incl. Well-Pleaded Complaint Rule)
1. Basis - Art 3, S2 US Const. (court's power; and Congressional power to give such power, codifying each Congressional grant of court power at 28 US s1331) (i.e. Section 1331 jurisdiction 2. Scope - Fedal, USC, Fed Statutes, Fed Reg, and US treaties, NOT merely State laws incorping fed law statndards (even if fed law provides not fed remedy,while violating the fed law is an elementof a state law complaint). 3. Concurrent w/ state courts, UNLESS Congress makes fed court power exclusive (i.e. state courts CAN'T hear such cases) 4. AND such power exists only when the federal law issue is presented prima facie IN the plaintiff's complaint. (i.e. consider necessary elements of ONLY P's claim; NOT elements of D's asserted defenses) I.e. The plaintiff's OWN claim of injury and relief MUST BE BASED on FEDERAL Law. 5. and No AIC req.
Warranty Deed
1. Covenant of seisin: owns estate 2. Covenant of right to convey: power to transfer 3. Covenant against encumbrances 4. Covenant for quiet enjoyment 5. Covenant of warranty: will defend if lawful claim of title brought by another 6. Covenant for further assurances: will do whatever reasonably needed to perfect title if flawed
Dying Declaration
1. Declarant unavailable 2. Statement made under belief of certain and impending death 3. Statement concerns cause or circumstances of impending death TYPE OF CASE MBE: criminal homicide or civil NY: criminal homicide only
Common Carrier Liability
1. Legal Liability - A common carrier's liability is almost absolute for loss or damage to property in their custody from any cause, regardless of their negligence or lack of negligence, except from 5 sources: a. Acts of God b. Acts of a public enemy c. Exercise of a public authority d. Fault or neglect of a shipper e. Inherent vice 2. Bill of Lading - Common carriers are required to issue a uniform Bill of Lading to the shipper of the goods being transported. The Bill of Lading is a receipt for the goods, and sets forth the agreement between the carrier and the shipper. The 2 types of Bill of Lading are: a. Straight (Regular) - The carrier is responsible for the invoice cost of the goods. b. Released - The carrier is only responsible for the value of the goods declared on the Bill of Lading, which lowers shipper's cost.
Design Defect
1. Product could have been built differently in hypothetical, alternative design AND (a) that alternative safer than one actually marketed (b) that alternative economically feasible (c) that alternative practical 2. Instructions and warnings (a) if product has residual risks that cannot be designed out, and not obvious to users, defective to sell without warning (b) cannot paper over design defect (must be undesignable around)
riparian doctrine
1. Water belongs to those who own the land bordering the watercourse 2. Share right of reasonable use of water 3. Liable if use unreasonably interferes with others' Natural use prevails over unnatural use. Natural use: household use, gardening, limited grazing Artificial uses: irrigation, manufacturing.
Approach to Land Possessors Duty of Care
1/2: Standard depends on the land entrant's STATUS (invitee, licensee, or trespasser) OTHER 1/2, & RST too (Reasonable Care for ALL, except trespassers): Land entrant's status is IRRELEVANT. Only the RPP SOC matters, and it is owed to ALL invitees and licensees
Fed approach to Jury size and decision
12 members and unanimous
Superior Court and Superior Court Jurisdiction
3 parts of this Court - Appellate (final Super court judgments; of Law,Chancery, and of tax court) -Law (Trial Court)(General part, Sp<15K part, Smallclaims <3k part) - Chancery Division (Trial court) (General Equity party; Family part; Probate part) Trial courts are of GENERAL J (i.e. can exercise SMJ of state OR fed ct), because NJ trial courts have CONCURRENT jurisdiction, UNLESS Congress makes power over federal claims EXCLUSIVE to FEDERAL jurisdiction. ALso, even when DIVERSITY is met, this court takes cases of: Probate Matters (Chancery Division's Probate Part) Domestic Relations (Chancery Division's FAMILY part).
Define: Liquidated Damages
??
Definition of Treble Damages
?? (See
REMOVING a trustee
A FORM of Modification B's can seek this if 1) Incapcaity of the trustee (i.e. can't perform trustee duties) 2) Breach: T materially breached his duties 3) T's COIs (e.g. Sefl-dealing, ABSOLUTE prohibition (EXCEPTION: IF COI was APPARENT to SETTLOR at time of TRUST's CREATION, then not removal gorund) 4) SERIOUS disagreement bet T-B or Co-Ts 5) OR Poor Performance because of trustee's actions or omissions.
Voting Pool
A contractually binding voting agreement on how SHs will vote their shares, and enforceable via remedy of Specific Enforcement if that agreement is breached. Lasts as long as the agreement specifices, does NOT fave to ve filed with the corp.
Statute of Frauds; definition and elements, and which Ks fall within SOF
A K that falls within this rule scope is UNENFORCEABLE unless 1) In a written memorandum (even if lost or destroyed, so long as oral evidence available) 2) signed by the party to be charge (defined as person against whom enforcement is sought) 3) and, contains all essential K elements 4) AND is One of the following Ks (Mr SOUR) a - Marriage b - Suretyship K c - One year (start date is day after K is made) d - UCC K for price goods sale of $500 or more (frequently tested, along with its exceptions) e - OR, K for SALE of AN INTEREST in real property (e.g. ownership, assignment, easements, mortgages)
What is NOT considered a termination of a marriage
A SEPARATION is NOT the end of this!
Implied-in-fact Contract
A contract formed in whole or in part from the conduct of the parties (as opposed to an express contract)
Sale
A contract under which title to goods passes from the seller to the buyer
SMJ - definition
A court's comptenence to hear and decide cases of the general class and subject to which the cases belong. Objections can be waived at anytime, EVEN ON APPEAL AND, this is NON-WAIVABLE
Victim's Character
A defendant in a criminal case may open the door to the victim's character by introducing evidence of a PERTINENTtrait of the victim. 1) D raises vic's character 2) Such evide is PERTINENT to the crime alleged by victim 3) ANd D uses either Opinon or REp testimony, NOT SPIOC. This often arises where def charged with a VIOLENT cirme, and so def wants to assert def was peacful while the victim was the INITIAL AGRESSOR (i.e. vic to blame) Exceptions: Rape Shield Laws (Def in a sexual assualt case, can't introduce the victim's promiscuity. RESULT (and if no exception to this permitted evidentiary move by D): 1) Def OPENS THE DOOR for the Prosecution to do TWO THINGS: a) Rebut that character evidence (e.g. vic not violent, but actually PEACEFUL) b) AND, Introduce evidence about the defendant having that SAME character trait
Procedural COL defense
A defense that asserts 1) NY courts ALWAYS apply NY procedural law (rationale: Control of Process) 2) and thus that the foreign law itself is procedural, and THUS NY procedural law controls, not foreign law. Rule: What counts as procedural: 1) proper forum rule s 2) Proper form of action rules 3) Sufficiency of pleadings rules 4) Cause-splitting rules 5) Joinder Rules (of claim or party) 6) Joinder 7) Venue Rules 8)Discovery Rules 9)Jury Trial rules 10) Service of Process rules 11) Trial procedure rules; 12) Enforcing judgment rules. NOTE: The forum state's law is generally applied in order to determine whether a law is substantive or procedural.
What is a general bequest or legacy?
A devise of personal property that will be satisfied from the general assets of the estate.
What is a specific bequest or legacy?
A devise of property than can be distinguished form the rest of the testator's estate.
Totten Trust
A form of joint bank account in which the deposit put sin money in trust for a beneficiary - BUT NO BIFURCATION of title into equitable and legal title. - Depositor retain control over the money - Dep can use the money for her own benefit AND - can revoke at any time thus, B has no conrol over the money (contrasts with Joint bank accounts (which are also testamentary substitutes, ).
Is Hearsay allowed for a Grand Jury to review?
A grand jury can consider hearsay. THUS, Court don't look behind a facially sufficient indictment to review the sufficiency of the Grand Jury's PROBABLE cause determination.
Imp Tech 5 - Impeachment of a Hearsay Declarant
A hearsay declarant is not in court. But when an out-of-court statement comes in (under a hearsay exception), the declarant is acting as a WITNESS and can, therefore, be impeached. The impeachment may be made by any evidence that would be admissible if the declarant had testified as a witness.
Intervention
A joinder procedure by which a nonparty seeks to become an additional plaintiff OR defendant in a pending action in which the judgment may adversely affect the intervenor's interests. TWO Flavors As of RIght (by statut OR Permissive
What is NOT an acceptance (other than a counteroffer or a rejection of an offer)
A mere statement of intention cannot manifest this form of assent to a Contract.
Fornication
A misdemeanor in some states, it is open and notorious cohabitation or sexual intercourse between unmarried persons.
Adultery (DEFINE even in the family law context!)
A misdemeanor, this is sexual intercourse or cohabitation with a person who is NOT a spouse (i.e. at least one person is married)
What is a MODIFICATION? and what does CL requires vs. what UCC requires?
A modification is an alteration to the original terms of the K. Under CL, 1) There must be additional consideration 2) and NOT exchange of Preexisting Duty EXCEPTIONS: a) NEW Obligations on both sides; b) OR, unforeseen difficulties for which one of the parties agree to compensate for the impracticability of performance; c) OR Rescission of the existing K via outward sign, and then entry into a new K with performing more than just what existing K was for) 3) AND satisfy SOF where required (unless exception applies) BUT Under UCC: 1) No additonal C is required 2) BUT must modify in GOOD FAITH, by BOTH parties (Good faith requires honesty in fact; AND FOR MERCHANTS, fair dealing in line with reasonable commercial standards) Hint: DEFINE GOOD FAITH on the exam. 3) AND meet SOF, unles exception applies.
Parental Abandonment for TPR purposes
A parent is presumed to have the ability to maintain contact with his child. Even if the parent has had some communications, albeit minor, the court can invoke the doctrine of "insubstantial contact." Pursuant to the doctrine, a court may still terminate parental rights even if there are insubstantial contacts, BUT payment of fair and reasonable support is NOT insubstantial (i.e it IS a SUBSTANTIAL COMM.)
Mitigating Damages
A party to a contract must avoid or mitigate damages to the extent possible by taking such steps as to not involve undue risk, expense, or inconvenience. The non-breaching party is held to a standard of reasonable conduct in preventing loss. If FAILURE to meet this Duty, then that failure only reduces the damages that may be recovered by the non-breaching party.
Interpleader (Initiation, Discharge and Jurisdiction)
A person holding money or property and facing multiple liabilities as a result of conflicting claims to that property or money may join the adverse claimants in an interpleader action for a determination of all the parties' rights and obligations. Person against whom conflicting claims are asserted - Stakeholder
Domicilary statuts
A person who 1) Is physically present in NY (i.e. Served Process w/in NY State, a--BUT no fraudulent enticement into the state for service b--NOT on a W or party present in NY solely to attend a legal proceeding c--NOT on Sunday 2) AND, an intent to make NY one' s home indefinitely
Party Admissions Doctrine (FRE 810d2), Admission by Party-Oppoent
A prior OCS made by a party to the case may be introduced AGAINST that party; it is not considered hearsay. No "against interest" requirement. Adoptive Admissions Vicarious Admissions Statements by Adversary's co-conspirators Preliminary Questionss
General Threshold
A privilege attaches only if there is confidential communication,. Confidential - NOT shared with third parties UNLESS (a) 3P is an eavesdropper; AND NOT WAIVED Waiver can be VOluntarily by talking to a 3P Fail to assert timely OR Contractual waiver BUT NOT a WRONGFUL disclosure
Express Warranty
A promise that affirms or describes the goods and that itself is part of the basis of the bargain, BUT NOT MERELY the seller's opinion e.g. I use a sample or model good - I just created this type of promise, shifting risk to me the promisor. OR A description of the goods by the seller OR A model of goods provided by the seller OR A sample of the goods supplied by the seller BUT NOT An opinion about the goods offered by the seller
Form of relief to as part of an order of protection
A protective Order - prohibiting the defendant against further abuse and no contact with the victim ("stay away order"). It can also include exclusive possession of the residence for a period of time, child custody and parenting time, support, protection for pets, and reimbursement for costs, medical expenses, and property damage. DURATION - Under NY FAM ACT - a prelim order - can be exparte, immediately given , a final order of protectioncan last up to 2 years - BUT can be extended for up to FIVE years when AGGRAVATING circumstances exist. Aggravating circumstances include the following: i) Serious physical injury; ii) Use of a dangerous instrument or weapon; iii) History of repeated violations of orders of protection; iv) Prior convictions for crimes committed by the perpetrator against this victim; and; v) Exposure of any FAMILY member to physical injury and prior behavior of the perpetrator INDICATING that the perpetrator presents an immediate and ongoing danger. EXAM NOTE: A typical bar exam example of relief obtained in a protective order is a fact pattern in which the court orders that the defendant not abuse the petitioner and have no contact with her.
803(8)(a)
A public record of the activities of an office or an agency
What is a restraint on alienation?
A restriction on transferring property
MPC - knowingly
A result is "knowingly" caused if the defendant "is aware that it is practically certain that his conduct will cause such a result." [MPC § 2.02(2)(b)(ii)] With "attendant circumstances" and "conduct" elements, one acts "knowingly" if he is "aware that his conduct is of that nature or that such [attendant] circumstances exist. Furthermore, the Code states that knowledge is established, if "a person is aware of a high probability of . . . [the attendant circumstance's] existence, unless he actually believes that it does not exist." [MPC § 2.02(7)]
Substantive Unconscionability
A rip-off in some term of the contract.
Saving Statute
A rule of construction that, when the grantor creates a specific contingency, the EPTL provides a presumption that the parties intended that the contingency would occur w/in 21 years FROM THE DATE OF THE INSTRUMENT, in order to rescue the transaction from being voided.
Adoptive Admissions (Statements by Party Opponent)
A statement made by someone else, which is then expressly or impliedly adopted as the party's own statement. Note: Silence MAY be this too, if 1) In response to a statement 2) Party was present, heard and understood the statement; 3) AND the party had the ability and opportunity to deny it; AND 4) A reasonable person similarly situated would have denied the statement 5) IF that statement were false.
Declaration Against INterest
A statement that would incriminate or expose the declarant to liability to such an extent that it can be assumed he would only make such a statement if it were true. --NO NEED FOR DECL TO BE PARTY TO CASE.
Definition of Misrepresentation
A statement that, at the time of K formation, IS NOT TRUE, and that statement be either intentional (fradulent) OR accidental.
Verification of Pleadings/Answer (NY will test this!)
A statement under oath that hte pleading/Answer is TRUE. Do so in : A petition in an Article 78 proceeding A complaint in a matrimonial action An action to recover possession of real property NOT reqiured in: A COMPLAINT in an action for fraud For the ANswer, do so in: o If the initial pleading is verified o The answer alleges common-law fraud o Against a corporation for non-payment of a promissory note o The answer does not involve the merits But NOT for an Answer that a) DOES involve the merits (??) b) The complaint is against a government subdivision.
Mutual Wills
Also known as RECIPROCAL wills, these are separate wills, but with identical or reciprocal provisions IN NY, such a will does NOT create a presumption of a K to avoid revoking that will or its reciprocal will
Charitable Trusts
A trust that provides income and/or principal for LEGIT charitable purposes NOT same as private trusts b/c 1) Not subject to RAP 2) AND the charitable purpose substitutes for the beneficiary LEGIT CP is limited to: 1) Relief of the poor 2) Advancement of education or religion 3) Promotion of good health 4) Govt or municpal purposes 5) OR other purposes benefitting the public at large OR a particular segment of the community B/c no specific beneficiary to enforce the trust's terms, THE NYS AG's Office has the authority to enforce this trust. Strictly construed by the courts. NOTE: If this trust fails, then anlayze whether a PRIVATE trust (b/c perhaps the beneficiairies are SUFFICIENTLY defined. (or vice-versa, b/c the purpose may fall within EPTL's categories for charity)
Informed Consent doctrine, and the 4 exceptions
A. This is governed by a what a REASONABLE PATIENT expect to be informed of under the circs. B. Generally, this kind of D must explain the risks of the med procedure to the patient, BEFORE the patient decides to consent (or else, D breaches this medical duty of care, and can face medical malpractice or med negligence), UNLESS: 1) The risks are COMMONLY KNOWN 2) Patient is UNCONSCIOUS (and guardian's consent can't be secured after DOC'S REASONABLE ATTEMPT) 3) Patient EXPRESSLY/KNWGLY/VOL WAIVES OR REFUSES the information. 4) Patient is INCOMPETENT (and guardian's consent can't be secured after DOC'S REASONABLE ATTEMPT) 5) AND, disclosure is TOO HARMFUL to Patient's life or health (hysteria, turn suicidal).
Arbitration
ADR teching, private decision-making NY public policy FAVORS this ADR! It requires: 1) In Writing 2) BUT Not required to be signed. Selection of the Arbitrator specified in the Agreement, BUT IF SILENT, then any K's party CAN apply to court to appoint one PDP preserved 1) Right to be Heard 2) To present evdience 3) and to cross-examine witnesses. 4) Right to counsel throughout the proceeding 5) BUT your Arbitrator is NOT bound by Rules of Evidence Can be compelled, upon a party's initiation, by a court, which cannot consider the merits.
Life Insurance Trust
AKin to POTs, funds of the trust come from the payout of a life insuranc epolicy at insured's death
AT CL, what makes battery different from assault? Two points
AT CL, this first crime 1) REQUIRES a touching (the second does not) 2) AND needs only a GENERAL INTENT (second one needs specific intent to establish it).
Termination of Child Support due to Obligated Parent's death.
AT TIME COURT's awarding of a support award, may also required the obligated parent to also take out a life insurance policy (should the obligated parent die!)
SOF definition; and How many SOLs rules should you remember?
About 30! Usually Torts SOL definition - Protects a defendant from having to defenda against a cuase of action that has expired It is an Affirmative Defense (BUT CAN BE ESTOPPED from Raising if D lied and P reaonblay relied on that affirmative D misocnduct like lying AND is WAIVABLE if NOT raised by DEF in a TIMELY MANNER Plaintiff has to bring the claim within the first day that SOL starts to accrue and BEFORE the last day P's action must be commenced (unless exceptions or special rules like tolling Depends on remedies sought and COA. NOTE : Clock begins (SOL accrues) the day AFTER the actual day on which the injury accors FOR K breach action Torts
TRESPASS TO LAND (TTL)
About violating P's possessory interest in the land Exists when D's INTENTIONAL act CAUSES PHYSICAL INVASION of ANOTHER'S LAND. 1) D's Intent to enter another's land (or physically invade), not required to intend wrongful entry (thus no mistake of fact defense!) 2) D's Physical invasion (whether personally or indirectly) of another's land, even after lawful entry expired, and can be above or below P's land 3) the P is anyone with actual of constructive possession of the land (owner, renter, AP)
Client's general rights
Absolute right to control and decide on goal of
Self-dealing by Trustee!
Absolutely prohibited. So trustee cannot buy or sell trust assets for HER PERSONAL cap. Thus there must be a NO-FURTHER INQUIRY. Trustee is AUTOMATICALLY LIABLE.
NOT conversion?
Accidental Damage of P's chattel, IF D had PERMISSION to use the chattel
Types of non-goods (or intangible goods)
Account (arising from an Article 9-specified transaction) Instrument Chattel Paper Deposit Accounts Documents Investment Property General Intangibles (residual cateogry)
COnrontation Clause (Sixth Am)
Accused shall have the right be confronted wi Wagainst him, if W comes to court. If an OOCS statment if offered against the crim def, those staemnts are inadmissible as violating this clause if those statements are testimonial, and such statements are testimonial when made under circ where they would be expected to be used in a criminal prosecution. NOT statement made to secure emergency help. If testimonal, then admissible agianst DEF ONLY IF; 1) D is unavialable, AND 2) Def had a prior opp to cross-ex the declarant BUT, a person who caue a W's unavialabitty to prevent that persom from testifyin at tirial, will hbe held to have FORFEITED his Confront CLause Rights.
Prima Facie case for intentional torts
Act, Intent, Causation, and Harm* - required elements for this tort
Declarant is NOT available - Statements against interests note: Not applicable to the parties; and HAS an "against instrest, and ONLY use if DD is NOT available.
Addmissible where: 0) Declarant is NOT available 1) At the time it was amde, the statement was against the declarant's pecuniary, proprietary, civil, or penal interets, (i.e. civil or criminal liability 2) such that a reasonable person would have mad ethe statement unless it were true NOTE: If the statement subject D to criminal liablity are NOT admissible to EXCLUPAT ANOTHER person accused of the SAME crime, UNLESS corroborating cic clearly indicate the statement's trustworthiness.
Declarant is NOT available - Dying Declaration
Admissible when 0) Declarant is NOT acailable 1) Individidual believes she is dying 2) He believes death is IMMINENT 3) AND statemnts pertains to the cause or circs of death 4) and admissibile only in crim homicide proseuctions or in any civil case.
UTMA account
Adopted in NY - permits gifts to minors by setting up a custodial account to manage the property until minor reages age of 21 The minor holds legal title to the account subject to the custodian's statutory powers.
NY Lien Theory, and what does sever a JT
Adopts this approach to a lien, such that a lien does NOT sever JTs. Only severed by: 1) Default 2) OR, Foreclosure sale
What are the 4 bases for FAULT-Based DIVORCE?
Adultery Crule and INhuman treatement Abandonment OR, Imprisonment
If right ot counsel is invoked
All cop Qs MUST STOP, until the lawyer arrives, UNLESS Def voluntarily starts convo again with the cops
Self-Defense under
All elements of CL version, PLUS 1) A DUTY TO RETREAT 2) EXCEPT IF in own Castle(home), AND/OR w/in Home's curtilage
Refresher on the 6A Confrontation clause right
All parties have the right to call, examine, and cross-examine witnesses in a criminal trial. Under this clause, a defendant has the constitutional right to confront all witnesses called against him or her, and no inference springs from the failure of either party to call a witness. Hint: Even an unavailable witness or unavailable co-def's CONFESSION would violate this right if admitted WITHOUT def's chance to conront and cross-examine such Ws!
Subrogation
Alows recovery when one party uses his money to discharge the obligation of another to a thrid person - Person who pays steps into shoes of the person paid and aquies his rihts as aginst one who debt was discharged by the subrogee - often tested with impleader
What is a Distirbution BY REPRESENTATION? (i.e. Treat each GENERATION the same, INSTEAD of treating EACH LINE the same).
Also called a "per capita at each generation" approach, Under NY EPTL, this is: 1) the division of the estate into as many equal shares as there are, WITHIN the FIRST GENERATION: (a) surviving issue; and (b) deceased issue who LEFT behind surviving issue that survived the intestate D and then-living (note: if a deceased generational member left behind NO then-living issue, then the deceased member does NOT receive a share (b/c no then-living issue to give deceased member's shre to!) RESULTS: 1) Each SURVIVING member in the given generation gets an equal share 2) The remaining shares (e.g. of the DECEASED members SURVIVED BY ISSUE (i.e. the next generational level) are (i) COMBINED, and then (2) DIVIDED equally among those members who can take at the next generational level. 3) BUT IF the deceased member has NO then-SURVIVING issue at time of intestate distribution, then the deceased members (and, of course, nor does their post-intestate distribution surviving issue, if any) do NOT receive a share. NOTE: 1) CAN goes as far down to great grandchildren of grandparents. 2) and once the lineal line of grandparents and grandchildren reached, then (a) ONE-HALF of net estate is distributed to mat(ernal side, AND (b) one-half to the paternal side. 3) BUT Can never pass to issue more remote than the grandchildren of the grandparents.
Restitution Theory/Quasi-Contract
Also called called a "contract implied-in-law," (KIL) where a one party conferred a benefit on another party, and it would be fair to pay for that benefit. 1) The plaintiff confers a MEASURABLE BENEFIT on the defendant 2) AND the plaintiff reasonably expected to get paid; 3) AND it would Be UNFAIR to let the def KEEP the benefit, WITHOUT PAYING (i.e. look for EITHER a) an opp to decline (none, so, leans in favor of KIL, OR b) a good reason WHY there was NO OPP to decline the benefit from the plaintiff (e.g. if A GOOD reason existed, then in favor of KIL) i.e. there must be 1) NO OPP to decline; AND 2) A GOOD reason existed for NO OPP to decline Note: Result is just quasi K damages, which is just fair value of the benefit conferred.
Jury Instructions, AND when Objection to Instruc is TImely or NOT
Also called requests to charge w/ith the court Key Features (some required) --The court must determine which jury instructions will be given OUTSIDE the presence or hearing of the jury. --The jury instructions are given by the court AFTER closing arguments. -- To preserve the issue for appeal, a party must object to the jury instruction before the jury begins deliberations and must state the grounds for the objection. -- Any party may file proposed jury instructions.
NY - Unitrust
Alternative to UPIA's reasonable rate of return Under NY law, pay out fixed percentage of total trust assets to the income beneficiary.
IRREVOCABLE OFFERs Definition, and FOUR WAYS for creation of IRREVOCABLE offer. (which is the EXCEPTION to general rule that offeror has power to revoke anytime before ACCEPTANCE)
Although general rule is that offeror is NOMRALLY free or has power to revoke his offer anytime before acceptance, EXCEPT where 1) An option is created through separate bargaining from the underlying contract, but ONLY with ADDITIONAL Consideration. 2) FIrm Offer - Under UCC, a merchant can make a firm offer to buy or sell goods. A firm offer is BINDING, FREE OPTION. OR 3) Offeree has started Performance OR 4) Detrimental Reliance
Dead Man's Statute
Although not provided under FRE, federal court WILL apply this WHEN the federal court SITS IN DIVERSITY Cases (i.e. and therefore applying STATE SUBSTANTIVE LAW) These are a set set of statute that LIMIT testimony about conversations and transactions with people SINCE DECEASED (e.g. D dies and claimant shows up, alleging a promise was amde by the D to pay that claimant a certain amount of money)
RAP
Always applied against Future Interests Limits uncertainty, by requiring all equitable interests in that trust to become certain (not necessarily possessory) w/in the perpetutiies period Contingent interests must or open classes w/interests must vest within the perpetuities period (i.e. 21 years from death of a life in being AT THE TIME OF THE conveyance. This includes analysis of Savings Statute, and Suspension Statute.
New York's Legal Capital Rule
An Insolvency Determination And a surplus/net profits determination RESULT: If met, then corp can make a LEGAL distribution.
Assault
An act that unlawfully places a person in apprehension of immediate bodily harm without consent
Liquidated Damages - Definition and Enforceability
An amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. Not enforceable b/c usury-- A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. Enforceable-- A provision for liquidated damages is enforceable and not construed as a penalty if the amount of damages stipulated in the contract is reasonable in relation to either the actual damages suffered or the damages that might be anticipated at the time the contract was made.
Easement by Implication
An easement created by an EXISTING USE on a property. 4 elements: (1) Common Ownership: A large estate owned by one person (2) There was division, and BEFORE the division, there was QUASI-EASMENT: owner of the large tract used the land as if there's an easement on it (3) Owner's use MUST be CONTINUOUS and APPARENT, AT TIME OF SEVERANCE (4) Use MUST be REASONABLY NECESSARY (lesser standard than Strictly Necessary) to DE's use and enjoyment.
Easement Appurtenant
An easement created for the benefit of a particular parcel of property. There is both a dominant and a servient estate. The easement is annexed to and part of the dominant property.
Prescriptive Easement
An easement obtained by the open, notorious, hostile and continuous use of the property belonging to someone else for a statutory period of time.(POACH)
What is an AFFIRMATIVE easement?
An easement that gives the hodler the right to do something on someone else's land.
Easement by Prescription
An easement that is acquired through a sort of adverse possession, EXCEPT that this easement confers a right to use, not a right to possession or title of ownership. Elements are (1) Continuous for statutory period (2) Open and Notorious (puts owner on notice of the third party's use) (3) AND HOSTILE (i.e. not permissive) (4) AND all elements met for statutory period (5) NEED NOT be EXCLUSIVE
Constructive Trust
An equitable remedy to prevent unjust enrichment in the event of some WRONGFUL conduct. Sought where going to NY Supreme Court to exercise its Elements are: 1) A confidential OR FID relationship between the transferor and transferee 2)A promise 3) A transfer of property in reliance on that promise 4) Resulting in unjust enrichment.
What is a Dominant Estate?
An estate of land that is BENEFITED by an easement.
What is a Servient Estate?
An estate of land that is burdened by an easement.
Accord and Satisfaction
An excuse where the parties to an ealrier contract agree that performance will be satisfied instead by the completion of a differnet performance. RESULT: 1) New performance is theACCORD 2) The excusing of he initial performance obligation is called the SATISFACTION 3) AND IF the ACCORD is NOT performed, then the OTHER party can sue on either: (a) the original promise (to the earlier contract), OR the NEW promise (under the new K)
FRE 1001(3)
An original of a photograph include the ngeative or any print therefrom. So photo is either a duplicate of the orginial OR an original itsefl (if that photo is a print from a negative)
Public Nuisance
An unreasonable interference with a general public COMMON right, that: (1) any PRIVATE citizen (civilian?) can assert only if her harm if DIFFERENT IN KIND from what the general public suffers. Also check, State law or local laws (e.g. anti-Sunday gambling), OR (2) PUBLIC authorities can assert for either injunction or criminal prosecution E.G. (air pollution, polluted waterways, interfered public highways, parks, or other public property).
Service of Process out-of-state (i.e. Minimum contacts test under out-of-state's LAS)
Analytical Approach: Here, you will undergo the Due Process Clause's required Minimum Contact/FPSJ test (i.e. firs the OOS's LAS, and then the DPC MC/FPSJ test)
Appellate Division Scope of Review, etc.
Appealable as of Right NOT appealable as of Right An order that requires a more definite statement in a pleading An order that refuses to strike material that was asserted to be prejudicial from a pleading An order from an Article 78 proceeding An order from an Article 78 proceeding
Mere Appearance Doctinre (see the outline)
Appearnce in NY in one action, not enough for getting jurisdiction in another action.
In Rem Jurisdiction
Applies against any kind of property, real or intangible, so long as the property is within the forum state.
When does 6A Right to Counsel (6ARC) APPLY? 2 types of cases, plus 5 types of proceedings (and 1 catch-all type of procees, and 1 ultimate context)
Applies in 1) All felony cases 2) And Misdemeanor case + Imposed Incarceration 3) When FORMAL Charges/proceedings are brought (e.g. indictment, arraignment, or preliiminary hearing; NOT merely warrantless-arrests) 4) UNTIL sentencing is over 5) Post-indictment/post-arraignment lineups & identifications 6) Postindictment interrotgations (custodial OR OTHERWISE!) 7) custodial police interrogations 8) Arraignment 9) Guilty pleas and sentencing 10) Appeals as a matter of right
Forum Non Conveniens
Applies in NJ, and so allows a NJ court to delicne jurisdiction whenever the ends of jutice indicate that trial in the forum selected by P would demonstrably inappropriate for the trial of the matter. Elements: Applies when: 1) Forum would be too inconvenient fo rhte parties, AND for the Ws 2) AND another, MORE convenient forum is availab.e.
Request to produce and permit inspection
Applies only to docs and land under control of a Party NOT against a mere W (need to use a subpoena duces tecum) Must be described with particularity Typically require 30 day reply.
Uniform Interstate Family Support Act (UIFSA), codified in the Family COurt Act
Applies to both child support and maintenance 2) Home State test trigged when two or more court have jurisdction to adjudicate the CHILD SUPPORT MATTER 3) Home state can issue binding order, and keep continuing exclusive jurisdiction 4) AND hOME sTATE must HAVE LONG-ARM JURISDICTION OVER non-custodial parent, Or else refer the case to be handled in the noncustodial parent's state IF either (order entered by custodial parent's state, OR noncustodial parent relocated to another sate Two possible enforcement actions: 1) Direct enforcement 2) Registration of Order 5) child support order modifiable only the court that entered the ORIGINAL ORDER, and did so under CONTINUING EXCLUSIVE JURISDICTION
6ARJT
Applies to serious offenses, which are those that carry a possible sentence of MORE than SIX months of imprisonment NOTE: CANNOT aggregate petty offenses that could carry total exceeding 6 months. (here, no such
Family Law - Legitimacy
Apply the law of the domicile of the PARENT whose parental relationship is in question
Tax COnsequences of Support
Child SUpport Payments are NOT tax-deductible as alimony, AND where no distinction between the child support and maintenance, then treat whole award as child support. STill treated as support even if obligation ends upon death, remarriage, or child's emancipation.
Sealing of Adoption records (rule, and exception to rule over accessiblity)
Are sealed and kept confidential in New York. However, an adoptee can establish good cause to unseal the records, PRIMA FACIE basis for unsealing is: serious medical illness serious mental illness or Serious physical condition
Undue Influence
Arises when 1) a part puts very intense sales pressure 2) on another party 3) that other party usually seems weak minded or susceptible to high-pressure sales tactics
Honorary Trusts
Arises where settlor tired leaving property to an IMPERMISSIBLE BENEFIT that is NOT a chiratable purpose. (e.g. a trust for care of a SPECIFIC grave plot...NOT a CHARITABLE PUROSE (b/c not public at large, so construe as this "TRUST" where money transferred ot the trustee, and trustee may, but not required to abide by the trust).
FFC
As a general rule, required to recognize and enfroce foreign judgment IF: A court of competent jurisdiction had rendered a final judgement afer and based on the merit of the case 1) Jurisdiction - court had to have had jurisdiction by that foreign' court's own terms/rules 2) Finality - the judgment was rendered final (i.e. under the laws of the rendering state) and 3) On the Merits - VT judgment must have been made on the merits - That is it must have reached the substantive issues in the case. REIT: ( The judgment was rendered by a foreign court of competent jurisdiction and was made on the merits rather than on procedural issues. AND The judgment was finalized under the laws of the foreign court and NO oustanding appeal!) I.e. Second law always look to the law of the first, in order to detrmien whether FFC applies. If FFC is proepr (b/c the req met, then the initial decision be enforced with preclusive effect (i.e. claim preclusion as res judicata, and collateral estoppel issue preclusion) (that the rendering state's own law would give). NOTE: IF the second court is a FEDERAL COURT (i.e. not another State court), then you rely on the FFC ACT (statute!), NOT on the FFC of the US Const., even though anlayis are the same. If the AND ASSUMING NO DEFENSES APPLY!
Due process considerations
Assuming falls within LAS (or GJ)
Charitable Immunity
At CL - there was absolute immunity for this institution TODAY - CL not followed, but damages recoverable are capped.
Rule Statement for Contributory Negligence
At common law, this condition is a complete bar to plaintiff's recovery, when a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury. NOT relev when P sues D for negligent rendering of services (even if P created the circs for which P hired D to remedy).
General Rule for a Partnership's Formation
At least two persons must intend to carry on a for-profit business in order to be a partnership.
Examples of LAS
Examples: Any act or omission in this state, that damages persons or prop in this state Any act or omission OUTSIDE the state that damages persons or prop in this state Ks for services in this states Ks formed in this state for doing business outside state Local property disputes Actions against in-state corps When Actor was Resident of State while the Def.
Committees; Types of Committees; and Powers
Audit Financing Nominating Exercise generally whatever powers are granted to it by the full board, the COI, or the by-laws. BUT NOT Fixing BODs or COmm members' comp Submitting to SH SH-approval-req actions Filling Board or COmms vacancies Adopting/Amending/repealing Bylaws; OR AMendming/Repaling BOD resolutions that are not expressly so.
Reply letter doctrine
Authentic by evidence that it was written in response to anther letter that is known to be authentic
Trusts for the benefit of INDIVIDUAL PETS
Authorized by the EPTL, but expires after 21 years.
Contribution (most frequent on bar exam)
Available usually in TORTS NOT available in CONTRACT actions (but note if hybrid of tort and K, then can seek contribution on the tort liability) Can be sought in Impleader Cross-claim Counterclaim OR a Separate action
Nominal Damages
B/c Damages do not need to be alleged in a cause of action for breach, and if no damages are alleged or none are proved, THEN the plaintiff is still entitled to a judgment for "nominal" damages (e.g., one dollar).
Exception to BER (ODR)
BER won't apply when 1) The original is NOT available, and other evidence regardings contents is ADMISSIBLE. Note: Unavailability exists where: a) Original lost or destroyed b) Original can't be obtained by any available judicila process or procedure c) THe party against whom do cis introduced already has a cop and knew it was going to be described at trial; OR d) The document is related to a collateral matter (i.e. not related to a controlling issue). OR; Public Records--Contents of this can be proven by a certified copy, OR a copy plus the custodian's testimony (higher burden) OR Voluminous writings - May be presented in the form of a summary OR a Party Admission - The opposing party admits to or describes contents of the document.
Duty of Care - Reliance on others; and BJR
BJR - a legal presumption that a director, in making biz decision, met his fid duties to the corp, UNLESS a demonstratbel COI, or bad faith exists, then NY courts DO NOT second guess the directors' biz judgment. - FURTHER, Directors protection from Duty of care violation allegation, if directors made INFORMED, good faith decision - ONly focuse on decision making process, not on the substance underlying the actual deicison made. (Boardroom is thepalce to make biz decsions,, NOT courtroom w/hindisght benefit).
What 5A bars
Bars: 1) Involuntary Confession 2) But NOT VOLUNTARY confessions TEST/RULE: Totality of the Circs to asess confession is coerced and therefore involuntary 1) More than just police lying 2) D's characteristsics (age, health, education, mental condition) 3) NY factors: 1)Courts look to duration of the interrogation 2) if minor , then PRESENCE of a parent during that interrogations. and 3) Voluntary statements made during custoidal interrogation, WITHOUT a reading of Miranda Warning
Creation of Representation - Lawyer's Duties
Based on client's reasonable belief (OT) - Where there's a settlement offer, I MUST communicate to client, UNLESS I had an earlier agreement with my client to accept minimum offers - In Crime matters, I MUST leave certain decision by ONLY the Client (e.g. testimony by my client, right ot jury trial, pleas), AND I MUST inform clients of plea deals - Where Client under disability b/c as minor or medically impaired, I still owe an ordinary relaitonship; AND if necessary, Appoitment of Guardian, OR, if necessary to protect client, I may take PROTECTIVE ACTION
Which tort actions usually CANNOT be pursued as Survival Action
Because these actions are considered to personal, such tort claims cannot be brought by decedent's estate rep after decedent's death:defamation, malicious prosecution, or invasion of privacy).
Search Incident to Lawful Arrest (NY)
Before search containers within an arrestee's wingspan: 1) Police MUST suspect the person is ARMED 2) AND person is DANGEROUS
Juvenile Delinquency Proceedings
Cases concerning them are all heard in family court at Fact Find Hearing, 1) HEARD IN FAMILY COURT 2) alleging that a child under the age of 16 years old, but older than seven, committed a crime. (if older than 17, and NOT a first-time offender, then may be tried as an adult) 3) and Treat the Youth as a Youthful Offender (unless commission of a serious crime, or 17 or 18 and not a first-time offender) 4) No jury, and No Bail 5) BOP is Proof Beyond Reasonable Doubt 6) and the minor is entitled to an attorney RESULTS FROM this Prceedings FFH: 1) IF the fact-finding hearing result in Judge say case made against Juvenile was proven beyond a reasonable doubt) made. ---> a DISPOSITIONAL HEARING, NOT A SENTENCING HEARING. Dispositional hearing: - judge decides whether respondent is a juvenile delinquent in need of supervision, treatment, or confinement (placement). OR 2) If no case made at FFH, then PETITION IS DISMISSED.
What is the MAILBOX rule?
Between dispatch of the communication of acceptance and the receipt of such comm to offeror 1) An acceptance sent by mail is valid when the letter is SENT (EVEN IF you get your mail lost, OR even AFTERWARDS, you call w/a rejection...EXCEPTION: Offeror detrimentally relied on your rejection (e.g. Offeror sold a good b/c OFferree got your called rejection BEFORE your mailed-out acceptance). 2)AND, Does NOT apply where: a- offeree sends something OTHER THAN acceptance b- OTher types of communication (like Offeror's revocatoin; or Offeree's rejection) c--To Option Ks (which sets time at which option gets accepted) d--Probably not to other media (fax, email) that are instantaneous. NOTE: Mailbox Rule's Protection lost where: 1) You send out a rejection that reaches the the Offeror FIRST, AND Offeror detrimentally relies 2) OR You mail out a means of terminating the offer BEFORE sending the acceptance 3) OR you send out rejection, and then you send out acceptance, and both arrive at Offeror's door at same time. Whether a K is formed depends on WHICH LETTER the OFFEROR OPENS FIRST!
How to bring FELONY charges
Brought within either 1) Indictment jurisdictions (feds too) (GJ-led indictment that makes PC finding) - no need for prelim hearing/ B/C GJ makes finding of PC WHEN IT RETURNS INDICTMENT 2) OR, Information jurisdictions (Magistrate-led Prelim hearing for PC - State files a criminal complaint or information, AND PRELIM Hearing IS Conducted, by a Magistrate, to determine if there is PC to go to trail. NOTE: IF D's arrested, then hold prelim hearing within 48 hours after arrest. RESULT: No PC at Prelim hearing, then charges are DISMISSED.
3 Corp instruments control Corp Governance Order of Importance
COI Bylaws BODs resolutions If any conflict, the COI TRUMPS the other two, followed by the Bylaws
Basis of Expert Opinions
Can be based on: Perosnal observations OR Facts made known during the trial, OR Facts not known perosnally but supplied to her outside the courtroom, as long as they are of the type reasonably releid on by experts in teh particular field. Even facts that otherwise violate Rules of Evidence, even facts that are not autoamtically admissible, but so long as based on this W's opinion.
Specific Personal Jurisdiction
Can be gained via: 1) Express Consent 2) Waiver (for lack of objection to this in the pre-answer motions OR answer) 3) Statutory Consent 4) Long-arm jurisdiction (i.e. NY's LAS)
Giving an employee a gun without proper background checks
Can be held liable under a negligence theory even if employee uses the gun to cause harm outside of the scope of his employment.
General J
Can entertain any cause of action against that person, IF: 1) Domiciled in NY 2) OR, physically present in NY 3) OR, stutory consent for an authorized corp or biz entity 4)OR Doing Biz in NY, for an UNauthorizzed corp
Merger and Dissolution of an LLC
Can merge with another LLC or another biz entity Can dissolve upon specified event in OPAG, OR if not OPAG, then look to thte stateute OR Petition the court for the dissolution if NOT reasonably practice to carry on this entitty Biz in step with the AO or the OPAG
What can a prosecutor charge a def with if def is alleged to ATTEMPT, but NOT complete the crime?
Can only charge this def with ATTEMPT
Lawyer's Duties to Clients under Disability
Cannot inhibit Client's right to fire you, or to impose penalties for such firing
What are the two types of marriage?
Ceremonial (or Statutory) Marriage, and Common-law marriage
Terminoation of Support (and if emancipation of a minor at issue)
Child Support obligation terminations once 1) the child is age 21, UNLESS child can't support himself b/c of circs like disability OR 2) termination of parental rights of the obligor-parent OR 3) parent dies OR 4) Child dies. OR 5) Child is emancipated (use TOC test: married, in the miliarty, self-supporting, disobedient to reasonable parental demands)) (mere employment of child is not emancipation, nor is teengage parenting by that supportive child) Where emancipation of minor at issue, examine the TOTALITY of the Circumstances
Equal Protection Clause
Clause in the Fourteenth Amendment that forbids any state to deny to any person within its jurisdiction the equal protection of the laws. By interpretation, the Fifth Amendment imposes the same limitation on the national government. This clause is the major constitutional restraint on the power of governments to discriminate against persons because of race, national origin, or sex.
What if PAPs are CO-TENANTS? (and Actual Ouster and Implied Ouster)
Co tenant rule: Actual Ouster Implied Ouster - First Ten Years to Imply ouster, and THen next ten years for the normal AP period
LLC
Combines features of a corp and a partnership Owners called MEMBER who have LIMITED liablity Like partnership, they ejoy PASS-THROUGH taxation Governed by NY statutes LLC law. Requires an Articles of ORg with NY DOS MAY adopt any OPERATING Agreement to govern any or all aspects of the org's affairs, which CAN trump NY Law's DEFAULT Rules MUST publish a copy of its articles, Or notice regarding substance of it, WITHIN 120 days after its articles take effect. AND Once a week for 6 consectuive weeks IN 2 newspapers located in county in which the LLC's office is located.
Endangering the Welfare of a Child - NY Law
Committed when a person (i) knowingly acts in a manner likely to be injurious to a child under 17 years old, or authorizes such child to act in a manner involving a substantial risk of danger, or (ii) fails to exercise reasonable diligence in controlling the child when legally responsible for the care of a child under 18 years old. DEFENSE: Affirmative Defenses are: (i) care in accordance with religious tenets AND; (ii) the safe abandonment of a child up to 30 days old.
Three types of Pleading
Complaint (incl. Cross Claims or Def's Third Party complaint) the Answer by Def (or a counter claim) and the Reply by Plaintiff to Def's counterclaim (if one raised by Def).
Bylaws
Concerns and govern corp biz and conduct of affairs - Deatils about SH meetings, BOD meetings - Notice to the meeting - Quorum reqs - Voting res - Number of Directs - How to fill vacancies - Types of commitees that board may form - Types of officers the corp may have WHO w/last word on bylaw adoption? the SHAREHOLDERS (though they can share them if provided so in COI
Jurisdiction over family-related disputes (custody, support, and parenting time matters)
Concurrent jurisdiction among the Supreme Court AND the Family Court over such matters BUT NOT over Divorces and EQD (Only supreme court) Note: If UNMARRIED, then have custody disptue in family court
Bill of Particulars
Except in matrominal action, must choose between either THIS or the written interrogatoreies of THE SAME Party
Ancient Documents Doctrine
Considered authentic based on age and lack of suspsiciousness in doc, IF 1) at least 20 years aold 2) unikely to create suspicion b/c of its condition, AND 3) was found in a palce where it would likely be if it were authentic.
Professional Corp
Corp with a purpose statutorily lmited to rendering a prof services An SH of this must be a member of the applicable profession And EACH SH-profession only responsble for his OWN acts of malpractice. NOT responsible for acts of malpracitce by others. Otherise, still a typical corp.
c.i.f.
Cost of goods, insurance on the goods, and freight cost, seller must do all these
Support a Child can get: CS, Additional Support (more than Child Support); Temporary Support
Court can require, based on evlauting the parties' cirs AND the best interests of the child 1) Parents share uninsured med expenses 2) the child care 3) educational expenses (even college, but consider (i) financial means of both parents/parties, (ii) educational level of both parents, (iii) environment in which the child grew up, and (iv) academic ability of the child) Temp Support - given while the matrimonial action, even if parties' income info not available, or lack of showing or immediate/emergency need.
Exception to the CL's "NO mod without C, or else PED applies" approach"
Exceptions include a change in performance, a third party promising to pay, or unforeseen difficulties that would excuse performance.
Involuntary TPR and grounds (and BURDEN OF PROOF)
Court-ordered terminaton based on any of the following, provided establishd through CLEAR AND CONVINCING EVIDENCE: ) Abandonment, which is evidenced by an intent to forgo parental rights and obligations, including no visitation or communication despite ability to do so, for a period of six months preceding the action; ii) Permanent neglect, which requires a finding that the parent fails for a period of more than one year following placement in foster care to plan for the child's discharge or failed to maintain contact and visit; iii) Inability to provide basic care due to mental retardation or mental illness; and iv) Child abuse occurring on a severe and repeated basis. Additionally, under the Adoption and Safe Families Act, a state can move for termination of parental rights when the child has been placed outside of the home, and not with a relative, for 15 of the past 22 months provided certain reunification attempts have been provided by the state.
Full faith and credit clause requirement
Courts in the United States, whether state OR federal, must give full faith and credit to final judgments onthe merits rendered by other courts, provided that the rendering court had jurisdiction.
Inter vivos trust
Created during the settlor's life can be revocable or irrevocable NY presumes it is REVOCABLE revcaoble by settlor at any time during settlor's life.
"Trust Purpose" Req.
Created for any purpose that is NOT illegal and NOT in violation of public policy (e.g. restraint on marrying ANYONE). hint: look for ONEROUS terms.
Attorney-CLeint Relationship
Creates Particular Obligations Does NOT require Fee or Agreement for its creation WHether it was reasonble for a CLIENT to conclude that such a relationship was established. Can be stopped IF lawyer makes it clear.
Mandatory Trust
Creditor can get trust prop to the extent of the beneficiary can get the trust prop.
Discretionary Trust
Creditor does NOT have ANY access to the trust prop (b/c Trutsee w/greatest dsicretion in this turst). ONLY TIME Creditor CAN collect ANYTHING: The DISTRIBUTIONS that the Trustee ACTUALLY PAYS to the B. (either TORT Creditor OR K creditor)
8th Amendment
Cruel and Unusual Punishment
Unreasonable Interf for PUBLIC nuisance is..
D caused an injury (to P) that OUTWEIGHS usefulness of D's action.
Attempt Crimes
D is guilty of attempt if D commits an act of perpetration with the intent to commit the intended (target) crime. Act of perpetration: D must do more than merely prepare. D must take a substantial step towards commission or come dangerously close to completion of crime. With the intent to commit the crime: D must have specific intent to commit target crime. Defenses: Merger and Impossibility
Interference required for Conversion
D's dominion or control over the chattel (e.g WRONGFUL acquisition, detention, subst. chang, sever damage or destruction)
Rule Statement for Trespass to Land
D's intentional, VOLITIONAL act that leads to a physical invasion of the land, EVEN IF D does NOT specifically intend for a trespass. Thus, D's mistaken belief of not trespassing IS NOT a defense.
Defense to requisite Intent for Assault
D's own words can negate intent for this IT. (I'd punch you, If you were not bigger than me).
Oral Deposition, elements and Limits
Defined as Qs asked and answered ORALLY AND under OATH before notary public or anyone authorized to give the oath (and can be the recording artist Presumptively ONLY 10 depos for a DURATION of 1 DAY (Unless Court allows more) Notice 1) Any for a party 2) Mere Witness needs a Subpoena
Opposing Party Statements in NY
Defined as EXCEPTION to hearsay rules
Burden of Persuasion
Degree to which a party must convince a trier of fact. In Civil cases - plaintiff must show each element by a preponderance of the evidence (over half); in criminal cases, the prosecution must show each element beyond a reasonable doubt. An intermediate burden for criminally-related civil cases (like fraud) exists. The standard is clear and convincing evidence.
Remedies for violating 6ARC
Depending on the stage of law enforcement, and nature of the proceeding against the DEF: 1) At a NON-trial proceeding (e.g. pre-indictment line-up), RESULT: courts conduct a HARMLESS ERROR ANALYSIS; 2)OR, After indictment (if cops place D with information who tries to induce D into making statements. RESULT: Elicited Statements are NOT admissible. 3) At a post-indictment line, ROC violated, then RESULT: Exclusion of that identification; 3) OR, At a PRELIM hearing, D pled GUILTY, W/OUT opp to have counsel.; RESULT: D's right to WITHDRAW the plea. 4) If at trial, right to counsel is DENIED. RESULT: remedy is automatic reversal of conviction. 5) AND, generally, Statements and PHysical eivdnce from this violation are NOT ADMISSIBLE in Prosecution's CASE IN CHIEF, per FOPT doctrine. 6) BUT, incriminating statements can be used for IMPEACHMENT purposes.
Test for assessing satisfaction of COnditions
Depends on Natures of the performance 1) Preferr method - Objective Test (would an RP be satisfied?) 2) OR SUBJECTIVE STANDARD -- for Contracts involving aesthetic taste, such as art or tutoring services (i.e. K's still breach if they claim dissatisfaction in bad faith.
IMPLIED CONSENT defense to ITPJs
Depends on REASONABLE PERSON TEST (would RP infer that there is consent). (1) Emergency Situation (where patient cannot give consent b/c incompetent and unconscious, AND life or health is at risk...) (2) Injuries from athletics (customary in contact sport, EXCEPT for RECKLESS DISREGARD of player safety..eg. violating safety rules for players) (3) Mutually consented combat (in boxing/prizefighting, yes. But, for majority courts, NOT in unlawful fights like street fight (4) Possibly NONE for Youth, intoxication, and incompetence
Stock Plans as MP?
Depends on whether this compensation is for employees PAST SERVICS, and distinguishable from the portion that is designed to be incentive for employee's FUTURE services
Transferred Intent: 3 types for ITs
Different tort (same vic) Different victim (same tort) Different victim and Different tort
Judicial Notice and exception to the NY rule for JN
Discretion for use of ADFs or LFs, Required of fed and state public statutes and constitutions, and of the common law. In New York, courts must take judicial notice of state constitutions and state laws, even without request; federal law has no provision for judicial notice of legislative facts. In New York, courts may take judicial notice of private acts of the United States Congress and the New York legislature, even without request; federal law makes no such provision. Under federal law, a court must take judicial notice of a fact if requested by a party and supplied by that party with proper supporting sources; under New York, the court has discretion to do so.
In New York, if a tenant abandons a leased premises prior to the expiration of the lease, which of the following is an option available to the landlord?
Do nothing and collect the full amount of rent due under the contract. OR Release the tenant from liability and re-let the apartment for the landlord's account. OR Re-let the apartment for the tenant's account and collect the rent to repay expenses and the tenant's rent liability.
Trustee's Duties and Obligations
Duty of Impartiality - treat Bs with impartiality; can't favor one B over the others, UNLESS Turst instrument directs otherwise. Principle/Income Problem lifetime B - gets income from trust remainder B - gets principal Governed by the UPIA(uniform Princpal and Income Act
Exceptions to PER
EE to: - clarify ambguity - prove some trade, custom, or course of dealing; -show fraud, duress, mistkae, or illegal purpose, OR - show C or no C paid.
Testamentary Trust
EITHER Created AT settlor's death (Created BY A WILL, then like THAT WILL, this trust MUST follow Will Act formalities. OR Created INTER VIVOS (i.e. a POT) which means this trust gets INCORPORATED by REFERENCE into a will (and thus need not comply with will formalities.).
Motion for Summary Judgment - RULE/STANDARD
ELEMENTS: 1) MUST BE GRANTED IF NO MATERIAL AND TRIABLE ISSUES OF FACT PRESENTED 2) Moving Party has BOP of prima facie evidnece that entitled to jugment oas a matter of law 3) If such show made, then NON-MOBING party has BOP to raise a triable issue of fact 4) NOT raisable by Court 5) Entitled to either the moving party OR the non-moving party - NOte: No hearsay Rule and NO dead man's rule for summary judgment motions - ALso Partial is allowed -- Can be subject to court-ordered disclosre - If DENIED (to either moving or non-moving), then Moves to TRIAL -NOTE: Can also convert into Motion to Dismiss
Liablity of Members and Managers
ENjoyed by Members, not liable to the creditors unless the LLC can't repay the creditors Manager or managing member NEVER PERSONALLY liable for obligations incurred on LLC's behalf
Shareholder Meetings (2 types)
Eiether Annual or Special Annual - A CORP required to be held each year on the date specified in bylaws Consequence: NOT effect on corp's existence, and NOT invalidation of biz conducted by the corp BUT an SH can get a court order to compel corp to hold annual meeting, IF Corp refuses to. Special Meeting - so
Venue (NOT jurisdictional), two flavors
Either Transitory Action(ALL other actions), OR Local Action (whre real prop is located) Proper remedy, if not proper, is to just bring the case into the proper court! REQUIRES MOTION of a party (court can't self-initiate) WHERE Eiether: As a Matter of RIGHT OR only within discretion the court 3 ways to test this From Improper Venue To an Improper Venue OR, TIMELY MOTION?
FOUR Ways Cops can search a Car (i.e. the AUTOMOBILE EXCEPTION TO the Warrant Requirement)
Either of these ways are permissible WITHOUT A WARRANT: 1) A police officer may search a vehicle that the officer has probable cause to believe contains contraband or evidence of criminal activity. 2) When the driver of a vehicle is arrested, a police officer may search the passenger compartment of the vehicle if the driver is within reaching distance of the passenger compartment. 3) When the driver of a vehicle is arrested, a police officer may search the vehicle if the officer has a reasonable belief that evidence of the offense may be found inside. 4) When a vehicle has been legally impounded, a police officer may search the passenger compartment of the vehicle, INCLUDING the trunk, or any closed containers within the car.
Child Support and Maintenance Enforcement
Enforced through 1) civil contempt orders (jail time until debt repaid, BUT obligation for mainteance (not Child Support) is SUSPENDED during incarceration. 2) cirimnal contempt if WILLILNGLY failes to pay amount owed, but under 14A DPC, BOP can't be on DEF to prove inabbility to make support payments) 2) Income withholding via Unifrom Interstate Family Support Act (IF obligor or child lives in a state other than the one in which the original order was issued) 3) Withholding tax refunds 3) FFC given to other states chidl support awards 4) Under NY CPLR, 20 year SOl on seeking enforcement of child support or of maintenance arrears
Praol Evidence Rule
Excludes extrinsic evidence, that, if admitted, would CHANGE the terms of a written agreement. For COMPLET INTEGRATIONS - EEs not allowed (the CIs have all the agreed upon terms) But for PARTIAL Integrations - E only for adding terms AND NOT for contradicting the existing terms. NOTE: APPLIES Only to PRE-K or Contemporaneous info
PJ over Family Law actions
Established where EITHER: 1) The plaintiff is a resident of New York and New York was the matrimonial domicile of the couple before separation; OR 2) The defendant abandoned the plaintiff in New York; OR 3) The claim accrued in New York or under an agreement executed in New York
marketable title
Every land sale contract has the implied warranty that the seller provides marketable title (title free from reasonable doubt). The warranty is breached by defect in the chain of title; title acquired by adverse possession; a title that is something less than fee simple absolute; encroachments (building on the land that overlaps a boundary); and encumbrances (e.g, mortgages, liens).
Circumstantial Evidence
Evidence from which we can draw conclusion NOT necessarily worse than other type, because THIS evidence can be stronger than that direct evidence!
Victim's Conduct (Rape Shield Laws)
Evidence of a victim's past sexual behavior or sexual predisposition is generally not admissible in any CRIMINAL case involving Sexual Assault
Subsequent Remedial Measures
Evidence of repairs or changes made AFTER an injury is NOT admissible to prove Negligence, culpability, defective product or design, OR inadequate warning. EXCEPTION, admissiible for other purposes, such as to prove ownership, or control over poperty or to show feasibility of a safety feature if controverted. 9i.e. to rebut the argument of non-feasibility).
Habit Evidence
Evidence that a person or biz has a regualr, particular ROUTINE This is LESS judgment-filled, more precise and reliable than propsneity evidence (e.g. like character evidence) On Exam: This noted by "always" or "usually" Not frequent or often NOTE: Mere use of word HABIT to describe the prior action is NOT good enough to escape being considered Character Evidence, and therefore generally NOT admissible when used to prove confirmity of conduct (only actual evidence of habit can show propsenity to carry out that habit or routine on a certain occasion).
Limits (if TIMELY) on DIscovery
Evidentiary Privelege (ACP, Or Spousal P, see Evidence Rules for Scope) Attorney Work Product (ABSOLUTE privilege) Materials Prepared in ANticipation of Litigation (not absolute; qualified by exception
Examples of using the Prior Bad Acts
Example 14: Motive. If the prosecution wants to argue that the motive for a murder was to cover up a prior embezzlement scheme, the prosecution can introduce proof of that embezzlement. Example 15: Intent. The defendant is caught in possession of drugs, and there is a question as to whether the defendant had intent to sell those drugs. The prosecution can introduce prior convictions of selling drugs. Example 16: Absence of Mistake. A young man marries a wealthy older woman who drowns in the bathtub. It happens with three different women. The prosecution may introduce the prior deaths to prove absence of mistake. Example 17: Identity. The prosecution wants to prove that the defendant has a certain modus operandi. The prosecution may be able to introduce evidence of that modus operandi in prior crimes. Example 18: Common Plan or Scheme. The prosecution may introduce the prior bad acts if understanding a
This demos CL's application of need for extra C to modify an existing C, and not bar the mod under the Preexisting Duty Rule
Example 71: You rent an apartment from Slumlord for one year; the rent is $2,000 per month. Later that year, you start running short on cash, and you both agree to modify the rent to $1,500 per month. Can Slumlord sue you at the end of that month for the extra $500? YES, b/c at CL, no addiotnal bargained for C fo rthe modification of this COntract
Prior Statements of Identification
Example: Lineup ID A previous outof court ID of a person (after perceiving that person) is admisibl eas substantive evidence, IF the Delcarant is now testifying at trial (b/c will be subjec tot cross-ex after testfying. Note: MUST BE TESTIFYING AND SUBJECT TO CROSS-EX!!
What is a breach of Duty, and evidence required, and how to show that failure?
Exists when D departs from (e.g. FAILS TO FOLLOW) conduct expected of a RPP acting under similar circs.
RISK OF LOSS - Trigger and then the steps of analysis
FIRST, Triggered by a GOODS K, and subsequent damage or destruction of the goods before the buyer receives them THEN 1) Have the parties already deal with this RISK in their K? If YES, then K controls 2) If K says NOTHIGN, then ask whether either party has breached. If YES, then the BREACHING party bears the risk of loss. (even if the breach is NOT related to the DELIVERY damages) 3) If NO breach, AND goods are being SHIPPED, then what type of delivery K was it? 3a--If a SHIPMENT K, then ROL during delivery is with the BUYER 3b--IF a DELIVERY K, then ROL rests with SELLER 4) In ALL OTHER CASES (i.e. none of the top 3 steps apply), Ask if the SELLER is a MERCHANT: 4a--If yes then ROL stays with seller, UNTIL BUYER RECEIVES the goods 4a--if seller is NOT a merchant, then the ROL moves to the buyer when seller tenders the goods
What counts as a Custodial Interrogation? First Part and Second Part
FIrst part, estblished by a TEST; 1) Whether a reasonable person would believe that he is NOT free to leave or the person is deprived of freedom in any significant way A) Eamples of NOT custody: a-- Cops Qs you at crime scene, so long as you are free to leave b--you voluntarily stop by precient to discuss a crime, informed right away that you can leave any time, and not under arrest c--Traffics stops (b/c brief and temporary) d--OR PUBLIC Safety exception (i.e. EVEN IF you are in custody, the public's safety is at risk at time cops did not give the Miranda Warnings) Second Part -- Definition Questioning, and ANYTHING else cops know or SHOULD know is likely to elicit an incriminating response. NOt merely suspects volunteered sttements.
Test tip: If there is a SMJ or PJ problem, THEN:
FOr these, ask if motion to dismiss should be raised, or in one of them, a REmoval cae
Present State of Mind
FRE hearsay exception (avail n/a) Statement of declarant's then-existing state of mind, emotion, sensation, or physical condition admissible, e.g., to establish a person's intent or as to circumstantial evidence that the intent was carried out. NB: Statement of memory or belief not admissible to prove truth of the fact remembered or believed.
Is the arrest privilege available for arresting some of suspected misdemeanor?
For these ITs, you can make an arrest and not face liability if 1) The arrest is for a misdemeanor THAT BREACHES THE PEACE 2) the misdemeanor is EITHER being committed or REASONABLY appears about to be done 3) IN PRESENCE of the ARRESTING party (whether cop or private citizen) (not ANY private CIVILIAN?)
For ITPJ, what are the two different approaches to how D can regain POSSESSION (note: NOT intrusion) of D's land?
For these ITs: 1) AT CL, an owner or possessor was allowed to use reasonable force to regain wrongfully taken land 2) MODERN statutes - No force whatsoever, must follow legal procedures for recovering the realty.
Causation required
Factual Cause and Proximate Cause (i.e. plaintiff/injury w/in scope of liability)
Concurrent Original Jurisdiction over Family Offenses (TESTED ON THE NY BAR FREQUENTLY)
Fam COurt and Crim courts share jurisdcition over Family Offenses proceedings Under NY Fam Ct Act, and NY Crim Procedure Law, Petitoiner may bring an action either one or both courts BUT, only fam court has sole jurisdctive over the family violence action, IF the respondent is too young to be held CRIMINALLY Liable. BOTH COURTS can issue orders of protection BUT, unlike Crim Court, fam court can incarcerate only for violation of existing order of protection Fam COurt also has power to issue an emergency order of support, grant temporary custody of the children, or order counseling. AND EVIDENTIARY: Admission w/out rep in Fam COurt: NOT admissible in Crim Court Proceeding; BUT under NY Crim Proc Law testimony in Crim COurt, IS USABLE in FAM COurt. Fam COurt's Order of Protection are NOT modifiable and not vacatable sua sponte, only by motion with notice to the nomoving party (to have opp to be heard) BUT Crim Court can modify the ORder of Prot if (1) given good cause, (2) showing of insufficency in order to protect petitioner or family, and (3) sworn affidavit the issuing court is NOT in session
For Battery, does plaintiff need to be aware of D's contact WHEN IT OCCURS?
For this ITB, NOT REQUIRED for plaintiff to be aware of D's contact when D's makes this contact (e.g. think Surgeon!)
NY Essay Tip - If criminal law Q
For this area on NY exam, be sure to articulate the elements, before elaborating AND DISCUSS DEGREES of the given Crime
Types of Restrictions
First Option Restrictions OR by Right of First Refusal OR by COnsent Location - Set forth in the COI, bylaws, or a separate agreement (e.g. the SH agreement)
Abortions in NY
First const. right ot privacy include right of a woman to have abortion, while state has a compelling interests in the health of the woman and featus, and cannot impose an undue burden or subst. ostcle on the the woman's right when adopt regs. NY allows aborotions by phsicain or pregnant woman when: i) UP TO 24 WEEKS, EITHER A licensed physician, or the woman herself, if acting under the advice of a physician, MAY perform an abortion on a fetus within 24 weeks of conception; ii) AFTER 24 WEEKS, A licensed physician, or the woman herself, if acting under the advice of a physician, MAY perform an abortion, ONLY if the PHYSICIAN REASONABLY BELIEVES it is necessary to preserve the life of the pregnant woman; iii) After 12 weeks of pregnancy, An abortion may ONLY be performed in a hospital on AN inpatient basis; and iv)After 20 weeks of pregnancy, If the procedure is performed, THEN a SECONDlicensed physician MUST be present to provide immediate care IN THE EVENT OF a live birth, ANDThe physicians must keep medical records of all life-sustaining measures taken and the results. A pregnant woman's belief that the physician is licensed and acting under the prescribed belief, or within the prescribed time period, will justify her actions.
NY Approach #2 - Governmental Interest Approach
Focuses on interests of a state and its law in resolving a particular dispute. 1) This approach PRESUME that the FORUM state will apply its OWN law, UNLESS a party can show that another state's law makes better sense. 2) BUT IF the forum state has no interest in the litigation, then the forum state will Apply the law of the state that does have an interest in the case 3) NOTE: FNC - If forum state has NO INTEREST in a case whatsoever, then that forum state court may on occasion DISMISS the case altogether AND NY court adopts this approach's reasoning in many contexts. (e.g. property, tort, and inheritance law)
Public Records
For records and report of public office or agencies THree typs are admisbile if set forth in a pbulic record: activities of the agency observations of those under a duty to report; AND, conclusions of a legal investigation NOte: Law enforcement recs, only the activities can be introduced, NOT those part contianing oberservations and conclusions, against crim Ds.
Requirements K
For such a K, the K MUST expressly grant a party to the right to NOT do something that they otherwise agreed to under the K.
WHen you see a Relocation or Modication of Custody order for Relcoation..then which RIGHT do YOU DISUCSS FIRST?
For such modifications, I must raise and discuss the constitutional, fundamental right to interstate travel. THEN, I discuss the factors for this modification sought.
For ITPJ liability, when is D NOT liable for the injuries to bystanders(3Ps)?
For these ITs, D is NOT liable for bystanders' injuries when 1) D acts in self-defense 2) D ACCIDENTIALLY caused bystanders' injuries. 3) D was not NEGLIGENT w/respect to bystander.
Requirements for use of deadly force to bar ITPJ liability (3 elems)
For these ITs, Deadly force only if: 1) D's reasonable belief that P's force will be enough to cause 2) SBI or DEATH 3) and P's force is intentionally inflicting such SBI or death on D
Privilege of Arrest, against ITPJ liability
For these ITs, the following parties (under certain circs) have this privilege 1) private citizen 2) police officer
EXCEPTION to the Suretyship SOF req.
If the main purpose in agreeing to pay the debt of another is for the SURETY'S OWN economic advantage, then the SOF does NOT apply. NOte: DEFINE SURETY
Is there an obligation to retreat, in order to escape ITPJ liability?
For these ITs: MAJORITY Rule -- a person does not have to retreat OLD/MINORITY RULE - D must retreat before using DF, UNLESS IN HOME or home's curtilage RST rule - a person must retreat BEFORE USING DEADLY FORCE, AND IF person can SAFELY retreat (REGARDLESS OF WHETHER D is in D's own Home or curtilage!) Note: Every jurisdiction w/retreat duty only requires such if can be done safely/ reasonably IN FACE OF DEADLY FORCE. Note: Under Stand Your Ground states, No duty to retreat in ANY AREA if you believe you are facing death or great bodily injury.
DEFENSES to ITs that involve PERSONAL injury (ITPJs) (2 broad types)
For these KINDS of ITs, following defense available are: Consent (Express or Implied)
Factors weighed to assess whether VIC had Capacity to give consent
For this Defense to ITPJ, consider: 1) Age of Victim (Youth) 2) Mental Incompetency 3) Intoxicated
Damages rules for TTC
For this IT A) If D dispossess P of TPP, then P get (1) actual damages caused; and (2) loss of use B) If D intermeddles or uses w/out consent the TPP, then P recovers only actual damages.
3 Key Damages rules for Battery (i.e. type of proof; type of D; type of P)
For this IT, 1) NO proof of actual harm is required (physical autonomy; person's dignity!); 2) punitive damages (if D outrageous or malicious; deeply anti-social); 3) Eggshell/shabby millionaire rule (D's foreseeability not relev; take P as he is at time of D's contact).
Is Apprehension equal to Fear, for Assault?
For this IT, Apprehension is NOT EQUAL to fear. Enough that P is AWARE
Is Bodily Contact Required for Assault?
For this IT, Bodily contact is NOT required (hint: apprehension is sufficient! like a missed swung punch).
Does P's ability to prevent the harm bar liability against D for ASSAULT?
For this IT, D can still be liable, even if P can prevent the harm (actual or threatened).
For IISED, when is D liable for conduct against third party victims
For this IT, D is liable for conduct against third party victims if: 1--D still caused the SED intentionally or recklessly; and EITHER: A--the P is a member of 3P's IMMEDIATE family who (I) present at time of D's conduct and (2) D is aware of this IFM, and (3)suffers SED, regardless of bodily injury to the P. OR B---any OTHER (non-IFM) bystander who (1) present at time of D's conduct and (2) D is aware of this bystander, and (2) suffers SED and (3) suffers bodily injury resulting from the SED.
For CT, when is D's action one of possession or interference w/P's Chattel?
For this IT, D's action: 1) must be intended (not necessarily for the interference w/ P's use or enjoyment of P's chattel) 2) must be an exercise of DOMINION OR CONTROL over the object 3) Can be wrongful acquisition (if NOT ORIGINALLY wrongful, then no conversion liability, UNTIL P DEMANDS chattel before P 4) OR Destruction of the chattel 5)OR Misuse of the chattel 6) OR Substantial change of the chattel
For Battery, when is D's contact HARMFUL?
For this IT, D's contact is*****when the contact causes: injury, physical impairment, pain, or illness
For IISED, when is causation established by directly injured party?
For this IT, the directly injured party need only show (in order to recover) that def's conduct was SUBSTANTIAL FACTOR in creating plaintiff's SEVERE distress.
For IISED, when is causation established by P when the victim is a third party (i.e. P was not D's intended victim; 3PV was)
For this IT, the must show (in order to recover): 1) 3PV suffered SPH 2) P suffered SED resulting from 3PV's SPH 3) D caused the SPH 4) P was present when D inflicted the harm 5) P was close relative to injured person 6) D has knowledge of P's presence and P's close relationship to the 3P victim implication: When victim is 3P, P does not have to prove if D wanted to cause SED to the P herself!
For IISED, what is Extreme/Outrageous Conduct (EOC), and 3 Factors to assess EOC?
For this IT, this conduct exists if: it exceeds the possible limits of human decency, and so totally not tolerable in civilized society. OT, b/c ordinary people would have to conclude D's conduct is such conduct for this IT. FACTORS: 1) D's conduct one-time or part of a pattern? 2) Does Vic have special characteristics? 3) Does D have special relationship (comprehensive, trust) with his Vic?
Requirements for Self-Defense to bar ITPJ liability (force, belief, and proportionality, and mistake if triggered)
For this IT, this privilege requires that D: 1) used REASONABLE FORCE against offensive contact or bodily harm 2) had REASONABLE BELIEF that such contact or harm was to be INTENTIONALY inflicted upon D 3) used reasonably PROPORTIONATE form of force to the expected bodily harm. 4) held a REASONABLE mistake, if D was actually mistaken.
Defenses to Conversion
For this IT: 1) NOT a defense to assert mistake of law or fact (so don't buy stolen goods!) 2) RIGHTFULLY acquired chattel, UNTIL P demands the return of chattel BEFORE suing D for Conversion.
Damages Rules IISED
For this IT: 1) P must prove the tort beyond what a reasonable person could have endured. (i.e. more extreme conduct by D, then less evidence to prove P experienced this tort) 2) hypersensitive Ps cannot recover if they experience this tort unreasonably, unless D knew of P's heightened sensivity. 3) No physical injury has to be proven, unless P is NOT a IMF of D's 3PV.
For FI, what are the Methods of Confinement (w/exception)
For this IT: these are ways that P's freedom of movement in every direction can be limited by D: 1) Use of physical barriers (e.g. to lock a door/gate) 2) use of physical force (to block egress) 3) direct threats (to P) or indirect threats (to third party, P's property) 4) invalid use of legal authority 5) duress 6) D's failure or refusal to give a reasonable means of safe escape 7) AND, D's refusal to perform duty to release P from existing restraint 8) BUT NOT Shopkeeper's Privilege for reasonable time and manner of detention of a suspected shoplifter. 9) AND NOT Moral pressure or persuasion
For FI, when is Confinement in bounded area established (1 req, 2 considerations, and 1 exception)
For this IT; 1) this condition/element is established when P's freedom of movement in ALL directions is limited 2) area can be large 3) area need not be stationery 4) BUT area is NOT bounded if there is reasonable means of escape (i.e. OT).
NY Essay Tip - If criminal procedure Q
For this area on NY exam, there are FOUR AREAS that are tested: 1) 4A search and seizure 2) 5A right against self-incrimination 3) 6A amendment right to counsel 4) Due Process right to fair trial 5) Miranda Warnings (ALWAYS Discuss as flowing from, AND serving to protect, the 5A right against self-incrimination AND NOTE: You may just pre-prepare the rule statements for these Qs AND MENTION THE BROAD READING!!
SOC for D w/ a physical disability?
For this person, the SOC remains that which a reasonably careful person w/the same disability would undertake (e.g. as any other reasonably similarly disabled person would).
RULE STATEMENT BOP for Breach of Duty, & Negligence Tort in general.
For this tort, the breach of duty must be proven, by the P, by a PREPONDERANCE of the EVIDENCE Applies to any elemnt of this tort Evidence can be direct or circumstantial
Threat of Physical Impact
For this tort, this element exists if: 1) it causes emotional distress to P 2) and Is directed at the plaintiff or someone in P's IMMEDIATE presence 3) and P is within the "zone of danger" of the physical impact (i.e. not a bystander outside of harm; feared for his OWN safety).
Hearsay Exceptions - Declarant is NOT available threshold test 5 ways
Gen. Rule. For the exceptions below, the W or D is UNABIALBLE if the D 1) is exempt on ground of a privilege 2) OR, REFUSES to testify 3) Lacks memory fo the subject matter 4) OR, is dead or too ill; 5) OR, is absent or cannot be subpoenaed or made present Note: Not considered unavialble if a party wrongfully rends D unavailable for purpsoe fo PREVENTING that D's testimony (i.e. scared them outta appearing to testify) Then, five posible exceptions: Former Testimoney Dying D Statmenets Against Interests Statmenets of Personal or Fam History OR Forefeiture by misconduct
When is a FAILURE TO ACT a basis for a crime? (4 elements!)
General Rule is that this does NOT serve a basis. BUT: This can meet the Actus Reus IF (A)there is a LEGAL DUTY EXIST, which are 5: 1) A duty imposed by a STATUTE 2) Legal Duty by CONTRACT 3) Legal Duty by Special Relationship 4) Detrimental Undertaking (choosing to help someone in need, but then leave that person WORSE OFF than before you tried to help!) 5) Defendant caused the victim's peril, EVEN IF the def did NOT intend to do so. (e.g. think involuntary manslaughter, after failing to do something that reasonably could have avoided the peril, even accidentally!) AND there is (B) D had knowledge of the facts that give rise to the duty to act AND (C) the Def failed to ACT AND (D) it was REASONABLY POSSIBLE TO PERFORM that duty BUT NEVER MERE BYSTANDERS!
Capacity to K; and Incapacity due to Infancy - definition
General Rule: Parties to a K must be competent (defined: have legal cap to be held to contractual duties). Arises because of infancy, mental illenss, or defect, guardianship, intox, and corp incap This is a party that does not have the cap to K b/c lack of age of majority. If he forms a K, that K is voidable: (1) He may either disaffirm the K to avoid liablity, OR (2) may choose to hold the adult party to the K Disaffirmance must 1) be given before party reaches age of Majority, OR w/in reaonble time after reach majority 2) AND return any benefits received, if ossible (e.g. necessaries - FV) NOTE: IF NOT given, then party held to have RATIFIED the K.
NY - Is there a Duty to Mitgate for losses involving Real Estate? (Tricky, Nuanced Answer!)
General Rule: Under NY case, there a Duty to Mitigate under MOST Ks affecting real estate (e.g. Executory Ks for selling or transfer an intresest in realty)- must make reasoanble exertions to MINIMIZE injury after you're injured by a K breach EXCEPTION: Not for REAL ESTATE LEASES (i.e. Landlord-Tenant Lease) - Landloard has no duty to the lessee/tenant to mitigate. SO, where Original Tenant ABANDONED premises without paying obligated rent: 1) LL does not have to re-let 2) LL does NOT have to attempt re-let Rather, 3 options instead: i) Do nothing and collect the full rent due under the lease (i.e. sue him); OR ii) Accept the tenant's surrender, re-enter the premises, and re-let the premises for LANDLORD'S OWN account. RESULT: Landlord is RELEASING the tenant from further liability for rent; OR iii) Notify the tenant that it is entering and re-letting the premises for the tenant's benefit; AND THEN a---if the landlord re-lets the premises for the benefit of the tenant (i.e. for tenant's account), b--the rent collected will be apportioned (i) first to repay the landlord's expenses in re-entering and re-letting, and (ii) then to pay the tenant's rent obligation.
Divorce Decrees Rendered by Other States Courts
General rule is these are entitled to FFC, so long as 1) Issuing state had jurisdiction to render the decree 2) AND the decree is valid in the issuing state Applies to bi-lateral divorces ANd even EX-PARTE divorces issues by court with PJ over only one spouse, BUT not given to COLLATERAL issues in EX PARTE Divorces (e.g. propety, custody, and alimony), UNLESS, both spouses agree to having the collateral matters enforced in different jurisdiction.
EXPERT Ws
Generall Rule, for this W the testimoney MUST 1) Be scientific, technical, or other Specialized Knoweldge (i.e. it is releiable); AND 2) Assist the trier of fact (it is relevant) AND Daubert Test 1) Be qualified; one who is qualified by knowledge, skill, eperience, training, or education (need not be formal) 2) Base his opnion on suffient facts or data; ND 3) Apply principles and methods reliable to the facts of the case Result: Expert may opine on an ultimate issue Eception In crim case, not about Crim D's requisite mental state fo any charged crime or asserted defense. Also governs Interpreters And note Court-appointed experts (must advise ech party of finding, and examine court appointed expert. SEE Dabuert and FRE 702 : The testimony must be based on reliable facts or data. The data, principles and methods used by the expert must be of the type reasonably relied on by experts in that particular field. The expert must have applied the principles and methods reliably to the facts.
Lay Witnesses
Generally THese W are non-experts and not supposed to testify as to their opinion, but may testify to their opnion when it comes to matters of common sense things e.g. appearance, intoxication, car speed etc. To admit such a W's opinion: 1) Must be rationally based on the PERCEPTIONS of the W 2) Helpful to a CLEAR understanding of W's testimony (or dtermination of some fact in the case) 3) AND NOT based on scientific, technical, or specialized knowledge.
constructive condition of exchange
Generally a part to a K cannot recover until performance is tendered to the other party. Where an EXPRESS condition is not provided, then courts may read in THIS IMPLIED condition that deems pone party's performance is conditioned on the exchange of the other party's performance. It is implied by a court ordinarily to PREVENT AN UNJUST RESULT. REQUIREMENT TO SATISFY THIS CONDITION: Courts permits LESS THAN FULL compliance with this conduction, provided this is "Substantial Performance," which means there was NO material breach of the K by the substantially performing party. Usually arises in construction Ks and employment Ks.
LL liability for tenant's animals? Generally and exception
Generally this D has NO STRICT liability for 3P's animal in this relationship, but instead negligence liability possible if LL has awareness of animal dangerous propensities.
Damages
Generally treated as substantive
Special voting for directors Traditional voting v. Cumulative Voting
Generally voted by a PLURALITY of votes cast at SH meeting (i.e. whichever nominees gets most SH votes will be elected). Traditional Voting: SH casts number of votes for ONE certain nominee as equals the number of shares she owns Cumulative Voting: Designed to help minoirty SHs elect one or more director nominees of their choosing to the board. MUST be PROVIDED in the COI, or else the traditional voting is the default voting mechanism to elect Directors. IF provided for, then each SH can cast that number of votes as equals her # of shares, multiplied by the number of open board seats. Man then cast ALL of her votes for a single nominee, OR spread them out (evenly or unevenly) over multiple nominees
Prior bad acts - FRE 404
Generally, A defendant's past crimes or bad acts are not admissible to show his criminal propensity. However, past crimes are sometimes relevant FOR OTHER purposes (ie. NOT for "propensity" argument) and will not violate the propensity bar - some of those other purposes are Motive, Intent, absence of Mistake, Identity, or Common plan or scheme (MIMIC). I.e. MOPPIKIMA Motive Opp Preparation Plan Intent Knowledge Identity Absence of Mistake Lack of ACCIDENT
Under TradApp, what is the LP's duty of care to Licensees
Generally, LP must 1) correct or warn of concealed dangers either known or should be known to LP 2) but NO duty to inspect for dangers 3) AND reasonable care in conducting activities on the land
Fam Law - Premarital agreements
Generally, NY uses the law of the state with the MOST SIGNIF Relationship to the relevant matter, when determining the enforceability of such agreements.
Special Voting for Directors - Classified Board
Generally, all Direcotrs up for reelection on annual basis, UNLESS COI provides for tw, three or four class of Directors (i.e. a CLASSIFIED board) Each direct is up fo reelection, in each class, in successive years # of directs in each class must be as nearly equal in number as possible. Prevents SHs from replacing all or most of the incumbents in a single annual election. (whereas ClassBoard requires two or more years for such an ouster of the incumbents).
Loans to Directors
Generally, corp CAN'T do this (lend or gaurantee Director's obligation, UNLESS (2 crics) 1) Majority of shares' holder 3) Compliance with NY's interested-director statute.
the effect of the Statute of Frauds on a contract modification
If the original contract was for more than $500, BUT a subsequent modification of the contract THEN BRINGS the contract price BELOW $500, then such an alleged MOD does NOT need to satisfy the Statute of Frauds.
Abstention Rule for SMJ, and Permissive EXCEPTION
Generally, if a federal court has the power to hear it, then the court must decide it. BUT, Court MAY either (a) abstain, or (b) stay a case before it, when: 1) waiting for outcome of a state court action 2) and that state court action concerns: a-- state law issue can wholly decide the question b--keep out of complete state reg scheme, OR matter of great importance to State c--State-impose criminal punishment/contempt order/civil fine d--OR, parallel proceedings beyond mere waste of judicial resources. 3) and Plaintiff bears Burden of Proving a) UNUUSAL circs to get FEDERAL EQUITABL RELIEF b)OR, Prosecurtorail Bad c) Irreparable injury
Visitation
Generally, the noncustodial parent is allowed reasonable visitation, often called parenting time, with the minor children. Because there is a constitutional right for a parent to have contact with his children, the denial of visitation is very unusual and typically only an issue when it would seriously endanger a child's physical, mental, or emotional health. Visitation is assumed to be in the child's best interest.
Is there EVER an affirmative duty to act?
Generally, there is no such duty, EXCEPT for: 1) Assumption of Duty (voluntary aid or rescue w/aider's failure to exercise SOC; still face GROSS negligence even if a Good Sam statute bars for ORDINARY negligence) 2) Placing another in peril 3) By Contract 4) By authority (Parent; Boss; esp. if you know/should know 3P would commit injuring act) 5) D's unique relationship to P (Parent; Employer; Proprietor-patron; Common carrier-passenger) requires aid to P or prevent reasonably foreseeable harm by 3P against P.
Who is a 3PB?
Generally, third parties to a K cannot sue to a contract, unless they have this statute. This is a non-contractual party who seeks to sue the promisor, and is an intended beneficiary (has right to sue), not an incidental one (has no right to sue). Under RST 2d, ELEMENTS ARE: 1) Two other parties formed a K 2) BOth parties had understanding and intent that perf by one of them would be rednered to a THIRD PERSON AND 3) that both parties intedned for enforcement rights to be conveyed to the third person RESULT: If an IB, then 3PB status established. NOTE: Promisee never loses right to sue Promisor; while the 3PB now has a right to sue promisor (assuming this statuts is met).
Rule for Release
Generally, this condition of one tortfeasor does not transfer to that of other tortfeasors when the P has NOT been wholly compensated. Instead, the claim against the other D is simply diminished, EXCEPT the claim may even be BARRED, IF (I) the first D's agreement w/P provides such a bar OR (II) P is already entirely comped for his losses
Are collateral attacks allowed?
Generally, yes, but not likely to be successful.
Duplicates
Generaly, counterpart produced by any technique that accurately reproduces the original; duplicates are admissible to the same extent as originals, UNLESS: 1) It would be UNFAIR to admit duplicate;OR 2) There is genuine question as to the authetnicity of the original
Rehab of W after Impeachment 3 ways
Give the witness a chance to explain or clarify on redirect (using NON leading Qs) If character for truthfulness has been attacked, then evidence can be introduced as to the witness's GOOD CHARACTER for truthfulness (either reputation or opinion evidence). If the witness made prior inconsistent statements or was accused of recent fabrication or improper motive, THEN prior CONSISTENT statements can be introduced (e.g., evidence that witness made the same statement before alleged bribe or threat).
Discretionary Trust
Gives trustee discretion about how much to pay out (and sometimes to whom) Look for terms that imply discretion (absolute discretion; trustee may pay, or from time to time as trustee sees fit. Beneficiary has NO claim to any specific payout BUT Trustee CANNOT ABUSE the discretion (i.e. no arbitrary
Inventory
Goods held for sale or lease by the debtor OR Goods that are used or consumed in the operation of a biz.
4 types of Article 9 goods as personal prop
Goods; Farm Products; Inventory; Equipment The debtor's use of a good dictate the type of good. Can ONLY fit in ONE type AT ONE TIME. BUT, OVER TIME, the good CAN move from one type to another.
FRE 104 - Relevance COndition on Fact
Governs where relevant of evidence is conditioned on some particular, PRELIMINARY fact. If a piece of evidence is relevant if a certain preliminary fact within the province of the jury is decided one way, but irrelevant if decided another way, THEN: PROCEDURE: courts will simply allow the jury to decide that preliminary fact,ASSUMING there is sufficient evidence to do so (i.e. evidence sfficient to suport a finding that the fact does indeed exist) , and, alternatively they can ignore the if they find it irrelevant. I.e. As long
Who can visit?
Grandparents once standing and BITC, but parents get deferancese Siblings - same test is showing standing and then BITC
Child Custody Defined
Having custody of a child can mean having legal (decision-making) and physical (residential) custody. It can also mean having joint custody, which may refer to either or both PHYSICAL and LEGAL custody.
Supreme Court's Jurisdiction
Hears matters over 1) THe parties are MARRIED; AND 2) Matter is either: (a) Divorces (exclusive) OR (b) EQD (c) Child Support (Concurrent w/Fam Ct,), if parties married (d) Maintenance (Concurrent w/Fam Ct), if parties married (e) Child CUSTODY (Concurrent w/ Fam Ct)
What is Hearsay under rule 801 and 802?
Heary is an out of court statement offered for the truth of the matter asserted within such statement. THerefore, inadmissible, unless an 803 (declarant availability not relev) or 804 exception (declarant MUST NOT be available). (i.e. 803 and 804 are NON-hearsay)
Present Recollection Refreshed (and contrast to PAST Recollection RECORDED
Help the witness REMEMBER or RECALL so that he/she can testify from PRESENT memory and personal knowledge; do this by showing witness documents, objects, or things (e.g., show a testifying police officer a copy of her police report); you can use anything to refresh. The opposing party may see or inspect the item used to refresh the witness's memory, but the witness may not use the item to testify (i.e., may not read from a document). The adverse party, however, may introduce the item into evidence Distinguish from Past Recollection Recorded: This is a hearsay exception—don't confuse the two. If you want to read a document that your witness wrote in the past instead of using the witness's live testimony, simply read the document to the jury on the theory that your witness can no longer remember.
Grand Jury Proceedings in MBE
Here 1) Def has NO right to present or confront Ws or introduce evidence 2) Prosecution has NO obligation to present EXCULPATORY evidence 3) GJs not restricted to at-trial admissible evidence 4) Indictments can be based on illegally obtained evidence or hearsay 5) GJ Ws have NO RIGHT TO COUNSEL.
Real Estate exception to SOF -
Here Part Performance will serve as exception for such Ks where at least two of 1) Possession 2) Payment 3) and/or Improvements
Unconscionability
Here a court looks at whether the deal SHOCKS the conscience of the court. There are two type of this: Procedural and Substantive. Note: Some Jurisdictions want both, or at least one of 'em.
The 3 ways that PJ is either (A) NOT AT ISSUE (B) or ESTABLISHED:
Here this jurisdiction is either 1) NOT required over both parties, as long as the court has SMJ over the DIVORCE itself. The Result/Label is (1) an EX PARTE DIVORCE; and (2) Non-appearing party CANNOT collaterally attack the action (exception: they prove the RESIDENT PLAINTIFF was NOT ACTUALLY DOMICILED or A RESIDENT OF NY after all!); 2)BUT REQUIRED when there is (a) a NON-resident DEFENDANT, and (b) there are RELATED MATTERS to the Divorce, such as: (1) prop distrib, (2) child support, (3) spousal maintenance, (4) and child custody. RESULT (i.e. other side of the coin to this!): DIVISIBLE DIVORCE: NY court can handle the divorce (PJ/SMJ here), WHILE the RELATED MATTERS are handle IN SOME OTHER COURT WHERE PJ over the DEF can be obtained. (SMJ, but no PJ). 3) (trigger: Parties are SEPARATED!) AND, ESTABLISHED under NY's Long Arm Statute, WHEN (1) either (a) matrimonial and child support issues are COMBINED; OR (b) child support AND maintenance issues are COMBINATION (2) AND, New York was the matrimonial domicile of the parties BEFORE the parties' separation; (3) AND EITHER (a) The defendant abandoned the plaintiff in New York; (b) OR, either the claim for relief accrued under New York law; (c) OR, The claim for relief is pursuant to an agreement that was agreed to in New York
Agency Doctrine (re GJ)
Here, LAS confers this for actions taken by an AGENT, UNLESS 1) Rejectio nof Fidiucary Shield Doctirne 2) Agent's Action AGAINST principal
NY preliminary admissibility standard - Conditional Relevancy
Here, NY has a variety of preliminary standards NY asks whether fact could be found rationally note more use of CCE stnadard
Witnesses and 5A Privilege
Here, Ws may invoke this only by: 1) After hearing the Q 2) and then specifically invoking the privilege 3) BUT cannot avoid being compelled to testify
Long-Arm basis for SJ
Here, allos court to exercise jurisdiction over a NON-domiciliary for a cause of actio that ARISES out of ANY of the following acts: 1) Transaction of any BIZ IN NY 2) Entry into a K for SUPPLYING goods or services in NY 3) REAL PROP in NY (ownership, use or possession 4) Torts committed inNY 5) Tort outside NY that CAUSES injury IN NY, IF DEF either: a-- regularly does or solicits biz in NY b-- persistently acts in NY (course of condcut) c--Get substantial revenue ($$) from NY d--OR, (a) Expects or SHOULD epects NY-affecting consequences from his actions, (b) WHILE gettings SUBSTNATIAL $$ from NY, interstate, OR international commercie 6) Or over estate of someone over whome NY WOULD HAVE had Jurisdiction
What to do If a declarant has no duty to report the statement he contributed to the report?
Here, see if another hearsay exception (803 (1), 2, 3, or 804b2) applies!
6ARCONF under NY, as applies to a DNA report from lab that tested a victim's rape kit
Here, such evidence is NOT testimonial, because it provides incotrobertible DATA, and not testimoney
Where there is Incomplete Performance (e.g. Construction Ks, where paying party breaches in a partially built K)
Here, the BUILDER (NBP) CANNOT "RUN UP THE DAMAGES" EXP D = K price - Amt already Paid - Amt that would be needed to Finish the Job
Standards of [Appellate Review] - For Matters of Law
Here, the appellate review standard is De Novo.
Standards of [Appellate Review] - For Findings of Fact by Judge
Here, the appellate review standard is clearly erroneous.
Standards of [Appellate Review] - For Findings of Fact by Juries
Here, the appellate review standard is support by substantial evidence.
Standards of [Appellate Review] - For Matters within Discretion of the Trial Judge
Here, the appellate review standard is trial court's abuse of discretion.
Learned Intermediary RUle
Here, the manufacturer of a prescription drug typically satisfies its duty to warn the consumer by: (I) informing the prescribing physician of problems with the drug (ii) rather than informing the patient taking the drug, EXCEPT when (a) manufacturer is aware that the drug will be dispensed or administered w/out healthcare provider's personal intervention or evaluation (b) b/c of federal law, the products are birth control pills
How does a Condition to Acceptance terminate offer?
Here, the offer fails IF ANY of the offer's specified CONDITIONS to acceptance does NOT occur.
When does a Offer terminate by LAPSE, IF the offer states that it TERMINATES AFTER SPECIFIED NUMBER OF DAYS?
Here, the offer terminates by LAPSE, at end of the period, which STARTS to run FROM THE TIME THE OFFER IS RECEIVED BY THE OFFEREE E.G. 1) After 10 Days 2) I get the offer, I have 10 days from date on which I get the offer.
When does a Offer terminate by LAPSE, IF the offer states A DATE on which the offer terminates?
Here, the offer terminates by lapse AT MIDNIGHT on that date.
What happens if court decides NY's WC law does NOT apply?
Here, then the court DOES NOT APPLY some other state's WC, but INSTEAD the court DISMISSES the case. Leaves the employee to file its claim ELSEWHERE Contrast: In other non-WC settings, NY courts will apply the other state's law. AND note: Employer and Employee MAY choose which state's WC law apply BY K, assuming the K is VALID. ANalytical NOTE: NY courts compare NY's WC law to another state WC law before deciding whether or not to apply NY's WC law.
What is a Counter-offer? and when does it terminate the offer?
Here, this is a NEW OFFER, made by an OFFEREE to his offeror, relating to the_ subject matter_ as the original offer and proposing a substitute bargain differing from that proposed in the original offer. It terminates the offer once communicated to the offeror, assuming acceptance not received first by the offeror. BUT, unlike a rejection, it is capable of being accpeted by offeror, because it CONTINUES (not cut off) negotiations with that offeror.
what is PROCEDURAL EFFECT of establishing RIL prima facie?
Here, trial court should DENY D's motion for a directed verdict. AND the issue of NEGLIGENCE (BIG N) MUST be decided by trier of fact. NOTE: Suffice to establish inference of negligence that avoid dismissing P's action.
Illegality
Here, where the K is illegal itself, then NOT enforceable. BUT where the K is entered in furtherance of an illegal act, while the K ITSELF is not illegal, then that K can be enforced (e.g. Cabbie sues to get back the fare from the mob boss whom the Cabbie drove as a cab far over to the Mob boss' target). RESULT of finding illegality: 1) Usually just leave parties where they stand. 2) BUT modern trend, is to allow LESS-guilty parties to recover restitution (i.e. to get their money back).
Trustee
Hold legal title, but if not named by settlor in the trust interest, then the court can appoint one.
Duress (rsnbl belief other will inflict death or great bodily harm) is a defense to criminal acts EXCEPT FOR
Homicide.
Remedial "Trusts"
Honorary Trusts Resulting Trusts Constructive Trusts
Immediate means...
IMMEDIATE (even if you say "I will punch your lights out in 10 seconds" - NOT IMMEDIATE WITHOUT CONDUCT
NUISANCE
IT about violating P's USE or enjoyment of the land
Which law's PRESUMPTIONS apply?
If a diversity jurisdiction, then depends on the applicable state law
Forfeiture by misconduct
If a party wrongfully renders a declarant unavailable for the purpose of preventing the declarant from testifying, the door opens to anything the declarant ever said against the party; misconduct must have been done with the intention of preventing testimony.
which of the following statements regarding the anti-lapse statute and class gifts is generally TRUE in New York?
If a testator in the will requires survivorship, then the anti-lapse statute will not apply.
Can double recovery be allowed where WDA and SA are recognized?
If both actions are recognized, then can recover only one, not both.
Due Process Clause (14A)
If evidence rules unduly burdens a criminal defendant's ability to mount a defense, those rules would violate the Due Process Clause and would be denied application.
voidable title
If goods are acquired through fraud, a mistake, undue influence, or by a minor, the title may be voided if the injured party elects to do so
Parol Evidence Rule under CL
If parties reduced their contract to a complete, comprehensive writing that the courts deems a final agreement, then all prior writing is NOT considered or governing. Thus PER applies if: 1) The K is TOTALLY OR FULLY INTEGRATED 2) earlier statements are MERGED. 3) Extrinsic Evidence (that CONTRADICTS the writing) PER does NOT apply if: BUT the PER does not apply if: 1) Statements are later written or oral statements--these are called MODIFICATIONS 2) the Writing is NOT PARTIALLY INTEGRATED. Test to determine if the doc is TOTALLY integrated, or just PARTIALLY? IDENTIFY a MERGER clause in the K at issue Result: A Merger clause is EVIDNENCE of ACOMPLETE INTEGRATION REMINDER: This RULE DOES NOT APPLY, UNLESS there is A WRITING
MB Rule and the Medium for communicating the offer and/or acceptance
If the acceptance is via an "instantaneous two-way communication," such as telephone or traceable fax, THEN: it is treated as if the parties were in each other's presence. Restatement (Second) of Contracts § 64
But-for causation
If the crime would not have occurred but for the def's act, then the def is such a cause
Separation and Divorce - interaction - What hapens to a Separation K?
If the parties divorce, then this can either continue OR terminate and merge into the divorce decree. The test is to look tat the intent of the parties, as evinced by this K itself. 1) If expressed, then incorporated into the divorce judgement OR 2) If SILENT on whether to continue OR END/MERGE, then default approach is to have the K SURVIVE THE DIVORCE DECREE.
Permissive Joinder of Parties
If there 1) is a single event (or related series of events) involving ALL of the parties to be joined 2) AND at least one question of law or fact linking the claims among all the parties
Civil Remedies for Family OFFENSE
If this brought in Civil, NOT CRIM: 1) temporary child support 2) temporary custody 3) NOT ARREST and NOT jail time 4) Preliminary Protective orders (ex parte) 5) AND Permnanet order
What are the results (and NOT the results) for MINOR FAILURES TO meet Sep K terms
If this exists, then the spouse asserting other's failure can can: 1)( NOT enough to NULLIFY the AGREEMENT THAT SURVIVES. 2) Sue for material breach of the K Examples of MINOR failures (not timely with visitation schedules): late with few child support payments
What happens if: there is NOT a real K BUT the parties still act as if ther is an agreement?
If those two circs exist, then ONLY the terms that BOTH writings AGREE ON will become part of the K WHILE, the other terms will be, by default, supplied by the UCC
ny ON CAUSATION
If two defendants both fire shots, one of which kills a victim and it is impossible to determine which shot was the fatal one, both defendants can be charged as long as they both have the requisite mens rea and are aiding and abetting each other in the shooting.
MODIFICATION and SOF
If you are modifying a deal that was already subject to SOF, then the TEST for whether the MOD itself need to meet SOF is: whether that alleged mod iitself s in fact subject to the SOF (under CL or UCC)
Piercing the Corporate Veil
In NY, while LL ordinarily protect personal assets of corp shareholders, the exception is where necessary to 1) prevent fraud or illegality 2) OR to achieve equity Which is all called PCV Factors - Shareholds carrying on the biz for personal GAIN, AND not corp GAIN. - Corp for illegal biz, or perpetuate a fraud - Ignoring Corp formalties largely or compleltely, like : no stok certs issue; no annual sh - the corp is NOT adequately capitalized (amount of SH's investment in corp is "trifiling" compared to biz to be done and to the associated risks.
Visitation's Modification/Relocation
In New York, 1) Relocation is one of the changes in circumstances under which a party wanting to relocate a child may seek modification of a custody award. 2) the predominant consideration in determining whether relocation is permissible is tTHE BEST INTERESTS OF THE CHILD, 3) the rights and needs of the child MUST outweigh the rights of both the custodial and noncustodial parent. 4) The standard for determining the best interests of the child is a preponderance of the evidence 5) AND, New York courts consider the following factors in determining whether to grant permission to relocate: i) The nature, quality, and involvement with the child of the parent who is not seeking relocation; ii) The age and needs of the child, and the impact the proposed relocation will have on that development, including any special needs of the child; iii) The ability to preserve the relationship with the non-relocating parent and the child through visitation arrangements; iv) The child's preference, if the child is of sufficient maturity; v) Whether the parent seeking relocation has any history of promoting or preventing parenting time with the non-relocating parent; vi) Whether the relocation will enhance the child's quality of life; vii) The reasons each parent has in requesting or opposing the relocation; viii) The effect the relocation will have on any extended familial relationships; and ix) Any other factors that affect the best interest of the child.
Plain View exception in NY
In New York, an office may seize any evidence that is in plain view without a warrant if 1) when an officer is lawfully on the premises, 2) Evidence of a crime, seized in PLAIN VIEW 3) the incriminating character of the evidence is immediately apparent, 4) except for obscene material.
ny'S RELaxation of the "No-Extrinsic Evidence" rule
In New York, extrinsic evidence may be used to resolve ambiguities or mistakes in wills.
Stop-Frisk Rule for NY
In New York: 1) a police officer may stop a suspect for questioning only if she has a reasonable suspicion based on articulable facts that the suspect was or is involved in a crime. 2) The officer may then frisk the suspect when the frisk is necessary for safety and seize any evidence that she can obviously identify during the pat down under the PLAIN FEEL exception, IF the police believe that the object is a weapon. (last clause is the NY "gloss"/additional requirement)
Defendan'ts conduct in sexual assault allegation
In a criminal case in which a defendant is accused of committing an act of sexual assault (and the like) or child molestation, evidence that the defendant committed any other sexual assault or child molestation is admissible to prove any relevant matter.
Six year SOL
In addition to below, NOTE: DEFAULT SOL if NO OTHER SOL applies!!
BOP, and NY approach
In all jursidictions: 1) Prosecution MUST prove all elements of its case-in-chief with proof beyond a reasonable doubt 2) While Def MAY bear BOP for AFFIRMATIVE defenses, such as insanity, self-defense, entrapment or duress) NOTE: In NY, Def has BOP to establish the following AFFIRMATIVE defense by a PROE: a - insanity b - duress c - entrapment
Exception to NY's Equitable Share Rule on JSL
In case of auto accident or workers' comp, this rule does NOT apply.
General Rule Civil Case and the NO Propensity Arguments purpose rule
In civil cases, the propensity argument (i.e., evidence of a person's character) is GENERALLY inadmissible to prove conduct in conformity with that character trait, even though that evidence for such an argument is almost always relevant. EXCEPTION, is where character is at issue, meaning that the Character evidence is admissible WHEN character is an essential element of the case (i.e. using reputation, opinion, OR even SPIOC that reveal that trait) Rationale: NOT making the "Propensity" Argument when using evidence for such purpose
Preliminary Questions
In deciding whether there was a conspiracy or an agency relationship, the court base cannot its finding on the contents of the statement itself (i.e., "boot-strapping"). Pure bootstrapping is not permitted; the statement cannot be the sole basis for the finding.
confirmatory memo rule
In k btw merchants, if one party w/in reas time after an ORAL AGREEMENT has been made, sends to the other party a written confirmation of the understanding that is sufficient under SOF to bind sender, it will also bind the recipient if: 1. he has reason to know of the confirmation's contents; and 2. he does not object to it in writing within 10 days of receipt
How to Commence an Action (i.e. Interpose)
In most courts, by Fiing BUT, in JUSTICE courts, by Service of Process which REQUIRES either 1) Serving Summons on Def 2), or First 3), OR,
Void against Public POlicy
In situations that are NOT formally illegal, but present some other policy ocncern (e.g. a BROAD exculptaroy K; Surrogacy Ks, at least in NY).
Confidential Personal Identifiers in Pleadings
Includes redactions for: SSNs Driver's License # Vehicle License plate # Insurance policy number Active financial account #s Active credit card #s
Foreign Corp
Incorprated in sate outside of NY Need a certificate of authority to do biz in NY w/out that cert, then can't sue (but can be sued in NY state courts), until registered Not doing business merely by holding board meetings, have bnk accounts, or selling via INd Contractors in NY
Easement in gross
Individual interest in someone else's land; no dominant tenement. Commercial may be assigned, conveyed or inherited; examples: utility lines, sewer, water
Domicility Rule for Individuals
Individuals may have only ONE domicile at a time, as a matter of law. Determined in two ways: Domicile by Choice OR By Operation of Law
Short and sweet rule for Separate Property as an INHERITANCE
Inheritances acquired during a marriage are separate property not subject to equitable distribution. While separate property is not subject to rules of equitable distribution, increases in the value of separate property during a marriage is subject to equitable distribution, provided the increase is due to the active management of the property RATHER THAN passive appreciation.
Alternative measure of EXP D, and the trigger?
Instead of cost to complete damages, use the Diminution in Market Value where 1) FIRST, there is economic waste (e.g. when the amount of damages awarded is disproportional to any economic benefit or utility gained as a result of the award. If the award of expectation damages would result in economic waste, then courts may instead, at their discretion, award damages equal to diminution in value.P). 2) AND, EVEN IF EW exists, Breaching party must NORMALLY have in an innocent and unintentional manner (i.e. the breach was NOT WILFULL).
Quasi-Suspect
Intermediate scrutiny is applied to groups that fall under a "quasi-suspect classification." Gender and marital status of someone's parents at birth have been held to be Quasi-suspect classes.
Kidnapping (Criminal, international)
International Parenting Kidnapping Act
Prior Consistent Statements
Introduced to rebut an express or implied charge of recent fabrication or improper motive Uses of such is for rehabilitating the W and as substantive evidence BUT, the Statements MUST have been made BEFORE the alleged improper motive arose. and MUST be Testfying and Subject to Cross
What if the warrant and the probable cause were based on a LYING INFORMANT?
Invalid (and thus REMEDY: suppressible or excludible evidence) IF 1) Cop KNEW there was false information in the affidavit support the warrant OR 2) Cop RECKLESSLY DISREGARD the trut of the information in the affidavit BUT, VALID (and thus ADMISSIBLE evidence) IF 1) Officer makes an honest mistake (i.e. relied in GOOD FAITH), about the reliability of the informant.
Who is the settlor?
Is the person who creates the trust
What is an Offer (2 to 3 elements, with CL and UCC distinctions)
It is 1) A objective manifestation of a willingness to enter into an agreement or K (by the offeror) (Offeror's Present Intent) 2) that creates a power of acceptance in a specific party as the offeree. 3) And this manifestation is governed by an objective test. 4) AND, Under CL this must have ALL ESSENTIAL TERMS (PSPQ) a-- Parties b--subject (i.e. subject matter of the K), c--price d--AND quantity 5) BUT under UCC, GENERALLY, Just need: Subject and Quantity(specific OR ALL[in an RK or OK]; NOT necessary to state the price
Cases re: Biz Records exception
Johnson v Lutz (demos where duty to report happens, at witnessing accident, not later report) Williams v. Alexander ( in furtherance of hospital biz = Biz Recs for Hospital!) Vigneau - independnt verification of info, Western Union checks signatures) Duncan - EVERY BIZ rec (even within another Biz rec) must meet biz rec exception, per 805 multiple hearsay rule Hahneman - computer generated evidence would saisfy biz record exception 803(6) Palmer (accident report, by those involved, for the lawsuit!) Lews v. Baker (report, by those NOT involved in the accident, and pursuant to law!) OATES- gloss on biz or pub records (law enforcement chemist report NOT admitted)
When does Double Jeopary attach generally
Jury trials: When the jury is IMPANELED, AND sworn in Bench trial: WHen FIRST witness is SWORN
Example of Illegal Ks
Ks that - for committing a tort - for commiting a crime - restraints of trade - in New York, surrogacy Ks - usurious K
Under TRADITIONAL APPROACH, What does a LP's duty of care to invitees entail?
LP owes invitee 1) Duty of Reasonable Care 2) incl. such duty to inspect prop 3) discover unreasonably dangerous conditions 4) protect invitee from them 5) BUT NOT BEYOND SCOPE OF INVITATION (result: invitee is than a trespass for beyond-scope conduct.)
Defamatory Language
Language that diminishes respect, esteem, or goodwill toward the plaintiff, or that deters others from associating with the plaintiff, is defamatory. The plaintiff may introduce extrinsic facts to establish defamation by innuendo. An opinion is actionable if the defendant implies that there is a factual basis for that opinion.
Breaking Bulk
Larceny - not embezzlement.
Obvious detail(s) that a biz record lacks untrustworthiness for admission
The biz record appears to have been prepared for the sole purpose of litigation.
Respondeat Superior
Legal premise in which the employer is held responsible/liable for the wrongful actions of an employee that may cause injury or damage as long as the employee works within the scope of practice; literally, "Let the master answer"
What are Mortgagee's two options, in NY, for recovering UNPAID DEBT
Lender can either: 1) Sue to recover unpaid debt AND Bring Foreclosure action as part of recovery 2) OR, File foreclosure action (NOT via Power of Sale clauses--ineffective, b/c NO non-judicial foreclosures in NYS) on the property.
FRE 606b - Limits on Juror Testimony And Exception
Limits when Jour testimony sought upon inquiry into validity of either a verdict, or an idncitment. Jury CANNOT testify on appeal or motion for a new tiral as to INTERNAL Deliberations (e.g. 1) Jury's deliberations 2) Juror's botes 3) OR even juror's mental process. Exceptions (FRE 606): Juror can testify where --Extraneous, prejudicial information was improperly brought to the jury's attention (e.g., newspapers which should not have been seen were brought into deliberations, etc.) --AN outside influence was improperly brought to bear on a juror OR A clerical or technicl MISTAKE was made in entering the verdict ONTO the Verdict FORM (not about the CONSEQUENCES of the agreed-upon verdict
Allocation of P/L in LLC
Look to the Operating Agrement IF silent or not there, ten allocated P/L according to value of money or propert each member put into the LLC
When can P recover for his TYPE of Harm?
MAJORITY RULE--For this, Court allows recovery, so long as this is the DIRECT RESULT of the Activity. (i.e. Conduct must be IMMEDIATE, temporally and spatially to the conduct, without intervention of independent contributing acts MINORITY---Recovery only if the P's type of harm was FORESEEABLE as a result of D's negligent conduct.
Example of FORESEEABLE intervening causes
MEDICAL MALPRACTICE, LEGAL MALPRACTICE, Normal forces of nature; disease or accident; negligence of rescuers; efforts to protect person or prop.; negligent intervening cause
Where the UCC's SOF applies to a Sales of Good K (i.e. a K, or even a mod, involving goods of $500 orme), what is the term that MUST be included above all else?
MUST contain the QUANTITY, to satisfy this rule!
Affidavit
Major source of proof for a Motion to Summary Judge Must Recites all material facs no issue sof material fact to be determined at trial - Show no defense to the COA, or shw that that the COA has NO merit - Can be self-serving affidavit by the moving party.
Majority view of violating a statute
Majority view that this establishes either (1) negligence as matter of law, OR (2) rebuttable presumption of negligence. Violate federal/state reg or municipal ordinance? then N PER SE, to majority courts (minority? just evidence of negligence, but not conclusive).
PC - TYPE OF FORESEEABLE RISK
Majority: P recovers when D's tortious acts are DIRECT CAUSE of P's Harm, w/out intervention of independent contrib act (consider factors of Judge Andrews)
SOC for AUTOMOBILE DRIVERS
Majority: This D owes ordinary duty of care to both guests and passengers (i.e. paying guests) Minority (LOWER SOC): D owe only duty to refrain from grossly reckless or willfull misconduct to guests (higher threshold for P; lower SOC for D); while ordinary duty of care to PAYING passengers
Majority v. Minority view on LEVEL of Disclosure
Majority: this is governed by custom among medical practitioners Minority: Doc must disclose ANY "material risk" - those that might make a difference to a REASONABLE person in choosing to proceed or not with the given treatment (or alternative).
Rights of Beneficiaries (and Obligations of the , DEPENDING on the TYPES of trusts - 3 types (either inter vivos, or testamentary)
Mandatory Trusts Discretionary Trusts or Support Trusts (refers to obligations of the trustee to the beneficiary)
Evidence
Many are deemed procedural (so NY rules apply), UNLESS: 1) PER (substantive, so apply law of state that dictates the validity of the relevant K) 2) Privileges are also treated as substantive, but no uniformity under NY case law. Recent cases suggest using a version of most signif relationship or govt interest approach test to resolve Q of whether or not a privilege is substantive or procedural (i.e. which state has the greatest stake [NY or the other state] in the claim in this case)
Special Pleading (not NJ approach)
Matter must be alleged with some particularity AND special damages must be specifically stated, where these are damages that DO NOT logically and ordinarily flow from the wrong alleged.
Renewed Motion for Judgment as a Matter of Law
May be renewed by the losing party AFTER jury reaches a contrary or adverse verdict against the losing party
Amending COI
Minor errors or inaccuracies? Just use a cert of correction (but NOT for corp name change) Signfificant changes (incl. name change)? Need a Certificate of AMENDMENT - ID each provision of original COI for amending or elminated - Include substitute or added provisions WHO can amend? IF no SH or Subscibers contractually required to buy shares? Then just incorporators BUT IF SHs, then Majority of OUTSTANDING SHARES can vote on approving amnemdent
Trust Modification rules
Modfiied if an UNANTICIPATED change in condition FRUSTRATES the trust's TERMS or PURPOSE. I.e. MORE than just being BETTER of withthe modification. .
General Approaches
Most Significant RElationship Test _ RST OR
Appealability
Most pre-trial motions (4 types) ARE LOST and can't be subject to this IF movant proceeds to FULL trial
Motions during Trial inlcuding merits motions
Motion for Non-Suit Moving party does NOT waive the right to present further evidence.
MIMIC
Motive, Intent, Mistake (/accident), Identity (closeness of time and place of other crimes gives D opportunity to pull of other crimes, Common Scheme (done the same way as prior crimes) ---> Crim and intentional torts.
COntignent Fees
Must be in writing, if above 3K - NOT for a cirminal case -NOT for a domestic relations suit - Signed Agreement - Calculated Methodology
Limited Admisibility. Req: FRE 105
Must be tiely requested by a party,AND if so timely made: RESULTS 1) allows for evidence to be admitted for one purpose, BUT NOT for another. 2) COurt MUST restic the proper scope AND must instruct jury accordingly RUle statement A judge must give a limiting instruction to the jury regarding the proper uses of such evidence when requested by a party.
Prior Inconsistent Statements
Must have ben made under OATH AT a trial, hearing or other proceeding (like a depo) can be used to impeach and as substantive evidence. If NOT made a trial or similary proceeding, then ONLY use for IMpeachment, NOT as usbstantive evidence.
To be a Principal
Must have legal cap to have rights and to incur obligations Can be indivdiuals or entities BUT if lack legal cap (e.g. UNINCORPORATED Associations, like a an informal social club), then cannot serve as principals (and consequence is that the members may be personally liable and only sued in such cap)
How is Causation established for Intentional Torts?
Must show "But-for" and Proximate causation
Venue
NJ courts divided by county Depends on statutorily-specified types of actions Real Prop actions - properly heard where the real estate is located Actions against public entities - Attachment actions - Probate Actions - where the decded DIED. IF not Ded in NJ, then where there is ANY estate prop in a NJ county Family part actions --welfare/support/status of child - where the child is domicilied -- Divroce/annulment--First (1) where P was domiciled, ----(2)if NOT (1), then where D is when the claim arose -----(3)If not (2) or (1), then where P is domiciled when COA arose -----(4) if not (3)
Spouses' Privileges in NY - what is RECOGNIZED, and WHat is NOT recognized
NO testimonial privilege between spouses, BUT two exceptions BUT there is Confidential Communications Privilege -NOT applicable in three situations
Religion
NOT A DEFENSE EVER TO DIVORCE
Past Consideration
NOT C, you already rendered the legal detriment, or already conferred the benefit.
Prior Judgments in NY
NOT a compareable as in NY
Miranda Warnings, 6 requirements for validity under 5A
NOTE: These are WARNINGS 1) Police MUST warn suspects of their 4 rights (below), AND BEFORE Qing the suspect in their custody, MUST obtain a WAIVER of ALL those rights 2) Right to remain silent 3) Any sttement uttered may be used in court 4) Right to consult an attorney, AND have any attorney present during the interrogation 5) RIght to have an attorney APPOINTED, is suspect cannot afford one. Note: These warnings DO NOT INCLUDE or require INFORMING the Suspect is under Arrest or face a warrant!
Big NY CPLR areas to REVIEW!
NY Court Setup PJ SOL!! Provisional Remedies Prelim Injunciont Motions to Dimsmiss Motion for Summ J Bill of Particular Article 78 Verfieid Pleadings Default by D Neglect to Prosecute (by Plaintiff) Relief from Default
Fam Law -Adoption
NY applies it OWN law
NY rule on JSL for ECON Damages
NY follows the common law approach for this rule concerning ECONOMIC DAMAGES recovery (med expenses, lost wages)
Sale of Securities
NY law forbids UNREASONABLE restraints on free transfer of shares Exception: Reasonable K restrictions on transfer are OK.
Proof of Character by Criminal Defendant
NY recognizes this for: 1) 2) BUT NOT 4)
Decrees from other nations (Via comity only and reqs of domicility)
NY will usually recognize foreign nation divorce judgements as a matter of COMITY, if the reqs of the domicility are met. Matters of property, custody, alimony, and the like are considered AS IF the decree came from ANOTHER AMERICAN state.
Learned Treatises
No admissible for substantive evidence, can only use for impeachment purposes.
Under TRADITIONAL AND MODERN Approach, Can LP delegate this duty of care, owed to invitees, to anyone else
No delegation of this duty, so the LP remains liable for agents negligent conduct that causes harm to invitees.
Recreational land use; LP's duty
No liability for LP where 1) he opens his land to PUBLIC for RECREATIONAL PURPOSE 2) NO FEE is charge for using LP's land 3) LP does NOT acts willfully, maliciously (OR for some jurisdictions, GROSSLY negligent).
Attempted Murder - Reckless?
No!!!! Attempt crimes need specific intent even if general intent (reckless disregard) is enough to satisfy the malice of the actual crime...
I'll Take Care of Your Medical Bills
Not admissible
Insolvency determination prong
Not made if corp is either insolvent or would be render insolvent b/c of the payment of distribution Insolvent means: f unable to pay its debts as they become due in usual course of business.
Doctor Patient Privilege
Not recognized under federal law; but recongized by most jrusidicitons Statmenets made by patient to A D, FOR purpose of obtaining medical privilegle Held by the P, BUT DOc is oblgiated to assert it on patient's behalf Exception: Privilege does NOT exist if: --Info acquired for reasons OTHER than treatment --OR, Comm made for some ILLEGAL PURPOSE ---OR, A DISPUTE exists between physician and patient; OR --Patient contractually agreed to waive the privilege.
Deritive Suits for an LLC and other applicabl law that it persuasive
Not stated in the statue, BUT the courts permit derviative sutis by entity's members Can apply partnership law for LLC qs.
FNC - NY rule for Corporations
Note: Can test Long-Arm jurisdiction too!
Withdrawal of Representation -First Flavor - Mandatory Withdrawal
Note: Co-Extensive with ACR (i.e. I can't take on a client where that client is ONE for which I MUST WD my rep! E.G. Conflict of Interest = NO CLIENT where: 1)Follwing Client Demands would mean Resulting Violation of RPC or other law - 2) OR, My actual belief, or reasonably OUGHT TO know, of Client's bringing a maliciously injuring and HARASSING lawsuit 3) Attorney Impairment (My phys/mental heal MATERIALLY impairs ability to rep) or 4) Client FIRED me, UNLESS Court says I have to stick on. Effect of firing: My client can recover fees due or reaosnble value of my work. / Note: Dim Cap Client may need me to take RN Prot Action to protect her interests (which may include firing me). NOTE: In both Circs, 1) I have DUty to MITIGATE adverse affects on the client for which I am withdrawing my legal representation 2) AND I MAY have to ask the court, when in the court process (who can deny me, then I'm stuck w/ continue repping (exception to this exception: I've got good casue to TERMINATE rep!)
What if appeals judge agrees or disagrees with Trial Judge's Judgement as a Matter of Law?
Note: Depends on whether the trial judge denies the first motion, and then grants the renewed motion after an adverse verdict against that moving party.
Disclosure Devices in NY
Note: In NEw yOrk, not required at Depos on Oral Questions
Interpleader under Federal Statute 28 USC 1335
Note: More relaxed jurisdictional and venue reqs than its Federal Civil Pro Rule counterpart Can be asserte by either a Stakeholder-Plaintiff, OR a stake-holder defendant, IF either has been sued by a claimant. 1) Threshold 1: SMJ, more relaxed means of establishing DIV J-based SMJ: Must have at least MINIMAL diversity (i.e. ANY two claimants are from two states), and have lesser, special jurisdiction amount of $500 2) Threshold 2: PJ - SOP establishes PJ NATIONWIDE 4) Venue established in ANY federal district court where ANY one of the CLAIMANTS reside.
Withdrawal under CL for Accomplice Liability (note: NOT possible for Conspiracy)
Note: NOT ENOUGH to have - mere change of heart - AND/OR flee from the scene of the crime
Corp's liability for Pre-Inc Ks AND Promoter and COrp both liable until novation.
Note: Promoter can't be a legal agent for a NON-existent princip Exception to No liablity Express adoption: BOD takes FORMAL action to adopt the K OR, Implied adoption: When Corp, w/ full knowledge of K's existnce, ACCEPTS the K's benefits RESULT: Once Corp adopts the K, then BOTH the Corp and Promoter are liable (Although promoter may NOT be liable IF 3P and Corp enter into a NOVATION), AND Corp can itself enforce that K AGAINST the 3P.
Notice of a Meeting- 60-10 rule
Notic MUST be given, to SHs, no more than 60 days, AND NO LESS than 10 Days before the meeting date. If SPECIAL meeting, then must: 1) State who is calling it 2) AND purpose of that meeting 3), AND ONLY that biz may be done at the special meeting
SCOTUS pleading requirement TWOMBLY and Iqbal
Now, per these decisions, the allegations in notice pleadings MUST state a plausible case for recovery RESULTS: If not plausible, then dismiss the case, not permitted to seek discovery CURTALIMENT OF NOTICE PLEADING District Judges have more freedom to dismiss, PRE-Disvoery, complaints that the judges think are obviously unfounded. Trigger: Usually a case involving high profile defendant, and then a VERY thin claim by P of wrongdoing , BUT NOTE that P can pursue Amended complaint
Six member Jury
OK - but must be unanimous verdict
Parent-child immunity (old rule v. new rule
OLD rule - this party immune from tort claims by other party NEW - the party can be held liable in areas (auto accidents, sexual abuse, ITs, dual cap) EXCEPT CORE PARENTING ACTIVITIES.
Organizational Meeting
ONLY after COI has been filed THEN 1) Incorporator holds this, at which 2) adopt corp's INITIAL bylaws 3) AND Appoint initial Directors who hold office UNTIL first annual SH's meeting.
Majority view towards a SEAL on a document.
ONLY in minority view, a seal on a doc acted as C subst. MAJORITY VIEW; It does NOT count as a C substitute
What is NOT a private nuisance
Obstruction of Sunlight; NOT per se P owned land before D entered the neighborhood (determination is whether D acts unreasonably)
Termination WITHOUT consent
Occurs b/c trust automatically terminates when the purpose is accomplished, MEANING under Claflin Doctrine, NO MATERIAL PURPOSE remains. A MATERIAL PURPOSE depends ont he trust instrument's language. Note: Spendthrift trust has a material purpose of asset protection for beneficiaries. THUS, the SPT's purpose remains as long as the beneficiairy lives, so NOT terminated until B dies.
Accomplice liability
Occurs when a person knowingly promotes, solicits, or facilitates others to commit a crime, with knowledge that it will promote or facilitate a crime. A person charged under an accomplice liability theory is charged with the same underlying offense as the person he or she aided
Spendthrift Trust (i.e. great asset protection from judgment/debt collection) AND an important PRESUMPTION
Offer control of mandatory trust, BUT also combines it with the ASSET protection of the DISCRETIONARY trust Elements 1) MUST restrict B's power both to voluntarily OR involuntarily transfer the equitable interest. NY rule: ALL trusts are PRESUMPTIVELY such trusts. 4 Exceptions (i.e. where creditors CAN get at this trust's assets) 1) Children and Spouses seeking family support (i.e. child support or spousal maintenance) 2) People providing NECESSITIES (doctors, gocers; EMT?) 3) The GOVERNMENT (tax LIENS) 4) Income beyond that needed to provide for the beneficiary according to his station in life (ie. EXTRA MONEY is not spendthrift-protected) AND MORE EXCEPTIONS
Trigger for a UniK
Offeror is offering something in return for a COMPLETED PERFORMANCE such as involving: a challenge a contests or a reward Otherwise, offeror is making a Bilateral Offer.
Interspousal Immunity - Old rule, vs. New Rule
Old - can't sue for personal injury New (Majority) - This party Can sue for personal injury against this other party.
Loss of chance of recovery, due to NEGLIGENT misdiagnosis - MAJORITY approach (Example:
Old approach, no recovery where P still had less than 50% chance recovery even before getting negligently misdiagnosed. Now, recovery possible: the plaintiff can recover an amount equal to: (a) the total damages recoverable as a result of the decedent's death, (b) multiplied by (c) the difference in the percentage chance of recovery BEFORE the negligent misdiagnosis and AFTER the misdiagnosis. Example: If the plaintiff's total damages are $1,000,000, his chances of survival were 40 percent without the negligent misdiagnosis, and his chances of survival after the misdiagnosis were 25 percent, then the plaintiff will recover $150,000 ($1 million x (40%-25%)).
K formation under UCC Art 2
Under UCC, a valid contract may be oral, written, or established through conduct of the parties that evidences the intent to form a contract.
General Domicility Rules
Once established, domicile is presumed to continue until clearly changed. Travel, even long travel, does not dislodge domicile. The burden of showing a change in domicile falls on the party that assert the change Change--An individual may change her domicile by meeting the test for chosen domicile above (physical presence and intent to remain in the new place On the bar exam, first ask whether the court has jurisdiction; then ask whether venue is appropriate; then ask is there a conflict of law question, i.e., whether the event or transaction at issue touches on more than one state. Ordinarily, the determination of domicile is a question of fact.
Recognition/Enforcement of Foreign Judgments (Where, When, and How?) Const. Provision
Once state must give FFC to the judicial decision of another state , assuming 1) FFC reqs are met and 2) No defenses against FFC apply.
Legisltive Facts (i.e. court acts like a legislature)
One relating to legal reasoning and the lawmaking process. Taken into court's cosinderation when deciding what legal rule to apply, or how to interpret the law. (e.g. how to interpret a proper law) Contrast to Adjudicative version, these CAN technically be beyond reasonable dispute (b/c Judge, NOT the Jury) deciding them.
Penal Laws
One state will NOT enforce another state's penal laws. NY applies ONLY NY's penal laws, but only covers ONLY Actual criminal prosecutions, NOT civil actions involving monetary sanctions. Note, RST 2d specifically excludes wrongful death actions and cases based on Statutory liability of officers/directors/SH of corps for debts
Shelter Rule
One who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against. In other words, the transferee takes shelter in the status of her transferor, and thereby steps into the shoes of the BFP even though she otherwise fails to meet the requirements of BFP status. This rule aims to protect B, the BFP, by making it easier for B to transfer successfully.
Voting Reqs for a SH meeting (e.g. the RECORD DTE)
Only SHs of RECORD at close of biz, ON that record will be entitled to attend and vote at upcoming SH meeting Exceptions 1) Beneficial owners oshares in PUBLICLY traded Corporations (e.g. shares held in a brokerage account, while brokerd-dealer is "record" owner, the investor is "Beneficial owner" 2)Fidcuiaries OTHER than trustees (anyone BUT a trustee, can be voted by him w/out transfer of such shares into his name 3) Trustees - only AFTER shares have been transferred into HIS name as Trustee or into the name of his nominee (result, trustee becomes shares' record owner)
Co-conspirator Statements in NY
Only prima facie evidentiary finding, but WITHOUT reference to the statements themselves to be introduced.
Discovery Devices - the Basics
Oral Deposition Written Deposition Interrogatories Discovery and Inspection of Docs and Land Physical and Mental Exam Admissions Admissibility of Depositions Enforcement Sanctions
Authentication of Oral Statements
Oral statements may be authenticated AS TO THE SPEAKER"S IDENTITY, IF that IDENTITY IS IMPORTANT a - Voice ID - an authentication by any person who has HEARD the voice at ANY TIME b - Telephone convos - caller can recognize the speaker's voice/familiarity wih the boice; OR (b) Evidence that speaker knew facts that only a certain person would know (c) Evidence thatt the caller dialed the number believed to be speaker's and the spaeker identified himself upon answering the phone; OR (d) the caller
Indemnification against the Manufacturer by the Retailer
Ordinarily if the plaintiff recovers from the retailer solely for a product defect that existed at the time the product left the manufacturer's control, the retailer is able to recover from the manufacturer in an indemnification action.
Other Term for Visitation
Other term for Parenting Time.
Damages against D entitled to PN
P cannot: 1) use self-help 2) recover nominal damages 3) recover punitive damages. 4) BUT CAN get ACTUAL damages even if D is not a trespasser
BOP for establish Breach, and who bears it
P must show by POE that all four elements, including breach of duty, is established.
Effects on P's actual recovery (from SINGLE DEF) under MODIFIED/PARTIAL CF
P recovers so long as NOT MORE THAN 50% at fault than D; AND, IF D injured by P, then D recovers from P, so long as D is NOT more than 50% at fault than P. AND if equally at fault, they get recover 50% from each other of their respective total damages (i.e. one party's damages may be greater than the adversary's!).
Minority rule (and RST 3D) to Proximate Cause - TYPE OF Foreseeable Plaintiff
P recovery determined by whether harms to that P were proximately caused by D's tortious conduct, OR within scope of liabliy of D's conduct NOTE: MAJORITY says just have to fall into class of vic who might be foreseeably injured from D's tortious conduct.
Special Rules affecting SOL Period - Tolling rules for an Infancy Disability
P. 31
Special Rules affecting SOL Period - Tolling rules for an Insanity Disability
P. 31
Fees - 5 Factos to assess reasonbleness of my fees. How to
P.7 TO consider whether my fees are reasonable, AND NOT excessive 1) DIFFICULTY of case 2) PRECLUSION of other employment 3) NATURE of the LCR (how we doin'?) and OF the fee arrangement (fixed, or contingent) 4) My legal expertises (greater exp, rep and ability, then I can charge more than new lawyer LACKING the same as me). 5) AND, FEe charged in my LOCALITY for similar services 6) AND, Reasonable Rates as reviewed by court and under rule 11 7) AIC - More in controversy; More in Fee; More Risk
Exceptions that allow admission of VIctim's Conduct in a CRIM case
PAST SEXUAL CONDUCT (but NOT predisposition OR REPUTATION) dmissible to: - Explain the source of semen or injury; - SHow Vic's past sexual conduct with the def was consensual - When the Constitutional Rights of the defendant require admission of the defendant
Proving Service of Process (under one of 3 circs and BOP for plaintiff)
PROE
Kidnapping (Domestic, civil or criminal)
Parental Kidnapping Prevent Act.
Parental Abuse of Child
Parental rights may be terminated when a child has been severely or repeatedly abused. also be found when the parent has been convicted of the murder or manslaughter of another of his or her children, or attempted murder of any child in his care. AND derivative findings of severe abuse may be made for siblings of the target child.
Contracts and Party
Parties may, themselves, choose the law to apply to a particular dispute. Where the K is truly valid, the courts will typically enforce the choice of law clauses, UNLESS: 1) The K itself is INVALID 2) The COL clause is inapplicable to the relevant dispute 3) The COL is too unrelated to the lawsuit; 4) The COL runs afoul of public policy, AND the foreign law chosen is truly obnoxious.
Defenses to FFC
Penal Laws (not going to enforce penal judgments of other states) Inconsistent judgments (NY won't recongize all conflicting judgement, so NY courts generally choose to recognize the most RECENTLY rendered judgment Equity - in a narrow class of cases, namely those of FRAUD, equity may PERMIT NY courts to refuse to recognize state judgement - NOT of intrinsic fraud (e.g. perjured testimony Extrinsic fraud No defense via MOL or MOF (i.e. can only be raised on direct appeal, NOT as a COLLATERAL ATTACK
Ways to Authenticate Documentary Evidence
Personal Knowledge and Recognition from W showing W's familiarity with the object OR pre-trial STIPULATION by opposing parties
Ways to Authenticate Real Evidence
Personal Knowledge of W showing W's familiarity with the object OR By the real evidence's distinctive markings or characteristics; OR by the chain-of-custody methods, to account for the real evidence's whereabouts from the time it was obtain to the time of trial.
Themis formulation of N Per Se
Plaintiff must show that: 1) there is a criminal or regulatory statute that imposes a Duty on a person like D 2) He is a member of the class that was intended to be PROTECTED by the statute; 3) The INTEREST AFFECTED was THE KIND (e.g. physical injury? MENTAL distress?) that the legislature or administrative agency wanted to protect; 4) The plaintiff suffered the kind of HARM that was the subject of legislative or administrative concern; and 5) The harm materialized IN THE MANNER that the legislature or agency envisioned.
If the right to SILENCE is invoked
Police MUST NOT ask ANY Quesiton, UNLESS 1) suspect changes his mind and def want 2) AND suspect is given FRESH Miranda warnings
Stop-Frisk under NY
Police can make a warrntless seizure 1) ONLY of item they REASONABLY believe to be a weapon 2) CANNOT seize an item if it does NOT feel like a WEAPON
NJ Supreme Court (7 powers)
Power to - make rules governing NJ courts' admin - to admit attorneys to practice of law - to discipline admitted NJ attorneys - to hear appeals as of right for cases of a SUBST> Q under NJ or US Consts. - Hear appeals as of right when a judge of APPD dissents in that case - Hear Appeals as of right in cap punishment cases (but CAPP abolished now) AND, - To grant review upon a discretionary certification
New Jersey Distinctions for VENUE
Pp. 30 -31
Noitce and Serice of Process, general rule
Preferred approach is Personal Services, consists of either 1) Personal Delivery 2) Leaving the summons and complaint at the defendant's dwelling with a person of suitable age and discretion 3) Deliver to authorized agent 4)OR delivery by mail, return receipt requested.
Marital Agreements TYPES
Premarital Separation Property Settlement
Hearsay Exceptions where Declarant's Availability and requirement to testify are IMMATERIAL (NOT REQUIRED)
Present Sense Impression Excited Utterance State of Mind Staemnts Made for pUrposes of Medical Diagnosis or Treatment Past Recollection Recorded
5A Privilege against Self-Incrimination
Prevents a W in ANY proceeding from being compelleted to make self-incrimination statement - ONly to peop, not Corps - ONLY to current, NOT prior statements - Does NOT apply to physical characteristics or mannerisms (e.g. blood samples) - A W may be compelled to provide incriminating testimony if the government grants immunity from prosecution
Suspension Statute
Prevents fragmentation of an estate PAST the perpetuities period by requiring (a) some combo of people actually existed DURINGthe perpetuities period (b) be capable of conveying fee simple ownership of the property DURING the perpetuities period. Thus, while passing RAP, then fails Suspension Statute. Hint: Look for fragmented ownership or contingent interests that eist over a period of time.
Other privileges , but STATES only!
Priest or Clergy-Penitent Accountant-Client Reproter-Source (to conceal sources' identities) Government Entities (keep confidentiality of informatns and braoder range of necessary internal information) Accountant-Client State Secret privilege (prevents the government from being compelled to present certain info)
Tax Consequence of EQD of MP
Prop transferred between divorcing spouses is TAX-FREE at that time of transferrence. BUT, (1) the tax basis for the transferee is the same as the transferor's basis and (2) the transferred prop becomes taxable WHEN SOLD.
Removal based on diversity J
Proper only if: 1) There is complete diversity at the TIME of FILING the original civil ACTION 2) This complete diversity exists AGAIN at the time of the notice of removal is FILED (UNLESS Plaintiff dismisses a party that would have destroyed complete diversity and ultimately DIV J) 3) AND AIC exceeds 75K minus interest, cots, and a judgment's collateral effects (although attorey's fees, PD's may be made part of the AIC). 4) AND the case is brought in a state where NONE of the defendants are citiizens of that state. 5) AND DEF asserts this jurisdiction within one year of the commencement of the action.
Intrusion upon seclusion
Prying or intruding into one's private affairs that is highly offensive to a reasonable person. Photographs in public place not private.
false light publicity
Publicity that places a person in a false light in the public eye can be invasion of privacy if that false light would be highly offensive to a reasonable person. Unreasonable and highly objectionable publicity attributing to a person characteristics that she does not possess or beliefs that she does not hold. Truth is a defense
Argumentative Questions
Q that is intended to provoke an argument, or to intimidate Ws, RATHER than to elicit a response NOT permitted
Closely held Corp or CLose Corp
Refers to "Mom/Pop" corp that 1) has only handful of SHs, usually firends and/or fam 2) SHs are also directors/officers 3) Shares not publicly traded 4) Transfer of shares restrined via SH K 5) Under NY law, 10 largest SHs face persona liablility for corp's debts, wages, or salaries due and owed to any employees if the corp can't pay
Rule of NON-destructibility under NY
Remainders subject to condition precedent are NOT subject to destructibility. Result: The termination of the preceding estate DOES NOT terminate the remainder.
Vicarious Statements in NY
Requires AUTHORIZATION for agent to speak on the event or made the statement AND did so AS the event was
Duty of Loyalty
Requires director act in a manner that director reasonably believes in the best interest of the corporation. Breached if Director places his own interset above the corporations Arises in: Self Dealing transactions usurpation of a Corporate Opporutnity Actions that lead to director being entrenched in officer
Entire Controversy Doctrine, p. 64 (SUPER important)
Requires joinder of the following claims related to a single underlying transaction: All legal and equitable claims by all parties
FNC - NY rule
Requires motion of one of the parties Requires court to find interets of substantial justice ncessitate another forum to hear the action Action can be stated or dismissed on terms that are just (e.g. waivers of objections to PJ or SOL defs can be imposed) FACTORS (see p. 18 outline, or 32 handout) Note in factors: Plaintiff entitled to STRONG PResumption favoring her choice of forum See Example 15, p. 32
BPOC
Requires party to produce enough evidence (i.e. legally sufficient evidence) upon which a REASONABLE jury could find the elements of the case, OR ELSE risk summary Judgement RESULT IF MET: A prima face case If NOT met: Can face summary judgment against you.
Attractive Nuisance
Requires proof that the owner knew/should have known of a dangerous artificial condition on property and that children hung around thus likely to be injured via foreseeable risk.
Subpoena duces tecum
Requires the deponent to show up AND bring documents or things to her depo
Support Trust
Requires trustee to pay out to B in accordanc ewith some PRE-SPECIFIED OBJECTIVE standard Thus trustee's discretion is CONSTRAINED, and must provide for style of life that B is accustomed to.
Equipment
Residual category of goods.
What is an Easement?
Right held by one person to make use of another person's land
WHat are the pertinent 6A rights in a trial
Right to Counsel Right to a trial by Jury Right to a fair cross-section of juror (BUT NOT violated by excluding juror whose Death Pen view prevent or subst impair juror from imparitality on giving Def a DP sentnence). Right to Confront Witness who make TESTIMONIAL statements (whether at trial, or pre-trial, or in police investigation).
6th Amendment
Right to an attorney.
Proxy voting by SH Expiration, and Revocation
SH can cast an absentee vote called this, where an SH appoints another person to vote her shares as she has directed in her proxy Expiration: Validity Expires generally after 11 months unless provided otherwise in the written proxy. Revocable (unless made irrevocable) by SH by:
Inspection of Corp Records
SH has this right 1)to copy AND inspect SPECIFIC records 2) During Normal Biz Hours 3) after written notice 5 days prior to inspect 4) With a stated PROPER purpose (UNLESS seeking from written request, copy of ANNUAL balance SHEET AND/OR the COrp's PROFIT/LOSS statement) 5)
Six types of exceptions to the 4A's Warrant Requirement
SILA - Stop Firisks Autombiltes PLain View Consent (including 3P) Administrative Searches
SL for Owner's Animals on Another's Land (generally, wild or domestic, but generally not HPs)
SL exists here if the resulting damage is 1) caused while the animal trespasses onto another's land 2) and the damage REASONABLY FORESEEABLE 3) caused by a wild or domestic animal (OR household pets--dogs or cats, IF HP's owner knew or should have known that HP intrudes on the prop in a way that can cause subst. harm)
Promoter, and extent of liability for pre-inc Ks
SOmeone who takes action on behalf of a corporation before the corp is formed (eg. arrange financing or enter into K; preincorp services ALSO required to put the PUTATIVE CORP's INTERESTS ABOVE of his own. Pre-INc - K entered into on corp's behalf when copr not yet formed. So, Promoters are LIABLE, UNLESS: 1) the 3p to the prein K knows corp not formed yet, BUT still agrees to look solely to the corp once that corp's formed. (BOP is ON the PROMOTER!!) 2) OR, Uncess Corp formed, AND it enters into a NOVATION with the 3P to the contract.
Is promising partial payment for release from a debt obligation binding?
SUCH a promise is BINDING as K MOD IF 1) the debt 2) is currently due 3) and UNDISPUTED. RESULT: If so, the modification is not binding. The promise of release from a debt obligation made in exchange for a promise of partial payment of the outstanding debt is enforceable if the debt is NOT currently due OR the debt is DISPUTED.
AP Rule in NY
Same elements, BUT also has a statutory period of TEN YEARS
Attachment
Security Device, AND Jurisdictional Device where: - When a plaintiff is unable to establish jurisdiction or needs security that a judgment can be satisfied - NOT Matrimonal Action - ENTITLED to A MONEY JUDGMENT OF AT LEAST $500.00 - AND EITHER: o Defendant is a non-domiciliary or non-resident; o Defendant is an unauthorized foreign corporation; o Defendant cannot be served personally despite diligent efforts; o Defendant—with intent to defraud or frustrate—has assigned, disposed of, encumbered, or concealed property in New York or has removed property from New York (or is about to); o Action is brought by the victim of a crime (or her legal representative) and seeks to recover damages as a result of that crime; or o Cause of action is based on a judgment, decree, or order recognized in New York. - AND SUBJECTED to ANY poperty that is transferable, tangible, or even intangible prop - AND Either Notice - OR Ex Parte (notify def w/in five days - AND AFTER commencement of action, BUT Before Judgment (or before SOS if used to get PJ) - AND BOP
Order of Evidence
See p. 6 Under FRE 201, P's case, then D's case, then P's rebuttal, and possibly D's rebuttal (and so on if court allows NOTE: Court has discretion to alter this.
Statute of Repose
See pg. 26 outline, and p. 22 handout
NJ - A notice pleading jurisdiction
See pg. 46
What is a modification of Sep K
See rule for modification under CONTRACTS! 1) May be later modified by a later supplementary agreement 2) but NOT alterable by a court Exceptions to limit on MODS to this K: A) UNLESS there is fraud or duress established by one of the spouses. B) A spouse (1) receiving support under a separation agreement, (2) unable to support himself on the amount provided and (3) is in actual danger of becoming a public charge.
What do SHs Vote on
See the MNEMONIC of CORE Election of directors Amendment to COI Sale of all or SUBT all corp assets Merges/COnslidations Corp's dissolution NOTE: other matters, the vote is NOT legally required.
Treasury Shares
Shares of a copr that 1) were previously in hands of investors 2) BUT now repurchased or redeemed by that corp AND are being held in its treasury CANNOT VOTED by the corp NOT deemed "outstanding" for purposes of SH meeting Quorum requires AND, NOT assets of the corp.
Transfer, see p. 33
Shifitng a case from one proper venue district court to another with proper venue for convience Exception: can transfer to one without proper venue WHEN ALL PARTIES CONSENT to such a court lacking proper venue RESULTS 1) If general approach (i.e. where all parties consent is NOT required), then the law of the transferor forum controls 2) If original court was an improper venue, then the law of transferee court controls.
If Employer is not VL liable, what is the NEXT recourse to take against employer?
Should the party not be VL, then the P should also consider pursuing the party for his OWN negligence.
Withdrawal From conspiracy
Some Js: No getting out of the conspiracy conviction, Some Js and MPC: Yes if Voluntary and complete and Must successfully thwart the crime from succeeding Common Law: Is not a defense to conspiracy, but is used to terminate liability. Withdrawal is accomplished by an affirmative act which gives notice to his confederates the fact of his withdrawal; notice must be given before the attempt stage, and must be given to all members of the conspiracy. Withdrawing conspirator who is withdrawing near the planned commission of the crime must make reasonable efforts to thwart the crime.
What are the four types of gifts in a will?
Specific Bequests or Legacies General Bequest or Legacies Demonstrative Bequests or Legacies Residual Gifts
Spousal Privileges: 2 flavors
Spousal Immunity and Confidential Marital Communication
Present Sense Impression
Statement describing or explainin an event made WHILE D is PERCEIVING the event (or immediately thereafter) (e.g. fact pattern will read like "He dictated or wrote AS, or JUST AFTER, or WHILE event occurred") THat description MUST be contemporaneous with the event - no time to make up a lie!
Excited Utterance
Statement made about a startling event or condition while the declarant is under the STRESS of excitement caused by that event. Must RELATE to the event, BUT the D need NOT be a participant.
State of Mind (mental, emotional, or physical condition)
Statement of D's then-existing SOM, emotion, or physical condition used to prove the existence of that condition. akin to Present Sense impression INTENT can be proven with this excepiton (statement of present intent to prove intent and condcut or action in coformity with that intent But statemnet of PAST memory or belief are NOT admissible to prove that memory or belief.
Statements by Adversary's co-conspirators (Declarant is NOT available!)
Statements (i) made by co-conspirators are admissible against other co-conspirators. AND such statements MUST have been made (ii) during the scope of the conspiracy and (iii) in furtherance of the conspiracy (i.e. if this is an answer choice, then look AT WHEN THE HEarsay was made by the purported CO-Con! MUST be WHILE conspiracy on-going, AND TO FURTHER IT (if Co-Con stopped, then not made during CO-Con, and there is NO Co-Con to further!)
Definition of Supplemental Jurisdictions (and whether compulsory or permissive) 9 points
Statutory Basis is 28 USC s 1367 (PERMISSIVE) under 28 U.S.C. § 1367 generally allows a federal court with subject matter jurisdiction over one claim to hear additional claims that it would otherwise not have the power to hear and decide, so long as all claims the court hears share a common nucleus of operative fact. Elements: 0) Applies to FEDERAL DISTRICT courts 1) This is a form of SMJ 2) Generally, Permissive so court NOT required to exert even if the plaintiff establishes it 3) The Court must have Orig., SMJ in the form of either FQJ or Div J over at least one claim (i.e. applies only when the court already has jurisdiction over another claim.---- the "federal law-based claim") 4) and then ANY additional claims that this court does not have INDEPENDENT SMJ (i.e. called PENDENT claims) 5) KEY----BUT,BOTH the claim within SMJ and the extra claims ordinarily outside of SMJ ARISE of out the CNOF (or the same transaction or occurence) 6) and Court chooses to exercise discretion to accept, rather than decline on one of four s1367 c bases) 7) RESULT: The Fed Dist court exercises this PENDENT jurisdiction over the pendent claims, EVEN IF the Federal Claim, already within its SMJ, gets dismissed
Maintenance TERMINATION
THIS TERMINATES WHERE: Duration can be set forth in decree - otherwise continues indefinitely - can also negotiate for early termination or survival past death. on DEATH of either party (BUT, court could order support to be a liability of decedent supporting spouse's estate) OR, ON Remarriage of recipient spouse is grounds for termination (UNLESS the Maintenance Agreement says to the contrary) o Cohabitation w/non-marital parnter not enough to terminate, UNLESS (1) cohabatitor represents to the world that he's married to his new non-marital partner, OR (2) parties EXPRESSLY agree (and court upholds) that choabitation terminates a maintenance obligation
If there is an issue of (a) custody of non-marital children, and their right to share in INHERITANCES
The combination of these issues mean that an affirmative outcome for such children REQUIRES A PRIOR FILING OF SOME PATERNITY FILIATION. NOTE: No issue with their share in WRONGFUL DEATH DAMAGES.
Outstanding stock and how can corps reacquire this stock
Stock that is authorized Stock that has been issued Stock that is currently in the hands of investors Reacquire either through Purchase: OR through Redemption: when corp exercises a K right to buy back that soctck. Result: Reacquired stock is called treasury stock (which is authorized/issue, BUT NOT outstanding)
Workers' Comp and Contribution
Substantially curtailed; and contribution rules work differently here - see TOrts outline and the CPLR Outline
Intermediate Scrutiny - Test
Substantially related to an important government interest
Seller's of realty: duty to buyers
Such D's owe duty to disclose to buyers any KNOWN concealed or unreasonably dangerous conditions (i.e. conditions that buyer IS UNLIKLEY to discover upon REAONSABLE inspection). Liable undtil a buyer has that reasonable opp to discover and remedy the defects.
SOC for a specially-skill or knowledgeable D?
Such a D CAN be held to a HIGHER SOC, but the standard is STILL concerned with REASONABLENESS of D's conduct.
SOC for mentally disabled D?
Such a D is still held to standard of care expected for someone of ordinary intelligence and knowledge. This characteristic neither lessen or elevates the SOC.
SOC for a child D?
Such a D may be held to a LESSER SOC than ordinarily expected of a person w/ordinary intelligence or knowledge. Instead what would a reasonable *** of similar age, intelligence and experience do? Note: Children under age 5, usu. not seen as capable of negligent conduct. Exception: When this D does adult acts (like driving cars).
SOC for intoxicated person
Such a D remains held to SOC for RPP, unless this condition was INVOLUNTARY.
FRE 902 - List of self-authetnicating documents
Such evidence's sheer existences countas as sufficient proof of their authenticity: 1) Public documents bearing a government seal or signature of an authorized governmental official; 2) Certified copies of public records; 3) Official publications issued by public authority; 4) Newspapers and periodicals; 5) Trade inscriptions, labels on products; 6) Notarized documents; 7) Commercial paper; 8) Any documents declared to be authentic by Congress; 9) Business records certified by a custodian.
Intestate Distribution Order
Surviving spouse and issue of decedent; parents of the decedent; siblings of the decedent or, if deceased, their issue; decedent's grandparents or, if deceased, their issue
Concurrent D's contribution to INDIVIDUAL injury
TEst passed where: 1) two or more defs 2) each are a factual cause 3) to INDIVIDISBLE injury to P RESULT: Def's are JOINTLY/SEVERALLY LIABLE
hERE, THERE IS a rebuttable presumption arises that the decedent destroyed the will with the intent to revoke it.
THIS OCCUR IF In New York: (1) BEFORE DECEDENT'S DEATH, the decedent had possession of her original will (2) AFTER D'S DEATH, the will is not found among her personal effectS
Kidnapping under NY Law
TWO DEGREES Second Degree - Same as CL's definition for 6 elements) OR 1st-Degree - CL definition, PLUS EITHER A--Intent to compel payment of Ransom OR B -- TO compel a person to engage OR refrain from particular Conduct; OR C -- (i) Restraint of abducted person for more than 12 hours, (ii) with intent to inflict physical injury, torture, advance commission of felony or interfere w/government or political function.
Tangible Evidence and the Authentication Requirement
Tangible Evidence must be authenticated before it can be introduced, in order to determine if there is evidence to sufficient to support a finding that the thing is what its proponent claims it to be.
Impeachment - FRE 607
Technique avialable in cross-exming where we suggest that the witness crediblity must be called into question and not believed. W can be impeached by ANY ONE Challenges Testimony based on character for trtufulness bias ability to perceive or testify accuractely or proior statement that contradicts the W's testimony at trial. BUT under FRE, NOT allowed to call a W ONLY for this purpose.
When does a 3PB VEST, and thus NOT lose enforcement rights:
Teh beneficiary DETRIMENTALLY RELIED onthe rights OR, The beneficiary MANIFESTS ASSENT to the contract/the rights; OR, the B brings a LAWSUIT to enforce the K. NOTE: NOT MERE IDENTIFICATION NOTE: Promisor can ASSERT any K defense against 3PB that promisee entitled to assert against the promisee.
Termination of Child Custody Orders
Terminates 1) upon custodial parent's death 2) upon child reachign age of majority or emancipation (but support continues until age 21) Result (if DEATH): SUrvivng parent gets cusotdy of child
Distinguish between gift and consideration by:
Test for this distinction is whether the offeree could have reasonably believed that the intent of the offeror was to induce the action. IF YES, then enforceable promise for the presence of consideration.
Alternative Causation
Test passed where: (1) p's harm caused by at least two, but not more than 5 Ds (2) whose conduct was each tortious (3) ALL of whom are present before the court RESULT: Court can shift BOP to EACH D to prove his conduct NOT the Factual Cause of P's harm.
Concert of Action
Test passed where: 1) 2 or more D's 2) acting under a COMMON PLAN 3) At least one of their acts TORTIOUSLY caused P's harm Result: Def's J/S L
Ryands v. Fletcher
That an owner of property with a dam on it is strictly liable for the harm caused by the release of water due to the bursting of the dam—is still followed.
Residual Excpeiton
That catch-all exception, used for statement NOT otherwise covered by one of the other enumerated excpetions. The circs must be 1) Statemne carries a guanrantee of equivallent trustworhtiness 3) Offered as evidence of a material fact and is more probative than any other evidence on point; and 4) Admitting it will best serve the purpoe of th FRE and interest of justice
SJ/LAJ basis - Tortious Acts OUTSIDE NY, but causing injury in NY
The Injury MUST occur in NY, even if Tortious Act was OUTSIDE NY, so long as: 1) Regularly doing biz in NY 2) Regularly solicit biz in NY 3) Persistent contacts with NY 4) OR, Signfiicant Revenue from NY
When the amendment involves the addition or change of a party,
The amendment must concern the same conduct, transaction, or occurrence as the original pleading. AND the new party must have known or had reason to know that the action should have been brought against him. RESULT: THIS RELATES BACK TO THE DATE OF FILING OF THE ORIGINAL pleading, which of the following is TRUE?
What is Passive Appreciation
The appreciation in value due merely to passage of time, and NOT efforts of EITH party (e.g. management, improvement). Court MUST consider both this version and the active version to determine the PERCENTAGE of TOTAL appreciation that amount to Marital Prop for EQD
Voluntary TPR
The biological parents may voluntarily give up their rights as parents of the minor child and consent to the child's adoption by the adoptive parents. Consent AND SURRENDER. Requirements in NY 1) a child who is above the age of 14 must consent to the adoption, unless the judge or surrogate dispenses with the requirement. 2) If child > 6 months old, consent only required if father's conduct satifies criters for maintain substnatial and continuous OR repeated contact with the child (e.g. paying reasonable support, and visitation, regular communciation) 3) If child < 6 months--Father's consent is NOT required.
IMPOSSIBILITY vs. IMPRACTICABILITY and when are either triggered.
The contract cannot be performed AT ALL while the other is where a K cannot be performed without great difficulty Either are triggered for examination when, AFTER K FORMATION, there is something that HINDERS the ABILITY to PERFORM (i.e. NOT merely just more costly to perform). E.G. o Performance becomes illegal after the contract is formed; o The subject matter of the contract is destroyed; o A services contract with a "special person," and the performing party dies or is incapacitated; o BUT, something that just makes performance more expensive than expected will not normally excuse.
Settlor
The creator of the trust The grantor of trust property Must be at least 18 years of age and be capable of entering into contracts
Relief from Default by a Court MAY be exercised if
The defaulting party's underlying substantive claim or defense has merit. AND The defaulting party has a reasonable excuse for failing to appear.
Under which of the following circumstances may character evidence be introduced in a criminal case to prove that the defendant acted in conformity with a character trait
The defendant may always introduce evidence of his own character trait when it is relevant to an issue in the case. The prosecution may introduce evidence as to any character trait of the defendant to which the defendant has opened the door by introducing evidence of that character trait. The prosecution may introduce evidence as to a character trait of the defendant when the defendant has introduced evidence of that character trait with respect to the victim. Note: Without regard to what evidence the prosecution has introduced, the defendant may usually introduce evidence of a VICTIM's character trait when it is relevant to an issue in the case.
Burden of Proof
The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant's guilt. (guilt beyond a reasonable doubt, greater weight/preponderance, clear and convincing evidence.)
If (1) D is the ADOPTIVE parent of an ADOPTIVE child, AND (2) Adoptive Child related to D by both NATURAL AND Adoptive relationship; what is the effect?
The effect of such an event means that the ADOPTIVE child CAN inherit by the ADOPTIVE relationship.
If (1) D is the NATURAL parent of an ADOPTIVE child, AND (2) Adoptive Child related to D by BOTH natural AND adoptive relationship; what is the effect?
The effect of such an event means that the ADOPTIVE child inherits ONLY by the NATURAL relationship, NOT the adoptive parent.
Effect of Former Adjudication - TWO DOCTRINES THAT MUST BE DEALT WITH TOGETHER
The effect of this can be either 1) Claim Preclusion for the entire LAWSUIT (note: where Q has an agreement or contract about what one party gets upon default or breach of another, THEN this can be triggered here TOO!)--- Res judicata provides that a final judgment on the merits of an action precludes the same parties from re-litigating identical claims that could have been raised in that action, but were not. 2) Or Issue Preclusion for the LITIGATION subsequent to the Lawsuit. Elements are: a--The same issue of fact must arise in the two suits b-- The issue must have been actually and necessarily decided in the previous suit c-- The party to be precluded must have been a party to the previous suit
Elements for NIEDRPH
The elements for this tort are: 1) Def's voluntary, negligent conduct 2) Creates a FORESEEABLE risk of PHYSICAL INJURY TO P 3) D's conduct causes a threat of physical impact 4)The TPI cause emotional distress (but note negligent medical diagnoses can cause severe ED that in turn results in physical symptoms, all w/out the docs ever threatening physical impact). 5) The emotional distress generally results in some form of bodily harm to P.
What evidence is required for Breach of Duty?
The evidence must show A GREATER PROBABILITY than not that (i) the defendant failed to meet the required standard of care, (ii) the failure was the proximate cause of the injury, and (iii) the plaintiff suffered damages.
In NY effect of a Possibility of Reverter on a Title to Land?
The existence of this future interest in a GRANTOR shall render a title UNMARKETABLE.
RST's version of RIL rule (minority approach)
The fact finder may infer that the defendant has been negligent when: i) The accident that caused the plaintiff's harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and ii) The defendant is a relevant member of that class of actors.
Failure to perform
The failure to perform is a breach, unless the failure to perform is legally justified.
Duress different from Necessity b/c
The first defense result from HUMAN ACTS The second is from NATURAL FORCES
Which kind of Prosecutory Appeals are PERMISSIBLE under the 6ADJC?
The following do not violate the 6ADJC 1) Prosecutor's appeal of an adverse ruling in a crim case, IF that appeal DOES NOT relate to D's innocence 2) Orders dismissing indictments 3) Orders suppressing evidence 4) Post-verdict new trial orders 5) Bail determinations 6) AND Sentences
Choice of Law the Erie Doctrine, see p. 35
The general rule of law is that when action is commenced in a Federal District Court, the Court MUST decide which substantive law and rules of procedure will govern the action. A. If action is a FQ claim then Fed Substantive and Procedrual Law controls. B. BUT where the action is based on Diversity as the means for asserting federal subject matter jurisdiction. federal courts must apply state substantive law, which includes 1) The substantive rules that determine who wins and who loses 2) SOLS that set time limits on state cuases of action 3) Rules allocating the BOPs on state claims 4) and State rules on choice of Law 5_ BUT, FEDERAL Procedures (i.e. FRCP) STILL apply in FEDERAL court even adjudication of State-law Claims while apply state SUBSTANTIVE law.
Restitution Damages
The goal is give the plaintiff an amount EQUAL to the ECON BENEFIT that P conferred on D. I.E. designed to put a party in the position it would have been in if a contract had never existed Sometimes can EQUAL reliance Ds.
Preponderance of the Evidence
The level of proof that a plaintiff must meet to prevail in a civil lawsuit. It means that the plaintiff must offer evidence that, in sum, is slightly more persuasive than the defendant's evidence.
Marital Privilege
The marital communication privilege protects confidential communications made DURING marriage. Either spouse may assert the privilege, even AFTER divorce. Includes communications and conduct intended to be confidential.
Nondisclosure - (akin to Fraudulent Misrep)
The other party doesn't learn the truth about something, but now you just remain quiet. Normally, you need not tell the other side about all material facts related to the deal. But may be a bar where DEFENDANT EITHER: (a) has a special (fiduciary) relationship or (b) engaged in active concealment of a material fact.
Choice of Law and Choice of Forum
The parties are free to agree to the appropriate law to be applied in any dispute, as long as that choice of law bears an appropriate relationship to the transaction.
Who is the beneficiary of a trust?
The person who has this device's benefit (e.g. receive payments and property), holds equitable title (i.e. no obligations, but all of the benefit), and the power ot enforce the trust.
Who are collaterals?
These are the decedent's surviving sibilings, cousins, and even cousins once removed.
Williston test
The plain meaning or 4 corners test. whenever possible the K should be interpreted based on the plain meaning of the language within the 4 corners of the document itsef. The court should use the ordinary meaning of words to interpret the K and should not admit extrinsic evidence unless there is an ambiguity within the 4 corners.
What kind of evidence can help establish that the duty was breached?
The plaintiff can demonstrate such failure by introducing evidence of the required standard of care through custom and usage, violation of a statute, or res ipsa loquitur
Spousal Immunity
The pouse of a Crim D cannot be compelled to testify his or her spouse by the prosecution. BUT, some states, Crim D spouse HOLDS the privilege, AND may PREVENT his or her spouse from testifying against him/her even if the witness spouse wants to. BUT MAJORITY (AND FED) Rule: Witness Spouse holds the privilege and may choose to testify, just can't be compelled Time period - Everything before AND UP TO DURING a VALID Marriage Exceptions: If crim charge is a charge against the spouse OR THEIR children, then no privilege: Spouse can be compelled to testify against Crim D. AND Does not apply if a spouse is suing the other
General Rue Character Evidence in CRIMINAL Cases
The prosecution is not permittd to build its case by arguing that the defendant is a particular kind of person, even though that evidence for such an argument is almost always relevant.
If the K states that rights are NOT assignable:
Then here, assess whether K prohibits assignments, or INVALIDATES A. If K ONLY PROHBIITS 1) Assigning party has BREACHED (b/c he made the assignemnt 2) BUT 3P CAN still recover from GUARANTOR (i.e. b/c the power to assign persists, EVEN if the right to assign was NOT PRESENT INITIALLY) B. If K INVALIDATES the assginemtns, then 3P CANNOT recover (b/c there is NO power or right to assign). E.g. the K says that all purported assginemtn of rights ARE VOID!)
PERMISSIVE Intervention (PINT) (Rule 24), p. 61
There MUST be a common question of LAW OR of FACT between main claim and the intervenor's claim (i.e. can have either (a) zero factual overlap, OR (b) zero legal overlap) IF original case rests on exclusively Diversity jurisdiction, then can only allow intervenor if they do NOT destroy COMPLETE D, and only if their separate claim independently the AIC req. of 75K Note: BECAUSE under 28 USC 1367, NO supplemental jurisdiction is allowed
Hearsay Exception FRE 801d - Prior Statements of Testifying Ws - three kinds
There are three kinds of statements made in the past by the testifiying W that get treated as nonhearsay if: the declarant testifies AND gets subject to cross-examination 1. Prior Inconstitent Statments Prior COnsistent Statements and Prior Statements of Identification
hearsay within hearsay (double or multiple hearsay)
There may be a hearsay statement that is contained within a hearsay statement. An exception for each level of hearsay is required for the statement to be admissible.
"Trust Beneficiaries" Req.
There must be one or beneficiaries who sufficiently definite to be capable of enforcing the trust's terms against the trustee. Beneficiary must be ascertained or ascertainable at the time of they are entitled to take their interest.
Three Limits on EXP Damages
These Damages requires: 1) Reasonably certain damages ---Proof with reasonable certainty 2) Not unforseeable, uncommunicated Consequential Damages-- must be Reasonably foreseeable, not unforeseeable, UNLESS breaching party had reason to know of them. 3)DUTY TO MITIGATE the non-breaching party takes reasonable steps to reduce or mitigate these damages from the breach.
NY - which servitudes DO NOT EXIST?
These Implied Reciprocal Servitudes DO NOT Exist. There MUST be ACTUAL CONSTRUCTIVE NOTICE.
Retainers and Business deals with clients
These MUST Be: 1) In writing 2) Fair and Reasonable 3) Advise client in writing of prudcen of seeking independent counsel AND 4) Informed consent, in writing, signed by the client 5) NOTE: Also requires above in in domestic relations actions (unless additional notice
Questions Calling for UNWARRANTED conclusions
These are NOT permited, b/c it requires the W to draw a conclusion, OR to state an opinion that he is NOT QUALIFIED to make i.e. No personal knowledge, OR NOT an expert
FRE provides privileges
These are NOT provided under FRE, but under common la, (or use state's when sitting in diversity jurisdiction)
Surrogate Parenting Contracts
These are considered against PP and VOID in NY Defined as a ne in which a woman agrees to be inseminated with the sperm or implanted with an embryo fertilized with the sperm of a man who is not her husband and to surrender the child for adoption. Third parties who arrange surrogate parenting contracts for a fee are subject to felony prosecution.
Non-Compete Agrements
These are contracts that contain restrictive covenants on employment, that prevent an employee, once leaving empoyer from going into biz for hserself, and thus competing against her old boss. Under NY case law, these Ks with such covenants are enforced IF: 1) THey are reasonable in time and geographic scope 2) AND, necessary to protect the employer's legit interests 3) AND, NOT unreasonably burdensome to the employee.
Who are ancestors?
These are decedent's surviving parents and/or grandparents.
Exception to K formed with an Infant - Liability for necessities
These are food, shelter, and clothing 1) When furnished to an infant 2) Infant must pay 3) BUT recovery is limited to the FAIR or reasonable value of the services or goods (i.e. that value can differ the K price).
TEA of Duplicates (and note THREE exceptions)
These are generally inadmissible, but "three" exceptions: • Two exceptions: o Accurately reproduced business records - Photocopies or faxes. o Protected copies - Duplicates of a writing by a process that stores an image that cannot be altered without leaving a trace of the alteration. • Note: A page from a multi-copy form, i.e., customer copy of a receipt, is considered an original.
MODIFICATION of MARITAL Ks - RULES
These are modifiable when one of four scenarios exist and their respective standard met: 1) The court can always REVIEW an agreement for child custody or support, under BIWOC standard. 2) Merged agreement - modified if substantial change in circs . 3) Incorporated Indpendent Maritalk K - higher standard, modified only if there's an EXTREME circumstances. 4) OR, UNREPPED Spouse or Spouses - Reviewable to ensure FAIR, REASONABLE, AND VOLUTNARY K terms.
Infants in NY
These are parties under the age of 18, and thus they do not have cap to contract.
Distributions (Rule synthesis!)
These are payable at BOD's discretion, AND THEN ONLY out of funds LEGALLY available for the payment
Questions ad to Facts NOT in Evidence
These are question that ASSUME Facts, BUT the Facts are NOT in Evidence (i.e. assuming facts as true, but not yet been proven true). NOT permitted
Employment K (also under CL)
These are rebuttably presumed AT-WILL IF: 1) Such K does NOT state the duration; 2) OR, K provides for "PERMANENT employment" or "LIFETIME employment" with no contrary intention. RESULT of Being an AT-WILL relationship: 1) EIther party can terminate the relationship AT ANY TIME 2)AND teh termination is NOT considered a breach of the K 3) SO long as the termination's basis is NOT against public policy (i.e. You're fired cuz you're black or queer).
Liquidated Damages
These are set out in the K as an EXPLICITLY negotiated amount due upon breaches. IF PUNTIIVE, then these Ds MUST: 1) Be reasonable AT TIME OF K FORMATION (e.g. NOT be USURY (i.e. not function as a penalty)) 2) AND ACTUAL DAMAGES would be (a) UNCERTAIN IN AMOUNT and (b) DIFFICULT to PROVE
What are the types of Promises that are Binding EVEN W/OUT Consideration?
These are still binding in this circ: 1) Promise to Pay a Debt Barred by the SOL 2) Promise to Perform a Voidable Duty 3) Promise to Pay Benefits Received - Material Benefit Rule 4) Promissory estoppel (4 elements; 1) Promise; 2) reasonable expectation of inducing the promisee; 3) Inducement/Actual Reliance (exception for Charitable Subscriptions); 4) Reliance was reasonable
Name the K Defenses to FORMATION and the effect of such K defense
These can be asserted by someone in breach of K by either 1) Showing the failure to establish the elements of a K 2) OR, Mistake (unilateral or Mutual) 3) OR, Misunderstanding 4) Misrepresentation, Nondisclosure, or Fraud 5) OR, Undue Influence 6) OR, Duress 7) OR, Lack of Capacity to Contract
Limits on Choice of Law provisions
These can be: 1) US Constitution (DPC, requiring suff. contacts w/forum state/, and FFC to public acts, records, AND judicial proceedings of EVERY other state, BUT not to apply another state's law in violation of its own public policy.) 2) Statutory Limits AND 3) Contracts and Party Choice
EXP
These damages are awarded to give the non-breaching the benefit of the bargain he would have enjoyed had the other party not breached. Thus, ordinarily these damages are the cost to COMPLETE the job. Goal : To put a non-breaching party in the same ECONOMIC POSITION that it would be in if the K had been performed as promised. Elements 1) Must not enjoy the benefit of the bargain (i.e. cannot secure another K THAT gives a BETTER deal--> cuz then the breach actually benefited you!) 2) AND Such damages must be proven with reasonable certainty 3)AND, Must be reasonably foreseeable 4) AND, If unique and unforseeable, unless the breaching party had some reason to know about the possibility of these damages. (e.g. communicated to the breaching party before they were incurred) 6) AND, NBP took reasonable steps to mitigate. 6) AND THEN DAMAGES ARE Measured by 1) comparing value of perf without the breach to 2) value of the prf WITH the breach Result: NBP is in the SAME ECON position he was in before he Ked with the breaching party. VPWOB -THE ACTUAL COST FOR VALUE the NBP ACTUALLY ENJOYS, given the breach (i.e. NBP's ACTUAL COSTS: What you expected to pay, BUT PLUS what else you had to pay in order to enjoy what you expected to pay for) MINUS VPWOB - The ORIGINAL COST FOR VALUE the NBP WOULD HAVE ENJOYED, IF THERE were NO BREACH (i.e. NBP's expected costs) = Cost to Complete the Job I Expected Under UCC: EIther 1) Use the same formula ABOVE, SO LONG AS Buyer's COVER is SIMILAR to what he would have paid had other party not breached! or 2) Buyer can also, under PTR, return the NCG.
Remedies under UCC - for the buyer
These depend on the nature of the seller's conduct AT THE TIME Seller's performance is required per the K agreeement: THRESHOLD (NOTICE of SELLER'S BREACH: (where the seller BREACHES the K by doing nothing, or failing to make a nonconfirming tender that does NOT fall into an exception from the PTR; AND BUYER GIVES NOTICE of EITHER KIND OF BREACH TO THE SELLER W/in REASONABLE TIME that BUYER DISCOVERS or SHOULD HAVE discovered that seller's BREACH) 1) Damages a- Market price (price at time of Breach, at place where tender supposed to have occurred per the K) minus K price b - Incidental damages - (damages incdent to sell's failed perf, like transit costs, inspect, etc) c - Consequential Damages - losses from general or certain req and need that seller had reason to know and could NOT have reasonably prevented by BUYER getting substitue goods) Can K these out, UNLESS uncsoncionable 2) OR ALTERNATIVELY COVER (the repalcement price munis K price, to comp buyer for purchasing similar goods elsewhere) 3) OR, Spefifice Perf, but only for UNIQUE goods, or inabiity to cover. 4) Replevin (if partial payment for identified goods, and buyer tenders unpaid portion of price to seller OR can't Cover) - buyer wants the undelivered goods from seller 5) Where Nonconfirming Tender - Right to accept or reject, with right to inspect before reching either choice IF REJECTED, can seek remedies available as if NO TENDER was made by Seller.
Contractual Wills or Will Ks
These include contracts to make a will, contracts to revoke a will, and contracts to die intestate, all of which are controlled by contract law. NY law requires the following to contract to make a will i) A meeting of the minds; ii) Consideration; iii) Evidence that the contract terms are definite and certain; and iv) Terms contained in a writing sufficient to comply with the Statute of Frauds.
Crimes against Children
These include: 1) Abandonment 2) Non-Support 3) and Endangerment
Defenses to Negligence (and Exceptions)
These include: 1) Contributory Negligence and 2) Assumption of the Risk
Do Employer and Employee share liability?
These parties are held JSL, but only for torts committed within the scope of employment. Otherwise, principal is NOT liable for those torts that fall outside the SCOE.
Can Children and Mentally Incompetent be liable for ITs?
These people are STILL liable so long as they acted w/either purpose for result, OR knowledge of substantially certain result.
Substantial Factor (majority approach)
This Causation test is triggered by multiple tortfeasors, or medical misdiagnosis situation
Landlord's liability
This D is liable for injuries to tenants and other occurring: 1) common areas 2) from HIDDEN dangers not warned about by LL to tenant 3) on premises LEASED for PUBLIC use 4) from hazard due to LL's NEGLIGENT repair 5) from hazard that LL AGREED to repair
TRADITIONAL Approach to LP and Trespassers
This D owes a lesser duty to trespasser, in that D must refrain from any malicious or wanton misconduct toward the trespasser (e.g. no spring-guns or traps) 2) Duty to warn or protect DISCOVERED/EXPECTED trespassers from hidden, dangerous or artificial conditions that INVOLVE RISK of SBI or DEATH. 3) but NO duty owed to UNDISCOVERED trespasser or to inspect or search for them (exception: most jurisdiction require LP to reasonably know if TPs are repeatedly entering his land, even if LP does not actually know (i.e. treat TP like a licensee)
When does a Retrial NOT violate the Double Jeopardy Clause?
This DOES NOT violate the Double Jeopardy clause where it occurs: 1) after reversal due to an error at trial 2) After mistrial, IF there is a manifest necessity for declaring the mistrail, such as (a) a judge or juror is sick; OR (b) the jury hangs w/out judge declaring an acquittal afterwards; OR (c) when def successfully requests for a mistrial
To whom does a D generally owe a GENERAL duty of care to?
This Duty is owed to all FORESEEABLE PLAINTIFFS (i.e. class of folks who can be foreseeably harmed from D's NEGLIGENT conduct.
Transferability rule for Right of Reacquisition
This GRANTOR'S future interest IS TRANSFERABLE to a THIRD PARTY.
Misunderstanding
This a defense to K formation, provided: 1) the partie suse a MATERIAL term 2) that term is open to TWO or more reasonable interpretations (i.e. so the OT does NOT apply!) 3) Each party attaches a DIFFERENT meaning to the term; AND 4) Neither party knows, or SHOULD know, of the confusion
Power of Appointment
This a delegation to some else in the future to decide WHO takes the FUTURE interests. e.g. O gives prop to A for life and THEN TO WHOMEVER A DESIGNATES. The grantor creates the power (typically the settlor); The grantee holds the power; The objects are people for whom the power can be exercised. NOTE: SUbect to the RAP Can be testatmentary powers (i.e. exercised by donee at the donee's death); OR IVT powers (exercised during Donee's lifetime)
Definition for a Contract (6 elements)
This a legally enforceable, binding agreement where there is a legal basis for enforcing the promise, through bargained-for consideration, which requires: 1) An offer 2) Acceptance of that offer 3) Consideration 4) Definite and Certain Terms 5) Compliance with the SOF when it applies 6) and NO valid defenses to bar validity and enforceability.
What is the significance of selling a prohibited at GROSSLY HIGHER PRICE MARKUP?
This allows inference that you WANT to aid the crime. BUT, Selling legal goods with the knowledge that the buyer is planning to use the goods in the commission of a crime is usually insufficient to make the seller an accomplice to the buyer's crime.
General Rule of applicability of INTESTACY rules.
This area's rules are triggered when: 1) The decedent dies without a will 2) OR, the testator's will is invalid or void 3) OR, the testator will (AND/OR nonprobate instruments) FAILS to dispose ALL of testator's ESTATE or PROPERTY (i.e. dies partial intestacy).
Government Immunity, traditionally
This attaches to performance of traditional government function, BUT NOT to performing "proprietary functions" that private companies usually perform.
SPL and Inference of Defect rule
This can be entitled to P here if: 1) P's harm was the kind that ordinarily occurs due the product's defect and 2) P's harm was not SOLELY the result of causes OTHER than a product defect existing at time of sale or distribution RESULT: Allowed inference that a product defect existed.
What are THREE WAYS of ESTABLISH A DUTY (in Tort)
This can be formed in three ways: 1) Special Relationship (Fiduciary or Familial) 2) D's Enhancement of Risk of Harm (Narrow view: Duty owed to Foreseeable Harm; Broad view: Duty to Public at Large for any risk-enhancing conduct) 3) VOLUNTARILY ASSUMING a Duty (e.g. rescuer)
What satisfies as Intent for a LARCENY?
This can be met where: 1) Def intended to create a substantial risk of loss or 2) def intends to sell the goods back to the owner
Impeachment Technique #1 - Showing Dishonesty
This can be shown using 1) Opinion Testimony 2) Reputation testimony by a notehr witness 3) BUT No extrinsic evidence of prior bad acts (i.e. the attacking W cannot testify about specific bad acts) Narrow exception to the general bar on the propensity argument. RESULTS 1) AFTER this attack, Party SUPPORTING W can introduce POSTIVE character evidence about W's truthfulenss to BOLSTER that W's credibility. 2) BUT NOT TO BOLSTER W/OUT any PRIOR attack NOTE: On cross-ex of the W, YOU CAN ask W about PRIOR dishonest things (with Court's permission first) that cross-exed W has done in the past, SO LONG AS such acts were probative of the truthfulness of W, OR truthfulneess of anotehr W, about whose chracter the W is being cross-ex, has testifed. (BUT AGIN CAN'T use EE to prove Bad Acts (e.g. your Character W can't testify to cross-exed W's prior acts), Just gotta take the cross-exed W's answer as given
Parties can enter into an agency relationship without knowledge and without the specific intent to do so. True or F
This can exist, because all that is necessary is for the parties to manifest intent that one will serve the other, while the latter will control the former.
Reqs for Separation via Judicial Action (i.e. Separation DECREE)
This can occur if brought on the basis of: 1)(A) FAILURE TO SUPPORT-- neglect OR REFUSAL to provide spousal support at marital standard of living, PROVIDE the spouse can do so, AND the spousal support seek cannot support himself. OR, (B) ANY OF FAULT BASES TO DIVORCE 2) AND brought w/in 5 years (of the asserted conduct?), EXCEPT for ABANDONMENT OR ADULTERY. 3) MUST BE IN A WRITING 4) SIGNED BY THE PARTIES 5) ACKNOWLEDGED/NOTARIZED 6) OCCURS IMMEDIATELY AFTER THIS IS ISSUED BY THE COURT RESULTS: 1) Parties remain legally married 2) CAN serve as a basis for a CONVERSION DIVORCE 3) ANY issues about CHILD are subjec tot BIOC test 4) CAN EITHER MERGE W/DIVORCE JUDGEMENT (AND ENFORCED WITH CIVIL/CRIM CONTEMPT; OR MODDED FOR SUBT. CHANGES) 5) OR BE INCORPORATED/INDEPENDENT FROM A DIVORCE DECREE. (AND NOT ENFORCED WITH CONTEMPT ACTIONS; AND MODDED ONLY UNDER EXTREME CIRCS).
What are the possible Grounds for any Divorce?
This can occur on the grounds of: 1) No-Fault 2) Conversion of a duly executed and acknowledge Separation K 3) Fault bases, such as (a) Adultery (b) Cruel and inhuman treatment (c) Abandonment (actual or constructive) (d) OR Imprisonment
Sentencing and 6ADJC
This clause does not 1) bar sentence modifications that impose even MORE severe sentences, 2) so long as the greater sentence is appropriate, 3) AND, is NOT imposed as a PENALTY for exercising a const right or for raising a collateral challenge.
6ARCONF
This clause entitles Def are entitled to confront and cross-examine Ws against them. Thus, An out-of-court statement made by a witness that is TESTIMONIAL is NOT admissible under the Confrontation Clause, UNLESS (a) the witness is unavailable and (b) the defendant had a prior opportunity to cross examine the witness. Issue is what is TESTIMONIAL. These are: 1) Affidavits 2) Sstatements made in police custody 3) Prior testimony 4) Statements given in response to police interrogation (about PAST events) 5) Certificates of analysis that state results of Lab Tests What is NOT testimonial. These are NOT testimonial: Statemtents made in the course of police interrogation under circs OBJECTIVELY indicating that primary purpose of the interrogation is to ENABLE POLICE HELP to MEET AN ON-GOING EMERGENCY
Exigency of EMERGENCY (2 flavors)
This exigency exists where 1) Probable cause PLUS 2) a) reasonable apprehension that evidence would be destroyed, OR b)there is a threat of safety to the officer or to the pbulic
Plain Error
This exists IF there is an error that affects a SUBSTANTIAL RIGHT Result: Can be grounds for reversal of court's doing even without an objection or offer of proof by a party.
Definition of Material Breach
This exists when the non-breaching party does NOT receive the SUBSTANTIAL BENEFIT of the bargain.
Frustration of Purpose
This condition exists where unexpected events arise that destroy one party's PRINCIPAL PURPOSE (i.e. the MAIN REASONS) for forming the K, even if the performance of that K is not impossible. Elements are i) An unforeseeable event has occurred; (e.g. unforeseen natural disasters, wars, embargos, local crop failures...more than just non-major price increases) ii) Non-occurrence of the event was a basic assumption on which the contract was made (i.e. There was NO ASSUMPTION of RISK that the event may occur, e.g. there was NO FORCE MAJUERE clause in the K; MORE THAN JUST A BAD DEAL) ; and iii) The party seeking discharge is not at fault for the frustrating event.] iv) AND Event must have subst. frust. of the party's PRINCIPAL purpose AND seriously affect the value or usefulness of the K. RESULT: 1) the party successfully asserting this is EXCUSED from performance, and not liable for damages based on breach. 2) the frustrated party can ALSO RESCIND the K without paying damages
Work Product Doctrine
This covers docs prepared by an attorny in anticipation of litigation - Not required to turn over such doc, UNLESS adverse party shows (a) a substntial need AND (b) the info can't be obtained by any other means without UNDUE hardship BUT, this keep out the mental impressions and strategies of the attorney. All fall within the core of the protection.
Detrimental Reliance
This creates an irrevocable offer where 1) Oferree reasonably and detrimentally relied on the offer in a foreseeable manner E.g. Tested commonly in the Gen Con/Sub Con context. (promissory estoppel/reliance theory analysis) 1) A promise 2) reasoanble expecation of inducing the promisee 3) actually induced reliance (changed possition) 4) Reliance was reasonable
Arson in NY (hint five degrees) a crime against property
This crime has FIVE degrees, and expands the CL definition to include individual property, all buildings, motor vehicles, and watercraft (not just dwellings)
Non-Support of a Child - NY Law
This crime is where: 1) Def has a legal obligation to care for a child 2) Who is under 16 yearls 3) and D fails to support the child 4) is able to do so, OR voluntarily makes herself unable to support the child 5) AND become First-dee offense if it (i) is a second conviction; (ii) w/in past 5 years.
Imputed Contributory Negligence
This defense can be raised and occurs when another person's fault is "imputed" to the plaintiff to prevent or limit his recovery due to the other person's fault. Exceptions for: 1) Married Plaintiff's CN spouse 2) Child Plaintiff's CN Parent 3) Automobile Passenger's CN driver 4) Automobile owner's CN driver
Name the K Defenses to ENFORCEMENT
This defense is where party asserts the manner in which a K was formed should bar its enforcement. 1) Illegality 2) OR, unconscionability 3) OR, Against Public Policy
What is the Doctrine of Subst Perf's requirements (note: Only CL applicable, NOT UCC)
This doctrine is satisfied where: 1) The faiure to tender COMPLETE peformance was NOT WILLFUL RETRIEVE from ALA FINAL EXAM and CORE DOC OUTLINE RESULT: IF SUBST PERF found: 1) There is no material breach by the party asserting this, and this party has satisfied the implied condition of constructive condition of exchange. 2) THe nonbreaching party can still recover damages for the deficiency, typically measuraed as the cost to complete remaining performance, OR the diminution in market value RESULT IF NO SUBST PERF found: 1) Breaching party gets paid nothing , except for possibly QUASI-K damages (to prevent whatever unjust enrichment was conferred on non-B party) NOTE: Divisibility: If K CLEARLY divisible, then break up the K for purposes of determining subst. perf and each party's respective recovery and rights (e.g what can breaching party recover per divisible K; how much non-breaching party recovers per divisible K)
Specific areas for RIL
This doctrine may be used in these areas to establish breach of duty of care 1) Medical Malpractice (the wrong typically due to negligence, and the med team had exclusive control of harm-causing instrumentality and the patient's body; triggers J/S Liability!) 2) Products Liability (at time prob arose, D had excl. control of the product) 3) Comparative Fault Jurisdictions (P's access to instrumentality does NOT completely bar P's recovery. P's access may just reduce the recovery)
Scope of Direct Exam of Crim D on Prelim Issues - Effect on Cross Ex
This does NOT allow Cross exam of D on matters OUTSIDE of this subject matter, UNLESS D "opens the door" by discusing other issues
Effect of an Appearance in NY in one action...
This does NOT confer jurisdiction in another action
What is an Express Easement
This easement is created by ONLY being in writing (as conveyance like deed), because of SOF AND Subject to Recording Statutes if such laws exist. AND required for Negative (i.e. can't be implicated)
"Of or Concerning" the Plaintiff
This element is met when: 1) A reasonable person must believe that the defamatory communication refers to this particular plaintiff and holds him up to scorn or ridicule in the eyes of a substantial number of respectable members of the community. 2) IF applied to a group, then the group must be so small that the matter can reasonably be understood to refer to that member, unless there is other evidence that the language refers to that particular member. 3) BUT not for deceased individual 4) Possibly for a corporation, partnership, or unincorporated association, if the language (i) prejudices that entity in conducting its activities or (ii) deters others from dealing with it.
Two-part test for HOC to ITB
This element to ITB is assessed under Reasonable Person Test (what ordinary sensibilities of people in the comm) and, if vic is hypersensitive, whether D knew of the vic's hypersensitivity.
When is SPIOC admissibley by the Prosecution in a Criminal Case
This evidence is admissible only when the def's character is an essential element of the charge or defense.
Is Custom ever considered as THE basis for assessing breach?
This evidence is never THE SOLE or conclusive determinant of breach. Rather it is admissible as evidence to help establish breach. Rationale: the custom may even be negligent too, OR NOT APPLICABLE!
Exigency of HOT PURSIT
This exigency exists where 1) Probable cause PLUS 2) Police are chasing a D 3) they reasonably believed committed a FELONY (NOT a Misdemeanors RESULT: Cops can enter private buildings during the chase AND seize evidence found within the private buildings.
What is an Incorporation of a Sep K?
This exists where 1) Sep K continues as INDEPENDENT K from the Divorce Decree 2) As such, the Sep K continues to bind the parties (UNLESS impeached or challenged fro legally-recognized cause of action 3) and Sep K is enforceable independent of the divorce decree.
Rule Statement for Satisfaction
This exists where P has recovered fully from one or more of JSL Def. Thus she is barred from seeking further action against the D, and cannot receive a double recovery.
Consent and defense to which Fault or alleged misconduct
This exists where the moving party agreed to or permitted the alleged fault or wrong RESULT: A defense to -abandonment, OR -Adultery
PROMISSORY Estoppel limitation on General "Offer can Revoke before Acceptance" Rule
This exists where the offeree 1) received a promise from the offeror 2) Offerree DETRIMENTALLY RELIES on the promise (i.e. 2-in-1!! reliance, AND DETRIMENT OR INJURY caused by rely on the promise);AND 3) the reliance was REASONABLY FORESEEABL by the OFFEROR
Justification, and defense to which fault
This exists where: 1) one of the parties left the home 2) Left B/C of the moving party's MISCONDUCT RESULT: Defense to ABANDONMENT
Federal Immunity (Westfall Act)
This federal statute immunizes federal employees from personal liability under STATE tort law (i.e. Preemption!)
Are Compliance with Regulations a Complete Defense to Private Nuisance?
This form action is relevant evidence to establish D's behavior as reasonable, but such action is NOT a COMPLETE DEFENSE.
Rule Statement for Warranties
This form of PL claim can be brought hwere 1) A product defect 2) the D is a retailer (or Manufactuer or Distributor so long as damages for personal injury or damaged prop are sought) And the plaintiff brings this either on the ground of (1) Breach of Implied warranty (2 types), or (2) Breach of Express Warranty)
What is a Negative Easement
This gives the holder the right to PREVENT someone from doing something on her land.
MY Duties upon Termination (3 flavors) of Representation (whether by WD or Tasks's Completion
This happens whether (a) I complete my job for client or (b) I withdraw, or (c) client fires me! 1) I must take REASONABLE MEASURES to minimize HARM DONE to the client. (i.e. My DUTY TO MITIGATE harm to client, EVEN IF unfairly discharged by my client. Includes: 2) I gotta RETURN CLIENT PAPERS AND PROPERTY THAT CLIENTentitled to, UNLESS I need the papers as security for fee (i.e. my lien) 3) I have to promptly refund ANY part of my FEE that a) was advanced to me, and (b) NOT earned by me, or (c) even if earned, I can't take b/c I was discharged FOR CAUSE
Incapacity
This is a Defense to K formation where: EITHER 1) Minors under age of 18 2)OR, Mentally Ill, if either a--The person cannot understand the nature and consequences of his actions; OR b--(i) The person cannot act in a REASONABLE manner in relation to the transaction (AND (ii) ONLY IF the other side knows this) 3) OR, Very intoxicated Persons (that you (a) can't understand NCA OR can't act in reasonable manner AND (b) the other party knows of either fact resulting from your intoxication RESULT: 1) Minors - blanket protection OR, Mentally Ill 2) VOIDABLE K that lets incap party disaffirm, 3) BUT, IF the K was FOR NECESSITIES (things you need for living, not want), then INCAP party must still pay the FAIR VALUE 4)AND BUT, K remains enforceable if incap party RATIFIES THE DEAL (do so by KEEPING the benefits of the K AFTER CAPACITY is REACHED) (i.e. loss of the incap) e.g. (respect to Minority) You turn 18; OR (respect to Mental Incap or Intoxication) you are lucid while negotiating and entering into the K.
NY's Recording Act ? "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record."
This is a Race-Notice Jurisdictions SO, MUST HAVE 1) A subsequent purchaser, seeking to take good title 2) who takes WITHOUT notice (ACI), of the prior interests; AND 3) Be the FIRST TO RECORD On exam: Most questions have the grantee clearly paying value for the property, but the more likely to be tested situations are mortgages, judgment liens, and donees.
What is a Lapse
This is a a devise of property that Fails because (1) Beneficiary PREDECEASES or dies before the testator, and (2) T's will did NOT name an alternate beneficiary for the devise. AND (3) RESULT: This kind of gift falls into either (1) T's residuary estate, IF T's will provided for a residuary; or (2) partial intestacy (if no residuary and there are heirs; or (3) escheats to the state.
Mistake
This is a belief, that is NOT in accord with a PRESENT fact. (e.g. NOT an example of this; you K for buying stock shares, the stock price drops, you want to get out of the K b/c you thought stock price would RISE, NOT DROP). This was merely a Mistke of OPINION. Remember: A mistake defense is only available to the ADVERSELY AFFECTED PARTY (b/c why would the BENEFICIALLY-AFFECTED PARTY seek to void the K!)
Define Counter-Claims
This is a calim for relief made against an opposing party AFTER an original claim has been made. It MAY be asserted in the answer to the complaint and the reply to a counterclaim. Governed under Rule 13 Under Rule 12a1b, The ANSWER to such a claim must be served within 21 days of service.
What is a TRAP?
This is a condition that is 1) artificially created, 2) inherently dangerous, and 3) deceptively innocent ( no clue about it; looking inviting)
Definition or Theory of Failure to Warn
This is a defect that exists in a product for lack of an adequate warning relating to the risks of using the product, IF (i) there were foreseeable risks of harm, (ii) NOT OBVIOUS TO AN ORDINARY USER of the product, and (iii) that such risks could have been reduced or avoided by providing reasonable instructions or warnings.
Mistake of Law, when it ACTUALLY is a DEFENSE
This is a defense rarely, BUT only is such where: 1) The defendant relies 2) In Good Faith 3) Upon an OFFICIAL STATEMENT of LAw 4) THAT is ERRONEOUS 5) and found in either (a) an admin. order (b) Or official interp by a PUBLIC officer or DEPARTMENT
Unenforceable Ks are
This is a valid K 1) AND cannot be enforced 2) BUT a party may OPT to void the K IF it is VOIDABLE.
Authenticated writing
This is a writing that is signed, initialed, or otherwise inscribed by the party to be charged (e.g. an Offeror, or an Offeror-merchant for a Firm Offer).
What is a MODERN PER STIRPES distirbution? (i.e. MODIFIES THE TRADITIONAL PER STIRPES approach: (Hint: Start at NEAREST Generation with survivng members; otherwise, but then, like traditional approach, you still restrict distribution to each line!)
This is a distirbution where: 1) D's property gets divided into as many EQUAL shares as there are (a) members of the NEAREST generation of ISSUE WHO SURVIVE D, AND (b) that nearest generation's DECEASED members with issue that SURVIVE the Decedent 2) THEN the share of that generation's deceased members passes to such member's then-living and surviving issue. themis: made at the generation nearest to the decedent that contains a living class member (
Per Stirpes (not followed in NY) for inheritance distirbution (whether intestate or by will) (Treat EACH LINE the same, AKA treat children WITHIN EACH LINE the same; NOT treating each generation the same )
This is a distirbution where: 1) the ISSUE take in EQUAL PORTIONS what their DECEASED ANCESTOR WOULD have taken, had that ancestor been alive at the time of distributing a decedent's estate. Thus 1) the estate is first divided into total number of children of the ancestor who (a) survive ancestor, OR (b) who left ISSUE who survive ancestor and then 2) Ancestor's children take their respective share, and 3) the deceased chidlren's issue take the respective share that their deceased parent/ancestor would have taken, if they were alive.
Rule Statement for WILL and TESTAMENTARY DISPOSITION
This is a distribution of property owned by a testator (the drafter of this ****), upon his or her death. AND this **** is the best manifestation of testator's INTENT for how to distribute his property upon his or her death.
Define Subject Matter Jurisdiction, and five types of congressionally-granted SMJ, and who has BOP to establish (and why!) and WAOA
This is a federal court's competence (power!) to hear and decide cases of the general class and subject, that are limited to one of the following congressional grants of jurisdiction. 1 - Federal Question 2 - Diversity 3 - Supplemental 4 - removal 5 - legislative Party SEEKING Court to hear and decide its case, must prove it to the court, court MUST presume it lack this until's proven by the party filing suit. Note: Waiver/Agreement (can't do it); Objection (any party, at ANY stage, BUT ONLY if timely contested); and Court can't avoid this (unless...state court action, see other card)
A right of RE-ENTRY (definition, and its THREE OTHER ALTERNATIVE TERMS)
This is a future interest that is a condition subsequent imposed on a grantee and held by the grantor. Elements: It (1) follows a fee on condition, (2) AND vests in its holder once the condition event occurs, ALLOWS (AND REQUIRES) the GRANTOR affirmatively demos intent to terminate, such as commencing an action to terminate the estate. Three other terms for this future interest: A right of Entry A Power of Termination OR a Right of Reacquisition Language that creates this future interest: "provided that" "but if" OR "Upon the express condition"
FRE 403 - Exclusion of Relevant Evidence (General Rule)
This is a general rule that can be a basis for exclusion of RELEVANT EVIDENCE IF 1) the evidence's probative value is SUBSTNATIALLY OUTWEIGHED BY either 2) a) Danger of unfair prejudice b) confusion of issues c) misleading the jury OR d) considerations of undue delawy e) waste of time f) needless presentation of cumulative evidence
Definition of a DETOUR
This is a minor and permissible deviation from the scope of employment
MUTUAL Mistake (5)
This is a mistake affecting both parties, that lets the ADVERSELY AFFECTED PARTY RESCIND, IF: 1) Got a Mistake of Fact (MOF) by BOTH PARTIES 2) that SHARED MOF existed AT THE TIME that the deal is made 3) The MOF relates to a BASIC assumption of the K, 4) that mistake of fact has MATERIAL IMPACT on the deal 5) AND the IMPACTED party did NOT ASSUME THE RISK of mistake (e.g. you did NOT take COMPROMISE OF CONSCIOUS IGNORANCE!!)
Bill of Particulars (NY will test this!)
This is a pleading that provides greater detail of a claim or defense than the prior pleading; meant to AMPLIFY the pleading Requires 1) to be done by parties who bear the Burden of PERSUASION 2) and IF in Perosnal Injury Actin, may only be requested as to the general account of the A party is not required to supply a bill of particulars unless the other party requests it. A party may generally request a bill of particulars only with respect to a claim or defense on which the other party has the burden of proof. A party generally has the right to amend a bill of particulars once.
Fee On Condition
This is a present interest in fee simple that is LIMITED in DURATION by SPECIFIC CONDITIONAL language. Language that indicates this defeasible fee: "provided that" "but if" OR "Upon the express condition"
LEGAL DEFINITION OF A Warranty
This is a promise about a term of the K, and that term explicitly shifts risk to the party making the promise. Three Types for purpose of UCC 1) Express 2) Implied Warranty of Merchantability 3) NOTE: These can also be DISCLAIMED (i.e. shift the risk to the other K party) NOTE this definition in your Property and K essays that
Half-Bloods, and legal effect in NY
This is a relative who shared ONLY ONE common parent with another relative. AND, UNDER NY Law, there is no distrinction between a whole-blood or half-blood relative, thus, the latter is now treated the same as the former for purposes of intestacy.
Minimal Diversity
This is a statutory exception to the Complete Diversity rule required to establish DJ as basis for SMJ
What is an ANNULMENT
This is a termiatnion of the marriage via court-ordered decree. RESULTS: 1) takes effect AS OF THE DATE OF THE DECREE. 2) Marital rights and obligations recognized as existed UP to date of this decree 3) All inheritance rights, wills, and TBE's terminate upon the grant of this court order. 4) and DOES NOT affect the legal status of the children born into the marriage. 5) results in either (a) VOID marriage; OR (b) Voidable Marriage 6) MUST INCLUDE A GET ORDER 7) Marriage need not be judicially dissolved.
IMMUNITY
This is a tool that allow prosecution to compel incrimintating testiomy from a W, IF it grants immunity to the indivdual, such as for 1) Transaction version - which is a TOTAL protection from future, cirminal prosectuion for crimes related to the testimony OR 2) Use and Derivate Use version - which precludes the prosecution from using the W's own testimony or evidence derived from it (All that's requird to compel W to testify). RESULT: No 5A PASI violation.
Rule Statement for Devise
This is a transfer of testator's property upon his death to his will's beneficiaries.
Release
This is a writing that manifest intent of one party to discharge another party from an EXISTING DUTY Under CL, this must be supported by consideration to discharge the other party's duty. Elements 1) A writing 2) Intent to discharge 3) Another party's EXISTING duty 4) AND have additional consideration, other than what was bargained for under existing K But UNDER UCC, no consideration is needed, just need a written waiver or renunciation, signed and delivered by the aggrieved party 1) A writing 2) Intent to discharge 3) SIGNED by aggrieved party 4) DELIVERED by aggrieved party.
Other form of Acceptance: Implied-in-act Contracts
This is acceptance where you communicate acceptance WITHOUT writing or speaking, but rather through gestures or actions. (You go to the bodega or grocery store and pick up stuff. SO you agree via your actions, to PAY UP!)
What is an OPTION K? Note different adoption by NY
This is an INDEPENDENT K , for which the subject matter is the OFFER of the offeror. Under CL, need separate C but under NY, don't need C Result: 1) Makes the offer irrevocable (i.e. one limit on the general rule that offeror has power to revoke before acceptance)
Definition for Abnormally dangerous activity (6 elements and 3 factors)
This is an activity that is INHERENTLY so when: 1) CREATES a FORESEEABLE AND HIGHLY SIGNIFICANT RISK 2) OF A TYPE OF PHYSICAL harm; 3) that actually occurs; 4) and actually (and foreseeably) results from that risk that originally made the activity an ADA; 5) EVEN IF REASONABLE CARE is exercised 6) AND is an activity no commonly engaged in. The factors considered to asses whether the activity is dangerous are: a) the gravity of the harm RESULTING from the activity b) the inappropriateness of the place where the activity is conducted c) and the activity's limited value to the community
Declaratory Judgment
This is an adjudication of the rights and duties of a party under K when 1) the rights and obligations of the parties under a contract are unclear, and 2) an actual dispute exists between the parties concerning those rights 3) BUT, not available, however, to resolve moot issues or theoretical problems that have not risen to an actual dispute.
What is an IMPLIED easement
This is an easement that (1) is not formal (i.e. not written) (2) arise out of factual circumstances between the parties (3) are not subject to SOF (4) and not subject to Recording Statutes (5) and, for Recording Act purposes, ONLY IF Subsequent Purchaser did NOT have notice of the easement Types are (a) Easement by Necessity (b) Easement by Implication (by Prior Use) (c) Easement by Prescription (d) Easement by Estoppel
what is an easement IN GROSS?
This is an easement that benefits the holder PERSONALLY. Note: Therefore, there is only a BURDENED estate (Servient Estatte). There is NOT a Benefited estate (i.e. NO DE).
Easement by Estoppel
This is an easement that is created as a form of equitable remedy or relief to the party seeking it, where (1) The party had a permissive use, or LICENSE, to use the property (2) It was NOT in writing (i.e. not an express easement) (3) the party reasonably and in good faith RELIED on the promise manifested in the license (4) the Licensor or Promisor REVOKED or WIthdrew the permission (5) The reliance was DETRIMENTAL to the Licensee RESULT: As an equitable remedy for the licensee, the licensor is ESTOPPED or PREVENTED from withdrawing permission, and thus this easement is ACQUIRED by the licensee.
Definition of a FROLIC
This is an unauthorized and substantial deviation from the scope of employment.
Conditions
This is another way to shift risk by: 1) stating that one party's contractual obligation will kick in 2) only if some future event takes place. There are express and implied versions of this
Wrongful Life Claims
This is claim that assert there was 1) the failure to properly perform a contraceptive procedure, 2) or the failure to diagnose a congenital defect Most states do not permit CHILDREN to bring wrongful life claims, even if those children were born with a disability.
What is an Easement by Necessity (EAN)?
This is created ONLY when the property is virtually useless 2) COMMON OWNERSHIP OF D AND S estates 3) Necessity ("Strict" Sense v. relaxed, not mere convenience) at time of severance of D and S estates. M BUT (4) this ends when the easement is NO LONGER NECESSARY Result: This arises by OPERATION OF LAW
What is an express easement by reservation
This is created when a grantor conveys land but reserves an easement right in the land for GRANTOR's use and benefit
Terry STOP of a car; AND the FRISK (during a Traffic Stop)
This is lawful and not a 4A violation where: 1) Cops lawfully stop the car 2) Search for weapons n the passenger compartment 3) WITH a REASONABLE BELIEF that (a) the Suspect is Dangerous and (b) may gain control of weapons 4) and Search is limited to those areas where a WEAPON could be HIDDEN For this second act during a TRAFFICE STOP, no warrant required when: 1) Cops lawfully stop the vehicle 2) Lawfully detain the driver or passenger after a Traffic Stop 3) AT that instant, There is reasonable suspicion that the individual has a weapon.
Mandatory Arbitration
This is mandatory for: 1) Auto negligence actions 2) Personal injury actions (exect prof malpractice or Prod Liablity) 3) Actions on a book, account or instrument of obligaiton 4) Personal injury protection claims against a pliantif's insurer
When is a fetus owed a duty of care?
This is owed a duty from D when it viable at time of the injury's occurrence (e.g. wrongful life or wrongful birth claims).
what is a CHATTEL for purpose of TTC?
This is physical, tangible personal property.
Merchant
This is someone who either (a) REGULARLY deals in the TYPE of goods involved in the transaction (i.e. 2 elements in ONE!!) (b) OR, holds himself out as having SPECIAL KNOWLEDGE OR SKILLS concerning the goods (c) OR, WORKS FOR someone who holds himself out) as one with special knowledge or skill concerning the practices or goods involved in the transaction.
Merchant
This is someone who either (a) deals in the type of goods involved in the transaction (b) OR, holds himself out as having special knowledge or skills concerning the goods (c) OR, works for someone who holds himself out) as one with special knowledge or skill concerning the practices or goods involved in the transaction.
Moral Obligation Plus Subsequent Promise (the "Half Theory")
This is suggesting that a moral obligation plus a subsequent promise to pay can be binding. YET, Normally, this would be past consideration and thus nonbinding.
Definition for Indemnification
This is the SHIFTING of the ENTIRE loss from one joint D to another party.
What is a RIGHT OF REVERTER?
This is the future interest retained by the grantor where (1) grantor conveyed a Fee on Limitation (2) AND upon occurrence of the stated condition or event, the estate automatically reverts back to the grantor (3) AND remains freely alienable before and after the triggering event (e.g. during grantor's life and upon his death). (4) BUT langauge of the conveyance controls as to whether the right to the estate reverts automatically or not when the stated condition occurs.
What is a Child Protection Proceeding, and its entire process to a disposition
This is the legal mechanism for dealing with CHILD ABUSE AND NEGLECT, involving: 1) A report of Child Abuse or Neglect by iether (a) civilian's VOLUTNARY REPORT, OR (b) a mandated report (person under the law requried to report, like docs, teachers, child care staff) and 2) Child Welfare Agency accepts the voluntary or mandated report 3) IF step 2 met, then An investigation is conducted 4) IF claims are substantiated, then (a) if child stay home, agency must take diligent/reasonbale efforts for child safety; OR (c) if child must be removed from home, agency show reasonable effeorts made to prevent removal or that the attempt was unreasonable. 5) If child removed from home as emergency placement, then FACT FINDING Hearing (to prove the abuse took palce) IN FAMILY COURT 6) then (a) Dispositional hearing to determine whether or not the PLACEMENT should continue (b) if child got services and the FFH foudn abuse and neglect substantiated, then ask (i) should child stay at home, (ii) close case b/c no dnager, or (iii) must child go into placement 7) and throughout ALL steps, child has right ot an attorney 8) AND if child in placement for 15 out of 22 mos, agency must file a ITPR petition, and prove by CCE the parental-caused abuse or neglect. 5) 4)
Fraud in execution
This is when you trick someone into signing something that she doesn't even know is a contract.
Prperty Settlement K
This is where 1) Parties agree to how to distribute the prop
Accomplice Liability and what if the main def gets acquitted? Under CL and Under NY
This is where mutltiple invovled in a crime even w/out a conspiracy. Includes 1) Principal: Whose acts or omissions form the actus reus of the underlying crime; AND 2) Accomplice: who i) insists OR encourages the crime ii) AND gives such aid WITH THE INTENT to give such aid for the principal's underlying crime Under CL: If Pricnipal acquitted, so then also must acquit accomplice BUT Under NY: If Principal acquitted; the accomplice CAN STILL face conviction. An accomplice must not only encourage or assist in the commission of the crime, but also do so with the intent that the crime be committed.
Legal Detriment is..
This is where the parties bargain for each person's detriment to do something they legally entitled to do or refrain from doin, in exchange for a promise from the other party, such that 1)the promise must induce the detriment and 2) the detriment must induce the promise.
Definition of a Breach of Contract an the CL test for whether a Breach is Material or Minor
This is where: 1) there is nonperformance 2) where performance was a duty under the K 3) Exception: Not this where duty is discharged, e.g. by agreement, statue, inability to perform, waiver, etc.) Under CL, test for breach's materiality is the doctrine of Substnatial Performance) Result of Material Breach: Non-breaching party can withhold promised performance, AND seeks remedies for the Material Breach. Result of minor Breach (i.e. nonmaterial) - Non-breaching party entitled only to remedies specifically for the minor breach.
Inchoate Offenses
This is, such as:solicitation, conspiracy, and attempt. For each of these, the intended crime need not be completed for the defendant to be guilty
What does 4A apply to?
This law applies to 1) Searches, seizures, and arrest 2) by a Government Actor (or Govt-directed private civilian)
When does the Common Law govern Contract quesiton?
This law governs contracts concerning interests in real estate, or Services.
When does the UCC govern a contract
This law governs contracts, among ANY parties, involving sale of goods.
Law of the Situs (law of the place of a particular thing or event)
This law involves: 1 - Real Property 2- Tangible personal property (resolved by law of D's domicile) 3- Intestate succession to real property (determined by the law of the place of the real property). 4 - Success to real property by a valid WILL (determined by the law of the place of the real property NOTE: a testator can CHOOSE to have NY Law apply to his will, so long as the choice is valid.
In NY, Probable Cause can be be on competent evidence, which is?
This means that probable cause can be based on UNSWORN hearsay
Business Records Rule
This must be 1) Any record or writing of act/event during regularly conduct business, made 2) At or near the time of the event it records; 3) By a person with knowledge of the event and under a duty to reprot it and 4) as part of a regualr bus practice to make such record BUT, may NOT be admissible if circs indicate a lack of trustworthiness AND Docs prepared in anticipation of litigiaotn are NOT admissible under this exception. Med records fall under this ONLY to extent its entires are related to diangosis or medical treat. Absent of an entry can be used to sha an act or event did NOT occur.
COI
This must be filed with NY DOS to incorp the biz; May have provisions about corp governance How to amend
When an Amendment relates back
This occurs if the Amendment concerns the same conduct, transaction, or occurrence as the original pleading, and the key is that the original pleading gave NOTICE of the suit.
What is ADEMPTION by EXTINCTION?
This occurs when the devise of property that FAILS ("adeemed") because that bequest is no longer in the testator's estate at the testator's death (e.g. T sold it or destroyed it during T's life). RESULT: B does not take anything from the will.
What is ADEMPTION by SATISFACTION?
This occurs where the testator gives the property to the beneficiary while the T is ALIVE, and thus T's bequest to B was already satisfied by B taking that gift during B's lifetime. RESULT: B does not take from the will, because he already has his gift!
What are two ways for a devise to FAIL BEFORE the death of the Testator?
This occurs where there is either (1) an ademption (by extinction or satisfaction) of the devise; or (2) a lapse of the devise
Voidable Ks are:
This operates as a valid K, UNLESS AND UNTIL one of the parties takes steps to void that K.
Indigent Parties and Matriominal of Family Law actions
This party can't be required to pay costs and fees to access court. Under NY DRL, court has DISCRETION to award attonrey's fees and costs if party cannot afford services of legal counsel AND NY statutes waives fees for indigent parties.
Liability of Government officials - ministerial functions
This party enjoys NO immunity for carrying out ministerial acts (e.g. driving while on the job)
Liability of Government Officials - Discretionary functions
This party enjoys immunity when: 1) personally sued 2) performing DISCRETIONARY functions 3) entrusted to her by law 4) and part's are done without malice 5) done without proper purpose
Definition of Independent Contractors
This party is one hired to accomplish a task or result, but who is NOT SUBJECT to a right of control by the employer. i) they tend to have specialized skills or knowledge, e.g., physicians and plumbers; AND ii) they tend to work for many employers, while employees more often work for a single employer.
When is a statement of Declarant's then-present intent (i.e. his then-Existing SOM admissible as circumstantial evidence for a third-party's conduct)?
This piece of evidence needs CORROBORATIVE evidence for such evidence to allow for a reasonable inference of a third-party's conduct.
Exclusion of Witnesses
This prevent a W from hearing testimony of others, IF 1) Requested by Either Party 2) OR court does so on its own UNLESSS 1) Parties to the case 2), Party whose presenece is ESSENTIAL to the preseiton of the case 3) or W whose presence is permitted by law (e.g. victim, crim defendants)
Removal Procedures (i.e. the HOW) (more info on pp. 16 -17)
This right and thsu the court's power to grant such right is carried out by 1) Under s 28 USC 1446, filing a notice of removal with the district court w/in 30 days after receipt by or service on that Def o fintial pleaing or summons 2) See p. 17 for notice details 3)ALL properly joined and properly served Defs are required to consent to the removal. 4) AFTER prompt notice to district court, A copy of the notice is provided to state court from which the action is to be removed 5) written notice of filing to ALL ADVERSE parties RESULTS: a--This action amount to a STAY of the state court proceedings b--State court can't do anything further on the case, OR ELSE federal court can enjoin the state court to prohibit further state court proceedings on the removed matter. c--BUT state court orders pre-removal remain in effect, but district court can modify if necessary, per 28 USC 1450
NY DRL protection of Child's RIght to Support
This right is not bargainable, can't be released or compromised in any way that would negaltively affect the child's welfare or inadequately support the child.
MAILBOX Rule and Post-Rejection Acceptance
This rule DOES NOT APPLY IF 1) A communication is sent REJECTING the offer 2) BUT a Later communication is sent ACCEPTING the Contract RESULT: First in time, first will bind - The first communication that reaches the offeror FIRST, that communication will prevail, REGARDLESS of whether offeror reads that communication.
If NOT FULL PERF, then other way to satisfy SOF
This rule gets satisfied if: A writing in any memorandum signed by the party against whom the contract is asserted Indicates a K was made IDs the parties AND Contains essential elements of the deal.
Best Evidence Rule (i.e. The Original Document Rule)
This rule limits the ability of having Ws describes the contents of docs instead of just introducing the docs themselves. Thus, the original doc (or a copy) MUST be used to prove the contents of a doc BEFORE other evidence about the doc (a W's descirption) may be introduced. Trigger: When the CONTENTS f the document is at issue.
Offeree has started performance and one effect on question of whether offeree breached.
This serves as a bar to revoking an offer under a Uni K (agrement for a promise that seeks acceptance via return performance, because a uni K limits acceptance only to performance, not a return promise. REsults 1) Offeree is ALLOWED REASONABLE TIME/OPP to complete performance; OR 2) Offeree can choose to not finish performance, AND does not become liable for breach of K (i.e. b/c no K was formed in the uni K, since acceptance was not through promised performance, but only completed perf) In other words, under a Uni K, The offeror can NEVER require the offeree to complete performance of the contract. Thus, Offeree can either accept (complete perf), or reject (no perf, or part perf and then decides not to complete
What is the OBJECTIVE Test?
This test evaluates : 1) the outward appearance of words and actions is what matters; 2) NOT secret intentions, 3)in order to learn whether an offeror displays an objectively serious INTENT to be bound. What may NOT create offer: 1) (i.e. anger or humor, may alter seriousness of intent 2) Expressions of opinion 3) NOT directed to a SPECIFIC offeree (exception: Contest or Reward offers)
How to assess BREACH of the GENERAL DUTY OF CARE owed?
This test weighs factors: i. Foreseeable likelihood that D's conduct will cause the harm ii. Foreseeable severity of any harm that may result iii. AND, burden of precautions to eliminate or reduce the risk of harm. (if i & ii > iii, then D breached; but if i & II < iii, then NO breach, so no negligent conduct) Note: also RST's definition for negligence.
Does employer immunize itself from VL if it gave preventive instructions to employee, BEFORE employee committed tortious act that ran counter to them?
This tort can STILL be established, and the employee's tortious conduct can still fall within scope of employment, even if this party gave careful instructions, which the employee's tortious conduct ran counter to
Defamation (3 main elements, and 2 extra elements depending on the matter and the plaintiff's identity)
This tort is established where the Plaintiff proves that: i) If the defendant's defamatory language; ii) Is of or concerning the plaintiff; iii) Is published to a third party who understands its defamatory nature; and iv) Damages the plaintiff's reputation. v) and, IF matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant. If the plaintiff is either a public official or a public figure, the plaintiff must prove actual malice. vi) AND, If the plaintiff is either a public official or a public figure, the plaintiff must prove actual malice.
Negligence - Defined
This tort is where conduct (the commission of an act or failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.
Can licensees or invitees recover?
This type of P can recover, UNLESS they become an undiscovered trespasser. However, even UTs can recover if their injuries resulted from D's VICIOUS WATCHDOG, and negligence theory is no the proper basis.
NY's BARGAIN AND SALE DEEDs (called a Special Warranty Deed in other jurisdictions)
This type of deed (also called Special Warranty Deed in other jurisdictions) Deed that only warrants against defects that existed at time Grantor had title, NOT those exist or surface after conveyance of the land to grantee
Character Evidence Definition Rule and types of it
This type of evidence is any document or testimony offered to prove that a person acted in a particular way, on a particular ocassion, based on that person's disposition or character. GENERALLY, such evidence NOT allowed for the purpose of asserting a "Propensity" or "Conforming Conduct' argument. Types [Specific] Prior Bad Acts - Testimony that proves a party acted badly in a prior situation Opinion Testimony - Witness feels that the party has a particularl character trait Reputation Evidence - W claims that the party has a rep for acting a certain way
Separate Class Voting
This voting is required when a proposed amendment to COI would ADVERSELY affect rights of any class or series of shares THUS that class or series whose rights are affect are entitled to vote on the proposed amendment, in addition to holders of those shares voting collectively with the rest of the other SHs on the proposed amenedment. Effect: Providing the adversely affected shareholders with this separate class vote gives them a VETO power over the proposed amendment. NOTE: COI can provide for holders of a certain class/series to have a separate vlass vote on OTHER matters (i..e in addition to the BCL's req separate class voting on adversely affecting amendments).
Definition for IMPLIED warranty of FITNESS FOR A PARTICULAR PURPOSE
This warrants that a product is fit for a particular purpose, but only if the seller knows the particular purpose for which the product is being purchased and the buyer relies on the seller's skill or judgment in supplying the product.
Express Warranty
This warranty is a guarantee—an affirmation of fact or a promise—made by the seller regarding the product that is part of the basis of a bargain. Elements 1) Seller 2) Affirmation of fact or promise by Seller 3) about the product 4) the product is part of the basis of the bargain between seller and purchaser. RESULT: A seller is liable for any breach of that warranty, regardless of fault. Damages for personal injury or property damage are recoverable.
Implied Warranty of Fitness for a Particular Purpose
This warranty is triggered when a buyer relies on a seller's expertise to select a special type of good that will be used for a special purpose. o The seller makes an implied warranty (unless disclaimed) that the goods will satisfy this special purpose Can be extended BY IMPLICATION by even a NONmerchant, IF the BUYER relies on the SELLER's EXPERTISE. ELEMENTS AGAIN: The buyer must intend to use the goods for a special purpose. AND The buyer must rely on the seller's expertise in selecting the goods
For Marital K's note that this is NOT Duress
This won't void this sort of K: I won't marry you unless you sign this K"
Judgment Lien in NY
This, when imposed on real property, is effective in New York for 10 years; a money judgment is effective for 20 years. Thus, a judgment creditor may apply to renew a judgment lien during the last year of the pendency of the original judgment lien. N.Y. C.P.L.R. §§ 211, 5014, 5203.
Change of Venue
Threshold: A party must make a motion for this no more than 10 days after expiration of the time for the service of the last permissible responsive pleading, (or if action is summary action, on or before return date). OR ELSE, FACE WAIVER!! Can be ordered by Superior Court Judge when: 1) Initial venue not peroply laid in accoradance with the rules 2) there is substantial doubt that a fiar and impartial trial can be held in the INITIAL venue 3) a change would be convenient for the parties and W, AND in the interests of justice 4) OR, the the change would allow consolidation of cases from other counties, ONLY if all claims involve a COMMON QUESTION of law or fact, arising out of same transaction or series of transactions. 5) OR, WHEN a family part psot-judgment motion made, AND both parties reside out the county of original venue, AND application made to the court by either party to change venue to a county where one of the parties now live.
Rule 803(5) - Recorded Recollection Present Recollection Revived/Refreshed vs. Past Recollection Recorded
To qualify for admission under 803(5), the following requirements must be satisfied: 1. The document was prepared or adopted by the witness 2. The witness has firsthand knowledge of the matter recorded 3. The matter was fresh in the witness' memory when the document was made or adopted 4. The witness vouches for the accuracy of what has been recorded even though she cannot remember the facts recorded 5. The witness has insufficient recollection to testify fully about the matter recorded even after looking at the document 6. The document is the authentic memorandum and has not been altered
Defense to SPL
To this tort, defense are: 1) CF (to reduce recovery) 2) OR, NOT CN (UNLESS P's fault is unreasonably proceeding in face of product defect KNOWN TO P) 3) OR, Voluntary and Knowing Assumption of Risk (especially in CN, but in CF, normally just reduce recovery in proportion to attributable fault) 4)OR, the user's Unintended and unreasonably foreseeable product misuse, modification, or alteration (especially in CNJs, but just reduces recovery in most CFJs) 5) OR Substantial Change in Product (e.g. reconditioned, bet. time distributed and time it reaches consumer (as a SUPERSEDING cause to cut off liability of the ORIGINAL MANUFACTURER) 6) NOT conclusively the Compliance with Govt standards (compliance and failure to comply are factors to consider whether product is defective). 7) NOT necessarily "State of the art" assertion by D, unless statute provides such. 8) Statute of Limitations (check statute) 9) GENERALLY NOT Disclaimers, limitations, or waivers) 10) and NOT Workers' Comp statutes (only against the employer)
Assignment
Transfer of rights under a K. usually seen 1) With Formation of a K 2) AND then Transfer of the BENEFITS of the K from original counterparty to some third party. RESULT 1) Can do this in whole, OR in part, UNLESS a K explicitly prohibits or invalidates assignments. 2) Even all defenses can transfer to the transferee. (i.e. transferee cannot surmount defenses to the transferor's failure to perform, and thus can't recover any benefit that I would have conferred). NOTE: Guarantor Assignor Assignee
Cases that demo Former Testimony;
Traverlers Fire Insurance Co v. Wright (the bros., one faced fraud in former trial, found that bro's opp (even just ONE bro) to cross ex W in crim case on SAME issue, AND w/SAM INTEREST AND MOTIVES as other bro has in the instance case, show identify of issues (& parties) and opp for satisfactory cross-ex in prior case Lloyd v Amer Export (civl action, who started the fight, coast guard hearing was first action) US v Salerno (reiterates similar motive elem must be met even where first proceeding was grand jury proceeding and subsequent case is a criminal trial)
Presumption - Conclusive or IRREBUTABLE Presumptions
Treated as rules of substnative law, and cannot be challenged by contrary evidnece, no matter how strong the contrary proof. NOT rebuttable with contrary evidence (i.e. no burden shifted, since not even allowed to prove the contrary!)
Thieves Took Carmen's Purse and Isaac's Portfolio (Larceny)
Trespassory Taking, Carrying Away, Personal Property [of another], [with] Intent to Permanently [retain the property].
Speedy Trial right - under NY Law
Trial must be brought w/in Felony - 6 months Class A Misdemeanor - 90 days Class B misdemeanor - 60 days Violation - 30 days
Res Ipsa Loquitur (4 elements)
Trier of fact MAY INFER that D's negligent conduct exists from SOLELY CIRCUMSTANTIAL evidence, IF: 1) there is NO DIRECT EVIDENCE of cause (D's or anyone's!) for P's injury 2) The accident was a kind that ORDINARILY does NOT occur IN THE ABSENCE OF NEGLIGENCE (i.e. Negligence is the only explanation for the accident's occurrence) (e.g. medical malpractice during surgery, every med prof w/ access to patient can be jointly/severally liable, unless they have exonerating evidence). 3) D has exclusive control over an agent or instrumentality that CAUSED the accident. (ignored often for product liability) 4) AND, Plaintiff played NO part in the accident's occurrence. (loosely applied in COMPARATIVE FAULT JURISDICTIONS)
Specific Performance
Trigger: When damages are AN INADEQUATE REMEDY, can pursue this equitable remedy. 1) The test for whether damages are inadequate: i) Difficulty of proving damages with reasonable certainty; ii) Difficulty of procuring a suitable substitute performance by means of money awarded as damages; and iii) Likelihood that an award of damages will be collected. AND 2) Court must be able to supervise enforcement Not normally awarded for Ks for PERSONAL Services (but may issue injunction, if the K has a noncompete clause) NOTE: This remedy appropriate where: Contracts involving the transfer of an interest in real property...because every parcel of real property is considered unique. OR Under UCC, when the goods are rare or unique, or in other circumstances—such as for breach of a requirements contract when there is not another convenient supplier. UCC § 2-716.
General Damages
Type of loss that anyone would ordinarily suffer from a breach (e.g. incidental damages from fixing prob caused by the breach; cost of of storing rejected goods
First rule statement for UCC Art 2's application
UCC Art 2 applies to CONTRACTS among all seller and buyers of goods. e.g., A contracts for the sale of goods between merchants. and/or applies to contracts for the sale of goods entered into by consumers and merchants.
THEMIS factors for determing amount of maintenance award.
UNDER NY DRL, along with ANY OTHER FACTOR COURT DEEMS JUST AND PROPER: (i) The income and property of each spouse, including the amount awarded under the divorce action; ii) The respective age, mental and physical health of the parties, and the duration of the marriage; iii) The earning capacity of both parties, both presently and in the future; iv) The ability of the recipient spouse to become self-supporting and the needs and timeframe in order to accomplish same; v) Which party has custody of the children; vi) The tax consequences to each party; vii) Contribution of the recipient spouse to the earning capacity of the other spouse; viii) Whether either party engaged in the wasteful disposition of marital assets; ix) The transfer of property without fair or reasonable consideration; x) The reduction or lost earning capacity of the spouse seeking assistance due to the delayed or lost education or career opportunities during the marriage; and xi) Any other factor that the court finds just and proper.
What is ADULTERY, HOW TO PROVE IT (5 elements), AND what are the DEFENSES TO IT (5 kinds)?
UNDER NY DRL, this is A FAULT-BASED GROUND ALLEGING the DEFENDANT'S SPOUSES voluntary sexual intercourse with someone other than one's spouse Pleading this ground requires Proof of: 1) defendant spouse's intent to committ this marital misconduct 2) The accused had inclination to commit this misconduct AND 3) The accused spouse had the OPPORTUNITY to commit this marital misconduct 4) If Detective or Prostitute testimony, then NEED CORROBORATION 4) SOL -- AND ACCUSATION brought w/in FIVE YEARS FROM DATE OF DISCOVERING THE ALLEGED CONDUCT 5) BUT Not via OPPOSING SPOUSE'S testimony, UNLESS (1) to prove the marriage existed; (2) Disprove the adultery; OR (3) disprove the DEFENSE DEFENSES TO IT: 1) RECRIMINATION (and it must be raised Affirmatively) 2) OR, Procurement 3) OR, COndonation 4) OR, Connivance 5) Five Year SOL's EXPIRATION 6) NEVER RELIGION
UIFSA for ENFORCING CHILD SUPPORT ORDERS in DIFFERENT STATE (when determine which court has proper jurisdictions (b/c the parties move around; and LAS no good, and No def property in the original state))
UNDER THE UIFSA, 1) First start w/ Continuing Exclusive Jurisdiction (Default rule) of the INITIATING TRIBUNAL. 2) ANd if none of the parties no longer reside there, 3) AND if the Long-Arm Statute CANNOT reach the parties 4) then Use this UIFSA to EXTENDS the LAS to the limits of the 14A's Due Process Clause, i.e. now have 5 bases to enforce support: a) Respondent (out-of-state parent) has lived with the child in the state. b) Has lived in the state and provided support for the child or paid prenatal expenses c) The child lives in the state as a result of the acts or directives of the respondent parent. d) The respondent had sexual intercourse in the state which may have resulted in the conception of the child. e) The respondent asserted his parental rights in the Putative Fathers Registry in New York; OR f) ANY OTHER CONSTITIUTIONAL BASIS to assert jurisdiction
Doctrine of Causal linkage
USUALLY, but NOT ALWAYS, if P proves D was but-for-cause of D's injury, then implicit proof that D's conduct INCREASED probability that plaintiff would be harmed. BUT, if D's conduct did NOT in fact increase the probability of P's harm, then D's conduct is said to fall outside the causal chain or linkage that leads to P's harm.
Search Incident to Lawful Arrest (MBE)
Under 4A, cops can 1) Search a person, AND area within the person's wingspan 2) so long as the container being searched is LARGE enough 3) to conceal a weapon, OR evidence of a crime In a HOME: Cops can 1) Search CLOSETS and SPACES 2) IMMEDIATELY ADJOINING the place of arrest 3) From which an attack could be launched.
Standard for securing a Warrant (and one or more of 3 ways)
Under 4A, this requires Probable cause, established by: 1) Officer's Perosnal Observations 2) Information from a RELIABLE, KNOWN INFORMANT 3) AND/OR information from an unknown information IF that info can be indpendently verified. 4) Evidence ALREADY seized through LAWFUL MEANS (e.g. stop based on reasonable suspicion)
Double Jeopardy Clause and Exception
Under 6A and the Blockburger test, Def may not be re-prosecuted for the same offense (of for greater and lesser included offense, w/ exceptions) when 1) Def is either acquitted or convicted 2) AND EACH crime requires proof of an element that the other crime does NOT ATTACHES ONLY WHEN 1) Def faces trial for the same charges dimissed in an earlier trial 2) AND when jury is sworn (or if bench trial, the first W sworn in) in at this trial on the same charges 3) NOT merely when grand jury trial or indictment onthe same charues.
Guilty Pleas - reqs of what JUDGE MUST advice def of (8 elements plus 9th element)
Under 6A law, Judge MUST tell Def, BEFORE accepting D's guilty plea: 1) D's right to trial 2) the fact that a guilty plea WAIVES D's right to trial 3) Right to plead not guilty 4) Right to representation by counsel 5) Elements of the charge 6) Minimum and Maximum possible sentences 7) Waiver of the right to appeal from the sentence (except sentencng errors) 8) Government's right to use defendant's SWORN statements in a subsequent perjury action 9) AND DEF makes a KNOWING, Voluntary, and INTELLIGENT waiver in OPEN court.
Evidence necessary to convict for Accomplice Liability under CL and NY
Under CL - Other accomplice's testimony is OK Under NY - Not enough. ALSO MUST HAVE corroborations
What is Intestate Succession?
Under CL (or in NY, under EPTL), this rule provides for an order of distribution among decedent's heirs (3 categories).
Merger rule, under NY Pen Law
Under CL and MBE, If a crime is Under NY Penal Law, IF a crime is COMPLETE, you CANNOT charge def with both: 1) the underlying crime and with 2a - attempt BUT 3) UNLIKE CL, you can charge SEPARATE crime of (a) CONSPIRACY (like CL), AND also (b) Solicitation (UNLIKE CL)
Solicitation under CL, and under NY and what is a Defense, and What is NOT a Defense (i.e. the solicited person's rejection) is a defense to solicitation
Under CL and NY Pen Law: This is an inchoate offense where the def 1) Entices, Encourages, OR Advises 2) ANother person 3) To commit a crime 4) WITH the intent that the other person commits the crime Under CL, Renuncation NOT a defense Under NY,t his IS an AFFIRMATIVE DEFENSE to the crime, ELements: 1) Def must assert this 2) it must be VOLUNTARY 3) IT must be COMPLETE 4) DEF SUCCESSFULLY PREVENTS commission of the crime RESULT in NY: Can't be convicted of this inchoate offense
Rule Statement for IISED
Under CL this is an IT for which D is liable if D intentionally or recklessly commits extreme or outrageous conduct that causes D's victim SEVERE emotional or mental distress.
Services Contracts
Under CL's SOF, Full PERF of this type of K, BY EITHER PARTY, DOES MEET THE SOF. Note: PART PERF, for a SERVICES K, does NOT satisfy the OSF
Evidence necessary to Convict: CL vs. NY
Under CL, can use just the testimony of the co-conspirator BUT UNDER NY: ALSO MUST HAVE CORROBORATION
Who can take from an Intestate D who was an ADOPTED Child
Under NY DRL, If such a D dies intestate, then 1) Distirbute his property among persons who WOULD have been his HEIRS had he actually been BORN to his ADOPTIVE parents (i.e. create a legal fiction).
Self-Defense under CL
Under CL, this is an affirmative defense where: 1) Def is NOT the initial aggressor (not enough to commit a larceny or any act that doesn't use physical force) 2) Def must be resisting IMMEDIATE or IMMINENT unlawful harm to himself 3) AND Def uses only REASONABLE amount of force (no more than necessary to repel the attack) 4) AND IF, using DEADLY FORCE, then (a) only if REASONABLY necessary (b) to prevent EITHER Death, SBI, OR Prevent a SERIOUS Felony 5) NOTE: No duty to retreat
What is CL Marriage AND
Under CL, this exists where 1) NO ceremony took place 2) No license issued 3) BUT parties agree they are in this arrangement --- they had INTENT (PRESENT tense words, NOT future tense; OR cohabitation or REPUTATION as evidence of the itnent) 4) Cohabit as H and W 5) and Hold themselves out in public as this arrangement 6) AND both parties had mental capacity 7) AND nEITHER was married to someone else when they entered into this arrangement.
Rule statement for SL against a Person who conducts ADA
Under CL, A def engaged in this activity is held SL for personal injuries and prop damage caused by the activity, regardless of D's precaution to prevent harm, IF: 1) no proof of negligence 2) and the activity is an ADA 3) that actually and proximately caused P's Harm
Rule statement for Products Liablity (hint: 4 ways to sue for liability of defective products)
Under CL, D can face this tort claim on the basis of: 1) negligence 2) Strict liability 3) Breach of Warranty 4) Intentional Tort (i.e. Intended or KSC of the consequences of the item's defect)
Neglect
Under CL, FAMILY court takes two part inquiry: (i) whether the child is in near or impending danger, and (ii) whether the parent acted as a reasonable parent would in similar circumstances. This is a case-by-case analysis. BUT, Before a termination proceeding may be filed under the basis of PERMANENT neglect, the agency who has assumed custody of the child must make diligent attempts to assist the parent in strengthening the parental relationship. N.Y. Soc. Serv. Law § 384-b(7).
Rule Statement for SPL
Under CL, P can assert this tort to hold D liable if: 1) The product was defective in manufacture, design, or failure to warn; 2) the D is in biz of selling or distributing the product (e.g. a manufacturer, retailer, or other commercial distributor but NOT auctioneer or CASUAL Sellers) of that defective product 3)the defect EXISTED AT THE TIME the product left the defendant's control; AND 4) P is anyone foreseeably injured by the defective productive, OR whose prop is harmed by the product (e.g. purchasers, users, or bystanders); 5) P suffered injuries to his person or to his property; 6) the defect caused P's injuries when used in AN INTENDED OR REASONABLY FORESEEABLE WAY.
Possession of a prohibited object (paraphernalia) or substance (e.g. DRUGS) under COMMON Law
Under CL, This crime is established where: 1) Unlawful 2) Control by DEF (long enough to gif def an OPP to cease his dominion and control; 3) Over an object or substance 4) Regardless of Def's Awareness that the object or substance is illegal
Exception to ZOD limit on TPI element
Under CL, This is established when P is witness harm to close relative. Thus P must: 1) be closely related to the person injured by the defendant (MAJORITY: likely not an unmarried cohabitant, but Minority says yes); 2) Have been present at the scene of the injury; 3) and personally observed (or otherwise perceived) the injury.
Excuse (Discharge) from Performance
Under CL, a promisor may not be liable for nonperformance IF some supervening event or change in circs arises AFTER the formation of the K, where either such event or change discharges the promisor's duty to perform. That duty to perform the original promise may be discharged under 1 of 6 doctrines of excuse. These are the following ways that a party may get discharged from a K: A. Impossibility B. OR, Impracticability PROVIDED THERE IS 1) an unforeseeable event i 2)in which the non-occurrence of the event was a basic assumption of the contract, and the party seeking discharge was not at fault. C. OR, Death after a K, BUT ONLY of a special person (otherwise, Decedent party's estate remains liable for outstanding obligaitons. D. OR, Frustration of Purpose (VERY RARE, AND NOT a risk allocated to one of the parties (e.g. see if there is an "ACT OF GOD" or Force Majeure clause). E. OR, Initial K was modified, OR Canceled (i.e. Rescission) (REQUIRES BOTH PARTIES to have some performance remaining. NOT just one or the other). F. OR, Accord and Satisfaction G. OR, Novation (Both parties agree that a substitute person will take over the contractual obligations NOTE: Novation (BOTH), is NOT a delegation (only one party to a third-party RESULT: A valid novation permits the original promisor to be excused from performance.
What can a prosecutor charge a def with if def is alleged to ATTEMPT, AND COMPLETE the CRIME? Under CL and NY
Under CL, and Under NY, Can charge EITHER, BUT NOT BOTH, the completed crime OR the ATTEMPT.
Assumption of Risk - Exculpatory clauses in Ks
Under CL, generally parties ARE ALLOWED TO K to disclaim liability for negligence. RESULT: Either an affirmative defense of P's assumption of risk, OR it negates fact that D owe a DOC to P, thereby causing P's prima facie case of negligence to FAIL EXCEPTIONS when: i) Disclaiming liability for reckless or wanton misconduct or gross negligence; ii) Where there is a gross disparity of bargaining power between the parties; iii) Where the party seeking to apply the exculpatory provision offers services of great importance to the public which are a practical necessity for some members of the public such as medical services; or iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress. AND possibly (v) when the K fails to EXPRESSLY state that claims "based on negligence" are disclaimed. AND (vi) D is a common carrier, innkeeper, or employer.
The doctrine of continuing trespass, concerning larceny
Under CL, one who takes another's property (without authorization) intending only to use it temporarily before restoring it unconditionally to its owner may nevertheless be guilty of larceny. If the initial taking was wrongful, the trespass is said to continue until the time the intent to steal is formed. The intent element will be satisfied where a defendant intends, when taking the property, to recklessly use it temporarily, and then abandon it, hoping someone will return it to the victim, even if the property somehow does return to the victim. As such, the actor is guilty of larceny.
Negative Inheritance under COMMON Law (NOT followed in NY).
Under CL, the only way to do this was 1) Execute a will disposing ALL property, or else any undevised proeprty could possibly pass to a disfavored heir via the Intestacy rules.
Reliance Theory or Promissory Estoppel
Under CL, the theory of reliance or promissory estoppel can be a basis for promisorry liablity, even in absence of consideration, where 1) Promise is made that would be reasonably expected to induce reliance 2) AND, the promisee does indeed take detrimental action (NOT Necessary for charities to prove detrimental relience). 3) and that action was actually in reliance on the promise 4) AND injustice can be avoided only by enforcement of the promise. A promise to contribute to a charity is enforceable even though the charity has not relied on the promise.
Rule Statement for CONVERSION
Under CL, this IT exists if D intentionally commits an act that DEPRIVES P of POSSESSION of the chattel, OR INTERFERES with P's Use of the Chattel SO SERIOUSLY that the interference DEPRIVES the plaintiff of the use and enjoyment of the chattel. For this Tort, P can recover chattel's FULL VALUE at the time it was converted to D's use.
Rule Statement for TTC
Under CL, this IT exists, for which D is liable, if D INTENTIONALLY interferes with the plaintiff's right to possession by either: 1) dispossessing the plaintiff of the chattel; OR 2) intermeddling with the chattel
Rule statement for Battery
Under CL, this Tort is UNCONSENTED harmful or offensive contact w/the person (inc. closely associated object) of ANOTHER, AND the D acts with the INTENT to CAUSE that contact. Must be unconsented touching.
Products Liability as a Negligence Action
Under CL, this action for basis of CL requires: 1) D is a COMMERCIAL manufacturer, distributor, retailer or seller of a product 2) the product has a defect 3) Duty of Reasonble Care to Foreseeble Ps (like purchasers, users, or bystanders) 4) Breach of that Duty by failure to exercise reasonable care (negligent conduct) in either inspection or sale of the product (or RIL to show no other way for defect w/out D's negligent conduct) 5) and had D exercise reasonable care, the product's DEFECT WOULD HAVE BEEN DISCOVERED; 6) and the negligent conduct was factual and proximate cause of P's harms 7) P's Harm 8) P's Damages 9) and no defenses that would bar (or reduce to zero) P's damage recovery
Rule statement for Contribution (and exception)
Under CL, this action is available to a D where two or more tortfeasors are subject to liability to the same plaintiff, and one of the tortfeasors has paid the plaintiff more than his fair share of the common liability. Thus, he may sue any of other JOINT Ts to recover anything he paid in excess of his FAIR SHARE, determined by comparing how far each tortfeasor departed from the standard of reasonable care.) Exception: No contribution from another T for D's own INTENTIONAL torts
ECONOMIC duress
Under CL, this arises where one party makes threats to INDUCE another party to contract (or modify a contract).
Rape, at Common Law, and DEFENSES
Under CL, this crime is established when 1) there is UNLAWFUL 2) Sexual intercourse (actual penetration; emission is not necessary) 3) with a female 4) who is NOT the defendant's wife 5) AND against that female's will by (a) FORCE, OR (b) THREAT of IMMEDIATE force 6) AND with the GENERAL INTENT to commit the intercourse without the female's consent Defenses 1) AT CL, Husband can't rape wife (not the majority rule, esp. if H and W separated, or divorced)
Kidnapping under CL:
Under CL, this crime is established where there is: 1--unlawful 2--confinement 3--of another person 4--against that person's will 5--coupled with either (a) the movement (not merely incidental to another crime) or (b) hiding (secretment) of that person. AND 6--specific intent for that result (the movement, or the hiding)
Mayhem
Under CL, this is 1) a battery 2) that causes another person's 3) dismemberment or permanent disfigurement In NY, this is incorporated into the definition of 1st degree assault.
Involuntary manslaughter
Under CL, this is 1) an unintentional homicIde
Arson under CL
Under CL, this is a CRIME AGAINST PROPERTY. It is where there is: 1) The malicious (hint: general intent crime!) 2) Burning 3) of a dwelling (but may still be right if not a dwelling!) 4) of another person
Rule Statement for ASSAULT
Under CL, this is an IT for which D is liable if D's intentional conduct causes the victim to reasonably apprehend that the victim is at risk of an IMMINENT harmful or offensive contact. Bodily contact is NOT required.
RULE statement for FI
Under CL, this is an IT for which D is liable if: (1) D acts with intent to confine or restrict an individual w/in a bounded area; (2) D's actions directly or indirectly result in the victim being confined to that area; and (3) D's VIC is either conscious of or harmed by the confinement and (4) Vic does NOT consent to D's confinement or restriction to a bounded area Note that TIME of CONFINEMNT is IMMATERIAL.
Superseding Cause
Under CL, this is an UNFORESEEABLE intervening cause that breaks chain of causation between D and P. E.G: Act of God; Criminal Acts; Intentional Torts of 3Ps
AOR - Participants and Spectators in ATHLETIC events
Under CL, this is an affirmative defense against: 1) spectator or participant at an athletic event 2) who necessarily subjects himself to certain risks 3) that are usually INCIDENT TO 4) AND inherent in the game or activity. 5) and the court does not consider this as denying D owes a DOC, but rather functions as providing this affirmative defense.
When is JOINT LEGAL CUSTODY ALLOWED?
Under CL, this is custody where the two parents hold jointly the ability to make important decision about the child. Generally, before court intervention, this granted where: 1) no extreme acrimony between the parties 2) the relationship is amicable between the parties. IF court must decide the custody arrangement because an action is brougth b/c of or relating to child custody, then the court look for the best interests of the child, EVEN if the parties already decided custody in a Separation Agreement.
How to prove SURVIVORSHIP, for INTESTATE purposes. (often TRIGGERED by SIMULTANEOUS DEATH!)
Under Common Law, 1) Is a Question of fact; 2) under NEW YORK law, Must prove this status with CLEAR AND CONVINCING EVIDENCE 2) OR under USDA adopted within NY's EPTL, this person must survive D within 5 days of D's Death, with CLEAR AND CONVINCING EVIDENCE. 3) And, CL approach: has not underwent irreversible cessation of circulatory and respiratory functions 4) OR, MODERN Approach: NO BRAIN DEATH
Equitable Relief (3 types
Under CL, this is the exception to the general rule of awarding an NBP money damages. However, where money damages are considered not adequate, OR the K transaction is for a unique good or property, like transfer of interest in real estate transactions, then court may award: 1) specific perf (but ordinarily not for K for personal services 2) OR injunction ( Checklist 1) Is K for transferring interests in or affecting Land? 2) Is K for unique goods or custom-made items 3) Is K for personal service (Probably NOT SPEC PERF, BUT MAYBE INJUNCTION if reasonable) 4) Is K for any goods (NO. Only monetary damages) 5) (FOR A If K goods, is Seller seeking to reclaim goods when buyer is INSOLVENT (then right of reclamation) a- Buyer is insolvent at time of purchase b- Seller MUST demand return of goods within (a) 10 days of receipt, or (b) w/in a reasonable time if BUYER misrepped his solvency to the seller; AND c--Buyer still has the goods.
Rescission
Under CL, this is where the non-defaulting party cancels or rescinds the contract. To do this: 1) Must be the non-defaulting party 2) AND, RETURNS any despot or other benefit conferred on the other party 3) AND, at least BOTH parties must not have performed. OR, Mutual Agreement of the K's parties, with consideration being EACH PARTY'S SURRENDER of the rights under the original K. NOTE: Differnt with 3PBs, CANNOT discharge via MUTUAL RESCISSION, IF the 3PB's rights have ALREADY VESTED under that original K
False Imprisonment under CL
Under CL, this is: 1) the unlawful (i.e. not legally sanctioned) 2) confinement of a person 3) without that person's consent Note: This crime does NOT require movement or secreting/hiding of the victim.
Rule Statement for JSL (5) elems
Under CL, this liability exists for each of two or more defendants, who is found liable for a single and indivisible harm to the plaintiff. RESULTS: (1) Thus, each Def is subject to liability to the plaintiff for the entire harm. AND (2) The plaintiff has the choice of collecting (a) the entire judgment from one defendant, (b) the entire judgment from another defendant, or (c) recovering portions of the judgment from various defendants, as long as the plaintiff's entire recovery does not exceed the amount of the judgment. Elements: 1) two or more defs 2) liable for P's harm 3) P's harm is single AND indivisible 4) P recover entire judgment from either 1 or more of the def 5) and P's recovery does not exceed judgment's amount.
Partial Performance limitation on General "Offer can Revoke before Acceptance" Rule and NY (follows or not?)
Under CL, this makes an offeror irrevocable if 1) an offer to form a unilateral K, such that offer can only be accepted through FULL perf (not a promise) 2) and Offeree has begun performance 3) THUS, give offeror resonable period of time to COMPLETE PERF. BUT, under NY, this status is NOT a limit on offeror's revocation power. Can revoke any time before COMPLETE PERF (i.e. the Acceptance!)
Bailor's Liablity for Bailee
Under CL, this party is generally NOT VL for tortious acts of the latter, EXCEPT where involving automobile-based liability, or parent-child relationship. PLUS, this party can be personally liable for own negligent actions.
Rule statement for Parents' liability for MINOR Child's Torts (w/exceptions)
Under CL, this party is generally not VL for the minor party's torts, EXCEPT where: 1) the child commits a tort while acting as THE PARENT'S AGENT 2) State statutes provide for VL for minor party's acts such as VANDALISM or SCHOOL violence OR 3) Statute statute require the first party to assume liability for any damages caused by minor party's negligent acts during driving, when signing for minor's DRIVER LICENSE app. OR 4) pursue the first party for OWN negligence regarding minor's conduct (NTs and ITs), regardless of child's lack of liability (b/c child is too young) IF the first party (a) had ability to control the child; and (ii) knew or should have known of the necessity and opp to control that child, regardless of age.
Rule Statement for RIL, elements and result
Under CL, this provides that "the thing speaks for itself." If there is no strong direct evidence of negligence, P can rely on just circumstantial evidence that bolsters the inference that D engaged in negligence that was the cause of the victim's harm. Elements are: 1) NO DIRECT EVIDENCE of neligence 2) The accident was a kind that ORDINARILY does NOT occur IN THE ABSENCE OF NEGLIGENCE 3) D has exclusive control over an agent or instrumentality that CAUSED P's harm (ignored often for product liability) 4) AND, Plaintiff played NO VOLUNTARY or VOLITIONAL part in the accident's or harm's occurrence. Result: D does NOT GET A DIRECTED VERDICT, and NOR DOES P. BUT P's proof of RIL establishes a prima facie case of RIL and therefore of negligent conduct. Thus, P's case must go to the jury as trier of fact.
RULE for NIEDRPH (other card for elements)
Under CL, this tort exist if when D's negligent conduct creates a foreseeable risk of physical injury to P, provided D's conduct causes a threat of physical impact (to P, or another in P's immediate presence), that in turn causes P's emotional distress, which should generally result in a form of bodily harm
Rule for PUNITIVE DAMAGES
Under CL, this type of damages is awarded if P bears its burden of proving, by CLEAR & CONVINCING EVIDENCE, that D acted willfully, wantonly, recklessly, or maliciously. Note: Also available for inherently malicious torts (e.g. IISED, b/c EOC required).
Scope of Conspiracy under CL/MBE vs. Under NY
Under CL/MBE Under NY Pen Law: In New York, co-conspirators are NOT vicariously liable for unplanned crimes committed by co-conspirators. EFFECT: To be liable for the crimes of co-conspirators, a defendant would have to meet the requirements of accomplice liability.
Attempt under MBE/CL, vs. under NY
Under CL: this crime occurs when 1) Def has SPECIFIC intent to commit the crime (i.e. must show def wanted the underlying crime to result 2) Def takes SUBSTANTIAL STEP towards the commission of the crime Substantial Step: Either OVERT act or a substnatial step in furtherance of the crime --Not merely talking about the crime. but under NY 1) Just engage in conduct that is VERY NEAR the accomplishment of the intended crime.
NY SOL for claims against Municipality
Under CPLR, 1) Must file notice of claim against municipality within 90 days, from the date cuase of action arose 2) AND, must file action within 1 year and 90 days from the date cuase of action arose.
Who are Domestic Partners?
Under New york CITY's Domestic Partnership Law, these persons are 1) UNMARRIED partners 2) of either same sex or opposite sex 3) OVer age 18 4) New York City residents OR at least one employed by the City of New York 5) Live TOGETHER 6) have a COMMITTED PERSONAL relationship 7) AND REGISTERED with the City Clerk for this status
Joint Will
Under EPTL, this is a will signed by two or more persons that is intended to serve as the will of each. 1) signed by two or more persons 2) Intended to serve as the will of each IN NY, such a will does NOT create a presumption of a K to avoid revoking this will. BUT, a constructive trust may be imposed for benefit of original Bs IF: 1) a K to avoid revocation is proven 2) AND, the second party attempts to either (a) make an INTER VIVOS transfer NOT in accordance with the K OR (b) revoke her will, AFTER accepting benefits under the FIRST party's will (after first party's death)
New Trial ground
Under FRCP 1) Errors that made judgment UNFAIR 2) NEWLY DISCOVERED evidence avaialble at tiem of trial, and was ecusably overlooked, and likely would ahve altered tiral's outocome 3) Prejudicial Misconduct by lawyer, party, judge or juror 4) Excessive verdict (and winning party refused to accept Remittitur) (note: Judge can't force the reduced damages, instead can only impose new trial) OR INADEQUATE (then just order a new trial). 5) verdict against clear weight of evidence 6) Verdict based on false evidence, and new ntrial will prevent injustice Procedure 1) MUST specific reasons for granting new trial 2) IF Purely legal ruling, then appeals court reviews DE NOVO 3)
Define Cross-Claims
Under FRCP 13(g), this is a claim made against a co-party, such as when one def makes a claim against another defendant. These are ALWAYS PERMISSIVE under Rule 13(g)
Liability Insurance evidence NOT admissible
Under FRE 411, Evidnece that a person was or was not insured against liability is NOT admissible to prove disprove negligence or wrongdoing. EXCEPTION:Admissible if relevant to prove ownership of a particular piece of propety; or control, bias against another party.
Impeachment #1 TEchnique - under FRE 609
Under FRE 609, W may be impeached with evidence that W has been convicted of certain crime. Eiher via --Crimes of Dishonesty (in eitehr criminal ro civil, can ALWAYS be used) OR -- Serious (Felony) crimes committed within pat 10 years, and are punishable by death or more than a year in prison. -- If NOT involving dishonesty, then using a balancing test a--. FRE 403 for a NON-criminal Defendant, b-- FOr a CRIMINAL D, then show that PROBATIVE VALUE OUTWEIGHS the PREJUDICE (i.e. the FRE 609's "reverse 403 test). I.e. Probative value substantially outweighs the prejudice
Psychotherapist -Patient Privielge
Under FRE and most states --applies to CCs bet paitent and psychiatrist, psychologist, licensed soc worker, for the purpose of getting treatment EXCPETION: NOT for - CC was result of cort-ordered exam; OR - Comm taken as a part of a commitment proceeding against the patient. -illegal purpose a dsipute between patient and that professional - or for reasonas other than treatment
When Rulings on Evidence Are Erroneous
Under FRE, Such court actions are erroneous IF: 1) A substantial right of party was affected (i.e. not harmless error) AND 2) Judge was TIMELY NOTIFIED/Challenged of the error at trial, two ways by: 1) Offer of Proof (to exclude evidence) ON the record, explaining the RELEVANCE and ADMISSIBILITY of the evidence made on the record (unless apparent from circs, OR person asking Q could NOT KNOW what the evidence would be). 2) Objection (to admission of evidence) or Striking on SPECIFIC grounds (unless apparent from the context Exception Plain Error Rule (i.e. error that afects a substantial right) (even if no timely challenge made) (Rare) RENEWAL NOT REQ: After Court makes definitive ruling BEFORE trial, your challenge (objection) does NOT have To be renewed when evidence at issue arises AT Tril
WItness's Competence, General Rule of Threshold Res
Under FRE, To be a witness, there is presumption of competence, but also 1) The witness who is a non-expert has personal knoweldge of a relevant matter (e.g. W testifies, being asked "foundational questions" 2) W declares under oath or affirmation to testify truthfully (need not be specific);AND 3) Understands that obligation REPEAT: Personal knowledge of the matter about which the witness is testifying An appreciation of the obligation to speak truthfully A declaration by oath or affirmation that the witness will testify truthfully
FRE 106 - Completeness Rule
Under FRE, when a party intos part of a writing RESULTS 1) ALLOWS you introduce OTHER portions of that doc at the SAME time as opposing party's admission 2) Plus, OTHER portions of doc may be introduced even if they might be otherwise be inadmissible. Note: Contrast with Objections and Offer of Proof concerning Evidence Rulings, and Limited Admissibity: These three have compulsory timeliness, while a motion under FRE 106 (to introduce other evidence for completeness), is PERMISSIVE as to when to "complete" or intorudce an omitted protion of adversary party's entire statement.
Cross-Exam rules/features
Under FRE: A court may call its own witnesses, and any party has the right to cross-examine that witness. A court may alter the order of witnesses. A criminal defendant who takes the stand regarding the admissibility of his confession does not open himself to cross-examination on other issues in the case. AND A W's credibility can be addressed on Cross-Ex
Subprime Lending Reform Rule in NY
Under N.Y. Real Prop. Acts. § 1304; N.Y. C.P.L.R. § 3408.: BEFORE FORECLOSING, a LENDING BANK MUST: 1) Send notice to borrower 90 DAYS in advance of the foreclosure 2) Advise the debtor to avoid default 3) Advise the debtor to enter state counseling 4) AND appear at a mandatory conference w/in 60 DAYS 5) AND person who appears must be someone AUTHORIZED to settle the debt with the LENDING BANK.
New Jersey Distinction: Remittitur AND Additur
Under NJ law, courts can permit either Remittitur - Where judge finds verdicit is excssive, and chooses to offer reduciton of the verdict, and grant a new trial ONLY if that Remittitur is NOT accepted. Or Additur (NOT allowed in Federal courts) - Where plaintiff's motion for new trial is denied, on condition that Def consents to an increase in the damage verict as specified by trial judge. Def has the choise to conset, or reject and go to trial
New Jersey Distinction on Cross Claims NJ R 4:7-5
Under NJ rules, A party can rasie ANY claim against a co-party, so that unlike Fed Rule 13g, that croom claim does NOT have to be related to any other claim in the case.
Imprisonment
Under NY DRL This FAULT-BASED ground exists where 1) one spouse is incarcerated for three or more CONSECUTIVE years 2) AFTER the marriage 3) ANd the moving party is the NON-incarcerated spouse (NOT the imprisoned one). 4) AND the FIVE year SOL commences from date that the imprisoned party is released. 5) WHILE the cause of action itself is not actionable UNTIL the defendant spouse completes his THIRD consecutive prison term.
Failure to Comply with COurt Order and Failure to Make Discovery
Under NJ rules, the enforcement action depends on the type of discovery device used (and consequently the type of delinquent response to that action) If party (DOP) fails to obey an order to PPD, court MAY impose sanctions listed under Federal Rule 37 (8 flavors): i) Matter addressed becomes established (i.e no longer in dispute) as fact in the action ii) That DOP is banned form supporting or opposing designated claims or defenses in the pleadings iii) That DOP is banned from introducing designated matters into evidence iv) Court can stay further proceedings, until the order is obeyd by DOP v) Court can DISMISS entirety or part of the ACTION vi) Court can STRIKE entirety or part of the PLEADINGS vii) Render a DEFAULT Judgement AGAINST DOP viii) Treat DOP's failure to obey any order (EXCEPT order to submit to PM Exam), as CONTEMPT of Court.
Cross-claims
Under NJ rules, these (and counter-claims) are PERMISSIVE by one party against a coparty, EVEN if NOT related to any other claim in the case.
What is Incest 5) , and what is NOT (2)?
Under NY CL, 1) this marriage OR sexual relations between PEOPLE RELATED W/IN PROHIBITED DEGREE OF KINSHIP 2) NY bars this when formed as marriage by consanguinity, between: 1) ancestors and descendants; 2) brother and sister of whole OR half blood 3) uncle and niece 4) aunt and nephew 5) BUT NOT first cousings 6) AND NOT between people whose relationship formed by adoption
Doctrine of Equitable Adoption (Foster Parents, Stepparents) and Effect of intestacy (2 elements, and 5 important results)
Under NY CL, this is establshed where EITHER: 1) There are foster parents OR stepparents who (a) had relationship that began during the child's MINORITY (b) continued that relationship through FP or SP's lives; and (c) through CCE proof, the FP or SP would have ADOPTED the child, BUT FOR a LEGAL BARRIER 2) OR As an FP, the FP (i) made an AGREEMENT with Natural Parents to ADOPT that FC, and (ii) FP treated FC as his own, and (iii) FP dies intestate. RESULTS: 1) surviving FC/SC is treated as the "equitably adopted" child and issue of the FP or SP for purpose of intestacy). 2) BUT, the FC or SC can inherit ONLY FROM the Equitably Adoptive parent. 3) AND CANNOT inherit THROUGH the Equitably Adoptive parent. 4) AND the FP/SP CANNOT inherit either FROM OR THROUGH the equitable adoptive child (i.e. EQAD does NOT cut the other way!) 5) AND, NO termination or serverance of the Nat Child-Nat P's P-C relationship and inheritance rights between them
Does NY recognize Ks between unmarried parties as an IMPLIED K of Marriage (e.g. a MARVIN K as to each other's earnings, prop, and assets solely b/c of they are cohabitants, but not married)? (2 points)
Under NY CL, NY does NOT recognize this is NOT recognized, b/c it would be reminiiscent of recognzing the other arrangement that NY abolished in 1933. (i.e. NO RECOGNITION OF CONTRACTING FOR INTIMATE RELATIONS) INSTEAD, under NY CL, NY only recognizes such a K between unmarried partners if: 1) it is EXPRESS 2) concerns DISTRIBUTION of enarins, property, and/or support 3) AND the CONSIDERATION is NOT exchange of ILLICIT SEX RELATIONS (I.E. INTIMATE RELATIONS
NY Exculpatory Clauses: when will they BE ENFORCEABLE?
Under NY CL, These are enforceable where 1) Exculpates or Limits Liability of a K party 2) AND it is for exculpation or limiting liability from Ordinary or Tortious NEGLIGENCE claims
Equitable Estoppel and Divorce
Under NY CL, as an EQUITABLE RESULT: If EITHER party RELIES on the DIVORCE, then that Divorce CANNOT be COLLATERALLY ATTACKED.
NY Rule for Primary Assumption of Risk
Under NY Case law, despite NY's pure comparative negligence STATUTE, this affiratmive defense applies when: 1) the activity involves an eleveated risk of injury (sporting or entertainment events) 2) where (I) the risk is obvious to the plaintiff, (ii) inherent in the activity, and (ii) P VOLUNTARILY engages in the activity.
NY rule for warrant requirement that relies on an informant's testimonty
Under NY Crim Pro law, this must be based on 1) informant's testiomy MUST show the veracity OR reliablity of the source of information (e.g. past use of the informant) 2) AND show the BASIS of the informant's knowledge.
NY State's Duty to Disclose Exculpatory Evidence
Under NY Crim pro law, Prosecution MUST disclose 1) all statements of a P's Ws that are related to that W's TRIAL testimony 2) AND D/co-D's statements (AND w/in 15 Days IF their statements made under circs that could make it suppressible) 3) any docs/photos/drawings/sci test/objects/or tangible things/ that are NOT otherwise privileged, that (a) prosecution intends to use a trial against defendant, OR (b) that were prepared by Ws that prosecution intends to call at trial. ALSO 4) Defs must show that the prosecution's failure to disclose materially contributed to, OR altered, the outcome of the proceedings.
Who may see or examine matrimonial proceedings?
Under NY DOM REL. Matrimonial proceedings and any files relating to those proceedings: 1) are confidential under New York law for a period of 100 years 2) and may only be examined or copied by the parties and their attorneys, UNLESS an exception is ordered by the court.
WHat is an ANNULMENT?
Under NY DRL 1) A marriage treated as if it never happened 2) Need not be judicially dissolved 3) Not legally recognized for ANY purpose 4) TREATED AS VALID UNTIL THE DATE THIS DECREE IS ISSUED. 4) EXCEPT still recognized for the purpose as to the legitimacy of the partners' children
Measuring Child Support (3 steps and "FOURTH" for RELEVANT factors)
Under NY DRL 1) Based on the Child Support standards act, adopted under NY DRL. 2) typically income from any source 3) Income Shared Model-- New York operates on theory that a child should receive the SAME PROPORTION of parental income AS IF the parties continued to live together.: STEP 1 (ADD the Parents $$)): add up combined income of parents from ALL sources of income (see their tax returns) STEP 2(MULTIPLY via Percentages):apply the statutory percentage applicable based on number of children of the parents' union. STEP 3(DIVIDE among parents, Proportionately): Determine percentage of the support obligation figure-- DIVIDE the total obligation between the parents, in PROPORTION to their respective incomes (that add up the total combined income) THe PERCENTAGES i) 1 child = 17%[of the total combined income; then the NON-CUSTODIAL PARENT is actually paing her court-ordered proportionate amount (the % amount of her share in the total combined income ; ii) 2 children = 25%; iii) 3 children = 29%; iv) 4 children = 31%; and v) 5 children or more = No less than 35%. AND, STEP 4 (DEVIATION?): Is there a need to DEVIATE from the GUIDELINES ABOVE? (See the NY DRL Factors, w/ its "Catch-all "Relevant" Factor).
Statutory Factors in distribution of marital property and 2 Common law points.
Under NY DRL, A TOC test: IN ADDITION TO ANY OTHER FACTOR THE COURT DEEMS JUST AND PROPER: i) The income and property of each party at the time of the marriage and at the time the divorce action commences; ii) The loss of inheritance and pension rights once the marriage has dissolved; iii) The age and health of the parties and the duration of the marriage; iv) The need of a custodial parent to occupy or own the marital residence and its household effects; v) Any award of maintenance; vi) Tax consequences to each party; vii) Whether either spouse wastefully dissipated marital assets; viii) Loss of health insurance benefits; ix) The likely future financial circumstances of each party; x) The character of marital property and whether it is liquid or not liquid; xi) The difficulty in evaluating assets or business interests and the desirability of retaining said asset intact and free from the other party's claim or interference; xii) Any equitable claim to, interest in, or direct or indirect contribution made to acquire marital property by the party in which the property is not titled, including joint efforts, homemaking services, wages, and to the career of the other party; xiii) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and xiv) Any factor that the court finds to be just and proper. xv) NOT ordinary marital fault (e.g. adultery) xvi) BUT can consider SEVERE DOMESTIC VIOLENCE
What is CRUEL and INHUMAN TREATMENT, and how to prove (Factors, SOL, and level of proof)?
Under NY DRL, This is a FAULT-BASED ground where moving party MUST ASSERT the other party engaged in conduct SO SERIOUS AND HARMFUL (nto merely incompatible, not soley verbal acts) to the plaintiff's physical/mental helth, that such conduct made CONTINUED cohabitation UNSAFE or IMPROPER for the plaintiff Elements: (i) miscondcut pleaded with sufficient particularity (times, dates, and description of the misconduct) Not merely general or conclusory statements (ii) conduct complained of must be HARMFUL to plaintiff's physical or mental health or well being. A single incident, or acts that are merely verbal in nature, are frequently insufficient. (iii) AND, Conduct must make continued cohabitation unsafe or improper. (iv) AND Conduct of the defendant must be serious. These elements are assessed against FACTORS (1) Factors to assess whether Def's Conduct meets this ground: i) The age of the parties; ii) The duration of the marriage; iii) The existence of objective proof/evidence of physical or mental injury to the plaintiff; and AND, iv) How a finding of misconduct will impact any maintenance award. AND 2) Higher degree of proof may be necessary IF the marriage was a LONG one AND 3) SOL -- this action must be brought within 5 years from the date of the last event of the alleged conduct. RESULTS: Allegations alone may be relevant to the consideration of child's best interests IF there is also a custody dispute.
RULE for Maintenance (aka Spousal Support)
Under NY DRL, This is the obligation of one party to provide the other with support in the FORM OF INCOME. Requirements: 1) Awarded only in a Divorce action 2) IF one spouse CANNOT provide for her OWN needs with EMPLOYMENT 3) and weighing factor to establish amount of maintenance. 4) TEST Result if granted: 1) Maintenance made for short period, until receiving spouse can support herself at marital standard. 2) AND Maintenance CANNOT be discharged in bankrupcty 3) TEMPORARY, or Pendent lite maintenance,if 1) case is STILL pending, and 2) One party temporarily needs support from other, where 3) one party's income less than 2/3 of other spoue's income and 4) only if other spoues's income meet min amoutn per Fed Pov Guidelines. and 5) terminates when FINAL award of maintance issue
rule statement for EQD
Under NY DRL, Upon dissolution of a marriage, the marital property is dealt with fairly 1) what is MP (title is NOT relev so long as gotten during marriage) 2) What is fair (the factors)
"Get Law" statutory rule for divorce or annulment actions (a GET provision)
Under NY DRL, every complaint for these two actions must include a provision that 1) where defendant spouse seeks remarriage BEFORE the entry of this action's final judgment 2) the plaintiff will take ALL steps possible to REMOVE ANY BARRIER to the defendant's pre-judgment re-marriage.
What is the TEST for Spousal Maintenance?
Under NY DRL, the test is: 1) what were the actual living standards that the parties enjoyed DURING the Marriage, not merely about keeping the parties above the level of indigency and 2) TOC test (w/catchall "anything court deems just and proper" factors)
TEST/Factors for determining maintenance
Under NY DRL, the test is: 1) what were the actual living standards that the parties enjoyed DURING the Marriage, not merely about keeping the parties above the level of indigency and 2) TOC test (w/catchall "anything court deems just and proper" factors)---Court may consider ANY factor it deems relevant, INCLUDING nature & degree of fault o USUALLY considers: (1) age and health of parties; (2) (self-supporting prospects) skills, earning capacity, time needed to gain job skills; (3) WHICH spouse has custody or cares for the children; (4) standard of living while married; (5) duration of the marriage; (7) TAX CONSEQUENCES; (8) INCOME capacity of each spouse; even (9) EGREGIOUS Marital Fault
Abandonment, two strands And DEfense
Under NY DRL, this FAULT-BASED ground exists when one spouse voluntarily leaves the marital home, WITHOUT cause (e.g. w/out justification!), OR WITHOUT the consent of the other spouse (e.g. w/out MUTUAL CONSENT!), and WITH INTENT o remain apart on a PERMANENT BASIS that LAST MORE THAN ONE YEAR (i.e. to establish at least a conversion divorce from a SK)). Elements 1) Voluntary departure 2) No justification or cause 3) No mutual consent from other spouse 4) INTENT to remain apart on a PERMANENT basis (not establish IF the spouse's offer to return is (1) made in a reasonable time after departure and (2) made in GOOD FAITH. 5) Departure lasts MORE THAN ONE YEAR. SECOND STRAND-->CONSTRUCTIVE ("LOCKED" OUT OF THE MARRIAGE) Under CASE LAW, this strand exists when: (1) PLAINTIFF SPOUSE UNJUSTIFIABLY FORCES (E.G. willful, continued, and unjustified)... (2)...the OTHER, FROCED Spouse (the plaintiff) forced to leave the home, actually OR constructively (3) FOR a period of one year or more (4) and spouse's force is willful, continued, and unjustified (5) AND includes refusal to engage in intimate relations; Defenses: JUSTIFICATION; Mutual Consent; Departure Did not last more than one year
What is Equitable Distribution (3 step process) AND WHEN IS IT NOT AVAILALBE?
Under NY DRL, this a fair distribution of all the proeprty, considering the circs. TWO STEPS: STEP 1) Divide assets into: o H's separate property o AND W's separate property o AND Marital property subject to distribution AND STEP 2) Give H and W their separate property STEP 3) then exercise EQUITABLE DISCRETION to divide up the MARITAL PROPERTY subject to distribution (use Factors) NOTE: NOT available under a SEPARATION DECREE (parrties still married)
What is a CONVERSION DIVORCE
Under NY DRL, this is established where: 1) a valid SEp K (written, executed, acknolwedged) OR a valid Sep D 2)parties lived apart for ONE YEAR 3) REQUESTED by either party 4) NO MATERIAL BREACH (e.g. lack of SUBSTANTIAL COMPLIANCE) of the MANDATORY DUTIES (e.g. child support; spousal mainteance) UNDER THE SK or SD by EITHER spouse 5) NO COHABITATION (especially if living in the same household) 6) IF Sep D: THEN eitehr spouse can sue IF suing spouse SUBSTANTIALLY PERFED all of the decree's conditions. 7) IF SEP K, then (a) SEP K FILED WITH COURT BEFORE STARTING THIS ACTION, (b) AND not void ab initio due to fraud, dures, or incap, (c) BUT this action can still be granted even if subst. part of SK NOT enforceable.
Condonation
Under NY DRL, this is the FORGIVENESS of the spouse to the defendant's misconduct, AND RESUMPTION of the marriage. Thus, established if: 1) MOving party had KNOWLEDGE of the misconduct 2) Forgave the misconduct 3) AND resumed MARITAL RELATIONS with the guilty party. RESULT: AT CL, once forgiven, NOT a FUTURE ground for divorce.
Requirements for a SOLEMNIZATION
Under NY DRL, this requires that a marriage be 1) performed in front of AT LEAST ONE WITNESS 2) AND performed by AN OFFICIANT, WHO IS either a) Judge b) political official c) OR clergy member or d)SOME OTHER recognized religious organization
Adoption and its effect on inheritance under intesacy or a will
Under NY DRL, this status: 1) extinguishes inheritance BETWEEN the natural parent and this child 2) BUT does NOT erase such rights between natural parent or the child, IF the NatParent is MARRIED to the STEPparent. 3) AND NOT for the child if: i) D died AFTER 8/31/1987; ii) D was the adopted child's NATURAL GP OR a descendant of a NATURAL GP iii) AND the ADOPTIVE P is either --(a) married ot the child's natural parent, --(b) OR, the child's natural grandparent, --(c), OR a descendant of the child's NATURAL GP.
What form of "recovery" or distributions can a party seek when he brings action for an Annulment or Divorce
Under NY DRL, whether marriage is terminated by annulment or divorce, the party SEEKING the annulment or divorce can request this EQUITABLE distiribution of proeprty. Note can also seek (a) alimony (b) child support (c) custody (d) Attorney's Fees (e) Other marriage dissolution-related costs (f) AND Equitable distribution of property.
Who can adopt?
Under NY DRL: i) An unmarried adult; ii) Married couples; iii) A stepparent of the adoptee (regardless of the age); iv) Parties separated from their spouse either by legal separation or living apart for a period of three years or more; and v) An unmarried adult may adopt the biological child of a life partner; and vi) An unmarried adult couple.
Deviation from Guidelines on Child Support Calculations (i.e. START WITH THE GUIDELINES, BUT THEN
Under NY DRL: 1) MInimum of $25 per month from the NON-custodial parent 2) But guidlieness can be deviated IF there's showing that the support ordered is UNJUST FACTORS: The factors the court uses to determine a deviation and to prevent an unjust and inappropriate amount are as follows: i) Physical and emotional health of the child, including any special needs or aptitudes; ii) Standard of living enjoyed by the child had the marriage not dissolved; iii) Financial resources of all parties, including the minor child; iv) Tax consequences to the parties; v) Visitation expenses incurred by the noncustodial parent; vi) Disparity, if any, between the parents' respective incomes; (Great disparity, then need vii) Educational needs of the parents; viii) Contributions both parents make on a nonmonetary basis towards the care of the child; ix) Whether the noncustodial parent has OTHER children to support; and x) Any other relevant factor.
Requirements for securing a LICENSE to GET married? (10)
Under NY DRL: 1) Must (a) be 18 w/out parental consent; (b) or be 17 w/ parental consent, (c) OR have COURT'S AND PARENT'S approval when bet. 14 and 16, (d) but NEVER under age 14. 2) 60 day expiration after takes effect 24 hours after issue 3) NO premarital medical test for VDs, BUT Afam applicants must test for sicke cell anemia, UNLESS religious beliefs are violated(!!!) 4) NOT ALREADY MARRIED TO OTHERS 5) NOT CLOSELY RELATED (per statute) (NY CL Exception: (i) First cousins can marry, AND (ii) so can those related only b/c of an adoption). 6) NOT A SHAM 7) NOT INCAPABLE of understanding nature of the ACT 8) NOT INTOXICATED from alcohol, drugs or other 9) NOT under DURESS 10) NOT under Fraud
Adoption:
Under NY DRL: This is a statutory legal action; in which the previous parent-child relationship is terminated (e.g. including consent, or INVOLUNTARY termination); AND a new parent-child relationship is established. AND allowed as either (a) private placement adoptions (can be heard in Surrogates Court or Family Court), OR (b) agency adoptions (brought ONLY in FAMILY court) RESULT: Once the adoption has been completed: 1) a new birth certificate with the adoptive parents' names is issued for the child. 2) The records for most adoptions are sealed and kept confidential (but an adoptee, under New York law, can establish prima facie evidence of good cause to unseal the records when it is necessary to address a serious medical illness, mental illness, or physical condition.) 3) Adoptive Parents gets all rights and responsiblity 4) child's rights accrue to 4) but nATURAL gRANDPARENTS CAN STILL HAVE RIGHT TO VISIT ADOPTED CHILD, if in BIWOC, even if adoptive Fam object
What is NY's RAP? 3 Features (and results)
Under NY EPTL, (1) the common law RAP is approached ---(Result: the remainder subject to condition precedent MUST vest within 21 after death of one life or more in being at the time of the conveyance. Rationale (like CL): to prevent the remote vesting of interests; AND (2) no RAP reform ("Wait and See", "Cy Pres, except for charitable turst, and Powers of appointment) are adopted, EXCEPT: NY modifies the Fertile Octogenerian Rule. PRESUMES that a WOMAN over AGE 55 CANNOT have additional children. ---(Result: Remainder is NOT invalidated by a VALF that is over age); (3) AND Applies to Commercial Options ---(RESULT: GRANTOR'S Option that doesn't vest in a Generation and w/in 21 years means the Grantee gets Fee Simple A, and the Grantor loses option and gets NOTHING!!)
Right of First Refusal and the RAP
Under NY EPTL, In New York, THIS RIGHT in RESIDENTIAL real estate transaction can violate the RAP in a residential transaction,BUT does not apply to commercial or governmental transactions ( where the concepts of "lives in being" and "21 years" are inapplicable)
Negative Inheritance under nY Law
Under NY EPTL, This can be done to disinherit an HEIR, if 1) Properly executed will 2) and the Will expresses such intent to disinherit 3) REgardless of whether ALL property is disposed of within the will RESULT: Heir is Barred, b/c heir is treated as PREDECEASING D. BUT, Does not affect the Disinherited parties' ISSUE.
When is a puportedly Surviving Spouse NOT ENTITLED to take a inheritance from D's Intestate? (i.e. 7 "DEFENSES" to an assertion of Surviving Spouse entitlement to Intestate Distribution)
Under NY EPTL, the following purported HEIR may be asserted to DISQUALIFY this person from an SS intestate distribution: 1) PREDECEASED the D within more than 120 hours (5 Days) (BUT NOT if the result means escheat to the state!); 2) OR, Merely Cohabitation (OR jUST boyfriend, girlfriend, live-in life partner) 3) OR, NOT in a legally-recognizable Marriage! 4) OR, ABANDONED the marriage BEFORE D's death (voluntary/permanent/non-consensual by abandoned spouse) (NOTE: this is the exception to a SEPARATED surviving spouse taking!) 5)OR, FAILURE to SUPPORT (if GUILTY of misconduct) 6)OR, DIVORCED! (FINAL Decree in NY or elsewhere; or EVEN just a Judicial determination before the decree/judgement filed.); 7) OR, VOLUNTARY WAIVER (i.e. Under DRL, written, executed, and duly acknowledged Ks: Prenups, OR Sep Ks while married, BUT NOT POST-Nups); 8) BUT, NOT merely Separation with neither (a) dissolution or annulment of marriage. (b) NOR no valid K's mention of voluntary waiver!
"REMAINDER SUBJECT TO CONDITION PRECEDENT"
Under NY EPTL, these are future interests that are either (1) (like Contingent Remainders in other jurisdictions) a future interest that (a) created in a grantee that is unascertainable, or (b)subject to an express condition PRECEDENT to a grantee's taking (e.g. Prop can't best b/c beneficiary/grantee is unknown or b/c known B is subject to a condition precedent that has not yet occurred). Note: This first kind of interest (CRs) is NOT subject to Rule in Shelley's Case or Doctrine of Worthier Title (latter for prop transfer post-9/1/67, b/c abolished under NY EPTL); (2)OR (like Executory Interests in other jurisdictions) a future interest in a THIRD PARTY that (a) is NOT a remainder and (b) CUTS the PRIOR ESTATE SHORT upon the occurrence of a specified condition; (3) AND are both subject to the RAP. (4) AND Both are NOT subject to destructibility (i.e. Preceding estate's termination DOES NOT terminate the remainder)
Who is an Issue (and the elements)
Under NY EPTL, this is ANY of D's LINEAL DESCENDANTS: 1) children (e.g., natural, OR of marriage, OR adopted, OR under NY, rebuttable presumption that a posthumously born child is a natural child of deceased Husband). 2) GCs 3) GGCs 4) BUT NOT D's LIVING lineal descendeants 5) AND MUST have a parent-child realtionship established for this person have such a status
What is a REMAINDER VESTED SUBJECT TO COMPLETE DEFEASANCE, OR TO TOTAL DIVESTMENT?
Under NY EPTL, this is a future interest in fee simple estate, where (1) it follows a present interest, (2) and the future interest is subject to a condition SUBSEQUENT, INSTEAD of a condition precedent; (3) AND results total defeasement or divestment UPON OCCURENCE of a stated condition. The language is usually: (1) But if (2) upon condition that (3) Provided that
General Rule for Admitting a Will to Probate
Under NY EPTL, this requires: the will proponent must (i) submit the original will; and (ii) demonstrate that the will has been executed with the requisite testamentary formalities. Briefly discuss these formalities here (i.e. writing, signed by the testator in the presence of 2 witnesses, etc.) AND (iii) Where the original will cannot be found, or is found destroyed or obliterated, there is a rebuttable presumption that the will was destroyed by the testator with the intent to revoke that will.
Specific Family Offenses
Under NY Fam COurt Act, these are: The grounds are disorderly conduct; harassment in the first and second degrees; aggravated harassment in the second degree; stalking in the first, second, third, or fourth degrees; menacing in the second or third degree; reckless endangerment; assault in the second or third degree; attempted assault; criminal mischief; sexual misconduct or abuse; or forcible touching.
Family Offenses under NY Fam Ct Act
Under NY Fam Court Act, this exists when a victim of DV, fam violence, or intimate partner violence seeks SUPPORT order to STOP the violence, OR to KEEP other party away from victim's place of EMPLOYMENT, Place of Education, ath ator home these are: 1) domestic violence 2) family violence 3) violence between intimates also covered, hen the victim is related to the perpetrator by blood or marriage, is a former spouse, or has a child in common with the perpetrator, even people who have shared an intimate relationship, either presently or formerly, even if they have never lived together, are: 4) Assault, attempted assault, AND enumerated statutory grounds like: menacing, stalking, reckless endangerment, harassment, criminal mischief, and disorderly conduct
Written Agreement for Modification or Discharge NY Law (4 elements) vs. CL
Under NY GOL 1) There is a modification alleged 2) WITHOUT consideration (unlike CL, which needs addtl/sep. C) 3) BUT, it is expressed in a writing 4) AND Signed by the party against whom that Mod or change is to be enforced (or that defending party's agent) 5) NOTE: if only orally-made Mod, the asserting party can rest claim on basis of promissory estoppel vs. CL 1) Need separate C 2) unless SOF applies, then a writing is NOT required.
NY law for an OPTION; definition, elements, and exception i.e. NY's Irrevocable Offer Rule
Under NY GOL 1) Offeror is NOT a merchant (or else UCC's Firm Offer rule governs) 2)An offer to enter into a K 3) in writing 4) signed by Offeror or his agent 5) and that writing specifies offer is IRREVOCABLE 6) BUT Consideration is NOT required. (unlike for the Common law) RESULTS: 1) This INDEPENDENT promise exists 2) does NOT allow the offer to be revoked DURING the stated time period (OR IF NO time or option period stated,then must keep offer open for a REASONABLE time period)
NY law on Infancy - Which K cannot be disaffirmed or voided solely due to a party's infancy? 5 types!
Under NY GOL, Arts and Cult Aff Law, and Education Law, this K defense to K formation does not apply to: i) All contracts entered into by a person 18 years or older; (18 or older Ks) ii) Contracts that involve the marital home; (Ks about Marital Home) iii) Contracts for infant to perform artistic or athletic services (that were Oked by NY SP Ct or Surrogates Court; (Judge-covered Art/Sports K) iv) Student loan contracts entered into by a person 16 years or older; (16+Student Loan Ks) and v) Life insurance contracts by those 14½ years or older. (14.5+LifeIns Ks)
2D Arson a crime against property
Under NYPL, this crime is defined as: 1) has all elements of its 3D; PLUS 2) i) A non-participant is present in the building or motor vehicle at the time; and ii) The defendant knows, or has reason to know, of the non-participant's presence. AFFIRMATIVE DEFENSES: i) All persons having either a possessory or proprietary interest in the property consented; ii) The defendant's sole intent was to destroy or damage the property for a lawful and proper purpose; and iii) There was no reasonable ground for the defendant to have believed that his conduct may have endangered the person or property of another.
NY Exculpatory Clauses: when will they NOT BE ENFORCEABLE?
Under NY GOL, NOT ENFROCEABLE as void against public policy, WHERE: 1) Exculpates or Limits Liability of a K party 2) AND it is for exculpation or limiting liability from either: claims a--WILLFUL ACTS, b--OR G NEGLIGENCE c-- OR, in K for Construction, alteration, repair or maintenance K (CRAM Ks), the ORDIANRY Negligence of Owner, Builder, Contractor, Repairer, or their Agenst (OBCRA's Ord Negligence) d--OR, in Agreements (incl. lang written on admit tix) to use Public Amusement or Recreation Facs, the ORDINARY negligence of Fac Owner, SO LONG AS Fac Owner got a fee or other compe for the public use such facilities).
Requirement for a Separation pursued VIA SEPARATION AGREEMENT?
Under NY GOL, and common law, this K is valid if: 1) it is freely and voluntarily made by the parties (i.e. the spouses; NOT repped by the SAME attorney). 2) The Separation occurs BEFORE or IMMEDIATELY AFTER the EXECUTION of this K 3) AND the agreement does not alter or dissolve the marriage 4) AND, it does not alter support obligations of spouses 5) AND NOT SUBJECT TO LIMITATIONS: such as (a) spouse would be a public charge if separated from the other (b) or upon reconcilitaion WITH the INTENT to abandon this K in the first place 6) AND GETS HARD LOOK if same attorney reps both parties RESULTS: 1) Parties remain legally married 2) CAN serve as a basis for a CONVERSION DIVORCE 3) ANY issues about CHILD are subjec tot BIOC test 4) CAN EITHER MERGE W/DIVORCE JUDGEMENT (AND ENFORCED WITH CIVIL/CRIM CONTEMPT; OR MODDED FOR SUBT. CHANGES) 5) OR BE INCORPORATED/INDEPENDENT FROM A DIVORCE DECREE. (AND NOT ENFORCED WITH CONTEMPT ACTIONS; AND MODDED ONLY UNDER EXTREME CIRCS).
Revocation of a UniK K by Offeror NY Rule vs CL
Under NY GOL, for such a K, the offer is revocable at ANY TIME up UNTIL the Offeree ACTUALLY COMPLETES PERFORMANCE. i.e. (Beginnging Perf does NOT create an Option, NOR does BegPerf turn the offer into IRREVOCABLE) Vs. CL approach: The offer to THIS K, is NOT revocable at any time ONCE the offeree HAS BEGUN performance. Beginning Perf does creat an Option K, or make the offer irrevocable for a reasonable time period to allow complete perf.
NY's Part Performance exception for SOF
Under NY GOL, is not barred under SOF where this exception is established by: 1) there is an oral K, no writing 2) for transfer of an interest in real prop 3) TWO out of the three acts occur, SUBSQUENT to the ORAL K i) Partial or full payment; ii) Substantial improvements to the property; or iii) Possession of the property.
Criimnal Usury Laws can still protect....
Under NY GOL, still protectes corporations, who are subjected to an interests GREATER THAN 25% per year. However, a corporate entity may assert the defense of usury if the entity's principal asset is a one- or two-family residence and the entity was organized or acquired within a six-month period prior to obtaining a loan that is secured by a mortgage on the residence. This usury defense cannot be waived
NY Law on Assignments (hint: recognizes Gratuitous Assignements as irrevocable transfers of rights) 5 elements
Under NY GOL, such transfers of interests under a K are NOT denied the status of being IRREVOCBLE, if challenged solely for lack of C, where: 1) THere's an assignment 2) Has C (great), OR has no C (okay in NY, but not in CL 3) the assignement is IN WRITING 4) MANIFESTS intent that the transfer of Assignor's Rights is IRREVOCABLE 5) AND SIGNED by the ASSIGNOR or her AGENT RESULT: An irrevocable transfer of Assignor's rights to his Assignee, so the party to a K with Assignor can sue the Assignee, on grounds of privity of K, even if that assignment lacked C (i.e. a gratuitous assignment).
When consideration is NOT required for enforcing promises in a Deed or Conveyance of (a) an Estate or (b) real prop interest) under NY law? 5 elements
Under NY GOL, the promises in these of K can still be enforceable even w/out C, if: 1) there is a promise or warranty 2) Written into the K at issue (i.e. a Deed, or conveyance of Estate interest, or conveyance of Real Prop interest) 3) AND (a) acknowledged (OR) proved to be in a manner legally sufficient to be RECORDED, 4) AND has no consideration 5) AND NO INTENT by Parties to have bargained-for consideration Result: 1) Enforce the promises or warranties. Not denied legal effect
When are Goods treated as an UNCONDITIONAL GIFT? the consequences? and the Exception
Under NY GOL, this exists where: 1) THere is good transfered 2) unsolicited by the recipient 3) AND voluntarily sent by the merchant or merchant's agent RESULT: 1) this status of the good 2) AND Merchant and his agent cANNOT offer for sale any goods IF they include that UNSOLICITED sending of such goods 3) AND recipient can use or dispose of the good as she wants, 4) Recipient has NOT obligation to the merchant or agent (cuz it was a "gift"!) EXCEPTION/"Defense" (i.e. NOT an unsolicited good, b/c the recipient MUST have ORDERED, or REQUESTED that good from the merchant)
NY law on Written Promise Expressing Past Consideration. 4 elements to establish validity.
Under NY GOL, this promise is not deemed invalid solely for lack of consideration (b/c the C is past or executed C), IF: 1) there is past or executed C 2) that past C is expressed in Writing by the PROMISOR or her agent 3) SIGNED by the PROMISOR or her agent) 4) AND this promise is proved to have been given or performed 5) AND, would be deemed valid C AT THE TIME that it was given or performed. (i.e. but for time it was perf, it would be valid 6) NOTE: No other ground for invalidating this written promise.
In NY, which Ks are usurious?
Under NY GOL, this status makes UNENFORCEABLE: 1) Ks that provide an interest rate greater than 16 percent per annum 2) Except: wher eborrow pays reasonable expenses attendant on a loan.
New Rule for Municipal Liability
Under NY Gen Municipal Law, New York grants limited immunity to municipalities within the state. (1) The same general analysis of governmental versus proprietary functions is essential in assessing liability. (2) If a special relationship is created, liability may attach even for governmental functions, including acts of commission or omission. A special relationship arises when (i) the government entity has voluntarily assumed a duty to act and (ii) has acted on behalf of a discrete individual or group; and (iii) the individual or group relies on the past performance of the duty.
CRIMINAL POSSESSION , under NY Law
Under NYPL, this crime is established where 1) Elements of its Common Law version is met; PLUS 2) Def has KNOWLEDGE of that object is a prohibited or illegal object/substance. i) This crime is elevated depending on: a) weight, nature of the controlled substance (regardless of DEF's knowledge of THAT WEIGHT) b) AND an INTENT to sell the SUBSTANCE c) BUT if a WEAPON, then DEf must have KNOWELDGE that the object is weapon or firearm, and crime eleveated depends on (a) type of weapon, (b) intent to use the weapon against people or property; (c) OR proximity to school.
NY Scaffold Law's STRICT LIABILITY (before the exceptions)
Under NY Labor law, this form of liability is imposed for height-related injures to a person employed to perform scaffolding or construction, when 1) the D is a contractor, building owners, or agent to a contractor or building owner who contact for building, demolishing, repairing, cleaning, or altering building or structure); 2) D failed to provide protection (of labor workers) in the form of erecting or furnishing scaffolding, hoists, stays, ladders, slings, hangers, clocks, pulleys, braces, irons, ropes, and other devices 3) and P suffered a height-related injury from either failing object or from falling himself 4) and P's injury is a result from the improper or lacking safety device.
Unlawfully Dealing with a Child - NY Law
Under NY PL Committed when a person (i) knowingly permits a child under 18 upon premises used for sexual activity or the use of controlled substances, (ii) allows access to alcohol to a child under 21 years old (exceptions for presence at special events), (iii) tattoos a child under 18, OR (iv) sells tobacco to a child under 18.
2nd Degree AGGRAVATED harassment in NY ( 2 elements, MR plus one of five possible MRs)
Under NY PL, Committed when a person, WITH the intent to harass, annoy, threaten, or alarm another person: i) Communicates with another by telephone or in writing, in a manner likely to annoy or alarm; ii) Makes a telephone call with no purpose of legitimate communication; iii) Attempts, threatens, or subjects a person to physical contact motivated by the victim's race, national origin, gender, religion, age, disability, or sexual orientation; iv) Causes physical injury to a person or a member of the person's family or household; or v) Commits harassment and has been convicted within the last 10 years of first-degree harassment. N.Y. Penal Law § 240.30.
Endangering the Welfare of a Vulnerable Elderly Person: - NY Law
Under NY PL, The offense is committed when: 1) a caregiver 2) intentionally or recklessly causes physical injury, OR negligently causes physical injury by means of a dangerous instrument, OR subjects a "vulnerable elderly person" to non-consensual sexual contact. 3) Where such person/victim is (a) 60 years or older; (b) unable to care for himself; (c) due to disease or infrimity associated with ADVANCED age. AND 4) elevated to First-Degree IF victim suffers SERIOUS PHYSICAL INJURY.
Abandonment of a Child; and the defense - NY Law
Under NY PL, this occurs when 1) Def has a legal obligation to care for a child 2) who is under 14 years of age 3) and D deserts the child 4) WITH INTENT to desert that child DEFENSE: 1) Abandoning a 1 month old child, IF D PROMPTLY notifies proper persons of the child's location.
Conspiracy under NY
Under NY Pen Law 1) An agreement 2) by a def, regardless of whether other person agrees or not (i.e. UNILATERAL K) (not in CL, unless MBE makes it clear) 3) to accomplish an unlawful purpose 4) with the INTENT to accomplish such purpose 5) AND needs an Overt Act (unlike CL, and not on MB, unless MBE makes it clear!)
ENTRAPMENT under NY and MPC
Under NY Pen Law, 1) Govt. official or agent induced or encouraged the crime 2) AND that official or agent employed methods or persuasion that create a SUBSTANTIAL RISK that the crime will be committed by persons other than those who are ready to commit it.
Third-Degree Rape in NY
Under NY Pen Law, Threshold Element: Sexual intercourse (WITH Intent to do so, AND then EITHER: i) With a person who is 17 years of age or older and incapable of consent; ii) Without consent of the other person by reason other than incapacity to consent; or iii) By a person who is 21 years of age or older with a person who is less than 17 years of age. N.Y. Penal Law § 130.25.
Second-Degree Rape in NY
Under NY Pen Law, Threshold Element: Sexual intercourse (with Intent to do so), AND then EITHER: i) By a person who is 18 years of age or older with a person who is less than 15 years of age; or ii) With a person incapable of consent due to mental disability or incapacity. N.Y. Penal Law § 130.30.
POSSESSION CRIMES UNDER NY LAW
Under NY Penal Law, When K is used in a law defining an offense where the weight of the controlled substantce is an element of that crime, the Def's knowledge of the aggreagte weight is NOT an element of the offense. RESULT: 1) Prosecution need not prove such details as elemtn of the crime 2) AND Def can't assert as defense that he did not know the weight of the substance
First-degree assault (3 flavors) under NY
Under NY Penal Law, this requires EITHER 1) Intentionally-caused serious injury w/ a deadly weapon or dangerous instrument OR i -- intent to cause serious injury ii -- use of a deadly weapon or dangerous instrument iii -- serious injury resulted 2) EXTREME RECKLESSLY-caused serious injury i- serious injury resulted ii - and with depraved indifference to human life OR 3) FELONIOUSLY-caused serious injury i - serious injury resulted ii-- and during course of either committed OR attempted felony
False Imprisonment in NY
Under NY Penal law, there are TWO degrees: Second Degree - Same as CL definition; AND First Degree -CL definition PLUS: 1) the crime MUST expose the victim to the RISK of SERIOUS PHYSICAL INJURY Note: This crime does NOT require movement or secreting/hiding of the victim.
Fees (Trigger: Lawyer's Fee are mentioned in the Fact patter!)
Under NY RPC, GEneral Rule is that my fees MUST 1) Never be excessive (what a reaosnable lawyer's firm and definite conviction would be after reviewing the facts) 2) Never be illegal 3) Whether I charge them 4) Or Whether I collect them 5) Never be base on FRAUDLENT BILLING 6) Never be a NONREFUNDABLE retainer fee (unless (a) reasonable, and (b) have a retainer agreement where (c) the fee is stated plainly, (d) sets forth when the fees may be mine, (e) how I calculate it. 7) AND, I MUST REPORT ANY ANY CHANGE IN FEES OR SCOPE of REP NOTE: Need not be in writing EXCEPT - Involving Domestic Relations - OR matters with fees in excess of $3K -AND if seeking anything BEYOND what you originally agreed to (Boudn by agreement)
What is Usury as defense to?
Under New York's General Obligations Law anti-usury law, loans with an intereste rate GREATER THAN 16% per year are USURIOUS. this is a defense against a mortgage and its terms, provided: 1) the party asserting the defense is NOT a Corporation; AND 2) the defense is only asserted PERSONALLY, not by purported successors who assumed the debt (verify?) RESULT: Avaialble for recovering INTEREST PAYMENTS in EXCESS of the 16: limit
When can a TY Leasehold or life tenancy holder assert a defense against AMELIORATIVE WASTE.
Under NY Real Prop Law, there is a defense against this type of waste WHERE: Elements 1) The party asserting the defense and the proposed alt is an LEH or Term of Years Holder 2)appropriate 3) FMV value enhancing 4) NOT prohibited by K over the LEH 5) by someone AT LEAST FIVE years expected to remain in the tenancy 6) with thirty days notice 7) NOTE: Court may still have LEH post bond Lengthy elements 1) LEH or TYH i) Changes to the property must not violate any agreement regarding the tenant's conduct on the property; ii) The life expectancy of the life tenant (or the unexpired duration of the term of years) must be at least five years; iii) The tenant proposing to make changes to the property must give the future interest holder at least 30 days' notice, served personally (or by registered mail); iv) The alteration must be one that a prudent owner would make in view of conditions on the property; and v) The change must not reduce the market value of the interests following the estate. At the request of the future interest holder, a court may require that the life tenant provide a security bond before work can commence. N.Y. Real Prop. Acts. Law § 803.
NY Disclosure Rule (Prop condition disclosure statement) (6 points to note on exam)
Under NY Real Prop Law: 1) Buyer must get from seller a statutory disclosure form called PCDS 2) REquires seller to provide detailed info about the Property's CONDITION; 3) AND, IF the prop is 1 to 4 family RESIDENTIAL dwellings 4) NOT co-ops and condos 5) AND NOT if Seller choose to not to fil out the form 6) AND Seller Alternatively credits the buyer with $500.00 AT CLOSING.
Liquidated Damages in NY
Under NY case law, New York courts have permitted a non-breaching seller of real property to retain a 10 percent down payment as liquidated damages in the event a buyer refuses to go forward with a sale.
NY law on Material breach and "Time is of the Essence" as basis for establishing material breach
Under NY case law, In New York, merely specifying a date for performance does not result in making that date the ESSENCE of the Contract. Thus, to establish a material breach for lack of perf by a given date. There MUST BE 1) Designation of a particular date by which perf gets done (optional) 2) AND (determinate element), K EXPRESSLY states that Time IS OF THE ESSENCE) RESULT 1) K says TOE - then material breach occurs when TOE arrives without the performance due by then. AND NBP's remedies a) damages b) OR rescission, w/out needing to perform her side of the deal; 2) OR, IF K does NOT say TOE (regardless of a specified date) - then NO material breach when a given date arrives a) BP committed just a MINOR breach b) NBP MUST render her own perf before seeking damages, if any, from the minor breach.
NY Rule for "Failure to Warn" Product Defects against Manufacturers
Under NY case law, a MANUFACTUER is NOT LIABLE for POST-SALE "SUBSTANTIAL" MODIFICATION of a product that render the product unsafe under the theory of design defect. BUT, Manufacturer may still be liable for failure to warn of dangers of modifying the product
NY law on Pay if Paid Ks" in Construction contracts
Under NY case law, these are NOT enforceable as void for violating public policy, b/c the provisions operate as FORBIDDEN WAIVERS of right to enforce a MECHANIC'S LIEN against the General Contractor if not paid. Not enforced: 1) A Construction K bet. GenC and SubC 2) AND, has a pay if paid provision (creates a condition precedent where subcons NOT paid, UNLESS the Con was paid) REsult: Subcons can still enforce mechanics liens to ensure they get paid regardless of whether the Main Con gets paid on its Con separate from the Subcon K.
NY law's SOF - what counts as the signature?
Under NY case law, this element of NY SOF can be met where 1) it is a name, written or printed 2) AND inserted or datoped with an intent (actual OR apparent) to AUTHENTICATE a writing.
NY distinction on 6ARC
Under NY common law, Protects "INDELIBLE" ROC in 1) Upon START of formal judicial) proceedings (whether or not D makes request for an attorney) in indictment, arraignment, complaint (e.g. i - post-indictment lineups ii- trial iii - sentencing hearings) 2) OR for investigatory lineups, PROVIDED (i) Cops Knew or could have known, (ii) FROM D's file, that D is repped by an attorney on another charge and (ii) D requests for his lawyer to be present 3), OR where there is any SIGNIFICANT JUDICIAL ACTIVITY (like grand jury appearances) 4) OR, when accused is custody, where cops' conduct is LIKELY to be overwhelming to a lay person, and counsel is requested. BUT NOT: where 1) If D not already represented by counsel AND 2) at either: a - at pre-sentence investigation interview b - or intoxication test c- OR investigatory lineup
Municipality Liability (old rule?)
Under NY general municipalities law, municipal governments within NYS enjoy LIMITED IMMUNITY. Thus, a municipality Duty owed to the public at large is GENERALLY NOT owed to any particular citizen, ABSENT a special relationship. Elements for Special Relationship 1) Assumption by municipality by promises or actions, to act 2) Knowledge that municpal inactioncould lead to harm 3) Direct contact between muncipal agent and injured party and 4) Plaintiff's justifiable reliance on municpality's undertaking Result of SR: Liability attaches to GOvt for P's injuries
Assault under NY Law
Under NY law, this crime refers to the common law crimes of battery and mayhem, and is divided into three degrees.
What is NO-FAULT DIVORCE and how secured?
Under NY law, this is PERMITTED where 1) At least one spouse affirms under OATH that the marriage is irretrievably broken: 2) the marriage was broken so for at least six months 3) All ECON AND CHILD-RELATED issues are resolved BEFORE this is granted! (a) maintenance (b) EQD (c) Child Support (d) Child Custody RESULTS: - Dissolution of the marriage
Removal (5 flavors)
Under NY law, this is between one New York court to another NY court 1. Due to mistake in choice of court 2. To a higher court , FOR greater relief 3. To a lower court 4. Involves this from Sup Ct to either Surrogates (D's estate w/in Surrogates Court's jurisdiction), OR County Court (county judge can't act) 5. Involving a local court only
criminal negligence is GROSS NEGLIGENCE
Under NY penal law, this is an MR where Def SHOULD be aware of a substantial and unjustifiable risk - SOC is the care of a reasonable person; -and it must be a significant depart from the SOC of RPp
NY approach for nature of the written Lease to RESIDENTIAL LEASES (not COMMERCIAL LEASES)
Under NY statutory Law requires such Ks to be in a CLEAR and COHERENT manner. Result of NON COMPLIANCE - Landlord owes DAMAGES that result from confusion; AND faces $50.00 for non-compliance
What are the 3 DIFFERENT WAYS to ESTABLISH SMJ over a MATRIMONIAL ACTION FILED IN NY?
Under NY statutory law, the Supreme Court has power to hear the matrimonial action if one of the 3 different CONDITIONS are met: 1) If both parties are NY residents (length of residency not relevant), then NO NEED FOR DURATIONAL RESIDENCY REQ; 2) OR (Durational Residency Req Scenario 1), Where only one party lives in NY, then that NY-domiciled party must have lived in NY for (a) AT LEAST ONE YEAR PERIOD, AND (b) either: (i) the parties were MARRIED IN NY (ii) They RESIDED IN NY AS SPOUSES (iii) OR, the CAUSE OF ACTION AROSE IN NY; (3) OR (Durational Residency Req Scenario 2), a party w/2 years continuous residency)---Where neither (1) or (2) is met, then AT LEAST ONE PARTY must have CONTINUOUSLY RESIDED in NY for TWO YEARS
New York's approach to Survivorship test for determining a spouse's share from other spouse's estate.
Under NY's EPTL, adopting the USDA: 1) If spouses dies within 120 hours of each other, they are presumed to have died simultaneously 2) AND, When the order of death CANNOT be proven, each spouse is treated as if he had predeceased the other.
N.Y. Veh. & Traf. Law s. 1229-c(8) - Failure to Wear a Seat Belt (effect on recovery and admissibility)
Under NY's Vehicle and Traffic Law, P cannot recover for his injuries if: 1) P failed to wear a seatbelt and 2) those injures would have been prevented had P worn his seatbelt. 3) BUT P failure to wear a seatbelt is NOT admissible as evidence of comparative negligence 4) AND admissible only as evidnce of P's failure to MITIGATE DAMAGES
Driving while Intoxicated - 3 rules in NY
Under NY's Vehilce and Traffic Law, 1) No person may operate a motor vehicle on the public highways, private roads, or parking lots while impaired by drugs or alcohol. 2) A person is presumed to be impaired when her blood alcohol content is 0.08 percent or higher. 3) Drivers under the age of 21 may not operate a motor vehicle after consuming any amount of alcohol.
Exigency of Emergency under NY Law
Under NY, there must: 1) Probable cause PLUS 2) a) reasonable apprehension that evidence would be destroyed, OR b)there is a threat of safety to the officer or to the pbulic 3) be a NEXUS between the emergency AND the area to be searched 4) that the emergency is immediately attended to 5) AND that the primary reason for the search is to address that emregency 5) AND NOT to pursue an arrest.
SEPARATE PROPERTY (I.E. Exceptions to Marital Prop), UNLESS a certain Action in Court, or Certain Acts by the other Spouse
Under NY, these are NOT marital property for purpose s of EQD: (i) Property acquired BEFORE the marriage (incl. property acquired in exchange for pre-marital property (ii)BEQUESTS, GIFTS, INHERITANCES of property received by either spouse in their sole name, or prop acquired in exchange for such gifts/bequests/inheritances (i.e. EVEN IF DURING the marriage) (except when between spouses) (iii) Property that SPOUSES VALIDLY agree (before, during, OR after the marriage) will be treated as separate property (in written agmt) (and thus not (iv) PERSONAL INJURY compensation (or portion of a disability retirement pension that is attributable to injury), EVEN if COMP received DURING the marriage (v) PASSIVE appreciation on separate property (change in value due ONLY to time or market place fluctuation) --- BUT NOT appreciation due to ACTIVE participation or mgmt by spouse in ADDING value. (Ex - increase in value of a separate property during the marriage due to the contribution of THE OTHER spouse as homemaker & parent) (vi) Property acquired in exchange for SEPARATE PROPERTY (vii) FUTURE inheritance (ix) FUTURE LIFE insurance payments with NO VESTED interest. (x) Property acquired AFTER an ACTION for DIVORCE, ANNULMENT, OR DECLARATION (i.e., dissolves marital econ partnership) (xi) BUT NOT property acquired after SEPARATION ACTION commenced (b/c they are STILL Married!) (xii)Social Security Benefits
Rape under NY Law: 3 distinctions
Under NY, this crime: 1)recognizes the victim as either male or females, AND 2) disregards the marital status to the defendant AND 3) is divided into three degrees.
What is a Separation?
Under NY, this is 1) NOT a termination of a marriage 2) an OPTIONAL legal process for a married couple to FORMALIZE a DE FACTO separation 3) that is based on assertion of either: (a) THE OTHER FAULT BASES THAT ARE USED FOR DIVORCE (b) OR FAILURE TO SUPPORT 4) AND evinced in either (a) a writing executed by the parties and notarized like a deed (i.e. meets SOF inter alia) OR(b) via judicial action (w/in SOL of 5 years RESULTS: 1) Parties remain legally married 2) CAN serve as a basis for a CONVERSION DIVORCE 3) ANY issues about CHILD are subjec tot BIOC test 4) CAN EITHER MERGE W/DIVORCE JUDGEMENT (AND ENFORCED WITH CIVIL/CRIM CONTEMPT; OR MODDED FOR SUBT. CHANGES) 5) OR BE INCORPORATED/INDEPENDENT FROM A DIVORCE DECREE. (AND NOT ENFORCED WITH CONTEMPT ACTIONS; AND MODDED ONLY UNDER EXTREME CIRCS).
Retainer Agreements - When Required (exception, different notice for Domestic Relations Cases)
Under NYCRR When (1) I begin representation AND (2) the matter's fees are projected to be $3,000+ , THEN 1) I must give a written retainer or egnagement letter 2) Done IMMEDIATELY BEFORE I begin such representation 3) ANd the writing includes a)SCOPE OF REP- Explanation of legal services scope b) FEES BASIS and RATE- explains what and how I'm charging my fees c) Arbitration RIght - if applicabl NOTE - Exceptions: - Not applciable DR caes - Not If less than 3K, then I need not provide in writing, NOR if my - Not of general kind that I previously gave to and was paid for by my client. BUT - ANy Change in
If I have an office located in NEW YORK
Under NYCRR, Here, I must post visibly for clients a "Statement of Client's RIghts"
Eavesdropping
Under NYPL it is 1) A General Intent crime where a person must: 2) unlawfully 3)intentionally engage in wiretapping OR mechanical overhearing of a conversation; Or intercepting/accessing an electronic communication 4) w/out either sender or receiver consent
3D Arson a crime against property
Under NYPL, i) INTENTIONAL damage to a building or motor vehicle; AND ii) By intentionally starting a fire or causing an explosion. DEFENSE: 1) No element met (e.g. not intent for either the act or result, or neither); 2) OR AFFIRMATIVE DEFENSES: i) All persons having either a possessory or proprietary interest in the property consented; ii) The defendant's sole intent was to destroy or damage the property for a lawful and proper purpose; and iii) There was no reasonable ground for the defendant to have believed that his conduct may have endangered the person or property of another.
1D Arson a crime against property
Under NYPL, is elevated to arson in the first degree when the fire or explosion: i) Is caused by an explosive or incendiary device; OR ii) Injures a non-participant; OR iii) Is caused for financial gain.
ANother excuse or discharge ground - DESTRUCTION (not merely damage) to IDENTIFIED Goods
Under UCC, if the following exists: 1) K calls for DELIVERY of GOODS 2) and Goods are IDed at time of K formation 3) BUT Goods are destroyed (not just damaged) 4) w/OUT fault of either party 5) AND BEFORE ROL passes to the BUYER (or else Buyer bears ROL and Seller can demand Spec Perf from the Buyer) RESULT: 1) Both parties' performance is discharged 2) Neither party must perform 3) and neither party has breached 4) K is AVOIDED NOTE: If just DAMAGED, then may avoid the K, ONLY IF the BUYER does NOT choose to 1) take the good at reduce price and 2) take without any other claim against the seller.
PARTIAL Impracticability
Under UCC, this exists where the condition does not prevent a seller from delivering SOME of the goods. RESULT: A proportion among all of the buyers with whom sell formed a K AND buyer may (1) still refuse to accept the partial delivery, and (2) cancel the K.
PER under UCC
Under UCC, this rule presumes a writing is only at most a partial integration, UNLESS, the parties would have CERTAINLY included a disputed term in the writing. REMINDER: This RULE DOES NOT APPLY, UNLESS there is A WRITING
Survival Actions
Under a the state's ****** survival statute, the personal rep to a decedent's estate is generally allowed to pursue any claims that decedent would have had at the time of decedent's death (incl. damages claims from PERSONAL INJURY and PROP DAMAGES, but not usually for INTANGIBLE personal interests), usually claims against torts that injured decedent and caused decedent's death.
Modern Trend for Collateral Source of Benefits FROM D to P
Under a trend as reflected in statutes, either 1) the collateral source rule is eliminated OR, 2) the D's insurer's payments to P are NOT considered collateral sources, and so such payments can be credited against (i.e. offset) the defendant's liability.
Modern/RST Approach
Under all circs, LPs owe TP RSOC like any other land entrant, but trespassing and discoverability remain facts that jury can consider to assess whether LP exercised reasonable care. NOTE (RST): FLAGRANT TRESPASSER (who is not imperiled, and is ABLE to protect themselves) merely owed LP's duty to avoid acting in a malicious manner to cause physical harm.
what is an IMPERFECT SELF-DEFENSE, and the result?
Under common Law, this is where a defendant commits an intentional crime (e.g. intent to cause serious bodily injury) - because - he made an HONEST mistake - UNREASONABLE mistake - OR b/c he was the initial agressor
What is MARRIAGE? 5 parts
Under common law, this is 1) K- A civil K between two spouses (opposite or same sex) where: 2) Age - the parties are LEGALLY capable of consent 3) Promises and duties - has consideration of mutual promises, rights and obligations 4) LICENSE - and requires issuance of a license, 5) SOLEMNIZATION (Witness!) - and a ceremony that solemnizes this arrangement; 5) AND State role - and it requires states intervention to be terminated.
New York's STandard to establish a 6ARC violation based on INEFFECTIVE ASSISTANCE of counsel
Under federal con law, ROC means REASONABLY COMPETENT COUNSEL. In NY, the test is 1) Def did not receive meaningful representation 2) Attorney's conduct constituted "egregious andprejudicial error 3) (causation) BUT-FOR the deficiency, result would have been different
STandard to establish a 6ARC violation based on INEFFECTIVE ASSISTANCE of counsel
Under federal con law, ROC means REASONABLY COMPETENT COUNSEL. Thus, for a claim of INEFFECTIVE Assitance of COunsel, D MUST show: 1) Deficient Performance (cousnel failed to meet objective standard of reasoanbleness) 2) Prejudice to the defendant 3
Rape, under MOST MODERN CRIMINAL STATUTES
Under most modern statutes this crime is established when: Under CL, this crime is established when 1) there is UNLAWFUL 2) Sexual intercourse 3) with a female OR male 4) who is NOT the defendant's wife 5) AND AGAINST that victim's CONSENT (force is NOT necessary; but can't consent if given b/c of threat of immediate harm; or while intoxicated or unconscious) Defenses: 1) Consent (not induced by threat or unconsciounsess) 2) Lack of resistance (negates intent element) that gives Def a reasonable belief that the intercourse is consensual.
(Exceptions to Supplemental Jurisdiction) Situations where a) Supplemental J is not extended to b) AND thus, COMPLETE DIVERSITY required c) AND Jurisdictional amount necessary
Under s 1367, this jurisdiction does NOT apply and is PRECLUDED when A) The fed court's OJ is solely based on DIV J AND B) the additional claims are either 1) Claims by plaintiffs (NOT DEFS!) against impleaded parties under FRCP Rule 14 2) Claims by plaintiffs (NOT DEFS!) against addtl defs joined as necessary parties under FRCP Rule 19 3) Claims by intervenors under Rule 24 4) Claims by Plaintiffs joined involuntarily under Rule 19 5) Claims by plaintiffs against persons made party under Rule 20 (permissive joinder) 6) AND, Claims by plaintiffs against persons made party under Rule 24 (intervention) RESULT: These claims are NOT heard UNLESS: 1) COmplete Diversity 2) AND DIv J's jurisdictional AIC amount is met.
What can a CHILD recover as result of tortious injury to the Parent?
Under statute, This party may recover, if D is to blame: 1) for loss of the parent's companionship, in wrongful death action, or also in action where the parent remains alive. 2)under statute, for loss of support resulting from D's death, but such a claim is brought by whomever the law designates as proper adulty family member to bring the action.
What can a Spouse recover as a result of injury to his Spouse?
Under statute, for such a party, he can recover: 1) loss of consortium 2) loss of services so long as the loss resulted from D's tortious conduct.
What is an Anti-Lapse?
Under statutory law (e.g. Under NY EPTL), this occurs and saves a devise from failing by lapse, if: (1) the lapsed gift was made to a BENEFICIARY SPECIFIED IN THE STATUTE (e.g. Family Member, but check Law's language!) (note: Need not be the spouse) (2) AND, the party PREDECEASES T; (3) BUT, the PREDECEASING B is SURVIVED BY ISSUE RESULT: The gift does not lapse, because the gift goes in the alternative to the issue.
Definition a Derivative Action
Under statutory law, a plaintiff may be entitled to bring and recover damages in such an action that arises solely because of tortious harm to another. Examples of such actions are Wrongful Death Actions or Survival Actions.
Standing for Wrongful Birth Claims
Under statutory law, where provided: 1) mother can recover damges for med expenses of labor, and for pain/suffering 2) Parents, to a DISABLED CHILD, can recover damages for addtl med expenses to care for that child, and possibly for emotional distress.
Business partnership
Under the CL (or Statutory Law?), this is a venture in which two or more parties join under an agreement to mutually carry out and profit from a business purpose. (Check NY law!)
How common law treats a COUNTER OFFER (i.e. the proper rule)
Under the CL's MIRROR IMAGE RULE 1) the terms in the acceptance MUST MATCH EXACTLY the terms of the offer 2) OR else, the offeree's communication is NOT an acceptance, instead it is a 3) counteroffer triggers of a counteroffer (i.e. violation of Mirror Image Rule): offerree CONDITIONS his response with "if", "only if," "on the condition that," "but," etc.)
Definition of Scope of Employment conduct
Under the CL, conduct that falls into this definition includes acts (1) that the employee is employed to perform or(2) which are intended to profit or benefit the employer.
Property Damage - General Rule
Under the CL, for this type of harm resulting from D's negligent conduct, P may recover the difference between the IMMEDIATE Pre-injury FMV of his property and the IMMEDIATE Post-injury FMV of his property (i.e. Property Damage Recovery = Prop's IMMEDIATE Pre-Injury FMV --- Prop's IMMEDIATE Post-Injury V).
Merger Rule for Separation Ks and Divorce Judgment/Decrees
Under the CL, if this K merges into the Divorce Judgment, then 1) THIS K TERMINATES, and 2) the Divorce decree governs the parties (enforceable in CONTEMPT PROCEEDINGS) Approach to assessing Merger: An ISSUE OF FACT: Look at the intent of the parties, evinced in this K.
Categories of Damages for Harm as Personal Injury
Under the CL, in negligent tort claim for this form of Harm, the following categories of damages are recoverable: I) medical and rehabilitation expenses, both past and future; ii) past and future pain and suffering (e.g., emotional distress); iii) AND, lost income and any reduction in future earnings capacity. NOTE: that the extent of these damages can still be unusual and unforeseeable, per the egg-shell skull rule.
Damages Rule for Household Items
Under the CL, most courts allow replacement value as the measure of damages to this type of property (e.g. clothing, appliances).
When is Employer's Vicarious Liability for Employee established? 2 elements
Under the CL, the general rule is that this party is liable for the other party's tortious conduct if: (1) the former has the right to control the latter's activities. and (2) the latter's tortious conduct were within the scope of his employment.
Compensatory Damages
Under the CL, these damages are measured generally as the compensation that would make the victim whole, as if he or she had never suffered the injury.
Are Biz Partners held JSL for each other's tortious conduct?
Under the CL, these multiple parties CAN be VL for each other's tortious conduct that occurs within SCOPE of the Business purposes to the partnership.
What is an INTENTIONAL TORT (i.e. state this a RULE statement!)
Under the CL, this TORT is an Act done with the requisite intent that cause harm to the plaintiff (victim).
Rule statement for STRICT LIABILITY
Under the CL, this a prima facie case for this tort requires (I) an absolute duty to make P's person or property safe (II) breach of that absolute duty (III) actual and proximate causation (IV) and Damages This is imposed in circs ONLY for I) Abnormally Dangerous Activities; II) OR Animals; II)OR Defective or dangerous products
Majority Rule statement for Proximate Cause
Under the CL, this causation is established only if D's tortious conduct is the legal cause of P's injuries. This causation is the court's application of a fair limitation on the liability of D for certain results from his tortious conduct. Therefore, this causation is established only if: 1) the Plaintiff is a foreseeable injured party; 2) P's injury (regardless of the extent of that injury) is the foreseeable type of risk; 3) the manner in which D's injury caused P's injury was foreseeable; and 4) there were no superseding causes, or unforeseeable intervening causes, that caused the harm.
Battery, at CL
Under the CL, this crime is (1) the unlawful (2) Application of FOrce (3) to another person 4-- that causes either (a) bodily harm to that person or (b) an offensive touching 5--with the requisite intent for, OR requisite disregard of the substantial risk of, the resulting bodily harm or offensive touching . NOTE: In New York, referred to as assault.
Assault under CL
Under the CL, this crime is 1--either a) An attempted battery, OR b)intentionally placing another person in apprehension of imminent bodily harm AND 2--the specific intent for either the resulting attempted battery or the resulting apprehension of immediate physical harm. NOTE: (also called MENACING under NY law)
What is Voluntary Manslaughter?
Under the CL, this is an intentional killing in response to (a) adequate provocation or the Heat of Passion, OR (b) due to Imperfect Self-defense
Negligent Hiring
Under the CL, this is a cause of action for an employer's negligent hiring, entrustment, or retention of an employee.
Employer's VL for Employee's INTENTIONAL torts (when possible and NOT possible)
Under the CL, this party MAY BE liable for a second party's INTENTIONAL torts if, for example: (1) second party's work inherently involves FORCE (e.g. bouncer, private security guard) (2) OR, if (I) the first party (principal) authorized the latter to act on his behalf, AND (II) the latter's position provides the opportunity to commit an intentional tort (e.g., when 2nd party with the power to sign contracts enters into a fraudulent contract with a third party, the principal may be liable).
WHat is MAILBOX rule?
Under the CL, this provides that an acceptance is valid when 1) Mailed within the allotted response time; and 2) Posted, not upon reciept. 3) Properly addressed and correct postage included. 4) AND the offer is NOT irrevocable (i.e. revocable) (example of an IRREVOCABLE offer: AN offer for an OPTION K). Result; Acceptance effective upon posting.
Torts Committed By Independent Contractors (and 2 primary Exceptions)
Under the CL, those who hire independent contractors are GENERALLY not vicariously liable for the torts of the independent contractors. EXCEPTION: However, the principal remains liable for (I)NON-DELEGABLE DUTIES, such as: i) Inherently dangerous activities; ii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway); iii) The duty of a storekeeper or other operator of premises, OPEN TO THE PUBLIC,to keep such premises in a reasonably safe condition; and iv) In MINORITY of jurisdictions, the duty to COMPLY WITH STATE SAFETY STATUTES AND(II) negligent hiring or retention of the independent contractor
Rule Statement for HARM (2 key points)
Under the Common Law: 1) This is the element that plaintiff must prove, which that plaintiff sustained personal injury or property damages, in order to complete the requirements of liability for negligence. 2) If the plaintiff's loss is only economic loss, unrelated to personal injury or property damages, then such economic loss is UNRECOVERABLE in a negligence action 3) Under the CL's egg-shell plaintiff rule, D remains liable for the extent of P's personal injury that are unusual and unforeseeable results of P's conduct.
What happens if the D's spouse did NOT survive him?
Under the EPTL, If this happens, the issue take the entire estate by representation.
What happens if D's spouse does surviie him?
Under the EPTL, If this happens, then the SURVIVING spouse takes, DEPENDING on whether D's issue survive D: 1)IF NO SURVIVNG ISSUE of D, takes the ENTIRE ESTATE, 2) OR, IF there ARE SURVIVING ISSUE, SS takes 50K, and 1/2 of the remainder of the NET ESTATE (the rest goes to the ISSUE by REPRESENTATION
Cy Pres doctrine
Under the EPTL, allows for the terms of a charitable trust to be modified if the original purpose becomes illegal, impractical, or impossible to perform.
Motion to Dismiss - Definition
Under the FRCP, this is a request for a court order to deny hearing and deciding the case on one or more of the following 1) Lack of SMJ 2) Lack of PJ (raised at first opp that defendant has for substantial participation on the merit) (i.e. the answer or pre-answer dismissal motion) 3) Improper Venue (raised at first opp that defendant has for substantial participation on the merit) (i.e. the answer or pre-answer dismissal motion) 4) Failure to state a claim upon which relief can be granted (FRCP 12b6) 5) Failure to join a necessary party 6) Forum non conveniens
NY CPLR - Rule Statement for Pure Comparative Negligence (PCN) (rejection, reduction, and exception)
Under the NY C.P.L.R., New York adopts the majority trends toward this approach and rejects the common law's contributory negligence standard that bar P's recovery. Now, the CPLR provides for PURE COMPARATIVE NEGLIGENCE, by which a New York court reduces the responsibility of D, based on P's own negligence. HOWEVER, P does not cover is P's injury is caused by P's commission of a serious crime
NY RULE statement for EXPRESS ASSUMPTION OF RISK (NY statute and Case Law)
Under the NY CPL, this is an AFFIRMATIVE DEFENSE to D's liability in negligence for P's injuries, and also a COMPLETE bar to P's recovery. To establish this affirmative defense, NY law requires proof that: (I) P had knowledge of the specific risk that resulted in P's injury and (ii) P voluntarily agreed to assume the risk and (iii) note: the express assumption need not be written
Adopted Child's take from a Natural Parent, who is NOT married to the Adoptive Stepparent?
Under the NY DRL, In this circ: 1) the Adoptive Child CAN STILL take from and through the Natural Parent (i.e. adoption does NOT sever the P-C relationship bet. Adoptive Child and the Natural Parent, even if NOT married to the Adoptive Stepparent, 2) BUT the NATURAL Parent loses her right to inherit through the child
General Rule for Natural Parents' inheritance rights from and through an Adoptive Child (and the 5 element EXCEPTION)
Under the NY DRL, 1) Adoption terminates the legal rights of a natural parent to the adoptive child AND 2) the natural parent's inheritance rights from and through that chidl are TERMINATED, UNLESS (i.e. an exception): i) The will (or lifetime testamentary instrument) is executed after 8/31/1986 ii) The will includes a CLASS GIFT (e.g. next of kin, children, issue) iii) AND, the person who adopted the child is (a) MARRIED to that Natural Parent; or (b) is the child's natural GP; or (c) is a descendant of the child's natural GP; iv) OR, the T is the child's natural GP, OR a descendent of the natural GP; AND v) the Will does NOT express a contrary intent.
What are the three doctrines (relating to estates and future interests) that are ABOLISHED IN NEW YORK?
Under the NY EPTL, abolished are 1) Fee Tail (result: This conveyance creates a fee simple absolute, and does not limit the fee simple to transferrance solely to grantee's lineal descendants). 2) Rule in Shelley's Case (result of abolition: The conveyances are interpreted exactly as written. The grantee's present interest, and future interest in GRANTEE's heirs do not merge) 3) Doctrine of Worthier Title (result of abolition: The conveyances are interpreted exactly as written. The grantee's present interest, and the future interest in GRANTOR'S heirs, do not merge)
For intestacy purpose, who is a SURVIVING spouse?
Under the NY EPTL, this person is a distributee under intestate distribution IF: 1) is LEGALLY MARRIED TO D (includes same-sex couples, valid OOS-CLMs OR valid OOS-Contracted Marriages, and NYC's Domestic Partners); 2) AND SURVIVES D
When can a nonmarital child take from her nonmarital Parent's intestate?
Under the NY EPTL, this type of child can take where 1) D is the natural mother or maternal kin 2) D is the natural father, IF either: i) MARRIAGE - father later MARRIED the NATURAL mother; ii) OR, BEHAVIOR --CCE of acknowledging paternity and the father held himself out as the child's own iii), OR, BLOOD TEST AND CCE -- Paternity established DURING FATHER's lifetime through BLOOD GENETIC MARKET TEST (PLUS CCE of Patenrity) iv), OR, ADJUDICATION DURING DAD'S LIFE--- (Court-order of filiation during Dad's life, v) OR MA AND PA WRITTEN ACKNOWLEDGEMENT---BOTH NatP's duly executed and acknowledgement of paternity under Pub Health Law; vi) OR, (a) Dad executed and had notarized a doc acknowelding paternity, in form of a deed, and (c) filed w/in 60 days w/ PUTATIVE FATHER REIGSTRY, and (d) Dept of Soc Serv told mom or legal guardian (e) w/in SEVEN DAYS of the father's doc's filing with the PFR vii) BUT NOT an agreement tha tolibated the alleged dad to pay chld support. Need MORE (like order of filitaiton or paternity acknowledgment).
Impracticability - Definition and elements
Under the Restatement 2d of Contracts and the UCC, this defense exists and allows the asserting party to be excuesed from performance if 1) Performance becomes illegal after the K is formed; 2) OR, the specific subject matter of the contract (the goods) is DESTROYED 3) In a PERSONAL SERVICES K, the SPECIAL performing party to the K DIES OR BECOMES INCAPACITATED, OR 4) Performance becomes IMPRACTICABLE Elements to meet to have impracticability established: i) An unforeseeable event has occurred; (e.g. unforeseen natural disasters, wars, embargos, local crop failures...more than just non-major price increases) ii) Non-occurrence of the event was a basic assumption on which the contract was made (i.e. There was NO ASSUMPTION of RISK that the event may occur, e.g. there was NO FORCE MAJUERE clause in the K; MORE THAN JUST A BAD DEAL) ; and iii) The party seeking discharge is not at fault. iv) AND the event makes asserting party's performing unduly burdensome (i.e. MORE THAN JUST inconvenience, or lack of probitability or loss of opp; must be material). v) AND, FOR UCC purposes, if this condition exists for the SELLER of goods, the SELLER MUST NOTIFY the BUYER of this condition. RESULT: 1) the party successfully asserting this is EXCUSED from performance, and not liable for damages based on breach. ---- Note, scenarios 1 and 2 reflect the other defense of IMPOSSIBILITY (i.e. Performance cannot happen whatsoever). -------
UCC's Perfect Tender Rule
Under the UCC, the common law's doctrine of substantial performance is abandoned and replaced with this rule, and its delineated exceptions. Thus, unless an exception applies, this rule require perfect goods and perfect delivery. NOTE: This rule DOES apply to INSTALLMENT Ks (but buyer can't reject an imperfect delivery, UNLESS there is a SUBSTANTIAL IMPAIRMENT that the seller cannot cure).
Requirements for Firm Offer (4 elements)
Under the UCC, this is valid as IRREVOCABLE Offer if: 1) it is written 2) Contans an EXPLICIT promise not to revoke (i.e MORE and OTHER than just a promise to sell or buy the goods) 3) and is signed by an offeror, 4) and that offeror is a MERCHANT 5) Results a--Irrevocable b--For as long as either: (i) as long as stated in the written offer, OR (ii) for a reasonable time period NOT to exceed 30 days (I.E. Offeree may still enjoy the power of acceptance under track (ii), even if too late under track (i)!!)
Who is a merchant?
Under the UCC, this party is a businessperson who REGULARLY deals in the SPECIFIC TYPE of good at issue.
Federal Due Process Clause (i.e. 2nd Element of PJ test) 2 elements to meet the Constitutional element Req
Under the US COnst 14A DPC, 1) There must be minimum contacts between the DEFENDANT and the forum state. 2) AND, Purposeful availment of the protection of the forum state's laws by the DEFENDANT is important in ascertaining whether minimum contacts exist. 3) AND, A court's exercise of personal jurisdiction cannot offend traditional notions of fair play and substantial justice. FPSJ Factors (4): 1 -- the interest of the forum state in adjudicating the matter 2 -- The burden on the Def of appearing in the case 3 - The interest of the judicial system in efficient resolution of controversies; and 4 - The shared interests of the states in promoting common social policies.
Duty to Mitigate Rule (i.e. NO RUNNING UP THE DAMAGES!)
Under this CL - NBP must take: 1) REASONABLE Steps to reduce damages from breach (i.e. P can prove reasonable steps, D can rebut and show other less costly, reasonable steps), 2)AND such efforts MUST BE reasonably similar to the ORIGINAL K. (e.g. esp. in Services Ks)
UPIA
Under this act adopted by NY:where Trustee can go to the court and have this statute applied to permits lifetime B a reasonable return of income in a given year, REGARDLESS of the actual amount of income that year. In applying the Act, the trustee MUST balance the following 1) The intent of the settlor and the express langauge of the trust instrument 2) The nature, likely duration, and purpose of the trust; 3) the identity and circs of the Bs 4) Relative needs for regularity of income, preservation and appreciation of capital, and liquidity 5) net amount allocated to income under other sections of the Act; 6) the anticipated effect of econ conditions on income an dprincipal; and 7) anticipated tax consequences of the adjustment. BUT NOT SOUGHT if Trustee is also a lifetime B (COI!) Exam tipL Look if One trust b making out better than other category of beneficiaries.
Traditional Rule for Collateral Source of Benefits to P
Under this approach, benefits or payments provided to the plaintiff from outside sources (such as medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial. (i.e. Can NEVER count P's collateral source of benefits/payments).
Pure Several Liability (i.e. Proportionate Liablity
Under this approach, each tortfeasor is liable only for his proportionate share of the plaintiff's damage. Thus, each defendant's share of liability is determined in accordance with how far each deviated from the standard of reasonable care.
MODIFIED or PARTIAL Comparative Fault
Under this doctrinal regime for comparative fault: 1) if P is found less at fault than D, then P's recovery is reduced by P's percentage of fault (akin to PCF); 2) OR, if P is MORE at fault than D, then P's recovery is barred (akin to PCN); 3), OR, if P and D are EQUALLY at fault, then either (1) P recovers 50% of total damages, or (2) in few jurisdictions, P recovers NOTHING
Erie Doctrine (when to apply state law in the federal courts, when sitting in Diversity Jurisdiction) (goal, for fed courts to run as surrogate state courts).
Under this doctrine, if a law is substantive, then the federal courts apply state substantive law to state-law claims, but they may use federal PROCEDURAL law. Issue What counts as a SUBSTANTIVE law, and what qualifies as a PROCEDURAL law. Substantive: Elements of a claim Defense Privileges Burdens of Proof VS. Procedural: Pleading Discovery Services of Process When sitting in Div J, fed courts do more than aply state substantive law, THEY ALSO follows THAT STATE'S COL RULES!! (i.e. that fed court sitting in NY, and in DIV J, does NOt AUTOMATICALLY apply NY law to every state law claims, but rather mimics what a NY course would do under NY's choice of laws rules!
What is ENOCH ARDEN Elements and Results.
Where: (1) spouse seeks a DIVORCE (NOT necessarily an Annulment); (2) and seeks divorce b/c she has a GOOD FAITH BELIEF that FORMER SPOUSE IS DEAD ; (3) petitioning spouse state her former spouse is absent for FIVE CONSECUTIVE YEARS; (4) a DILIGENT SEARCH has shown NO contrary evidence; (5) AND PUBLISHED NOTICE of the PETITION in an ENGLISH-LANGUAGE NEWSPAPER, WEEKLY for 3 WEEKS. of the RESULTS: (1) Court MAY issue a final order that dissolves the marriage (2) BUT no alimony or property issues considered, AND the TBE SURVIVES!)
Effects on P's actual recovery (from SINGLE DEF) under pure COMPARATIVE negligence
Under this doctrine, to determine P's actual recovery, P's full damages are 1) calculated by the trier of fact 2) then reduced by proportion that P's fault bears for the total harm 3) appears numerically as P's full damages - (P's full damages * Percentage of fault attributable to P) = P's reduced damages (e.g. P's actual recovery) 4) AND if P was liable for negligently-caused injuries to D, then P's actual recovery is further reduced by P's percentage of fault for D's injuries 5) appears numerically as P's full damages - (P's full damages * percentage of fault from P for P's injuries) - (D's full damages * percentage of fault from P for D's injuries) = P's actual or net recovery)!!
Effect of Comparative Fault on P's recovery from injuries arising from torts greater than negligence
Under this fault regime, and where D's conduct is MORE than negligent, then 1) P's recovery is reduced if D's conduct is willful, wanton, or reckless, 2) BUT P's recovery is NOT reduced if D's conduct was an intentional tort.
Enforcement Sanctions for Complete Default
Under this mechanism, Generally can do whatever necessary to enforce compliance with Discovery. FOr THIS UNEGOTIABLE RESULT (i.e. Total Failure): 1) Failure to attend one's own depo 2) Fialure to respond to interrorgatories 3) OR, Failure to respond to a request for Docs BUT, if NOT a Total Failure: Court should issue an ORDER (to Compel Discovery), BEFORE Court Imposes Sanctions
Bruton Rule
Under this rule admission of a confession of a NON-testifying CO-D at a joint trial against a Def violate the 6A (Result; Inadmissible the non-T CO-Ds confession at the JOINT trial). Exception: This rule does NOT apply if the Co-D DOES TESTIFY (so as to give Def opportunity to examine his CO-D
The EXR means
Under this rule, evidnece obtained in violation of the 4A cannot be used against the victim of a search. Thus this 1) Applies to any evidence initially seized in violation of 4A 2) AND any derivative evidence (i.e. evidence discovered AS A RESULT of the PRIMARY TAIN)
Predominant Purpose Test
Under this test, we ask whether the good or the service play a bigger role, in order to determine whether it is either the Common Law, or the UCC that is applicable to the given contract. (i.e. what are you MOSTLY contracting for?)
Damages allowed under SPL
Under this tort, P can recover damages for personal injury or property damage, BUT NOT fur PURELY ECONOMIC LOSS (instead, bring as a Breachof Warranty Action)
Consequential Damages
Unique losses special to the plaintiff. Ordinarily, they are NOT recoverable where they are unforeseeable, UNLESS, (1) These must be reasonably communicated to the breaching party ( (2) AND, BP was the CAUSE of the damages (i.e. proximate cause (3) AND THERE ARE NO DISCLAIMERS OF WARRANTY OR CONDITION; AND D must have be
difference between larceny and false pretenses
Unlike this crime, which is about tricking someone for possession, this latter crime is about obtaining title via material deception.
LLC Membership, Management (2 falvors)
Unrestricted number of members BUT membership REQUIRES consents of holders of a MAJOIRTY of membership interets, UNLESS the Operating Agrement provides otherwise. Can be direclty managed (member-managed) Unless OPAG says otherwise, each member can vote in proprtion to her share of LLC's profits OR in Alt of direct mangement, have CENTRALIZED management (manager-manzged), ned not be members
HOw to determine CHild Custody
Use the Best interests and Welfare of the CHild Standard (ALWAYS DISCUSS WHEN KIDS ARE INVOLVED), which is not based on stauttory factors: --NO longer a presumption in favor of MOM --The primary caretaker factor is based on a child's need for a stable and continuous relationship with the primary parent. Some of the factors a court may consider in determining the best interests and welfare of the child are as follows: i) Whether both parents have basic parenting skills and the ability to provide basic needs; ii) The physical and mental health of the parents; iii) The willingness to promote a relationship with the noncustodial parent; iv) The continuity of care in a child's life; v) The wishes of the child, if of a mature age; and vi) The presence of domestic violence between the parents. vii) NOT race or religion (latter depends on parents' consensus) vii) Convicted Murderer (1st or 2nd egree, total BAN on getting custody, NY DRL). NOTE: Courts with wide latitude to emphasize or minize certain factors.
Res ipsa loquitor
Used by P when lacking information and therefore cannot identify what D did wrong Two substitute facts: 1. accident is type normally associated with negligence 2. accident normally due to negligence of someone in D's position (or D had control of instrumentality immediately before accident)
Orders Compelling Disclosure
Used if a person refuses to comply with disclosure
Article 78 Proceedings (NY will test this!)
Used to challegne action or inaction by STATE and LOCAL governments (limited circs, possibly private corps, b/c of their charters from the state) Can raise in such process 1) ialure to perfo duty 2) Proceeding w/out or exceeding jurisdiciotn 3) A determination (one of 4 circs) 4), OR whether detrmination made was supported by subst evidence BUT NOT: (3 - Civil actions or criminal matters (unless for contempt) - validity of a leglisative act Rule statement An action to seek judicial review of the action or inaction of governmental entity or officer is known as an Artilce 78 proceeding. This action may only be brought in the Supreme Court .
Complaint - definition; further requirements
Used to state a claim for relief - For federal courts, it initiates a federal civil action - vs. State law, which controls when an action is begun. --The plaintiff's recovery is not limited to the claim for relief made in the complaint, unless for a default judgment. --A complaint must include a demand for judgment for the relief sought. --The demand for judgment for the relief sought may include different types of relief. --Allegations of fraud or mistake, as well as a claim for special damages, must be stated with particularity.
Foreign COUNTRY judgments
Usually governed by Treaty OR an Act, such as the Unfirom FOreing Money Judgments Recognition Act (UFMRA), which provides that states recongize jdugements Granting OR denying specific sums of money,but NOT those judgements involving: 1) taxes 2) alimony 3) child support 4) OR penal damages AND if no treat or FMJRA application, Court guides itself by discretion and comity. Discretion requires asking 1) Whether foreign court had valid jurisdiction under which it issuea final judgement (and NO outstanding appeals!), issued based on the merits of the case AND 2) wheher the foreign court implemented fair procedures in hearing the case. NOTE: Even if Americna court chooses to recognize a foreign country judgment, thant that court's OWN method of enforcement controls, NOT the foreign countries.
What counts as Waiver of PJ? ANd so When must PJ defects be raised by D
Voluntary Litigation of the merits of the case, OR Untimely raising of defend't objection to defect in personal jurisdiction OR Untimely raising of defend't objection to defect in service of process THUS, 1) D must raise Defect in the PJ AND/OR inthe SOP AT THE FIRST OPP: the first of either (a) the D's pre-answer motion to dismiss, OR the answer to plaintiff's complaint.
SINGLE INTENT RULE approach to liability for Battery?
W/this rule, For this IT, some courts may find D liable if he intends merely to bring about the contact, and not necessarily wants it to be HOC.
Double Intent Rule approach to Battery?
W/this rule, def may be liable for this IT only if he intends (1) to bring about contact; AND (2) intends the contact be HOC.
ALL or NOTHING RULE
WHere a contract is mixed with goods and services or real estate,
Child Custody judgments
WHere all 50 states are parties to the Unform Child Custody Child's home state may make INITIAL custody decisions. AND such decisions respected by all other states. BUT CHANGED ONLY IF the initial state lost ALL connection with Parent AND the child.
Threshold issues for Arbitration.
What the Court is OBLIGATED to inquire when a party initaties 1) Did Parties actually agree to this? 2) What issues did they agree to submit to this? 3) Agremeent Valid 4) Compiance with any applicable conditions precedent? 5) Has the relveant SOL expired (can test SOL?) 6) Does public policy preclude this process for the subject mater of the dispute?
When Declarant is NOT avaialble - FOrmer Testimony
When Declarant is NOT available Testimony given under oath at a prior hearing or deposition is admissible in a subsequent trial if the party against whom the testimony is being offered had an _opportunity and similar motive to develop the testimony by direct, redirect, or cross-examinatthion at the prior trial or hearing. NOTE: Grand Jury testimony does NOT fit w/in this rule (b/c at GJ, there was no opp for coross-ex)
NY's Long Arm Statute for asserting PJ
When New York was the matrimonial domicile of the parties before the separation; o The defendant abandoned the plaintiff in New York; o The claim for relief accrued under New York law; or o The claim for relief is pursuant to an agreement that was agreed to in New York
Declarant is NOT available -Statements of Personal or Fam History
When declarant is NOT available Statements concerning the unavailable declarant's own birth, adoption, marriage, familial relationship, etc. are admissible under this exception.
Document "at issue"
When doc used as proof of an event's occurrence. OR When document has a LEGAL EFFECT (a K!) OR When W is testifying based on facts learned SOLELY from the document.
Circs where writing IS NOT required UNDER THE UCC's SOF (not exhaustive as of 6/21. Add more)
When the goods are specially manufactured and the seller has made substantial beginnings in their manufacture. When the party has made a judicial admission that a contract was made. When the goods have been received and accepted or paid for.
If you see a fact pattern o f Early Agreement, PLUS a Written CONFRIMATION WITH NEW TERMS (b/c note UCC 2-207's crazy clause! ...a written confirmation which is sent within a reasonable time operates AS AN ACCEPTANCE ..)
When these three circs exist, just work through the same steps (below) for UCC 207(2), to ascertain whether THE NEW TERMS IN this ***** (i.e. the writer's purported acceptance) will govern the Contract: Under UCC 2-207, ALL of the following must exist for the NEW TERMS to govern the K (rarely will come in!): 1) BOTH parties are merchants 2) AND, The new term does NOT MATERIALLY alter the deal 3) AND, The initial offer did NOT EXPRESSLY limit acceptance to its terms (i.e. NO conditional acceptance) 4) AND, the OFFEROR does NOT object w/in a reasonable time to the NEW NOTE: Very tough to have new terms, in the acceptance, govern the contract
Rights of CREDITORS (TOrt or K) of Beneficiaries
Where a creditor right to trust property depends on 1) kind of trust AND 2) Kind of beneficiary
Motion to Dismiss a DEFENSE
Where a defense is iether NOT stated properly, OR HAS NO MERIT
Irrevocable Proxy
Where a proxy cannot be revocable if 1) The proxy must state on its face that it is irrevocable AND 2) SH must give th proxy to someone who has AN INTEREST IN the shares covered by th proxy (i.e. couple w/an interest), in NY, includes: (i) a pledgee - i.e. who receives the pledged shares as collateral. (ii) A person who agreed to purchase the shares; (iii) Corp creditor who extends or keepign giving credit to corp, IN CONSIDERATION of the proxy (and proxy MUST state the C, amount of credit, and name of person giving this credit) (iv) When an officer of a corporation was given a proxy as part of an employment contract (and that proxy must state it is C of such employment K, Officer's name, and the employment period of that officer). (v) a person designated under a valid SH's voting agreement. RESULTS 1) The holder of this, NOT the SH, is entititled to vote the shares covered by the proxy as the HOLDER sees fit (b/c SH cedes her voting authority over the shares for the duration of such proxy AND 2) SH cannot reovke this proxy for duration of the proxy.
Resulting "Trust"
Where an attempted trust creation fails. But, the trustee does NOT keep the property outright. The trustee MUST return property TO THE SETTLOR.
Attractive Nuisance Doctrine (HEAVILY TESTED)
Where land possessor faces liability for injuries to child trespassers, IF: 1) trespassers are children 2) Owner knows or should know that an artificial condition exists where the children are likely to trespass 3) LP knows or should know that the condition poses UNREASONABLE risk of death or SBI to CHILDREN 4) Children's YOUTH PRECLUDES them from discovering or appreciating the danger presented by the condition 5) The condition's utility AND burden to eliminate it, taken together, are SLIGHT compared to risk of harm presented to children 6) AND, the LP fails to exercise reasonable care to protect children from the harm.
NY COL for Torts & Neumeier
Where only one law is proper, so that the law courts will use. Default, if the tort occurred between two NYers in NY, then NY law obviously apply. BUT, If more than law MIGHT apply, then New York Courts apply the GI approach. 1) Contacts (what contacts are a) in this suit and b) where are the contacts located) --domicile of the parties --AND, location of the tort. 2) AND, Purpose: Is the purpose of the pertinent tort law to regulate conduct or to allocate loss? Is the purpose of the relevant law to regulate condcut, THEN NY courts usually apply the law of the STATE WHERE the tort occured. If the relevant law's purpose is to ALLOCATE LOss, then follow the Neumeier rules (NY case)
WHEN do DEFENSE to divorce apply, AND What are the DEFENSES to Divorce?
Where only this proceeding is brought on a FAULT basis, AND these are AFFIRMATIVELY PLED (IF asserted): 1) Recrimination (only against Fault ground of ADULTERY); OR 2) Connivance (COMPLETE DEFENSE to ADULTERY); OR 3) Condonation; OR 4) Collusion; OR 5) Provocation; OR 6) Consent (Against Abandonment OR Adultery); OR 7) Justification; 8) BUT NEVER ON RELIGION
Definition of Illegal K
Where the consideration or performance that is to occur is illegal. RESULT: The whole agreement is unenforceable. Note: If after the fact, then duty to perform under it is DISCHARGED
Ultra Vires action
Where the corp LACKS power to engage in a certain action because such action is in excess of or beyond corp's purpose stated in the COI (express powers) or BCL (implied or general powers) Who can challenge such actions (i.e. Who has standing to assert this is happening?): a) shareholder, to enjoin or stop it b) Or NY state to stop or enjoin c) Or Corp against directors, officer, or employee who engages in this action
What is a Search (examples)
Where the government violates a REASONABLE EXPECTATION OF PRIVACY Examples 1) COP's use of a thermal imaging device to detect heat w/in a home to find drugs 2) but NOT Canine Sniffs 3) and NOT airport luggage scans
Lost Volume Profits
Where the seller is a retailer who sells certain goods or services ALL the time (and had lots of product, but FEW buyers), then instead of seeking EXP damages, the seller seeks this instead, and does NOT lose out on recovering from the Breaching Pary, even if NBP retailer succeeds at mitigating his damages.
Service by Publication
Where there is 1) Brief statement of the action 2) Releif sought 3) AND (except in Med Malpractice), sum of money to be taken in case the Def defaults. 4) If rela prop, describe it 4) In two nespapers (one in English0 6) at least once in each of four successive weeks
What is a DONEE B?
Where there is NO preexisting obligation, BUT the promisee clearly intends to confer a gift of enforcement on a third party.
Possessor of Land (owners, tenants, APs, not easement holders or licensees)
Where this D owe duty ONLY to those w/in boundaries of D's land, AND such duty to those entrants include: 1) conduct by D that creates risks 2) artificial conditions on the land 3) natural conditions on the land 4) and Risks created when any particular affirmative duties are applicable
Mandatory Trust
Where trustee is required to pay out no un-specified money to the beneficiary.
usurious and NY approach
charging of an excessive rate Result in NY If a loan agreement, court could void the agreeent, OR may just reform the agreemnt by lower the itnerest rate to a rate that the law allows, AND let rest of K remaing in full force and effect
Withdrawal of Representation -First Flavor - Permissive Withdrawal
Where: a) Harmless WD - I cause NO MATERIAL harm to the client's interests OR When W/D is HARMFUL: b) Reasonable belief my client is pursuing criminal or fradulent acts while using MY legal services! OR c) Client carried out Crime or Fraud while using a PREVIOUS lawyer's services OR d) I find the client's decision (for the legal rep) to be REPUGNANT, OR I FUNDAMENTALLY DISAGREE with it OR e) My client PURPOSELY IGNORES OBLIGATIONS to ME, like MY EXPENSES AND FEES! OR f) My client's claim/defense is BASELESS in existing Law, and lacks good fath basis for changing the law OR g) Client fails to coop, OR make REPPING UNREASONABLY DIFFICULT or h) I can't work with co-counsel or i) My mental or physical state makes my effective repping difficult (not per se materailly, which would then be MANDATORY ground to WD) or j) Client knows and freely assent to terminate my legal rep OR k) If my client's an ORG, and 1) law or RPC allows withdrawal after 2) org's higest power w/right to act on Org's behalf, 3) wants to act in CLEAR violation of law, with 4) SUBSTANTIAL INJURY to the Org. OR L) My good faith belief, during a pending tribunal matter, that tribunal will find oterh good cause exists for withdrawal NOTE: In both Circs, 1) I have DUty to MITIGATE adverse affects on the client for which I am withdrawing my legal representation 2) AND I MAY have to ask the court, when in the court process (who can deny me, then I'm stuck w/ continue repping (exception to this exception: I've got good casue to TERMINATE rep!)
Disputes around Fees
While NY Law, encourages arbitration in fee disputes. The general rule is that 1) Disputed Funds held in Escrow MUST BE KEPT ON HOLD by the Lawyer, UNTIL the dispute is resolved 2) WHILE UN-disputed fund must be distributed wher permitted.
Nominal Consideration
While courts ordinarily do not evaluate the adequacy of consideration, the court WILL NOT permit this sort C becasue it is understood as "a pretense of consideration." It must still be within a RANGER of adequacy for the benefit or detriment bargained for in exchange.
Answers and Objections to Interrogatories
Wihtin 60 days after being served with the interrorgatories If you object to a Q, either answer the Q by stating the Q is improper, OR Within 20 days after being served, file a notice of motion to STRIKE any Q. If NO obejction to any question, then
Counselign on Crime or Fraud, Yes to What and NO to what
YES to cousneling on the LEGAL CONSEQUENCES of Such acts NO on HOW to COMMIT such acts.
Is an Opinion sufficient basis for asserting defamation?
YES, this is actionable if the defendant implies that there is a factual basis for that opinion.
Can Congress Override the Dormant Commerce Clause by legislation?
Yes. Congress can pass legislation giving states the right to regulate in areas that they would normally be prevented from regulating in because of the DCC
Leading QUesitons
_ Suggests the answer w/in the question itself; - GENEARLLY NOT permitted on Direct, UNLESS a) to elicit prelim background info that are NOT in dispute b) W is a child c) W has trouble communicating due to age or infirmity d) If you have to call a HOSTILE W e) OR if you have call an ADVERSE PARTY f) NOT Direct, but CROSS-EX!
SuppJ in cases based on DJ (3 flavors)
a - Permissive Joinder - whether either (a) to bring claims against additional defendants joined as necessary parties and impleaded third-party defendants or (b) an extra claim brought by a party seeking to join the suit under Rule 20, then (1) Not necessary to meet the AIC req, but (2) MUST STILL HAVE Complete DIV (i.e. can't destroy DIV, or else that extra claim is not joined and can't be heard after all). b - Counterclaims asserted by a defendant, BUT ONLY if COMPULSORY CountC, which do NOT have to meet the AIC req (but Complete D still req) (i.e. CountC + Complete D). NOTE: Can NEVER meet this basis for asserting jurisdiction by bringing merely a PERMISSIVE CountC (i.e. must stick to the original DIV J reqs, so, a Permissive CountC need BOTH Complete D + AIC req) c - Cross-Claims - So long as SMJ exists over a main claim, then a crossclaim that arises out of the same transaction or occurrence as the main claim can be heard on this type of s1367-granted SMJ
Strict Scrutiny
a Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal
Requirement Contracts (Buyer's promise) and what is NOT a defense to their enforcement?
a contract under which a buyer agrees to buy all that he will require of a product from the other party E.g., I don't know how many I need over the next # of years, BUT I promise to buy ALL of them from you. These are not creating Illusory promises.
Output Contracts (Seller's promise) and what is NOT a defense to their enforcement?
a contract under which a seller agrees to sell all that she manufactures of a product to the buyer. E.g. I don't know how many I will make over the next # of years, BUT I promise to sell ALL of them to you. These are not creating Illusory promises.
Harassment (WO DEGREES)
a person must, with intent to harass, annoy, or alarm: i) Attempt, threaten, or subject another person to physical contact; ii) Follow a person in a public place; or iii) Engage in a course of conduct or repeatedly commit acts which alarm or seriously annoy another and serve no legitimate purpose. (iv) and elevated to FIRST-degree, IF: (a) he defendant acts intentionally and repeatedly (b) AND places the person in reasonable fear of physical injury.
SOC under Traditional Approach
a person owes ordinarily is the level of care that REASONABLY PRUDENT PERSON would undertake under the same circs that faced D, with D's position/information/competence
Conspiracy
an agreement between two or more persons to commit a crime along with a substantial act toward committing the crime
Third-degree assault under NY
any assault other than first and second degree assault :P
Second-degree assault under NY
any assault other than first degree assault :P
Definition of Anticipatory Repudiation under CL
applicable when a promisor repudiates a promise before the time for performance arises or elapses. The repudiation must be clear and unequivocal (as opposed to mere insecurity) and may be by acts or words. Result: Promisee can 1) Treat as a breach 2) Ignore it and still demand performance (but promisee must suspended his own performance if necessary to mitigate the damages promisee would suffer from promisor's repudiation) NOT applciable to UNILATERAL Ks
what if goods and services sold together
apply the "predominate purpose" to determine which aspect of the contract predominates, (common law or Article 2) governing the predominate aspect to the entire contract. Article 2 expressly states that "goods" include "specially manufactured goods." A contract to build a car would, therefore, be covered by Article 2. BUT, The sale of investment securities is governed by UCC Article 8, not Article 2.
To which ITs can TI be applied?
can use this doctrine for BAFITtCs
Personal Jurisdiction
concerns the power of the court to adjudicate the rights and liabilities of this defendant, b/c the plaintiff already volunteered to come to this court. AND 1) AUthorized by a LAS or a Court Rule 2) AND Permitted by the Due Process clause Federal Constitution Three types In Personam In Rem Quasi-In Rem NOTE: Waivable (even a Defect in such jurisdiction -
Extreme and Outrageous
conduct that exceeds all bounds of decency tolerated in a civilized society (objective standard). Obscure Hallmark: Common Carrier or Inn Keeper - easier to label conduct outrageous. still needs to be reckless and intentional. can't be negligence. but saying "sorry, you can't stay here, you're too ugly." is enough if CC or IK.
Defintion of other loss
consequential and incidental damages, if any.
Mortgagees and "Paid Value" req of Race-Notice statute
considered to have "paid value" and are protected by the recording acts, unless the mortgage is not given simultaneously with a loan (such as when the mortgage is given after the loan is created).
Provocation
defense to fault-based divorce (FBD). Exists where the misconduct was PROVOKED by the moving party
Youthful Offenders
e to provide juveniles between the ages of 16 and 18 who have been charged with a crime of minor magnitude a second chance to be relieved from the onus of a criminal record. If the juvenile does not have a prior felony conviction or youthful offender adjudication, he is automatically given youthful offender status unless the charge is one of a class A felony, certain armed felonies, or certain sex crimes. Where this statuts is not automatic, it may be granted when the interest of justice would be served in relieving the juvenile of the stigma of a criminal record and adult sentence. The status of youthful offender is conferred prior to the hearing; if the child is found to have committed the crime, he will receive a lesser sentence and the records will be confidential except for a notification to the school.
Direct Evidence
e.g. Eyewitness testimoney
General Rule (MAJORITY RULE, NOT NY RULE)) on Jurisdiction on Ex Parte actions for CHILD SUPPORT and ALIMONY VS. NY APPROACH
ersonal jurisdiction of the non-resident defendant is required before the court can determine the defendant's duties and rights relating to both child support and alimony and, in some circumstances, property rights when the property is not located in the jurisdiction. Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); Estin v. Estin, 334 U.S. 541 (1948). VS. NY APPROACH Under NYCPLR, PJ as LONG-ARM JURISDCTION over Non-Res Party, in actions for CHILD SUPPORT AND MAINTENANCE against NON-RES parties, PROVIDED THAT 1) AFFECTED party is a NY domiciliary OR 2) in recent past, had some connection to NY 3) BUT this rule NOT applicable if (a) ONLY for child support, AND (b) NOT a form of ANCILLARY relief (define? Guess it means a divorce action should be happening too?)
partial performance (reliance damages?)
generally recover for work performed, plus expectation damages for the work not yet performed.
Parol Evidence Rule
generally prevents a party to a written contract from presenting prior extrinsic evidence that contradicts the terms of the contract as written. The rule is concerned with whether any of the earlier oral or written terms are part of the parties' contract, even though they are absent from the parties' written agreement.
Economic waste
hen the amount of damages awarded is disproportional to any economic benefit or utility gained as a result of the award. Thus courts may use discretion to award damages equal to Diminution in Value, UNLESS the breach is WILLFUL AND only completion of the K gives the Nobreaching party the benefit of its bargain.
Joint Will as a Contract - NY law reqs
i) A meeting of the minds; ii) Consideration; iii) Evidence that the contract terms are definite and certain; and iv) Terms contained in a writing sufficient to comply with the Statute of Frauds. v) signed by two or more persons vi) Intended to serve as the will of each vii) AND, Per the EPTL, the Will MUST include an express statement of the parties' intention that the will shall constitute a contract.
Different recognizable form of Consideration
i) A return promise to do something; ii) A return promise to refrain from doing something legally permitted; iii) The actual performance of some act; or iv) Refraining from doing some act. BUT NOT: v) At CL, a Preexisting Duty (EXCEPTION: a third party offers a promise ,contingent upon performance of a contractual obligation by a party. vi) OR, PAST Consideration (but modern trend is an equitable remedy to prevent injustice where the promisee (a) did NOT intended his act as a gift, AND (b) DID expect compensation for his act. vii) Or NOMINAL C?
Sufficient connections under nY CPLR to assert LONG-ARM JURISDICTION over a NON-RES PARTY
i) New York was the matrimonial domicile of the parties before the separation; ii) The defendant abandoned the plaintiff in the state; iii) The claim for relief accrued under New York law; or iv) The claim for relief is pursuant to an agreement executed in New York.
Factors for whether TTC or CT is committed.
i) The DURATION AND EXTENT of the interference; ii) The defendant's intent to assert a right inconsistent with the rightful possessor; iii) The defendant's GOOD FAITH; iv) The EXPENSE OF INCONVENIENCE to the plaintiff; and v) The EXTENT OF THE HARM to the chattel. vi) NOT PLAINTIFF'S GOOD FAITH
Test for Enforceability of Lquidated Damages CLAUSE
i) The parties intended to agree in advance to the settlement of damages that might arise from the breach; ii) The amount of liquidated damages was reasonable at the time of contracting, bearing some relation to the damages that might be sustained; and iii) Actual damages would be uncertain in amount and difficult to prove. RESULT: if the liquidated damages are disproportionate to the actual damages, then the clause will not be enforced, and recovery will be limited to the actual damages proven. NOTE: When the contract contains a liquidated damages clause, the party seeking to repudiate that clause must show that the agreed-to damage is so exorbitant as to be in the nature of a penalty. Additionally, the damages contained in a liquidated damages clause must be for a specific amount for a specific breach; the provision may not merely serve as a threat to secure performance or as a means to punish nonperformance. Although exculpatory language in the contract stating that the liquidated damages provision is not a penalty does not control, it should be given some weight.
IIED
i. Act can just be reckless - need not have intent ii. D must engage in outrageous conduct 1. Exceeds all bounds of decency tolerated in a civilized society 2. Mere insults are not outrageous 3. If D has a legal obligation to treat P with respect, heightened standard 4. Continuous and repetitive acts (calling someone every night at 2:00am) can rise to outrageous conduct 5. D must "pick on someone his own size" - be mindful that this is somewhat of a subjective standard 6. Rubber snake/heart attack example - when it is IIED v. when it is not iii. P suffers Severe Emotional Distress 1. No particular type of evidence - however, the more corroboration, the more likely P will succeed 2. Must be more than just P being mildly annoyed
BUSINESS RECORD [803[6]]
i. Declarant is available as a witness ii. A business and record (doesn't include personal business but includes illegal business) iii. Made or transmitted by a person with knowledge (person making this statement must have a business duty to report/make the record) iv.At/near the time the data arose (reasonable) v.In the course of a regularly conducted business activity vi. It was the business' regular practice to make record Admissible UNLESS source or preparation of information indicates untrustworthiness. IF MEDICAL RECORD, THEN STATEMENTS IN REPORT MUST REASONABLY PERTINENT FOR MEDICAL DIAGNOSES OR TREATMENT
PUBLIC RECORD [803(8)]
i. Declarant is available as a witness ii. Made by a public agency or its employees There are 3 subparts (803a,b, or c) that apply to Records of public officers/ agencies All three subparts are qualified by the "trustworthiness" provision of 803(6)
Statement Against Interest - 804(b)(3)
i. Declarant is unavailable as a witness per 804(a) ii. The statement is so far against declarant's interest that the declarant wouldn't have said it if he/she didn't believe it to be true. • Reasonable person in the declarant's position wouldn't have made the statement iii. The interest considered are: •pecuniary interest •proprietary interest • civil or criminal liability • his claim of civil liability against party-opponent • AND READ THE ACNs for Other possible interests iv. Must be adverse to the declarant v. The declarant must be aware of that adversity at the time of making the statement
FORMER TESTIMONY [804(b)(1)]
i.Declarant is unavailable as a witness per 804(a) ii. Must be a former testimony (from another deposition or hearing) iii. The testimony is offered against the same party (or in a civil case, a predecessor in interest) iv. There was an opportunity for and v. A similar motive to direct, cross, or redirect examination in both proceeding
DYING DECLARATION [804(b)(2)]
i.Declarant is unavailable as a witness per 804(a) ii.Declarant believes that death is imminent iii. The statement concerns the cause or circumstances of impending death iv. Declarant has personal knowledge v. Can only be offered in civil cases or criminal homicide
Contribution and JSL
involves comparing the degrees of fault of co-defendants in an action or as the result of a motion by one co-defendant against another co-defendant. Unlike a pure Several Liability action, It does not affect the liability of any of the defendants to the plaintiff.
Definition of cost avoided
is the additional costs that the non-breaching party can avoid by rightfully discontinuing performance under the contract as a result of the other party's breach.
Statutes of Repose , SOFs, and Laws dictating survivorship (deemed substantive)
limit the time in which an action may be brought, re Substantive
Statements that are NOT hearsay (i.e. admissible as NONhearsay
o Verbal act or legally operative fact: If a statement is offered to prove that the statement was made, regardless of its truth, it is admissible. o Effect on the listener: A statement offered to show the effect on the person who heard it is admissible. o State of mind: A statement offered as circumstantial evidence of the declarant's mental state is admissible. BUT, a statement that is a direct description of mental state and is used to prove that mental state is hearsay
prelim injunction
o When the defendant causes, is about to cause, or threatens to cause a violation of the plaintiff's rights with regard to the subject of the action which would tend to render ineffectual any ultimate judgment o When the defendant threatens during the suit to commit the very act the suit seeks to restrain (i.e., when a permanent injunction is sought) - notice is required Moving party must demonstrate: Likelihood of success on the merits; Irreparable harm (lack of an adequate remedy at law); and Balance of the equities favors the party seeking the injunction. o Non-moving party's raising a question of fact is not alone sufficient to prevent the injunction o May be sought any time before judgment o May be served with the summons and complaint o An affidavit or other evidence may be submitted in support o Plaintiff must normally give an undertaking in case the plaintiff was not entitled to the injunction Effectiveness
Plea Negotiations
o Withdrawn guilty pleas, nolo pleas, offers to plead guilty, and statements made while (or attempting to negotiate) a plea are not admissible in any proceeding. o Statements must have been made to someone with prosecutorial authority o Statements must have been made to someone with prosecutorial authority o Statements made to the police do not count o Parties can waive this right. o If a defendant introduces statements made during plea negotiations, he opens the door for the prosecution to introduce
Insolvency defined
occurs when a party (i) cannot pay its debts when due, (ii) has ceased to pay its debts, OR (iii) has liabilities that exceed its assets.
Definition of Aniticpatory Repudiation under UCC and 3 points
occurs when there has been an This is 1) unequivocal refusal of the buyer or seller to perform, or when a party creating reasonable grounds for insecurity fails to provide adequate assurances within 30 days of demand for assurances. UCC § 2-609. 2) RETRACTION -- can be retracted if the other party has not canceled the contract or materially changed position. 3) Nonbreaching P's REMEDIES -- the nonrepudiating party to resort to any remedy given by the contract OR the UCC.
CPP - Neglect Child
one that is less than 18 years of age who has been abandoned, or whose physical, emotional, or mental condition has been impaired or is in serious immediate danger of being impaired as a result of the parent's or legal guardian's failure to exercise a minimum degree of care: i) Including adequate food, clothing, shelter, education, or medical care despite their financial means to do so or when offered financial means to do so; or ii) In providing the child with proper supervision or by inflicting (or permitting another to inflict) harm or substantial risk of harm, including excessive corporal punishment, misuse of drugs or alcohol to the extent of a loss of control, or by another similar means that requires the intervention of the court, unless the person is engaging in voluntary and regular participation in rehabilitation.
Child Protective Proceedings - WHo is an Abused Child
one that is less than 18 years of age whose parent or other person designated responsible for his care: i) Inflicts (or creates a substantial risk of) or permits another person to inflict (or create a substantial risk of) physical injury, other than by accidental means, which creates a substantial risk of death, disfigurement of a serious or protracted nature, serious impairment of physical or emotional health, or loss or impairment of the functioning of a bodily organ; ii) Commits or permits another person to commit a sexual offense against the child as defined by the criminal code; or iii) Permits, encourages, or allows the child to engage in specified criminal acts, including promoting prostitution, incest, or sexual performance by a child.
Restitutionary Damages
restore to the plaintiff whatever benefit was conferred upon the defendant prior to the breach. Generally, the benefit may be measured by EITHER: the reasonable value of the defendant obtaining that benefit from another source , OR the increase in the defendant's wealth (e.g., the increase in value of property owned by the defendant) from having received that benefit. However, when justice requires, recovery may be limited to one of the two measurements. NOTE: IF, however, at the time of the defendant's breach, the plaintiff has fully performed the contract, and the defendant owes only money and not some other kind of performance, then the plaintiff's recovery is LIMITED TO ONLY expectation damages (generally the contract price minus the cost of completion). Also available in Quasi-contract Ks (i.e. no K, or an unforceable K, and lack of recoverywould be unjust b/c of bneefit converred...limit recovery to fair value of benefit conferred.
Profit in land
right of one person to enter the land of another and extract something therefrom extinguished by merger, abandonment, release, condemnation
804a - 5 circs where declarant is unavailable
situations in which the declarant-- (1) [PRIVILEGE]--is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) [REFUSAL TO TESTIFY, like pleading the 5th] persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) [LACK OF MEMORY]---- testifies to a lack of memory of the subject matter of the declarant's statement; or (4)[DEATH/PHYS or MENTAL IMPAIRED]--- is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) [UNREACHABLE]---is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under Dying Declarations, Stmnt Against Interest, or , the declarant's attendance or testimony) by process or other reasonable means.
S Corp
strictly a tax designation can avoid double taxation. An election under subchapter S of IRC Treated as flow through entity, like an LLC or partnership For income tax purposes, corp profits and losses allocated directly to SHs on annual basis, BASED on numbe rof shares they own. Then SHs responsbile for reporting their own share of profit or loss on their OWN personal income tax return Thus, this "corp" does NOT pay CORPORATE income tax (hence why so liked) Summary: The shareholders pays taxes on the corporation's profits as part of their income and the corporation does not pay taxes
Implied Warranty of Merchantibility
triggered only when 1) the seller 2) is a merchant 3) and dealing in the goods at issue. (i.e. NOT a one-off good, i.e. not selling a good normally part of the merchant's business) 4) and NOT CLEARLY disclaimed (i.e. must be conspiscuous language or "AS IS" to be effective disclaimer) 5) and this promise is that the goods are fit for that goods' ordinary purposes.
Bondholders
that and other debt security holders are "K claimants" of corp THUS, NO Voting Rights, UNLESS their K granthem such rights (COI does)
Diverity Action and Choice of Law
that is brought in a federal district court without proper venue is removed to a district court with proper venue, the transferee court applies the law of the state in which it sits.
For Battery, Exception to OT for IDing Offensive Contact: D's awareness of, and still makes contact to, Hypersensitive vic means...
the OT does not apply for this IT, and D can still have committed this IT by causing offensive contact
n order to trigger Fourth Amendment protection...
the defendant must have a reasonable expectation of privacy in the place or object searched.
Definition for Loss in Value
the difference between the performance that the non-breaching party should have received under the contract and what was actually received, if anything.
Subst. Interf for PRIVATE Nuisance
the form of interference ( offensive, inconvenient, or annoying to a normal, reasonable person in the community) with a P's USE AND ENJOYMENT OF HER PROP. Note: Trespass DOES NOT require subst. intr. (e.g. just walk onto the prop, w/out privilege or P's consent), unlike this nuisance tort.
False Imprisonment
the intentional restraint of another person without reasonable cause and without consent
Burden of Production
the necessity to produce some evidence but it need not be so strong as to convince the trier of face of its truth
appropriation doctrine
the system for allocating water to private individuals used in most Western states. The doctrine of Prior Appropriation was in common use throughout the arid west as early settlers and miners began to develop the land. The prior appropriation doctrine is based on the concept of "First in Time, First in Right." The first person to take a quantity of water and put it to Beneficial Use has a higher priority of right than a subsequent user. Under drought conditions, higher priority users are satisfied before junior users receive water. Appropriative rights can be lost through nonuse; they can also be sold or transferred apart from the land. Contrasts with Riparian Water Rights.
Two method distributing Marital Assets or Property (one adopted by NY)
the two approach for this kind of asset are 1) Community Property distribtuion 2) OR Equitable Distirubtion NY approach under NY DRL
Products Liability (Generally)
theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous
Public Duty Rule (w/ exception for special relationship)
there is no liability to any one citizen for the municipality's failure to fulfill a duty that is owed to the public at large, unless that citizen has a special relationship with the municipality that creates a special duty. A special relationship can be shown by: i) Promises or actions on the part of the municipality demonstrating an affirmative duty to act on behalf of the injured party; ii) Knowledge by the municipality's agents that failure to act could lead to harm; iii) Direct contact between the municipality's agents and the injured party; and iv) The injured party's justifiable reliance on the municipality's affirmative duty.
For inheritance purposes, who are posthumously born children?
these are children who are conceived during the life of the decedent but born after the decedent's death
who are collaterals, and when/how do they take?
these are persons who survive the intestate decedent and takes in the following priority of the EPTL's intestate distribution scheme: 1) Surviving Parents; 2) Issue of Parents (decedent's Bros and Sisses) 3) Grandparents; 4) AND Issue of Grandprantes (i.e. D's aunts, uncles, cousins) 5) BUT NOT past First Cousins once removed).
WHO can Adopt?
these parties can do this: 1) Married Couple 2) A single, unmarried adult 3) an unmarried adult couple 4) an indivdiual separated from his spouse 5) Step-parent of the adoptee, REGARDLESS of the Step-Parent's Age.
Under modern/RST approach, what is LP duty of care to invitees and licensees?
this D now owes duty of reasonable care for: 1) under all circs 2) all land entrants (except trespassers, or RST's "flagrant trespassers") 3) preventing harm from artificial conditions or conduct on the land. 4) and, if commercial LP, also prevent harm from NATURAL conditions (non-comm LP does so only if the risk is known or obvious to non-comm LP)
What is an ACTUS Reus, and what is NOT
this IS: VOLUNTARY PHYSICAL act OR failure to act this is NOT: Bad Thoughts OR, REFLEXIVE or CONVULSIVE Acts OR, UNCONSCIOUS (E.G. sleepwalking; HYPNOSIS), BUT if you decide to operate something while you still hold consciousness, then you face a basis for a criminal negligence charge.
what is intermeddling for TTC?
this action exists when D interferes with the P's ability to use or enjoy the chattel.
what is Dispossession for TTC?
this action exists when D puts his use of the chattel ABOVE the plaintiff's use of the chattel
Consent is a defense to N?
this is NOT a defense to N (but a defense to ITs), and distinguishable from Assumption of Risk (which does apply to N action).
Trust
this is a bifurcation of title into legal and equiable title.
In order to be effective, an acceptance that is sent by the offeree AFTER a rejection but before the rejection is received by the offeror must be
to be effecitve, THIS MUST be received by the offeror before the rejection, when it is sent AFTER the rejection is sent.
PINS - Persons in Need of Supervision, Elements and Result.
to designate a child under the age of 18 who does not attend school, who behaves in a way that is dangerous or out of control, or often disobeys his parents, guardians, or other authorities. This brought when: 1) Heard in Family Court 2) the respondent-child is no older than 18 years old 3) AND the minor performs some sort of STATUS OFFENSE: (a) does not attend school (b) OR, misbehaves dangerously, out of control (c) OR is ungovernable by his parents, guardians, or other authorities. AND 4) IF petition seeks placement outside of his regular home, then For due process reasons, a child MUST BE PRESENT at the hearings. RESULT of finding that child IS a PINS - 1) Place child into foster home, or social service facility up to 18 months, 2) OR send child home under Probation officer supervision. 3) ALSO, the child is at least 10 years old, the judge can order the child to pay for any damage done to someone's property or require the child to perform community service. 4) The judge can also place the case on an administrative hold for a period not to exceed six months to decide whether the case should be dismissed. 5) BUT NOT placement in detention facility OR a jail
Voting TRUST
transfer of legal ownership; separate Valid for up to 10 years (or extendible up to 10 Can still receve dividens Can get distirbutions and Can still bring derivative actions in corp's name And can still inspect corp books and records as NY law allows.
If Marital fault If you have a ground based on cruel and inhuman treatment
treatment, if it is egregious enough, it could also have an impact on the maintenance award given to the victim spouse. o Might also impact child custody o Might affect the court's jurisdiction o May have implications for family offenses, e.g., domestic violence
Is an easement a "legal interest"?
yes.
School Search
upheld only if: 1. it offers a MODERATE chance of finding evidence of wrongdoing 2. the measures adopted to carry out the search are reasonably related to the objectives of the search and 3. search is "not excessively intrusive in light of the age and sex of the student and the nature of the infraction"
Delegation (one-sided outsourcing, UNLIKE NOVATION!)
when a party to a contract "outsources" her duties under a contract to another party. This is generally acceptable, AS LONG AS 1) the contract does not prohibit delegation 2)AND, the other party does not have some SPECIAL INTEREST in having a SPECIFIC individual perform. (SPECIAL PERSON EXCEPTION). RESULT: 1) Delegatee has duties 2) AND, Delegatee is generally NOT liable for breach, UNLESS SHE RECEIVES CONSIDERATIONFROM the DELEGATING PARTY 3) AND, Delegatee CANNOT recover from a breaching Obligee, UNLESS the delegating party ALSO ASSIGNED the Delegating Party's RIGHTS to that Delegatee (i.e. Delgatee is also now an Assignee) Roles: Delegating Party Delagatee
3 instances where 3PB's rights VEST
when the beneficiary: i) Detrimentally relies on the rights created; ii) Manifests assent to the contract at one of the parties' request; or iii) Files a lawsuit to enforce the contract. EFFECTS: 1) The original parties to the contract are both bound to perform the contract. Any efforts by the promisor or the promisee to rescind or modify the contract after vesting are void, 2) unless the third party agrees to the rescission or modification. 3) An intended beneficiary of a "gift promise" (a donee beneficiary) may sue only the promisor. 4) If the promisee tells the donee beneficiary about the contract and should reasonably foresee reliance, and the beneficiary does so rely to his detriment, then promissory estoppel would apply. 5) An intended beneficiary to whom the promisee owed money (a creditor beneficiary) may sue either the promisor or the promisee, or both, on the underlying obligation, but only one recovery is allowed. 6) AND Defenses can be raised by PROMISOR against the 3PB, EXCEPT those defenses that the PROMISEE had against the INT3PB
Divisible K
where there is K that is easily separated into legal and illegal parts so that recovery is available on the legal part(s) only.
General PJ
you can assert any claim against OOS, regarldess of whether that claims arises out of specific contacts with the forum state. Established by either 1) Physical presence of Def in Forum state (unless D was in the state only b/c (a) to answer a summons, or (b) brought by force, or (c) brought by fraud. 2)Domiciliary or Permanent Resident, maintained by D in the Forum Statute 3) Consent via K, or by appointing an In-State Agent to receive Serv of Process 4) For a corporation, the state of incorporation 5) Any kind of business where the forum state is their principal place of business 6) For Foreign Corps, Doing BUSINESS in the forum State of MORE THAN A SINGLE transaction, which means SUBSTNATIAL ACTIVITY, maintaing a website to CONDUCT biz, NOT merely an INFORMATIONAL website