NY Bar Course Part 2

A person is guilty of criminally negligent homicide when

, with criminal negligence, he or she causes the death of another (Penal Law§ 125.00, see Criminal Law and Procedure, H.B.). If the victim of manslaughter or of criminally negligent homicide is a police officer or peace officer, the crime charged may be aggravated manslaughter in the first or second degree or aggravated criminal negligent homicide, which are higher classes of felonies (Penal Law §§ 125.21, 125.22, 125.11).

Home Improvement Contracts: General Business Law§§ 770, 771,773

A home improvement contract must be signed by the parties and must include ce1tain statutorily required provisions and notices (General Business Law § 771). The failure to include such provisions and notices subjects the contractor to civil penalties (General Business Law § 773) and may render the home improvement contract unenforceable (see Grey's Woodworks, Inc. v Witte, 173 AD3d [3d Dept 2019]). "Home improvement" means the repairing, remodeling, altering, conve1ting, or modernizing of, or adding to, residential property, the construction of a custom home, the installation of home improvement goods or the furnishing of home improvement services (General Business Law § 770). Included in the required notices is a notice that the owner may cancel the home in1provement contract until midnight of the third business day after the day on which the owner signed an agreement (General Business Law § 771 [h]).

Number of jurors and verdicts: CPLR 4104, 4113

A jury in a civil case must consist of six persons (CPLR 4104). A verdict must be rendered by not less than five-sixths of the jurors constituting a jury (CPLR 4113).

A person 13 years of age is criminally responsible for certain enumerated acts constituting murder in the second degree (Penal Law§§ 30.00 [2], 125.25 [1], [2], [3]).

A person 14 or 15 years of age is criminally responsible for those same acts constituting murder in the second degree and also for acts constituting other enumerated serious, violent felonies (Penal Law § 30.00 [2]). Infancy is an ordinary offense (Penal Law §30.00 [4]).

Attempt to commit a crime: Penal Law art 110

A person is guilty of an attempt to commit a crime when, with the intent to commit a crime, he or she engages in conduct which tends to effect the commission of such crime (Penal Law § 110.00). New York, unlike the Model Penal Code, requires "intent" to commit the particular crime. If intent is not a requisite element of a crime, a defendant cannot be convicted of an attempt to commit that crime. For example, a person upon a trial cannot be convicted of an attempt to commit depraved indifference murder (Penal Law§ 125.25 [2], People v Acevedo, 32 NY2d 807 [1973];), manslaughter (People v Martinez, 81 NY2d 810 [1993]), felony murder (People v Hendrix , 56 AD2d 580 [2d Dept 1977]), or reckless/criminally negligent assault while resisting arrest causing unintentional injury (Penal Law § 120.05 [3]; People v Campbell, 72 NY2d 602 [1988]). However, a conviction of a crime such as attempted manslaughter will be upheld when " it was sought by defendant and freely taken as part of a bargain which was struck for the defendant's benefit" (People v Foster, 19 NY2d 150, 154 [1967]).

The commencement of a special proceeding requires the filing (except in town and village justice comis, see Civil Practice and Procedure, III.

A.) of a petition, which must be served on the respondent with a notice of petition. Service must be made in the same manner as a summons in an action. TI1e notice of petition serves to notify the respondent of the time and place of the return date on the petition (CPLR 403 [a]). In addition to specifying the return date, the notice of petition must identify the affidavits, if any, that are being submitted in support of the petition.

Appeals to the Appellate Division: CPLR 5701, 5702, 5703

Almost all final and non-final judgments and intermediate orders are appealable as of right to the Appellate Division, provided the inte1mediate order results from a motion made on notice. TI1e Appellate Division hears appeals from supreme court, county court, family court, sun-ogate's court and the court of claims, and, by pe1mission, from an Appellate Te1m. Although an ex parte order, that is, an order resulting from a motion not made on notice, is not appealable, an aggrieved party may move, on notice to the pa11y who obtained the order, to vacate the ex parte order and then appeal from an order denying that motion (CPLR 5701 [a] [3]).

Murder, manslaughter and criminally negligent homicide: Penal Law art 125

Homicide is conduct which causes the death of a person under circumstances constituting murder, manslaughter or criminally negligent homicide (Penal Law § 125.00). The various degrees of homicide depend on how the death was caused, who the victim was, and the mental state of the actor. In order to be criminally responsible for homicide, the defendant's actions must be a sufficiently direct cause of the ensuing death (People v DaCosta, 6 NY3d 181, 184 [2006]). An act is a sufficiently direct cause when the ultimate harm should have been reasonably foreseen (Id.). In DaCosta the defendant's attempt to elude a pursuing police officer by running across a busy highway was found to be a direct cause of the officer's death resulting from his being struck by a vehicle.

Interpretive provisions

If the aggregate weight of a controlled substance or marihuana is an element of an offense, knowledge by the defendant of the aggregate weight of the controlled substance or marihuana is not an element of any the offense, even if the term "knowingly" is used in defining the offense for its other elements such as the type of drug, and it is not, unless expressly so provided, a defense to a prosecution that the defendant did not know the aggregate weight of the controlled substance or marihuana (Penal Law§ 15.20 [4]).

Offenses involving marihuana : Penal Law art 221

In general, a person is guilty of some degree of criminal possession or sale of marihuana when he or she knowingly and unlawfully possesses or sells marihuana. The higher degrees of criminal possession or sale of marihuana are based on the weight of the marihuana possessed or sold. New York has decriminalized the possession of small quantities of marihuana, so that the possession of less than two ounces of marihuana is a violation (Penal Law §§ 221.05, 221.10). In addition, past convictions under the fonner section 222.10 of the Penal Law (which classified possession of any amount of marihuana in public view or possession of up to 25 grams a B misdemeanor) are automatically expunged ( see CPL 160.50, 440.10). New York pe1mits the medical use of marijuana and regulates its use (see Public Health Law§ 3360, et seq.)

Crimes A. Anticipatory offenses 1. Criminal solicitation: Penal Law art 100

In general, a person is guilty of some degree of criminal solicitation when, with intent that another engage in criminal conduct, he or she solicits, requests, commands, importunes, or otherwise attempts to cause such other person to engage in such conduct. Factors in determining the degree of the crime of criminal solicitation include the seriousness of the crime solicited and the relative ages of the solicitor and the person solicited. The crime is completed by the communication to another to commit a crime; no resulting action by the person being solicited is necessary (People v Lubow, 29 NY2d 59 [1971]). If the person solicited attempts to commit the crime but fails, the solicitor still will be liable for attempt (see Criminal Law and Procedure, III.A.). And if the person solicited actually commits the crime, the solicitor will be liable for the solicited crime as an accessory (see Criminal Law and Procedure, II.D.).

The time required for service of the pleadings is akin to those for the service of motion papers. The petition and notice of petition must be served at least

8 days before the date when the proceeding is to be heard. The answer and any supporting affidavits must then be served at least 2 days before the date when the proceeding is to be heard. Any reply with any supporting affidavits must be served when the proceeding is to be heard. But the answer must be served at least 7 days before the date when the proceeding is to be heard if the petition and notice of petition is served at least 12 days before the date when the proceeding is to be heard and so demands, in which case any reply must be served at least 1 day before the date when the proceeding is to be heard. (Cf Civil Practice and Procedure, IX.C. for times applicable to Article 78 proceedings.) As an alternative to a notice of petition, CPLR 403 (d) allows the use of an order to show cause. An order to show cause is a judicial order, obtained ex parte, that specifies the date and place of the hearing and the manner of its service. The respondent may raise an objection in point of law - a defense that can produce a summary dismissal of the proceeding - either in the answer or in a motion to dismiss made within the time allowed for answer (CPLR 404). Pretrial disclosure is generally not available without leave of court, except for a notice to admit under CPLR 3123 (see Civil Practice and Procedure, X.B.7; CPLR 408)

Constructive Trusts A constructive trust is an equitable remedy, and its purpose is prevention of unjust enrichment (Sharp v Kosmalski, 40 NY2d 119 [1976]). Unjust enrichment does not require the performance of any wrongful act by the one enriched (Simonds v Simonds, 45 NY2d 233, 242 [1978]). New York law generally requires four elements for a constructive trust:

• A confidential or fiduciary relationship, • A promise, express or implied, • A transfer of the subject res made in reliance on that promise, and • Unjust enrichment (Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939 [1980], Sharp, supra at 121). The constructive trust doctrine is not rigidly limited and the absence of any one factor will not itself defeat the imposition of a constructive trust when otherwise required by equity (Simonds, supra at 241-242). " What is required, generally, is that a party hold property 'under such circumstances that in equity and good conscience he ought not to retain it"' (Id. at 242).

Infancy: Penal Law§ 30.00 A person less than 18 years old is not criminally liable for conduct except as noted below (Penal Law § 30.00 [1]). A person 16 or 17 years of age is criminally responsible for acts constituting:

• A felony, • A traffic infraction, • A violation, or • A misdemeanor, but only if the misdemeanor charge is a violation of the Vehicle and Traffic Law, or is accompanied by a felony charge arising from the same criminal transaction, or is part of a plea bargain for a felony offense (Penal Law § 30.00 [3]).

Absent a contractual provision In New York, courts have applied a flexible "center of gravity" or "grouping of contacts" inquiry to conflict of law questions relating to contracts not containing a contractual provision regarding the law to be applied (Auten v Auten, 308 NY 155, 156 [1954]). Under this approach, the "spectrum of significant contacts" is considered in order to dete1mine which state has the most significant contacts to the particular contract dispute (Matter of Allstate Ins. Co. [Stolarz New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 226 [1993]). In general, significant contacts involve:

• The places of contracting, negotiation and performance; • The location of the subject matter of the contract; and • The domicile or place of business of the contracting parties. In addition, when '"the policies underlying conflicting laws in a contract dispute are readily identifiable and reflect strong governmental interests," those governmental interests may be considered (Jd.).

The substantive aspect considers whether the contract terms are unreasonably favorable to one party. The procedural aspect looks to evidence of the contract formation process. In order to determine whether there has been procedural unconscionability in the contract formation process, a court must assess such factors such as:

• The size and commercial setting of the transaction, • Whether there was a "lack of meaningful choice" by the party claiming unconscionability; • Whether deceptive or high-pressured tactics were employed, • The use of fine print in the contract, • The "experience and education of the party claiming unconscionability," and • Whether there was " disparity in bargaining power" (Gillman v ChaseManhattan Bank, 73 NY2d 1, 11 [1988]).

CPLR 7803 contains a list of issues that may be raised in an Article 78 proceeding:

• Whether a body or officer has failed to perform a duty enjoined by law; • Whether a body or officer has proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; • Whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion; or • Whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.

Plain Language Requirement for Consumer Transactions GOL § 5-702 requires that every written agreement for the lease of space to be occupied for residential purposes (see Real Property, I.A.), for the lease of personal property to be used primarily for personal, family or household purposes, or to which a consumer is a party and the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes, must be:

• Written in a clear and coherent manner using words with common and everyday meanings; and • Appropriately divided and captioned by its various sections.

Sex offenses: Penal Law art 130

It is an element of every offense defined by Article 130 that the sexual act was committed without the victim's consent (Penal Law§ 130.05 [1]). Pursuant to Penal Law§ 130.05 [2], lack of consent results from forcible compulsion or the incapacity of the victim to consent. In addition , if the offense charged is sexual abuse or forcible touching, lack of consent results from any circumstances in which the victim does not expressly or impliedly acquiesce in the actor's conduct. And if the offense charged is rape in the third degree (Penal Law § 130.25 ]3]) or criminal sexual act in the third degree (Penal Law § 130.40 [3]), lack of consent results from any circumstances under which, at the time of offense, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression oflack of consent to such act under all the circumstances.

Criminal Liability and Mental Culpability A. Criminal Liability: Penal Law§ 15.05

The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the failure to perform an act which the person is physically capable of performing. If such conduct is all that is required for the commission of an offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of "strict liability." If a culpable mental state on the part of the actor is required with respect to every material element of an offense, such offense is one of "mental culpability."

Kidnapping and related crimes 1. Unlawful imprisonment

Unlawful imprisonment is the restraint another person (Penal Law § 135.05). " Restrain" means to restrict a person's movements intentionally and unlawfully in a manner so as to interfere substantially with his or her liberty by moving him or her from one place to another, or by confining him or her either where the restriction began or in a place to which he or she has been moved, without consent and with knowledge that the restriction is unlawful (Penal Law § 130.00 [1]). The degree of the crime is elevated if the restraint is under circumstances which expose the victim to a risk of serious physical injury (Penal Law § 135.10).

Trials

Unless waived by the defendant (CPL 320.10), trial of a felony or misdemeanor charge is by jury, except that in the New York City Criminal Court, the trial of a misdemeanor for which the authorized term of imprisonment is not more than six months must be by a single judge without a jury (CPL 260.10, 340.40 [2]). The trial of a noncriminal offense must be by a single judge without a jury (CPL 340.40 [1]). The jury for a trial of a felony consists of 12 persons (CPL 270.05 [1]), and up to 6 alternate jurors may also be selected (CPL 270.30). The jury for a trial of a misdemeanor consists of6 persons (CPL 360.10 [1]), and 1 or 2 alternate jurors may be selected (CPL 360.35). Ajury verdict must be unanimous (CPL 310.40, 310.80).

In addition to an intentional murder without one of the aggravating factors required for murder in the first degree, murder in the second degree includes

depraved indifference murder, which occurs when "under circumstances evincing a depraved indifference to human life, [one] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). Depraved indifference has been judicially defined as a culpable mental state (see People v Feingold, 7 NY3d 288 [2006] overruling People v Register , 60 NY2d 270 [1983]; compare Model Penal Code § 210.2 [1] [b]).

A person is guilty of vehicular manslaughter in the second degree when

he or she causes the death of another person as the result of operating a motor vehicle, vessel, public vessel, snowmobile or all-terrain vehicle while unlawfully intoxicated or impaired by the use of alcohol or a drug (Penal Law § 125.12). The crime charged may be elevated to vehicular manslaughter in the first degree by one of the several aggravating factors listed in the statute, including a blood alcohol content of .18 of one per centum or more by weight, his or her license or privilege to operate a vehicle being currently suspended or revoked in this or another state, having previously been convicted of driving while intoxicated within the preceding ten years in this or any other state, or causing the death of more than one person (Penal § 125.13). If in addition to one of the aggravating factors, the defendant was engaged in reckless driving, the charge may be elevated to aggravated vehicular homicide (Penal § 125.14).

Judicial review of arbitration awards is extremely limited, and an award will not be vacated for an arbitrator's errors of law and fact (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471 [2006]). CPLR 7511 governs the grounds for

moving to vacate or modify an arbitration award. Where the aggrieved party participated in the arbitration or was served with a notice of intention to arbitrate, and was prejudiced by the particular impropriety, there are four narrow grounds for vacating an arbitration award (misconduct in procuring the award, bias of the arbitrator, excess of power by the arbitrator, and procedural defects (CPLR 7511 [b] [l ]). If the aggrieved party did not participate in the arbitration, or was not served with a notice of intention to arbitrate, or was served with a notice which did not comply with CPLR 7503 (c), the grounds for vacatur include all of those mentioned above and the added grounds of non-arbitrability, noncompliance with the arbitration agreement and the statute of limitations (CPLR 7511 [2]). There ai·e three grounds for modification of an award pursuant to CPLR 7511 (c): miscalculation of figures or mistake in the description of persons, things or property; determination of matters not within the submission to arbitrate; and imperfection in matters of form not affecting the merits. Upon vacating an award, the court may order a rehearing (CPLR 7511 [d]).

An appeal to the Court of Appeals is generally available only by

permission, and the appellant must obtain a certificate granting leave to appeal and certifying that there is a question of law which ought to be reviewed by the Court (CPL 450.90, 460.10 [5] [a]). Without the required certificate, the Court lacks jurisdiction, and any appeal taken will be dismissed (People v. Thomas , 44 NY2d 759 [1978]). Either a judge of the Court of Appeals or a justice of the Appellate Division may grant a certificate permitting an appeal to the Court of Appeals from an order of the Appellate Division, but only a judge of the Court of Appeals may grant leave to appeal from an order of an intermediate appellate court other than the Appellate Division (CPL 460.20 [2]). Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice (People v. Delvas, 233 AD2d 241 [1st Dept 1996]).

The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is

presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found. This presumption does not apply to any such persons if (a) one of them, having obtained such controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he or she received possession thereof, or (b) one of them has such controlled substance upon his or her person (Penal Law § 220.25 [2]).

The presence of a controlled substance in an automobile, other than a public omnibus, is

presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found. This presumption does not apply (a) to a duly licensed operator of an automobile operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants (Penal Law § 220.25 [1]).

Custodial Interference A person commits custodial interference when, knowing he or she has no legal right to do so, he or she takes or entices:

• A child less than 16 years old who is related to the person, from the child' s lawful custodian, intending to hold the child permanently or for a protracted period, or • Any incompetent person or other person entrusted by authority of law to the custody of another person or institution from lawful custody (Penal Law § 135.45).

Defense

For both unlawful imprisonment and kidnapping it is an affirmative defense that (a) the person restrained was a child less than 16 years old, and (b) the defendant was a relative of the child, and (c) his sole purpose was to assume control of such child (Penal Law §§ 135.15, 135.30).

Consideration: GOL §§ 5-1103, 5-1105, 5-1107, 5-1109

GOL§ 5-1103 states that an agreement to modify or discharge any contractual obligation shall not be invalid for lack of consideration if expressed in a writing signed by the party against whom enforcement is sought. GOL § 5-1105 provides that a promise based on past consideration is enforceable if the promise is in a writing signed by the party to be bound, and ''the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed." Under GOL § 5-1107 consideration is not required for any assignment if it is in writing and signed by the assignor. Under GOL § 5-1109 when an offer to enter into a contract is made in a writing signed by the offeror stating that the offer is irrevocable during a stated period of time, the offer is not revocable during such period because of the absence of consideration. If such a writing states that the offer is irrevocable but does not state any period or time of irrevocability, the offer is irrevocable for a reasonable time. Different rules apply to offers between merchants (see UCC § 2-205). V.

Admissibility of Extrinsic Evidence and Parol Evidence Rule

Generally, ''when parties set down their agreement in a clear, complete document, their writing should as a rnle be enforced according to its terms. Evidence outside the four comers of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" (WWW Assocs. v Giancontieri, 77 NY2d 157, 162 [1990]). "[E]xtrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and unambiguous on its face" (Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 NY2d 372, 379 [1969]). Whether a writing is ambiguous is a question of law to be resolved by the court (Van Wagner Adver. Corp. v. S & M Enters., 67 NY2d 186, 191 [1986]).

CONTRACTS I. Mutual Mistake vs. Unilateral Mistake

Generally, a contract entered into under a mutual mistake of fact by the parties is voidable and subject to rescission or reformation (Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446 [1993]). The mistake must be so material that it goes to the foundation of the agreement. The mutual mistake must exist at the time the contract is entered into and must be substantial, and any court-ordered relief is reserved only for "exceptional situations" (Simkin vBlank, 19 NY3d 46, 52 [2012]).

Arson: Penal Law art 150

A person is guilty of arson in the fifth degree when he or she damages property of another without consent of the owner by intentionally starting a fire or causing an explosion (Penal Law § 150.01). A person is guilty of arson in the fourth degree when he recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion. It is an affirmative defense that no person other than the defendant had a possessory or proprietary interest in the building or motor vehicle (Penal Law§ 150.05). A person is guilty of arson in the third degree when he intentionally damages a building or motor vehicle by starting a fire or causing an explosion. It is an affirmative defense that (a) no person other than the defendant had a possessory or proprietary interest in the building or motor vehicle, or if other persons had such interests, all of them consented to the defendant's conduct, and (b) the defendant's sole intent was to destroy or damage the building or motor vehicle for a lawful and proper purpose, and (c) the defendant had no reasonable ground to believe that his conduct might endanger the life or safety of another person or damage another building or motor vehicle (Penal Law§ 150.10). A person is guilty of arson in the second degree when he intentionally damages a building or motor vehicle by starting a fire, and (a) another person who is not a participant in the crime is present in such building or motor vehicle at the time, and (b) the defendant knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility. It becomes arson in the first degree if the fire or an explosion was caused by use of an incendiary device (Penal Law§§ 150.15, 150.20).

Burglary and related offenses: Penal Law art 140

A person is guilty of trespass, a violation, when he or she knowingly enters or remains unlawfully in or upon premises (Penal Law § 140.05). " Premises" includes any real property and any " building," which is defined to include, in addition to its normal meaning, any structure, vehicle or watercraft used for overnight lodging of persons, used by persons for carrying on business therein, or used as an elementary or secondary school (Penal Law § 140.00 [1], [2]). Factors determining the degree of the crime of criminal trespass include whether the premises was a building and if so, the nature of the building, and whether a participant possessed a deadly weapon or instrument (Penal Law§§ 15.10, 15.15, 15.17). Burglary occurs when a person knowingly enters or remains unlawfully in a building with an intent to commit a crime therein whether or not the crime actually is committed (Penal Law § 140.20). Factors determining the degree of the crime of burglary include whether the building was a dwelling and whether a participant possessed or used a deadly weapon or instrument or caused physical injury to a non-participant (Penal Law§§ 140.25, 140.30).

Special Proceedings A. Generally: CPLR 401, 402, 403, 404, 408

A special proceeding is used to establish a right or enforce an obligation in certain civil matters in an expedited fashion. Statutory authorization must exist for the use of a special proceeding. The most common special proceedings are proceedings against a body or officer (CPLR Article 78, see Civil Practice and Procedure, B.), a summary proceeding to recover possession of real property (RPAPL Art. 7, see Real Property I.H., regarding use by a landlord) , and the first application arising out of an arbitrable controversy (CPLR Article 75, see Civil Practice and Procedure, XII.A.). The party who initiates a special proceeding is called the petitioner and the adversary, if any, is the respondent. Leave of court is required to join any other parties (CPLR 401). The pleadings are a petition, an answer (if there is an adverse party as is usual), and a reply. A reply is required if the answer contains a counterclaim denominated as such, and unlike in an action a reply is permitted to respond to any new matter in the answer. Any additional pleadings require leave of court (CPLR 402).

An Article 78 proceeding is a special proceeding and is governed by the procedures of CPLR Article 4 except as otherwise may be provided in Article 78.

An Article 78 proceeding must be commenced in supreme court (CPLR 7804 [b]). It is commenced by filing a petition with the clerk of the court of the county in which the proceeding is commenced (CPLR 7804 [d]). The statute of limitations for an Article 78 proceeding is four months after the determination to be reviewed becomes final and binding upon the petitioner, or after the respondent's refusal, upon demand, to perform its duty, unless a shorter time is provided in the law authorizing the proceeding (see Civil Practice and Procedure, V.A.). Unless the court has granted an order to show cause specifying the time and manner of service, the notice of petition together with the petition and supporting affidavits must be served on any adverse party at least 20 days before the petition is to be heard, the answer with any supporting affidavits must be served at least 5 days before such time, and any reply with any supporting affidavits must be served at least 1 day before such time (CPLR 7803 [c]). The petition and answer in an Article 78 proceeding must be verified (CPLR 7804 [d], see Appendix C). The petition may be accompanied by affidavits or other written proof. The answer must state the facts showing the grounds for the respondent's action of which the petitioner complains. A certified transcript of the record of proceedings being challenged by the petitioner must be filed with the answer. Affidavits or other written proof may be submitted as evidentiary support for the respondent' s position. A reply must be served in response to any counterclaim designated as such and to any other new matter raised in the answer, and also if the accuracy of any record of proceedings annexed to the answer is disputed.

Time to take appeal: CPLR 5513

An appeal as of right must be taken within 30 days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry (CPLR 5513 [a]). A motion for permission to appeal must also be made within 30 days, computed from the date of service by a party upon the person seeking leave to appeal of a copy of the judgment or order to be appealed from and written notice of its entry (CPLR 5513 [b]). If service is made by mail or overnight delivery service, the additional time allowed for service of papers by such means applies ( see Civil Practice and Procedure, IX.C.). If the successful party fails or delays in serving a copy of the judgment or order with written notice of its entry, the appellant may serve it on the successful patt y, and the time to appeal then rnns from that service. The time within which to take an appeal is mandator y and strictly enforced. Extensions of the time are permitted in very limited circumstances, including if before the time to appeal expires the appellant's attorney dies, is removed or suspended, or becomes physically or mentally incapacitated or otherwise disabled (CPLR 5514 [b]), or if there an event permitting substitution of a pa11y, such as the death of a party (CPLR 1022).

Scope of review: CPLR 5501

An appeal from an intermediate order brings up only those issues determined by the order. If an appellant appeals from only part of such an order, any further appeal from any other part is waived (Royal v Brooklyn Union Gas Co., 122 AD2d 132 [2d Dept 1986]). An appeal from a final judgment brings up for review any non-final judgment or order which necessarily affects the final judgment, provided that such non-final judgment or order has not previously been reviewed by the appellate court. An appeal also brings up for review all incidental rulings made at the trial, including evidentiary rulings, provided the appellant objected or there was no opportunity to object (see CPLR 4017). The Appellate Division and the Appellate Terms on an appeal review both questions of law and questions of fact. The Court of Appeals reviews questions of law only, except that it will also review questions of fact where the Appellate Division, on reversing or modifying a final or interlocutory judgment, has expressly or impliedly found new facts and a final judgment has been entered based on those new facts.

Appeals to the Court of Appeals: CPLR 5601, 5602

An appeal may be taken to the Court of Appeals as of right from any order of the Appellate Division that finally determines an action originating in the supreme court, a county com1, sun-ogate's court, family court, the court of claims, or an administrative agency, where there is dissent by at least two justices on a question of law (CPLR 5601). An appeal as of right to the Court of Appeals is also available from an Appellate Division order that finally determines the action where there is directly involved the construction of the New York or federal constitution (CPLR 5601 [l]) or from a judgment of a court of original instance that finally determines an action where the only question involved on the appeal is the constitutional validity of a New York or federal statute (CPLR 5601 [2]). An appeal may be taken to the Com1 of Appeals by pe1mission of the Appellate Division granted before application to the Com1 of Appeals, or by permission of the Com1 of Appeals upon refusal by the Appellate Division, or upon direct application to the Com1 of Appeals, from any order of the Appellate Division not appealable as of right that finally determines an action originating in the supreme court, a county court, a surrogate's court, the family com1, the court of claims, or an administrative agency (CPLR 5602). Certain other appeals may be taken to the Court of Appeals only by permission of the Appellate Division, including an appeal from an order of the Appellate Division that finally determines an action originating in a court other than supreme court, county court, family court, surrogate's court and the court of claims, or an administrative agency and that is not appealable as of right on constitutional grounds (CPLR 5602 [b] [2] [i]).

Appeals A. Taking an appeal: CPLR 5512, .5515

An initial appeal is taken from a judgment or order of the com1 of original instance, and an appeal seeking review of an appellate determination is taken from the order of the appellate court. No appeal may be taken from a decision, verdict or ruling by itself. Unlike federal procedure, an appeal as of right may be taken from almost any interlocutory order of the court of original instance. An appeal is taken by serving on the adverse party a notice of appeal and filing it in the office where the judgment or order of the com1 of original instance is entered. Where an order grants permission to take an appeal, the appeal is taken when such order is entered. A notice of appeal must contain the name of the party taking the appeal, the judgment or order or specific part thereof appealed from, and the court to which the appeal is taken.

District, city, town and village courts: NY Const art VI,§§ 16, 17; CPL 10.30

District comis (established only in Nassau and Suffolk Counties located in the Second Judicial Depatiment), and city, town and village courts, have trial jurisdiction of misdemeanors and violations and preliminary jurisdiction of all offenses.

Instructions to jury, objection: CPLR 4110-b

Any party may file written requests that the court instruct the jury on the law as set forth in the requests. No party may assign as error on appeal the com1's giving or failing to give an instruction unless he objects thereto before the jury retires to consider its verdict.

Appeals: CPL 450.60

Appeals in criminal cases may be taken from most judgments, sentences and orders (CPL art 450). Unless the defendant waived the right to appeal as part of the plea bargain, a defendant who has been convicted and sentenced pursuant to a plea bargain may thereafter appeal pretrial orders denying motions for the suppression of confessions, illegally obtained evidence or identification testimony, but a defendant may not appeal from a sentence which did not exceed that which was agreed to by the defendant as a condition of the plea (CPL 450.10 [1], [2]). An appeal from a judgment, sentence or order of the supreme court or of a county court must be taken to the appellate division of the department in which it was entered (CPL 450.60 [1], [2]). Appellate Terms of the Supreme Court in the First and Second Departments hear appeals from cases originating in the local criminal courts in their departments (CPL 450.60 [3], [4]; 450.60; 22 NYCRR 640.1, 730.1). An appeal from a judgment, sentence or order of a local criminal court located in the Third or Fourth Department must be taken to the county court of the county in which such judgment, sentence or order was entered (CPL 450.60 [3]).

Alternative Dispute Resolution A. Arbitration: CPLR 7501, 7502, 7503, 7506, 7510, 7511

Arbitration is a procedure for resolving a dispute by referring the dispute to an impartial arbitrator (or panel of arbitrators) chosen by the parties to hear evidence and arguments from each side and then decide the outcome. Arbitration is less formal than a trial and is generally, by agreement of the parties, either binding or nonbinding. Written agreements to submit a controversy to arbitration are enforceable and will be enforced by the courts without regard to the merits of the underlying claim (CPLR 7501). A party seeking to resist arbitration may do so only upon three grounds: (1) that no valid agreement was made to arbitrate the issue in question; (2) that a condition precedent in the agreement has not been complied with; or (3) that the claim is barred by the statute of limitations (CPLR 7503 [a], 7502 [b]). In the absence of one of the above enumerated defenses to arbitration, the comt shall direct the patties to arbitrate. Courts are expressly prohibited under CPLR 7501 from determining whether a claim sought to be arbitrated is tenable, or otherwise passing upon the merits of the dispute. A patty initiates arbitration by serving upon the other party a demand for arbitration or notice of intention to arbitrate or by applying to the comt for an order compelling arbitration (7503 [a]). The notice of intention to arbitrate or demand to arbitrate must specify the agreement pursuant to which arbitration is sought, the name and address of the patty serving the notice, and state that unless the party served applies to stay the arbitration within 20 days after such service, the party will be precluded from objecting that a valid agreement was not made or has not been complied with and from asse1ting a limitations bar. The notice or demand must be served in the same manner as a summons or by registered or certified mail, return receipt requested (CPLR 7503 [c]).

Proceeding against body or officer: CPLR 7801, 7802, 7803, 7804

Article 78 of the CPLR governs the procedure for judicial review of matters that were recognized at common law under the common law writs of certiorari, mandamus and prohibition. Article 78 is the vehicle for judicial review of most administrative actions in New York. The determination sought to be reviewed must be final, and the petitioner must exhaust his or her administrative remedies before seeking judicial relief (CPLR 7801). " Body or officer" is defined as including every court, tribunal, board, corporation, officer, or other person, or aggregation of persons, whose action may be affected by an Atiicle 78 proceeding (CPLR 7802). In most, but not all, cases this means governmental officers and agencies. For example, an Article 78 proceeding in the nature of mandamus is the proper remedy to compel the management of a private corporation to comply with the corporation' s by laws regarding corporate governance (e.g. Auer v. Dressel, 306 NY 427 [1954]).

Contracts 1. Contractual provisions

Contractual provisions that the law of a particular jurisdiction will govern the contract will generally be honored and enforced "unless the jurisdiction whose law is to be applied has no reasonable relation to the agreement at issue or enforcement of the subject provision would violate a fundamental public policy of this State" (Eastern Artificial Insemination Coop. v. La Bare, 210 AD2d 609, 610 [3d Dept 1994]). However, General Obligations Law § 5-1401 provides that the parties to a contract involving not less than $250,000 may agree that the law of New York shall govern their rights and duties in whole or in part, whether or not such contract bears a reasonable relation to New York. This statute does not apply to a contract (a) for labor or personal services, (b) relating to any transaction for personal, family or household services, or (c) covered by one of various specific provisions of the Unifonn Commercial Code (see UCC § 1 - 301 [c]). Furthern1ore, General Obligations Law § 5-1402 expressly provides that if a contract contains a provision choosing New York law pursuant to § 5-1401 and involves at least $1,000,000, and contains a provision whereby a foreign corporation, non-resident or foreign state agrees to submit to the jurisdiction of the New York courts, any person may maintain an action or proceeding against such foreign corporation or non-resident in New York. And CPLR 327 (b) expressly provides that a court shall not stay or dismiss any action on the ground of inconvenient forum, where the action arises out of or a contract to which§ 5-1402 law applies.

County Court: NY Const art VI, §§ 10, 11; CPL 10.20

County comis exist in all counties outside New York City and have jurisdiction over all criminal matters but primarily hear felonies.

Criminal facilitation : Penal Law art 115

Criminal facilitation occurs when a person, believing it probable that he or she is rendering aid to a person who intends to commit a crime, engages in conduct that provides another person the means or opportunity for the commission of a crime and that in fact aids such person in the commission of the crime (Penal Law § 115.01). While knowingly aiding the commission of a crime, the facilitator does not necessarily possess the mental culpability required for commission of the crime and is therefore not within the statutory definition of an accomplice (see Criminal Law and Proced ure, II.D.). A person cannot be convicted of criminal facilitation upon the testimony of a person who has committed the felony charged to have been facilitated unless the testimony is corroborated by other evidence that connects the defendant with the facilitation (Penal Law§ 115.15).

Inability to Consent, Including Infancy: General Obligations Law (GOL) § 1-202, 3-101

In New York, a person who is under the age of 18 is an infant (GOL 1-202; 3-101). A contract entered into by an infant is not void, but is voidable at the infant' s election, and until an infant disaffirn1s the contract, it is binding on the infant and the other contracting party (Sternlieb v. Normandie Nat'l Sec. Corp., 263 NY 245 [1934]). An infant may disaffirm a contract during infancy or within a reasonable time after coming of age (Horowitz v Manufacturers' Trust Co., 239 AD 693 [1st Dept 1934]). The common law right of infants to disaffirn1 has been abrogated by various statutes (Shields v Gross, 58 NY2d 338 [1983]), including Civil Rights Law §§ 50, 51 (infant's contract consenting to the use of the infant' s name or image for advertising purposes); GOL § 3-101 (3) (man-ied infant's contract to borrow money to purchase a home); GOL § 3-102 (man-ied infant' s obligation for hospital, medical and surgical treatment and care for infant or infant's children); Education Law § 281 (contract for college loan to infant who has attained age of 16); Arts and Culture Law § 35.03 (court-approved infants' contracts as performing artists and professional athletes) and Insurance Law § 3207 (1) (certain life insurance policies obtained by infants above the age of 14 years and 6 months).

Local public policy

In cases of conflict between foreign legislation and New York public policy, New York public policy prevails. Likewise, a statute or rule of another state that gives the courts of that state exclusive jurisdiction over certain cases does not divest New York courts of jurisdiction (Sachs v Adeli, 26 AD3d 52 [1st Dept 2005]). The public policy exception permits the court to refuse to enforce otherwise applicable foreign law that would violate some fundamental principle of justice, prevalent conception of good morals, or deep-rooted tradition of the common weal (Loucks v Standard Oil Co. ofN.Y., 224 NY 99 [1918]).

Conspiracy: Penal Law art 105

In general, a person is guilty of some degree of conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct. It is essential for a conviction for conspiracy that there be proof of an overt act committed by one of the conspirators in furtherance of the conspiracy (Penal Law § 105.20). Factors in determining the degree of the crime of conspiracy include the seriousness of the crime to be performed and the relative ages of conspirators. New York has adopted the unilateral theory of conspiracy such that a defendant may be convicted of conspiracy even though the illicit agreement is with a party who lacks criminal culpability (e.g., infancy or mental disease or defect) or lacks culpability (e.g., an undercover police officer) (Penal Law § 105.30).

Drug offenses 1. Controlled substances offenses: Penal Law art 220

In general, a person is guilty of some degree of criminal possession or sale of a controlled substance when he or she knowingly and unlawfully possesses or sells ("sell" is defined as "to sell, give, or dispose of to another" (Penal Law § 220.00 [1]) a specified controlled substance defined in Public Health Law Article 33 (excluding marihuana) (Penal Law § 220.00 [5]). Factors in determining the degrees of criminal possession or sale include the type and weight of the drug involved. The degree of criminal possession may also be affected by an intent to sell, and the degree of criminal sale may also be affected by the sale. taking place on the grounds of a school or child day care facility or by the age of the purchaser.

Estates: EPTL 3-5.1

In matters relating to wills that dispose of real property, or the manner in which such property descends in intestacy, the law ("law" as used in the statute, without saying "local law," means including conflict-of-law rules) of the jurisdiction where the real property is located governs (EPTL 3- 5.1 [b] [1]). In matters relating to wills that dispose of personal property, or the manner in which such property devolves in intestacy, the law of the jurisdiction in which the decedent was domiciled at death governs (EPTL 3- 5.1 [b] [2]). If an issue arises as to whether property is real or personal, the law of the state where the asset is located is determinative. A will is formally valid (and therefore admissible to probate in New York) if it was in writing and signed by the testator, and is otherwise executed and attested in accordance with the local law (that is, not including conflict-of-law rules) of either New York (see Trusts, Wills and Estates, II.A.), or the jurisdiction in which the will was executed at the time of execution, the testator was domiciled at the time of execution, or the testator was domiciled at the time of death (EPTL 3-5.1 [c]).

Note oflssue and Certificate of Readiness : 22 NYCRR 202.21

In order to proceed to a trial in a civil action or special proceeding, a party must file a note of issue and certificate of readiness with the clerk of the court, pay the required fee, and serve the documents on all parties. By filing a note of issue, the party is representing to the court that discovery is complete and the case is ready for trial.

CONFLICT OF LAWS I. Application in Specific Areas A. Torts

In the context of tort law, New York uses an interest analysis to determine which of two competing jurisdictions has the greater interest in having its law applied. Under the interest analysis, courts assess two factors: "(1) what are the significant contacts and in which jurisdiction are they located; and (2) whether the purpose of the law [at issue] is to regulate conduct or allocate loss" (Padula v Lilarn Props. Corp., 84 NY2d 519, 521 [1994]). Conduct-regulating rules govern conduct to prevent injuries from occurring. Loss allocating rules prohibit, assign, or limit liability after the tort occurs. If conflicting conduct-regulating laws are at issue, the jurisdiction where the tort occurred has the greatest interest in regulating conduct within its borders. Conduct-regulating rules include rules of the road for motor vehicles and construction safety standards such as Labor Law §§ 240, 241 (see Torts and Torts Damages, I.A.F.) (Padula v. Lilarn Properties Corp., 84 NY2d 519 [1994]). If conflicting loss-allocating rules are at issue, other factors are taken into consideration, in particular, the parties' domicile . In Neumeier v Kuehner, 31 NY2d 121, 128 [1972]), the Court of Appeals adopted three rules that apply to loss-allocation cases. Under the first rule, when the parties to the lawsuit share a common domicile, the loss allocation rule of the common domicile will apply.

Peremptory challenges, challenges for cause, and alternate jurors: CPLR 4106, 4109, 4110

Pursuant to CPLR Article 41, each party has a right to interpose both peremptory challenges and challenges for cause (CPLR 4109, 4110). A peremptory challenge is an objection to a prospective juror for which no reason need be assigned. Peremptory challenges are limited in number and cannot be used to exclude a juror for discriminatory reasons.

Kidnapping

Kidnapping in the abduction of another person (Penal Law§ 135.20). "Abduct" means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him or her in a place where he or she is not likely to be found, or (b) using or threatening to use deadly physical force (Penal Law § 135.00 [2]). The degree of the crime may be elevated based on the purpose for the abduction, the duration of the abduction and the death of the victim (Penal Law§ 135.25). If the victim was less than 16 years old or an incompetent person when abducted, death is presumed, from evidence that the victim's parents, guardians or other lawful custodians did not see or hear from the victim following the abduction and prior to trial and received no reliable information persuasively indicating that the victim was alive. In all other cases, death is presumed from evidence that a person with whom the victim would have been extremely likely to visit or communicate were the victim alive and free to do so did not see or hear from the victim and received no reliable information persuasively indicating that the victim was alive (Penal Law § 135.25 [3]).

Mediation

Mediation is a form of alternative dispute resolution used to resolve disputes between two or more parties. A third party neutral mediator does not decide the case but assists the parties to reach a mutually acceptable agreement. Mediation may be inappropriate if one party is unwilling to compromise or has a significant advantage in power or control over the other party, such as if the patiies have a history of abuse. The process is private and confidential. Mediation is less formal than a trial, allows the parties to communicate freely and participate fully in the process, and is less expensive than litigation.

Other forms of alternative dispute resolution (ADR)

Other forms of ADR include, among other methods, neutral evaluation, collaborative law, and summary jury trials (see http://www.nycourts.gov/ip/adr/What Is ADR.shtml). In neutral evaluation, the parties present their case to an evaluator, who is often an expert in the subject matter in dispute. The evaluator gives an opinion of the strengths and weaknesses of each patt y' s evidence and arguments and offers an opinion of the likely outcome in court. Collaborative law is a legal process enabling married couples who have decided to divorce a way to do so in a cost-efficient manner without going to court, while retaining the professional guidance of their own attorneys. The couples bind themselves to the process and disqualif y their respective lawyers in the event either party decides to go to court. Summary jury trials petmit adversaries to present their case in an abbreviated fo1m to a mock jury which reaches a verdict that is advisory only, unless the parties agree to make it binding. A summary jury trial gives litigants a preview of a potential verdict should the case go to trial. New York courts are implementing a system-wide program of alternative dispute resolution. Parties in a broad range of civil cases will be referred to mediation or some other form of alternative dispute resolution at the onset of the case. The court system will introduce and expand court-sponsored mediation programs, particularly early mediation through automatic presumptive refeITals in identified types of civil disputes, with local protocols, guidelines and best practices to be developed in each jurisdiction to facilitate the process. Practitioners should check applicable court rules regarding ADR.I.

Objections in point of law may be raised either in the answer or in a motion to dismiss made within the time allowed for the answer (CPLR 7804 [f]).

Pursuant to CPLR 7804 (g), on the return date of the petition for an Article 78 proceeding brought on the ground that an agency's determination, made as a result of a hearing held at which evidence was taken, was not supported by substantial evidence, the court will first dispose of any objection that could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of any such objection does not terminate the proceeding, the court will order the proceeding transferred to the Appellate Division for resolution. On the return date of the petition for an Article 78 proceeding brought on any other ground, the court will dispose of the case as it would a motion for summary judgment. If the pleadings, affidavits and other written proof submitted by the parties raise no triable issue of fact, the comt will decide the case on the papers and grant judgment as a matter of law for the prevailing party. If a triable issue of fact is raised, the court shall try it forthwith (CPLR 7804 [g] - [h]).

An estate or interest in real property, except for a lease not exceeding one year, or any trust or power over or concerning real property cannot be created, granted, assigned, surrendered, or declared unless by act or operation of law or by a deed or conveyance in writing, signed by the person creating, granting, assigning, surrendering, or declaring the same, or by a lawful agent, authorized by writing to do so (GOL § 5-703 [1]). A contract for the leasing of any real property for more than one year, or for the sale of any real property or an interest therein, is void unless the contract or some note or memorandum thereof is in writing, signed by the party to be charged (GOL § 5-703 [2]). A contract to devise real property or establish a trust of real property, or any interest in or right with reference to real property, is void unless the contract or some note or memorandum thereof is in writing and signed by the party to be charged (GOL § 5-703 [3]). However, even without a signed writing courts may compel specific performance in cases of part performance (GOL § 5-703 [4]).

Section 304 of the State Technology Law provides that the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.

Reque st for Judicial Intervention , Trials A. Reque st for Judicial Intervention: 22 NYCRR 202.6

The first time any one of the parties to an action or proceeding seeks any relief from a court, whether by bringing a motion, filing a note of issue or otherwise, the party must file a request for judicial intervention and in most cases pay the required fee.

CRIMINAL LAW AND PROCEDURE I. Subject Matter and Appellate Jurisdiction

The Criminal Procedure Law (CPL) divides New York courts into two categories: su perior courts (which include supreme court and county court) and local criminal courts (which include city courts, town and village courts, district courts, and the New York City Criminal Court (CPL 10.10). Violations and misdemeanors are generally initiated and tried in local criminal courts. A felony may be initiated by the filing of an infonnation or complaint in a local criminal comi; however, in order to prosecute a defendant for a felony, there must ultimately be a grand jury indictment (unless waived by the defendant), and most proceedings following arraignment in a local criminal couti on a felony complaint take place in a superior court. Any presentation in a superior court. must be by grand jury indictment or, if waived by the defend ant, by a superior court information filed in the superior court by the district attorney (CPL 210.05). Once a grand jury indictment or a superior court information is issued, all further proceedings take place in the superior court (CPL 170.20, 170.25). Prosecution of felonies and misdemeanors involving youths under the age of 18 are handled either in the Youth Part of superior courts or in Family Court ( see Matrimonial and Family Law, VIII), except that misdemeanors under the Vehicle and Traffic Law are prosecuted in the local criminal courts.

New York City Criminal Court: NY Const art VI, § 15; New York City Criminal Court Act § 31

The New York City Criminal Court has criminal jurisdiction within the City of New York over misdemeanors and violations.

Supreme Court: NY Const art VI, § 7; CPL 10.20, People v Correa, 15 NY3d 213 (2010).

The Supreme Court, as a court of general jurisdiction, can exercise jurisdiction over all criminal proceedings. In practice, the only criminal jurisdiction it exercises is over felonies in New York City and in Domestic Violence or Integrated Domestic Violence Parts anywhere in New York (see Matrimonial and Family Law, VI).

Culpable mental states: Penal Law§ 15.05

The culpable mental states are intentionally, knowingly, recklessly or with criminal negligence. A person acts "intentionally" with respect to a result or conduct when his or her conscious objective is to cause such result or engage in such conduct. " Knowingly " requires that a person be "aware" that his or her conduct is of the nature described by the offense or that a circumstance described by the offense exists. A person acts "recklessly" with respect to a result or to a circumstance when he or she is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. "Criminal negligence" requires that a person fail to perceive a substantial and unjustifiable risk that a certain result will occur or a certain circumstance exists. For a person to act recklessly or with criminal negligence, the risk must be of such nature and degree that the disregard of it or the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Unconscionability and Illegality: General Business Law § 349; GOL §§ 5-401, 5-501, 5- 321, 5-322.1, 5-323, 5-325, 5-326

The determination of unconscionability is a matter of law for the court to decide. In general, unconscionability requires some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. The party must demonstrate that the contract was both procedurally and substantively unconscionable when made.

Employment Contracts

The employment-at-will doctrine provides '"that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason" (Murphy v American Home Prods. Corp., 58 NY2d 293, 300 [1983]). Thus, New York does not recognize a claim for wrongful discharge of an at will employee. However, there are some exceptions to the at-will doctrine. If assurances of job security are made by the employer, coupled with express provisions in an employee manual limiting an employer's ability to terminate at will, and the employee relies on these assurances, the presumption of the hiring-at-will doctrine may be rebutted (Weiner v McGraw-Hill, Inc., 57 NY2d 458 [1982]). Noting that in every contract there is an implied understanding that neither party will intentionally and purposely do anything to prevent the other party from carrying out the agreement, the Court of Appeals in Wieder v Skala, 80 NY2d 628 [1992]) refused to dismiss a cause of action for wrongful discharge brought by an associate against a law firm that discharged him for reporting the ethical misconduct of another associate. The Court found that insisting that the plaintiff associate must act unethically and in violation of DR 1-103 (A), one of the primary professional rules, amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship. To date, the Wieder exception has not been extended to a business or profession other than the practice of law.

A special proceeding is used to bring before the court the first application arising out of an arbitrable controversy which is not made by motion in a related pending action (CPLR 7502 [a], 7503 [a]).

The provisional remedies of attachment and preliminary injunction are available in connection with a pending arbitration, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief (CPLR 7502 [c]). The arbitrator must be sworn before hearing a dispute, and the parties are entitled to be heard, to present evidence and to cross-examine witnesses. Arbitrators are not bound by the rules of evidence that apply in judicial proceedings (Matter of Silverman [Benmor Coats} , 61 NY2d 299, 308 [1984]). Each party has a non-waivable right to be represented by counsel throughout the arbitration proceeding (CPLR 7506). An arbitration award is not enforceable as a judgment unless an application to confirm an award is made within one year after delivery of the award to the moving party (CPLR 7510). An application to vacate or modify an award must be made within 90 days after delivery of the award to the moving party (CPLR 7511 [a]). If the parties have agreed that the arbitration is to be nonbinding so that the decision of the arbitrator is to be advisory only, the arbitration may still be compelled ( Board of Education v. Cracovia, 36 AD2d 851 [2d Dept 1971]), but any award may not be properly confirmed against a party who rejects it (Carter v. County of Nassau, 8 AD3d 603 [2d Dept 2004]).

Unsolicited Merchandise: General Business Law § 396

The receipt and use of any unsolicited goods, wares or merchandise will not cause the formation of a contract and is for all purposes deemed an unconditional gift to the recipient who may use or dispose of the same in any manner he or she sees fit without any obligation on his part to the sender (General Business Law § 396 [2]).

Robbery: Penal Law art 160

The statutory definition of robbery is a forcible stealing. A robbery occurs when in the course of committing a larceny , a person "uses or threatens the immediate use of physical force upon another person" (Penal Law §§ 160.00, 16.05). The use or threat of force must be "for the purpose" of preventing or overcoming resistance to the taking of the property or "for the purpose" of compelling another to deliver up the property. In People v Smith (79 NY2d 309 [1992]), the Court of Appeals decided that the "for the purpose" language required that the defendant intend one of the alternatives, rather than that the force used have one of the alternative effects. Factors in determining the degree of the crime of robbery include being aided by another person physically present, causing physical injury to a non-participant, being armed with a deadly weapon, using or threatening the use of a dangerous instrument and displaying what is or appears to be a firearm (Penal Law §§ 160.10, 160.15).

Assault and related offenses: Penal Law art 120

The traditional elements of assault are the specific intent to cause physical injury and the causing of such injury. The degrees of assault depend on such factors as whether physical or serious physical injury was caused, whether a deadly weapon or dangerous instrument was used, the status of the victim (e.g., police, other public servants, medical care providers, children, senior citizens, process servers), and the actor's mental culpability. Assault crimes can involve intentional, reckless and criminally negligent culpable mental states (see Criminal Law and Procedure, H.B.). The Penal Law includes some specific assault crimes, such as vehicular assault (Penal Law §§ 120.03, 120.04, 120.04-a) and gang assault (Penal Law §§ 120.06, 120.07), and some related crimes, including menacing (Penal Law §§ 120.13, 120.14, 120.15, 120.18), hazing (Penal Law §§ 120.16, 120.17), reckless endangerment (Penal Law §§ 120.20, 120.25), promoting suicide (Penal Law §§ 120.30, 120.35), stalking (Penal Law §§ 120.45, 120.50, 120.55, 120.60) and strangulation (Penal Law art 121).

Affirmative and Ordinary Defenses A. Burden of proof: Penal Law§ 25.00

There is a fundamental distinction between an ordinary defense and an affirmative defense. The prosecution has the burden of disproving an ordinary defense beyond a reasonable doubt; all that is required for the defendant to establish the defense is evidence, which if credited, is sufficient to raise a reasonable doubt. When an affirmative defense is raised at trial, the defendant has the more demanding burden of establishing such a defense by a preponderance of the evidence (People v Butts, 72 NY2d 746 [1988]).

Limitations on Application of Foreign Law A. Substantive /procedural dichotomies

When New York is the forum state, its own law normally determines whether a foreign law is procedural or substantive and the foreign jurisdiction's designation of the rule as procedural or substantive is not dispositive (Davis v Scottish Re Group Limited, 30 NY3d 247 [2017]). Under New York's choice of law rules, if the foreign law is determined to be procedural, New York courts will not apply it because procedural rules are governed by the law of the forum. If the foreign law is determined to be substantive, the New York courts will be required to apply it. Thus, a New York court will apply New York choice of law principles to determine whether a foreign state time limit is a substantive or procedural rule (Tanges v Heidelberg N. Am., 93 NY2d 48 [1999]). If the time limit is a substantive law of the other state, New York courts will apply the time limit of that state, whereas if the time limit is a procedural rule of the other state, New York will apply its own procedural rule. A normal statute of limitations, which prevents a plaintiff from delaying an action to the detriment of a potential defendant, is considered a procedural rule. On the other hand, a statute that imposes a time limit which blocks a cause of action before it may accrue is considered a "statute of repose" and a substantive rule. If a statute creates a cause of action and integrates into it a time limit to bring an action, so as to qualify the right, the time limit is an ingredient of the cause of action and, thus, a substantive rule. For example, Tanges, supra , involved a Connecticut statute which prohibited a products liability cause of action from being brought against a party later than ten years after the party last parted with possession or control of the product. Because the ten year period began to run even before a cause of action accrued and because the statute was part of legislation intended to supplant any common law causes of action for products liability, the court determined it to be a substantive statute of repose, even though Connecticut courts would appear to consider it procedural.

A "crime" is

a misdemeanor or a felony. Although many crimes are defined by the Penal Law, violations of a myriad of other statutes may constitute crimes (e.g., Vehicle and Traffic Law art. 31 [alcohol and drug-related offenses], General Business Law [fraudulent investment practices], Election Law [illegal voting and campaign practices], and Agricultural and Markets Law art. 26 [animal cruelty].

A "traffic violation" is

a violation of any provision of the Vehicle and Traffic Law or of any other law, ordinance, order, rule or regulation regulating traffic which is not expressly declared to be a misdemeanor or a felony (Vehicle and Traffic Law § 155). F.

A "felony" is

an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.

A ''violation" is

an offense, other than a traffic infraction, for which a sentence to a term of imprisonment in excess of 15 days cannot be imposed.

A "misdemeanor" is

an offense, other than a traffic infraction, for which a sentence to a term of imprisonment in excess of 15 days, but not in excess of one year, may be imposed.

Classifications of offenses: Penal Law § 10.00 An "offense" is

any conduct for which a sentence to a term of imprisonment or to a fine is provided by any law or by any law or ordinance of the state or a political subdivision or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt it.

The basic definitions of intentional murder in the first degree and in the second degree are the same, i.e., "with intent to cause the death of another person, he or she causes the death of such person, or of a third person" (Penal Law §§ 125.24 [1], 125.27 [1]).6 In addition to requiring an intentional killing, a charge of first-degree murder requires

that the defendant be at least 18 years of age (Penal Law§ 125.27 [1] [b]; People v. Gatti, 277 AD2d 1041 [4th Dept 2000]) and that the defendant' s conduct include one of the numerous separate aggravating factors listed in the statute, many of which involve the status of the victim (e.g., police officers, peace officers and employees of correctional facilities, various persons who as part of their official duties respond to emergencies, witnesses to crimes and their immediate family members, judges and officers of the court)(Penal Law § 125.27 [1] [a]). Other aggravating factors include that the intentional killing was a murder for hire, that it was committed during the course of another specified crime, and that there were multiple victims (Id.). The rule of transferred intent is incorporated in each of the intentional homicide crimes. Under that rule, "where the resulting death is of a third person who was not the defendant' s intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed" (People v Dubarry, 25 NY3d 161, 171 [2015]), quoting People v Fernandez, 88 NY2d 777, 781 [1996]).

The second rule applies in certain circumstances when

the parties are domiciled in different states and the local law favors the one of them. If a defendant' s conduct occurred in the state of his or her domicile and that state would not impose liability, the defendant will not be exposed to liability under the law of the victim' s domicile. Conversely, if the plaintiff is injured in the place of his or her domicile and would be entitled to recover in that state, the defendant should generally be unable to interpose the law of his or her domicile to defeat recovery. For situations not covered by the first two rules, the third Neumeier rule provides that most of the time the governing law will be that of the place where the accident occurred, unless "displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multistate system or producing great uncertainty for litigants" (Id. at 128). Loss-allocating rules to which the Neumeier rules apply include motor vehicle guest statues, charitable immunity statutes, wrongful death statutes, vicarious liability statutes, and contribution rules (see Padula, supra, and cases therein cited).

An application to stay arbitration must be made by

the party served with a demand for arbitration or notice of intention to arbitrate within 20 days after service of the notice or demand or is precluded. Notice of the application to stay must also be served in the same manner as the notice of intent to arbitrate (CPLR 7503 [c]). Any provision. in an arbitration agreement or arbitration rules that waives the right to apply for a stay of arbitration is void. A party wishing to resist arbitration may apply to stay the arbitration upon any of the three enumerated grounds. If the party has been served with a demand for arbitration or notice of intent to arbitrate compliant with CPLR 7503 (c), the opposing party must timely move for a stay raising the said grounds or they are waived (CPLR 7503 [l]). A limitations defense, however, may still be asserted before the arbitrator, who has the discretion whether or not to apply the bar (CPLR 7502 [b]). If the limitations defense is decided by the arbitrator, it cannot be later asserted as a basis to vacate or modify an award. If the demand for arbitration fails to comply with the fonnalities of CPLR 7503 (c), and the aggrieved party did not participate in the arbitration, the said grounds are not waived and can still be raised in a motion to vacate an award (Blamowski v Munson Transportation, Inc., 91 NY2d 190 [1997]).

Under New York law, agreements that are contrary to public policy are generally

unenforceable. For example, General Business Law § 349 prohibits deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service to a consumer. To establish a claim under section 349, a plaintiff must allege that a defendant is engaging in consumer-oriented conduct which is materially deceptive or misleading, and, as a result, the plaintiff has been injured (Stutman v. Chemical Bank, 95 NY2d 24, 29 [2000]). Deceptive acts are defined as those that are likely to mislead a reasonable consumer acting reasonably under the circumstances (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 NY2d 20, 26 [1995]). New York ' s usury statute provides that loans carrying annual interest rates of more than 16 percent are prohibited, subject to limited exceptions (GOL § 5-501; Banking Law § 14-a). Contractual exemptions from liability for negligence are disfavored in New York. GOL § 5-321 provides that a landlord cannot exempt itself from liability for negligence in the operation or maintenance of its property, regardless of whether the property is residential or commercial. However, where the liability is to a third party, the statute does not preclude an indemnification provision when coupled with an insurance procurement requirement in a commercial lease negotiated at arm 's length between two sophisticated parties (Great Northern Ins. Co. v. Interior Constr. Corp., 7 NY3d 412, 419 [2006]). GOL § 5-322.1 provides that an agreement related to construction, alteration, repair, or maintenance of a building that purports to exempt contractors from liability caused by their own negligence is against public policy and void. Likewise, agreements exempting building service or maintenance contractors from liability for negligence are void and unenforceable (GOL § 5-323). Businesses providing garages, parking lots, or similar places for the housing, storage, parking, repair, or servicing of vehicles may not exempt themselves from liability for damages for injury to persons or property resulting from their negligence in the operation of vehicles or in the conduct or maintenance of such business (GOL § 5-325). GOL § 5-326 provides that the owner or operator of pools, gymnasiums, and places of amusement or recreation, for the use of which the owner or operator receives a fee or other compensation, may not exempt themselves from liability for damages caused by their negligence. Similarly, a caterer or catering establishment may not exempt itself from liability for damages caused by its negligence (GOL 5-322).

Manslaughter in the first degree occurs when

with the intent to cause serious physical injury to another person, the defendant causes the death of such person or of a third person; or with the intent to cause the death of another person, he causes the death of such person or of a third person under the influence of extreme emotional disturbance (Penal Law§ 125.20 [1], [2]; see Criminal Law and Proced ure, H.B., IV.D.). A person is guilty of manslaughter in the second degree when he or she recklessly causes the death of another or intentionally causes or aids another person to commit suicide (Penal Law § 125.15, see Criminal Law and Procedure, H.B. , HI.C.).

Larceny: Penal Law art 155 Penal Law § 155.05 (1) contains the general definition of larceny for all degrees of the crime: a person commits larceny when, with intent to deprive another of property or to appropriate the same to himself, herself or to a third person, he or she wrongfully takes, obtains or withholds property from its owner. Penal Law § 155.05 (2) includes the four common-law larceny offenses (larceny by trespassory taking, larceny by trick, embezzlement, and obtaining property by false pretenses). It also includes larceny committed by:

• Acquiring lost property, • Committing the crime of issuing a bad check (Penal Law § 190.05), • False promise, and • Extortion. The concept of larceny by false promise is intended to cover situations which are not covered by larceny by false pretenses and larceny by trick, both of which require the intentional misrepresentation of a past or present fact. Larceny by false promise is committed when a person obtains property of another, pursuant to a scheme to defraud, by means of a representation , express or implied, that he, she or a third person will in the future engage in particular conduct, with no intention that the conduct will occur. A higher burden of proof is required for larceny by false promise. The defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that the promise was not performed and must be based upon evidence establishing that the facts and circumstances are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant' s intention or belief that the promise would not be performed. Factors determining the degree of the crime of larceny include the value of the stolen property, the nature of the property (e.g., a credit card, a firearm, a motor vehicle, a religious icon or am ATM machine) and the use of extortion (Penal Law §§ 155.30, 155.35, 155.40, 155.42, 155.43).

Demand and waiver of trial by jury: CPLR 4101, 4102 Generally speaking, trial by jury is available in actions at law and not available in actions involving claims in equity. CPLR 4101 (1) provides that unless a jury trial is waived issues of fact shall be tried by a jury in:

• An action for a sum of money only; • An action of ejectment, for abatement of and damages for a nuisance, or for determination of a claim for real property; or • Any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury. Any party may demand a trial by jury by serving upon all other parties and filing a note of issue containing a demand for trial by jury. Any party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within 15 days after service of the note of issue (CPLR 4102 [a]). If no party demands a trial by jury, the right to trial by jury is deemed waived by all parties subject to the court ' s power to relieve a party from the effect of noncompliance based on the absence of undue prejudice to the other party (Id. at [e]).

Statute of Frauds: GOL §§ 5-701, 5-703; State Technology Law§ 304 The statute of frauds provisions are contained in the General Obligations Law. Generally, the agreements, promises, or undertakings that are void unless in writing and signed by the party to be charged, include any agreement, promise or undertaking that is:

• By its terms, not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; • A special promise to answer for the debt, default, or miscarriage of another person; • Made in consideration of marriage, except mutual promises to marry; • A subsequent or new promise to pay a debt discharged in bankruptcy; • A contract to pay compensation for services rendered in negotiating a loan or in negotiating the purchase, sale, exchange, renting, or leasing of any real estate or interest therein. However, a signed writing is not required if the contract is to pay compensation to an auctioneer, an attorney at law, or a duly licensed real estate broker or real estate salesman or; • An assignment of a life or health or accident insurance policy, or a promise to name a beneficiary of any such policy. (GOL § 5-701).

The degree of the crime of custodial interference is elevated when it is committed:

• By removing the victim from this state with the intent to permanently remove the victim from the state, or • Under circumstances which expose the victim to a risk that the victim's safety will be endangered or the victim's health will be materially impaired (Penal Law § 135.50). It is an affirmative defense to a prosecution of an elevated degree of custodial interference based on the victim being removed from the state that the victim had been abandoned or that the taking was necessary in an emergency to protect the victim because the victim has been subjected to or threatened with mistreatment or abuse (Id.).

Felony murder, also second degree murder, occurs if during or in immediate flight from the commission or attempted commission of a statutorily specified felony (e.g., robbery, burglary, kidnaping , arson, rape, escape), the sole participant or one of several participants in the crime causes the death of a person other than a participant (Penal Law § 125.25 [3]). Each participant in the crime, irrespective of whether he or she caused the death, may be guilty of felony murder under such circumstances. It is an affirmative defense that the defendant:

• Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and • Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and • Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and • Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

Although many sex offenses include the age of a child as an element of the offense, most sex crimes do not require the mental state of "knowingly." Consequently, it is not a defense that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute. However, if the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant did not know of the facts or conditions responsible for such incapacity to consent (Penal Law§ 130.10 [1]). And if the lack of consent is based solely on the victim' s mental defect or mental incapacity, a conviction may not be based solely on the testimony of the victim, unsupported by other evidence tending to:

• Establish that an attempt was made to engage the victim in the accused sexual contact at the time of the occurrence; and • Connect the defendant with the commission of the offense (Penal Law § 130.16).

Pursuant to Penal Law § 130.05 (3), a person is deemed incapable of consent when he or she is:

• Less than 17 years old, • Mentally disabled or incapacitated, or physically helpless, • An inmate, patient or resident of a correctional facility, a residential care facility operated by the office of children and family services, or a facility for the treatment of people with mental illnesses, developmental disabilities or substance abuse problems, and the actor is an employee ("employee" is specifically defined for the various types of facilities), • A client or patient of a health care provider or mental health care provider charged with one of certain specified crimes, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination, or • In the custody of a law enforcement official and the actor is a law enforcement official who either: (i) is maintaining custody of the person; or (ii) knows, or reasonably should know, that at the time of the offense, the person is in custody. Factors defining and determining the degree of many sex crimes, such as rape, criminal sexual act and sexual abuse, include the relative ages of the perpetrator and the victim, the reason for lack of consent, the extent of the sexual contact and the use of physical force.

A challenge for cause, which may be made as often as necessary, is an objection that a prospective juror is unable to be impartial for a particular reason. Lawyers may stipulate to excuse a juror challenged for cause or the challenge is decided by the court. CPLR 4110 enumerates the following grounds for challenge, which grounds are not exhaustive:

• That a juror is in the employ of a party to the action; • If a party to the action is a corporation, that the juror is a shareholder or a stockholder therein; • In an action for damages to person or property, that the juror is a shareholder, stockholder, director, officer, or employee, or in any manner interested in any insurance company issuing policies for protection against liability for damages for injury to persons or property; and • That a juror is related within the sixth degree by consanguinity or affinityto a party. The fact that a juror is a resident or taxpayer of a city, village, town or county which is a party to the. action is not a ground for challenge. At the time of jury selection, one or more alternate jurors are chosen to participate in the trial to the same extent as a regular juror and to serve until the submission of the case to the jury. When the case is submitted, the court may retain the alternate jurors to ensure availability if a regular juror becomes unable to perforn1 the duties of a juror or may dismiss the alternate jurors (CPL R 4106).

Third-Party Beneficiary Contracts, Including Intended vs. Incidental Beneficiaries Under New York law, a party seeking to enforce a contract as a third-party beneficiary must establish:

• The existence of a valid contract between other parties, • That the contract was intended for its benefit, and • That the benefit was direct rather than incidental (Mendel v Henry Phipps Plaza W , Inc., 6 NY3d 783 [2006]).

Mental disease or defect: Penal Law§ 40.15 In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he or she lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he or she lacked "substantial capacity to know or appreciate" either:

• The nature and consequences of such conduct, or • That such conduct was wrong. Lacking a substantial capacity to "know or appreciate" is " designed to permit the defendant possessed of mere surface knowledge or cognition to be excused, and to require that he have some understanding of the legal and moral import of the conduct involved if he is to be held criminally responsible" (People v Adams, 26 NY2d 129, 135 [1970]).

Accessorial conduct (Accomplice): Penal Law art 20 When one person engages in conduct which constitutes an offense, another person is criminally liable for that conduct when, acting with the mental culpability required for the commission of the offense, he or she solicits, requests, commands, importunes, or intentionally aids that other person to engage in that conduct (Penal Law § 20.00). In any prosecution of a defendant based upon his or her accessorial conduct, it is no defense that:

• The other person is not guilty of the offense in question owing to a lack criminal responsibility or other legal incapacity or exemption, or any other factor precluding the mental state required for the commission of the offense in question; or • The other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has previously been acquitted thereof, or has legal immunity from prosecution therefor; or • The offense in question can be committed only by a particular class or classes of persons (e.g., bribe receiving by a public official), and the defendant, not belonging to such class or classes, is for that reason legally incapable of committing the offense in an individual capacity (Penal Law § 20.05; see Criminal Law and Procedure, IV.I. and Evidence, III.A. regarding the need for corroboration of the testimony of an accomplice).

A party is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either:

• The performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary, or • The circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance (LaSalle Nat'l Bank v Ernst & Young, LLP, 285 AD2d 101, 108 [1st Dept 2001]). An incidental beneficiary is a beneficiary who is not an intended beneficiary (Fourth Ocean Putnam Corp. v Interstate Wrecking Co. 66 NY2d 38 [1985]). A benefit will be deemed a direct benefit where the anticipated benefit is "sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [the third party] if the benefit is lost" (Mendel, supra at 786). An intention to benefit a third party must be derived from the contract as a whole. Thus, where performance is rendered directly to a third party, it is presumed that the third party is an intended beneficiary of the contract (Logan-Baldwin v L.S.M. Gen. Contrs. Inc, 94 AD3d 1466 [4th Dept 2012]).

Mistake of fact or law: Penal Law§ 15.20 A person is generally not relieved of criminal liability for conduct because he or she engages in such conduct under a mistaken belief of fact unless the factual mistake:

• negates the culpable mental state required for the commission of the offense, • expressly constitutes a defense under the statute defining the offense, or is of a kind that supports a defense of justification (see Criminal Law and Procedure, IV.H.) (Penal Law 15.20 [1]). Additionally, a person is generally not relieved of criminal liability for conduct because he or she engages in the conduct under the mistaken belief that it does not constitute an offense, unless the mistaken belief is based upon an official statement of the law (Penal Law 15.20 [2]). If an element of an offense is the age of a child, knowledge by the defendant of the age of the child is not an element of the offense even if the term "knowingly" is used in defining the offense, and it is not, unless expressly so provided, a defense to a prosecution that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute (Penal Law 15.20 [3]).

A unilateral mistake alone is an insufficient basis for reformation or rescission, in the absence of a showing of fraud, duress or similar inequitable conduct (Barclay Arms v Barclay Arms Assoc., 74 NY2d 644 [1978]; Village of Waterford v. Camproni, 200 AD2d 930 [3d Dept 1994]). To be successful, the party alleging the unilateral mistake must also show:

• that the mistake was material; • that the mistake was made unknowingly despite the exercise of ordinary care; • that enforcement of the contract would be unconscionable and would result in unjust enrichment of one party at the expense of the other; and • that the parties can be returned to the status quo without prejudice Cox v Lehman Bros., 15 AD3d 239 [2005]); Long v Fitzgerald, 240 AD2d 971 [3d Dept 1997]; Desiderado vN & A Taxi, Inc., 190 AD2d 250 [ 1993 ]; Moreyv Sings, 174 AD2d 870 [1991]).