Conflict Of Laws New York

Front 1

3 Questions for Full Faith & Credit

Back 1

1. Have the Full Faith & Credit requirements been met?

2. Are there defenses to Full Faith & Credit?

3. What are the effects of recognizing a sister state judgment, and who will be bound by it?

Front 2

Full Faith & Credit Requirements

Back 2

1. There must have been proper jurisdiction in the rendering court

2. The judgment must be on the merits

3. The judgment must be final

The satisfaction of these requirements is determined according to the law of the state that RENDERED the judgment

Front 3

Proper Jurisdiction

Back 3

Court must have proper jurisdiction over the parties and the subject matter

Exception: Bootstrap Doctrine
--If the question of jurisdiction was fully and fairly litigated in the original action, that determination itself is res judicata and entitled to Full Faith & Credit even if erroneous

Front 4

Proper Jurisdiction

Back 4

Court must have proper jurisdiction over the parties and the subject matter

Exception: Bootstrap Doctrine
--If the question of jurisdiction was fully and fairly litigated in the original action, that determination itself is res judicata and entitled to Full Faith & Credit even if erroneous

Front 5

Judgment "On the Merits"

Back 5

Judgment for defendant is not on the merits if it is based on:

1. Lack of jurisdiction over defendant

2. Plaintiff's lack of capacity to bring suit

3. Misjoinder of parties or causes of action

4. Improper venue

5. Time bars such as the statute of limitations

Default and Consent judgments are deemed "on the merits"

If demurrer is sustained because of plaintiff's failure to state cause of action is "on the merits" only if plaintiff cannot amend to allege a cause of action

Front 6

Final Judgment

Back 6

Judgment is final is there is no necessary action by court to resolve the litigation

Modifiable judgments (child support) are not final as to future installments but ARE FINAL as to past due installments and past due installments can be enforced in a sister state

Front 7

Defenses to Full Faith & Credit

Back 7

Sufficient Defenses:

1. Judgment is a penal judgment (i.e., judgment punishing an "offense against the public")

2. Judgment is subject to an equitable defense in the rendering state (judgment was obtained by extrinsic, but not intrinsic, fraud)

Insufficient Defenses:

1. Judgment is a tax judgment

2. Judgment is contrary to public policy of the enforcing state; and

3. Rendering court made a mistake of law or fact

Front 8

Effect of Recognition of Sister State Judgment

Back 8

Res Judicata Effects:

1. Merger of the plaintiff's cause of action into the judgment

2. Bar against the plaintiff suing on the same cause of action when the judgment favored the defendant

3. Collateral estoppel as to an issue resolved in the first litigation (cause of action different in second action, but issue of fact same) as long as the issue is actually litigated in the prior proceeding and is essential to the first suit's outcome).

Mutuality
--Trend toward abandoning "strict conformity" rule and allowing stranger to first action to rely on collateral estoppel (rule of mutuality)

--Depends on case-by-case basis

Front 9

Enforcement of the Judgment

Back 9

If a judgment is entitled to Full Faith & Credit, the law of the enforcing state governs the method of enforcement.

This usually means bringing an action on a judgment in the second state.

Front 10

Recognition of Foreign Country Judgments

Back 10

1. Comity

-- Foreign judgments recognized under Comity Principle

-- Comity is voluntary/discretionary

-- Courts look to see if:

----(a) The foreign court had jurisdiction; and

----(b) Fair procedures were used in adjudicating the case (the enforcing state's standards)

2. Uniform Foreign Money-Judgments Recognition Act

-- Foreign judgments granting or denying recovery of money are recognized

-- Act does NOT cover judgment for taxes, penal judgments, judgments for alimony or child support.

Front 11

Domicile by Operation of Law

Back 11

Domicile by Operation of Law arises where a person bears a certain legal incapacity (infancy, mental incompetency, etc.)

1. Marital child's domicile follows the Father's domicile

2. If Father deceased, marital child's domicile follows the Mother's

3. In divorce or separation, child's domicile follows parent who has custody

4. Minor child by establish separate domicile by "emancipation" or by marriage

5. Incompetent (lacks capacity to select a domicile) retains the domicile of his parents.

6. Person that previously had capacity and chose a domicile before losing capacity retains the domicile he chose

7. Domicile of married persons determined without regard to gender

Front 12

Domicile of Choice

Back 12

If a person has legal capacity, her domicile will be the state she has chosen

2 Requirements for Domicile of Choice (questions of fact):

1. Physical presence; and

2. Intention to be domiciled (intend to remain their indefinitely)

Until you establish a new domicile, you retain last domicile

If more than one dwelling, look to see if one is the "principal home"

Front 13

3 Notes about Domicile

Back 13

A bar exam question might present the following issues related to domicile:

1. A new domicile may be acquired in a very short time if the requisite intent is present.

2. Do not confuse intent with motive. A person may change domicile with the motive of gaining an advantage in litigation, as long as she has a genuine intent to change her domicile and is physically present in the new domicile.

3. A person retains her present domicile until she perfects the two-part test elsewhere (presence plus intent)

Front 14

Dual Domicile Problem

Back 14

An individual may have only one domicile BUT courts in two different states may reach conflicting determinations as to which state is a person's domicile

Front 15

Constitutional Limitations

Back 15

Constitutional limitations arise under the Due Process Clause or the Full Faith & Credit Clause.

Generally speaking, if the forum state has any significant contacts with the parties or the subject matter of the action, whereby it has a legitimate interest in regulating the outcome of litigation (Due Process), it is NOT constitutionally bound to apply the foreign state's conflicting law by reason of either the Due Process or the Full Faith & Credit Clause.

Front 16

New York Approach: Interest Analysis (Governmental Interest)

Back 16

Start from the assumption that the forum will apply its own law.

If the forum is requested to apply the law of another state, look to see whether there is a:

1. "False conflict": only one state has an interest in having their own law applied; or a

2. "True Conflict": both states have an interest in having their law applied

Front 17

False Conflict

Back 17

Only one state has an interest in having their own law applied

If a false conflict exists, apply the law of the interested state

Front 18

True Conflict

Back 18

Both states have an interest in having their law applied.

If a true conflict exists, the forum will reconsider its own policies and then:

1. It will apply its own law if it finds it has a legitimate interest in doing so (most likely result)

2. It will apply the foreign jurisdiction's law if it finds that it does not have a great interest in applying its own law; or

3. It will attempt to compromise and apply a modified version of either its own law or the foreign jurisdiction's law

Front 19

Disinterested Forum

Back 19

Where the forum discovers it has no interest in applying its own law, but two or more other states have legitimate competing interests

If forum non conveniens is available, the forum should dismiss the case

If forum non conveniens is not available, forum may either:

1. Make its own value judgment as to which law is better; or

2. May apply the law of the state that closely resembles its own law

Front 20

Unprovided-For Case

Back 20

No state can be said to have a legitimate interest in having its own law applied because the application of the law of the particular state will not serve any interest of that state.

Approach in this situation is unsettled.

Most widely accepted solution is to apply the law of the forum

Front 21

Tort Cases

Back 21

New York applies Interest Analysis (Governmental Interest) in tort cases

Front 22

Tort: Existence of a Cause of Action

Back 22

Under interest analysis, New York usually looks to its own law in determining whether cause of action existed

Other foreign laws may be applied where appropriate

Front 23

Tort: Rules Governing Conduct

Back 23

New York looks to the law of the place of the tort for the rules governing conduct

Front 24

Tort: Loss Distribution Rules

Back 24

Loss Distribution Rules: rules limiting damages in wrongful death actions, guest statutes, vicarious liability rules, or immunity from suit

Locus jurisdiction has minimal interest in determining right of recovery

Analysis favors the jurisdiction of common domicile

Front 25

Tort: Guest Statutes

Back 25

Pursuant to Neumeier decision, consider each plaintiff in relation to each defendant:

1. Same Domicile

--If guest-passenger and host-driver share a common domicile, law of that state controls

2. Split Domicile

--If parties do not share a common domicile, usually the law of the place of the tort controls

--If that jurisdiction has no real interest in the case, NY courts may apply the law of different jurisdiction

Front 26

Tort: Charitable Immunity

Back 26

In order to encourage the growth of charitable work, NY will apply the law of the state where the plaintiffs and defendants are domiciled, even though tortious acts took place in NY

Front 27

Tort: Interspousal or Interfamily Immunity

Back 27

NY has no policy objection to intrafamily litigation

Place of the domicile would apply its own law if the action was brought there

If action brought somewhere other than the place of domicile, analysis of respective policies and interests would be required.

Front 28

Tort: Releases

Back 28

If a release from liability is characterized as a tort problem, the law of the place of wrong governs.

If characterized as a contract problem, the law of the place of contracting would apply.

In NY, countervailing interests may modify these rules (may apply law of state with greater interest)

Front 29

Tort: Contribution

Back 29

Interest Analysis approach will generally lead to the place of the accident for the purpose of determining the applicable contribution rule

Front 30

Tort: Vicarious Liability

Back 30

Interest Analysis would be applied

If few or no NY contacts, apply law of the place of the tort

Front 31

Tort: Dram Shop Cases

Back 31

NY has a Dram Shop Act

If liquor is served in a state without a Dram Shop Act and injury occurs in New York (or another state with such an Act)--True Conflicts situation

Under interest analysis, state with the Dram Shop Act would NOT apply its own law

Front 32

Tort: Damages

Back 32

Where the plaintiff's domicile state grants damages, that state has an interest in applying its own law

Front 33

Tort: Survival of Actions

Back 33

Purpose of nonsurvival rules is to protect the estates of decedents domiciled in that state

So it would RARELY further a state interest to apply law of the state of injury with a nonsurvival rule

Front 34

Tort: Wrongful Death

Back 34

New York follows strict interest analysis in wrongful death

Apply its own law where it has an interest in doing so.

Front 35

Tort: Multistate Torts

Back 35

If plaintiff suffers injury in more than one state, court will usually apply the law of the plaintiff's domicile

Rationale: she suffered greatest harm there, and defendant should not insulate himself from liability by acting in a state that grants him immunity

Front 36

Worker's Compensation

Back 36

1. Issue: generally, states seek to apply their own statute in cases over which they have jurisdiction, so the issue is will they take jurisdiction? Determine if there are significant contacts with the state; consider whether:

---(a) The employment contract was entered into in the state

---(b) The injury occurred in the state

---(c) The employee resides in the state

---(d) The employment relationship is being performed in the state

---(e) Choice-of-law clause will govern if reasonable

Front 37

Worker's Compensation Issues

Back 37

1. NY Position

--(a) Injuries outside NY: NY will apply its own law if significant contacts exist

--(b) Injuries inside state: NY law

2. Dual Recovery

--Worker may recover in more than one state but any recovery in one state will be credited against award in second state.

--Dual Recovery available EVEN IF first state's statute or judgment provides that it shall be worker's exclusive remedy

3. Availability of Tort or Wrongful Death Actions

--Courts will not allow if the worker's compensation statute of first state grants defendant immunity from tort liability (Discretionary)

--In NY, strong support for protecting the immunity granted by another jurisdiction's worker's compensation statute

Front 38

Contracts: Express Choice of Law

Back 38

If there is a choice of law provision in the contract it will govern unless:

1. It is contrary to public policy

2. There is no reasonable basis for the parties' choice

3. There is no "true consent" (e.g., fraud, mistake, adhesion contracts); or

4. The New York Statute of Frauds is circumvented

Front 39

Contracts: Express Choice of Law Under the U.C.C.

Back 39

If transaction bears reasonable relation to NY and to another state or nation, parties' choice of law applies.

BUT UCC provides that where one of the provisions of the UCC specifies the applicable law, that provision governs and a contrary agreement (by the parties) is effective ONLY to the extent permitted by law (including conflict of law rules)

Absent such an agreement, NY UCC applies to transactions bearing appropriate relation to NY

Front 40

Express Choice of Law under NY General Obligations Law

Back 40

UCC has bee supplanted by General Obligations law with respect to large contracts

Parties may expressly agree that NY law governs contracts exceeding $250,000, regardless of whether the contract bears a reasonable relation to NY, UNLESS:

1. The contract relates to labor or personal services; or

2. Is governed by other UCC provisions

Front 41

Choice of Law in Absence of Express Provision

Back 41

NY applies interest analysis

1. Usurious Contracts

--Generally sustained if valid under the law of ANY jurisdiction with a reasonable relationship to the contract

--If law of both states makes the rate usurious, one with the less severe penalty will be selected

2. Automobile Liability Policies

--If action involves the rights and obligations of the insured and the insurer, the law of the state where the policy was written controls, regardless of where the accident occurred

Front 42

Inter Vivos Transfers: Real Property

Back 42

Interest analysis approach places less emphasis on situs

But NY relies heavily upon the law of the situs as determinative of whether an interest in land exists

Front 43

Inter Vivos Transfers: Personal Property

Back 43

NY will apply law of the situs of the personalty, even when it substantially clashes with the result preferred under interest analysis

If issue is "marital property" or "transfer of personalty" the law of the domicile will control

Front 44

Security Interests in Chattels

Back 44

UCC sections 9-102 and 9-103 govern (the law of the debtor's chief place of business)

Front 45

Inheritance: Real Property

Back 45

Intestate: governed by law of the situs

Testate: generally, the law of the situs is determinative with an exception applicable to NY REALTY ONLY:

---Formal validity will be satisfied if it meets the requirements of:

----1. New York

----2. The state of execution, or

----3. The domicile of the testator at the time of execution or death

Front 46

Inheritance: Personal Property

Back 46

Intestate: Law of decedent's domicile at time of death

Testate: all issues concerning the validity of the will are also determined by that domicile, subject to the following exceptions:

1. As to formality issues, the will is valid if valid in NY, the state of execution, or the domicile of the testator at the time of execution or death

2. As to intrinsic validity, if so valid under the law of the testator's domicile at the time of execution, a subsequent change in domicile will not upset validity

3. As to interpretation, the law of the testator's domicile at the time the instrument is executed governs

4. As to revocation or alteration, the law of the testator's domicile at the time the subsequent instrument is executed or the physical act is performed governs

When not bound by these provisions concerning inheritance, NY will resort to interest analysis approach

NY statute prevents escheat of local property to another state or foreign country

Front 47

Marriage

Back 47

Marriage valid where celebrated is valid everywhere and marriage that is void where celebrated is void everywhere

Exception: If the marriage, although valid at the place of celebration, violates a "prohibitory rule" of the domicile of one of the parties and the parties immediately return to and become domiciled in that state.

NY recognizes same-sex marriages from other jurisdictions

Front 48

Directory vs. Prohibitory Rule

Back 48

Directory Rules:

--Violation will not render the marriage invalid in the place of domicile

--More administrative in nature

--Rules requiring marriage license, parental consent, and a certificate of a blood test

Prohibitory Rules:

--Violation will render marriage invalid

--Express strong public policy of the state

--Rules against incest, polygamy, and marriage under a minimum age

Front 49

Annulment

Back 49

Annulments are governed by the law of the place where the marriage was celebrated

But there is a trend to apply the law of the state with the most significant relationship to the marriage

Front 50

Divorce

Back 50

Choice of law questions related to the grounds for divorce are governed by the law of the plaintiff's domicile (forum state)

Front 51

Alimony and Child Support

Back 51

Law of the state that ordered payments will determine whether, and to what extent, the orders are modifiable

Front 52

Child's Status

Back 52

Child is nonmarital if born before the marriage of his parents

Attempts to change child's status to marital are valid if valid under the law of the parent's domicile

Recent trend to uphold validity if sufficient under the law of the child's domicile

Property incidents of status are governed by the law governing the disposition of the property in question

Front 53

Adoption

Back 53

Courts apply their own local law to govern adoptions

Property incidents of adoption are the same as for determining the child's status

Front 54

Do Any Arguments Against Application of a Foreign Law Exist?

Back 54

Three arguments to be considered:

1. The law to be applied is procedural

2. The law is against the forum's public policy; and

3. The law is a penal or tax law

Front 55

Law to be Applied is Procedural

Back 55

Even where forum decides to apply substantive law of another state, it will apply its own procedural law.

Law of the forum is usually employed to determine whether a law is substantive or procedural

See CMR Summary Chart on pg. 10

Front 56

Law is Against Public Policy

Back 56

If law is contrary to public policy of forum state, forum state may refuse to apply it.

Use this defense SPARINGLY

Front 57

Foreign Law is Penal or Tax Law

Back 57

Traditionally, penal judgments were not entitled to Full Faith & Credit

By statute, NY is authorized to enforce REVENUE laws of other states ONLY IF such other states reciprocate and, as a matter of comity, enforce NY revenue laws

Front 58

Renvoi

Back 58

Renvoi problems are UNCOMMON in NY because, under the interest analysis approach, NY would apply the substantive rule of the most interested state (unless a choice of law statute dictated a different result)

When forum does not like the foreign law that the forum's choice of law rules dictate, it may employ doctrine of Renvoi

Doctrine allows forum to apply the foreign jurisdiction's choice of law rules, which may refer the forum back to its own law or the law of a third jurisdiction

Front 59

Federal Law in State Courts

Back 59

Where state courts are permitted to enforce federal law concurrently with federal courts

Some state statutes direct state courts to enforce federally created right.

State may not avoid enforcement by procedural characterization

Front 60

State Law in Federal Courts (Diversity Cases)

Back 60

Under Erie, federal courts must apply the substantive law of the state in which the court sits

Under Klaxon, this requires application of state conflict of law rules, as well.

Erie doctrine does NOT require application of the state's procedural law

Outcome Determinative Test

--If a conflict arises between the FRCP and a state civil practice rule, the state rule will be treated as substantive and applied IF it would result in an important difference in the outcome of the litigation

Front 61

Proof of Foreign Law

Back 61

NY grants courts the DISCRETION to take judicial notice of sister state and federal law (treated as law rather than fact--traditionally treated as fact)

Court MUST takes notice if:

1. A party requests it,

2. Furnishes the court with sufficient information to enable it to comply with the request

3. Gives the adverse party notice; and

4. Pleads the foreign law

Foreign Country law still must be proved as a fact. If not proved, consequences decided pursuant to law of the forum (unless that would create injustice)

Front 62

Comity

Back 62

Depends on whether the foreign court has jurisdiction and fair procedures were used in adjudicating the case.

Absent some showing of:

1. Fraud in the procurement of the foreign country judgment; or

2. Recognition of the judgment would violate a strong public policy of NY;

A party to the foreign action is precluded from collaterally attacking the judgment's validity in a NY court