0 Some Important Concepts

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Nuisance

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See the definitions of nuisance, private nuisance and public nuisance.

Private Nuisance: An interference is considered to be substantial if it is unreasonably offensive or annoying to a reasonable person (look to the community in which the interference occurs to determine whether a reasonable person finds the nuisance unreasonably offensive or annoying).

Courts will consider the following in determining whether a private nuisance exists:

(1) the location and character of the surroundings
(2) the nature, extent, and frequency of the activity
(3) the utility or social value of the activity.

Public Nuisance: Recovery is only available if a private party has suffered damages that are unique to the general public.

Remedies (for both): money damages. If money damages are insufficient to prevent or end the harm (the harm is a continuing harm or a harm that will cause irreparable harm), injunctive relief.

Defenses:
(1) contributory negligence (but not if the nuisance is intentional or reckless)
(2) compliance with legislative action (typically a zoning ordinance or license) (not an absolute defense but can be raised as persuasive or relevant evidence)
(3) coming to the nuisance (does not bar an action, but will be considered by the court in determining whether P had a cause of action).

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Evidence - The Best Evidence Rule

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Under the Best Evidence Rule, FRE 1002, where the material terms of a writing are at issue, the "original writing" itself (which includes photocopies and carbons) must be produced. Copies and oral testimony concerning the writing's contents are permissible only on a showing that the original is unavailable and that its lack of availability is not the result of the proponent's serious misconduct. There are only two situations in which the Best Evidence Rule applies:

(1) the terms of the writing are being proven, OR
(2) the witness is testifying relying on the writing.

Remember, this rule applies only to material terms!

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CrimLaw - Accomplice Liability

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Scope - liable for all crimes that he committed or assisted and for any other foreseeable crimes.

Withdrawal is possible but depends on the level of involvement. If mere encouragement - by repudiating the encouragement. If more - only by undoing the assistance

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Age Requirements

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(1) for a will - 18 (however, a parent must support a child until 21, otherwise the parent may be disqualified from taking a share of the child's estate)

(2) for process of service - 18

(3) for marriage:
i. typically, 18
ii. 16-17 - with the consent of both parents
iii. 14-15 - with the consent of both parents and a judge

(4) 18 years to be an incorporator or a director of a corporation (but does not have to be a NY resident)

(5) 18 years - contract capacity. Before 18 - the contract is voidable, unless the contract is:
i. medical obligations
ii. by a 14,5 year old for health insurance
iii. by a 16 year old for a student loan
iv. by a married person to acquire real property to be the marital residence
v. by an infant superstar from the age of the superstardom

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The Doctrine of Facts of Independent Significance

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A will may provide for the designation of a beneficiary or the amount of a disposition by reference to an unattested act occurring AFTER the execution of the will. This type of provision is valid only if the future act has some significance apart from the will.

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Class Gifts and the Rule of Convenience

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a gift to a number of persons as a group when the size of the group may either increase or decrease. To qualify as a class, the group must be natural. If the testator's intent is unclear or ambiguous, a disposition to issue, lawful issue, children, descendants, heirs, heirs at law, next of kin, or distributees includes adopted children and their issue and children conceived before but born alive after the disposition becomes effective.

The rule of convenience is a rule of construction and it applies if the grantor did not specifically express when a class will close - a class closes whenever any member of the class is entitled to possession or distribution of the property.

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Time Requirements

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Corporations:

(1) the filing date of a certificate of incorporation (COI) is the effective "birth date" of the corporation, however COI can expressly delay the start date for up to 90 days from the filing date

(2) a name for a corporation can be reserved for up to 60 days before filing the COI

(3) in judicial dissolution, the directors or those in control, no later than 30 days after the filing of a petition for dissolution, shall make available for inspection and copying to the petitioners under reasonable working conditions the corporate financial books and records for the 3 preceding years

(4) after judicial dissolution, the corporation may give a notice requiring all creditors and claimants to present their claims in writing and in detail at a specified place and by a specified day, not less than 6 months after the first publication of the notice

(5) unless otherwise agreed, a corporation may not undergo a merger or consolidation with an interested shareholder within 5 years of such shareholder's acquisition of shares unless such transaction is approved by the board or a majority of disinterested shareholders

(6) (some kind of presumed dissolution) when a transaction involves a sale, lease, exchange or other disposition of all or substantially all the assets, including the name, to a new corporation under the same name,

upon the expiration of 30 days from the filing of COI of the new corporation

the existing corporation shall be automatically dissolved,

unless such corporation has changed its name

(7) inspection of books and records - a corporation must keep correct and complete books and records of account and minutes of proceedings of its shareholders, board and executive committee

and a record containing the names and addresses of all shareholders, the number and class of shares held by each and the dates when they became the owners.

any person who has been a shareholder upon at least 5 day written demand has the right to examine in person or by agent or attorney, during usual business hours, the minutes of the proceedings and record of shareholders and to make extracts

for any purpose reasonably related to such person's interest as a shareholder.

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Professional Responsibility:

(1) after representation, an attorney must keep a record of client funds for at least 5 years

(2) a lawyer must keep a record for 7 years of all withdrawals and deposits from his bank accounts, retainer agreements, bills, payments, and checkbooks.

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Trusts:

(1) 18 months - in case of a life insurance used to fund a trust, the trustee must claim the proceeds within 18 months after the death of the insured. Otherwise, the proceeds are paid to the personal representative or assigns of the insured

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Number Requirements

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Corporations:

(1) the default rule for subscription agreements - if a subscriber has paid more than 50% of the purchase price of new shares, the corporation must try to sell the stock to other buyers; if it receives an amount greater than the balance owed, the subscriber receives the difference

(2) COI must provide for quorum which can be in the range 1/3 - 100%

(3) lowering the threshold of shareholders forwarding a petition for dissolution to less than 10% must be in COI to be effective

(4) corporate guaranty may be give when authorized by 2/3 of the outstanding shares, even if not in furtherance of the corporate purpose, and may be secured by a mortgage, pledge, or security interest

(5) unless otherwise provided in COI or bylaws, elections for director must be by plurality vote (the person who gets the most number of votes) and other actions by majority vote ( > 50%)

(6) Quorum - for shareholders and directors the default quorum is the majority. COI or the bylaws may provide another quorum in the range of 1/3 - 100%

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Cumulative Voting

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Must be provided for in COI - each shareholder is entitled to as many votes as equal the number of votes for his shares (typically 1 vote per share, unless otherwise provided) multiplied by the number of directors to be elected. The shareholder may cast all his votes for a single director or may distribute them.

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Preemptive Rights

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Default for 02.22.98 corporations.

For later corporations - must be expressly provided for in COI.

entitle shareholders to purchase securities as nearly as practicable in such proportions as to preserve the relative dividend rights and voting rights

at a price not less favorable.