Ny/mbe Consolidated

Front 1

Principal liable for agent's torts

Back 1

- Agency relationship
- Within scope of agency

Front 2

Agency relationship

Back 2

- Assent (informal agreement)
- Benefit principal
- Control by the principal (supervise)

Front 3

Sub-agent and borrowed agent

Back 3

- No control for both
- No agreement for sub-agent

Front 4

Independent contractor for tort liability (agency)

Back 4

- Principal is NL

- Exceptions:
* Ultra-hazadous activity
* Estoppel: hold-out as agent

Front 5

Scope of agency

Back 5

- Balancing test
* Whether A intended to benefit P
* Detour or frolic
* Description of the agency

Front 6

Principal's liability for intentional tort of agent

Back 6

- Not liable b/c not w/i scope

- Liable if:
* Natural to use force (e.g. guard)
* Authorization by P
* A intended to benefit P

Front 7

Principal's liability for agent's contract

Back 7

- Principal is L if authorized
* Acutal, express authorization
* Actual, implied authorization
* Apparent authority
* Ratification

- If P is L, A is NL personally
- A is L for unauthorized K
- 3P may elect either if A did not disclose:
* Identity of P
* Existence of agency

Front 8

Actual and express authorization (agency)

Back 8

- No need to be written
- May be private
- Land agency: requires writing

- Authorization is narrowly construed

- Revocation of authorization:
* by either party
* if principal is dead
* if principal is incapacitated

- Durable power of attorney:
* Not terminate when principal is incapacitated
* Unless otherwise provided in the power

Front 9

Actual and implied authority in agency

Back 9

- Necessary to carry out agency objective
- Customary (e.g. lawyer)
- Prior dealing

Front 10

Apparent authority in agency

Back 10

- No actual authorization
- P did something to cloak authority
- 3P reasonably relied

- Reliance not reasonable if dealing with a partner of a partnership for first time

Front 11

Agent's duty to principal

Back 11

- Obey instructions
- Duty of care
- Duty of loyalty
* No self-dealing
* Not usurp principal opportunity
* Not secret profit

- Remedy:
* Damage
* Disgorge benefit

Front 12

Ratification by principal (agency)

Back 12

- P must know the material aspect of act
- P must accept the benefits
- P must ratify without change
- If change, no ratification

Front 13

Partnership (requirements)

Back 13

- 2 or more person
- Carrying out business for profit
- No writing or registration necessary
- Key: contribution & profit sharing

- Partners have unlimited liability

Front 14

Parnter's liability for partnership debts

Back 14

- Partner is each other's agent

- Partner L for:
* Authorized contract
* Tort w/i scope of partnership business

- Estoppel:
* L if stating partnership w/ another
* even no actual partnership exists

Front 15

Partner's liability for partnership terminates if ...

Back 15

- All liability that arises until death and notice
- All acts to wind up existing business
- All new business during wind-up until notice
- No pre-existing debt prior to joining
- Capital contribution upon joining
- All liability after quitting until notice

- Note: the above are time that liability arises

- Notice requirement
* Actual notice to known creditors
* Publication notice to potential creditors

Front 16

Partner's claim to partnership property interest

Back 16

- No right in specific partnership property
* Property under partnership's name
* Requires authorization to dispose

- Right to surplus and profit (transferrable)
- Right to management control (can't transfer)

- No right to salary except winding up

Front 17

Partner's share in control, profit, and loss

Back 17

- Equal vote for management

- Without agreement:
* Equal share of profit
* Same share in loss as in profit

Front 18

Partnership termination

Back 18

- Dissolves upon material change:
* Partner dead
* Partner withdraws

- Winding up: time from dissolve to termination

- Termination:
* Pay outside creditors
* Pay inside creditors
* Pay capital contributions
* If anything left, pay surplus to partners

Front 19

Limited Liability Partnership

Back 19

- Requires registration stating general partners
- Without registration: general partnership

- Limited partner: limited liability; limited control
- General partner: all liability; all control

Front 20

Registered LLP

Back 20

- Only for professional partnership
- Requires registration stating profession
- All partners: limited liability

Front 21

Limited Liability Company (LLC)

Back 21

- Requires
* registration of articles of organization
* publish summary for 6 weeks on 2 papers

- Limited tax (through)
- Members may manage through manager
- Members have limited liability
- Share transfer need unanimous consent
- Terminate upon majority vote

Front 22

Partners' duty to each other

Back 22

- Fiduciary duty
* No self dealing
* No secret profit
* No usurp of partnership opportunity

- Action of accounting to:
* claim damage
* disgorge unjuct enrichment

Front 23

Recognition of other state's judgments

Back 23

- Full faith and credit clause
* Court has jurisdiction
* Judgment is final
* Judgment is on merits

- Final: not modifiable (future support)
- Merit:
* Default judgment
* Consent judgment

- No defense to full faith and credit:
* Good: judgment is penal
* Good: judgment has extrinsic fraud
* Bad: mistakes of judge
* Bad: inconsistent judgment
* Bad: against public policy

Front 24

Recognition of foreign country judgment

Back 24

- Based on principle of comity
- Fair procedure
- Jurisdiction is fair

Front 25

Choice of laws

Back 25

- Constitutional standard

- Test: government interest test (Babcock)
- Traditional: vested right test

- Defense:
* Law is procedural (apply forum law)
* Law is penal
* Law is against public policy

Front 26

Constitutional standard for choice of laws

Back 26

- Applicable provision
* Due process
* Full faith and credit

- Test:
* Substantial contact with the state
* Legitimate interest to apply the law

- No compare of interest

- Fail if only connection is:
* move to state afterwards
* the state is forum state

Front 27

Governmental interest test (choice of law)

Back 27

- Babcock
* List facts
* List state and laws
* Consider policies of laws
* Relate facts to policies
* Balance which policy most important

- Types:
* No actual conflict: both parties' domicile
* Actual conflict: forum law
* Disinterested forum: forum law/better law
* Non-provided for: forum law

Front 28

Traditional vested right test (choice of law)

Back 28

- Territorial

- Where cause of action accrues
* Place of accident
* Place of execution

- Replaced by government interest test

Front 29

Tort choice of law

Back 29

- Babcock/Neumeier: distribution rules
* If both party same state: that state
* If otherwise: forum law
* [Each state protects own party]
* [Non-provided for case]

- Action rules: place of action

Front 30

Contract choice of law

Back 30

- Any law chosen by parties to construe

- Law chosen regarding validity:
* Not against public policy of state
* No fraud, duress, coersion
* Substantial connection with state
* > $250,000: may choose NY
* > $1mm: may choose NY; good forum

- No law chosen: Babcock approach
- Insurance policy: place written

Front 31

Property choice of law

Back 31

- Situs of property for RE

- Place of property for personal property
- Decedent domicile for intestate

Front 32

Marriage choice of law

Back 32

- Marriage is valid if:
* At place of marriage, valid
* If invalid due to technical: valid in NY

- Divorce: P's domicile

Front 33

Choice of law: procedural and substantive

Back 33

- Procedural:
* Statute of limitations
* Burden of proof

- Substantive
* Statute of fraud
* Comparative/contributory negligence
* Direct suit statute: NY
* contribution and indemnification
* Parol evidence rule

Front 34

Proof of foreign law

Back 34

- Judicial notice of other state law
- Foreign country law:
* Prove like facts
* If not proved: use NY law

Front 35

NY jurisdiction for matrimonial actions

Back 35

- Subject matter: Supreme Court

- In res jurisdiction for marital status:
* Either spouse domiciled in NY

- Personal jurisdiction for monetary support:
* P is domiciled in NY, and 1 of 4
* matrimonial domicile in NY
* grounds of action arising in NY
* under agreement executed in NY
* under laws of NY

- Only personal service if w/o court approval
- Durational residency requirement for merit

Front 36

Durational residency requirement for matrimonial actions

Back 36

- 0 residency:
* Both party domiciled in NY at filing
* Grounds arising in NY

- 1 year residency, 1 of 3:
* Married in NY
* Matrimonial domicile in NY
* Grounds arising in NY

- 2 year residency, no more requirement

Front 37

Jurisdictional requirement to recognize out-state divorce

Back 37

- Subject matter jurisdiction of rendering court:
* One spouse must domicile in the state

- Personal jurisdiction for status:
* P must domicile in the state
* D not estopped

- Persons estopped may not challenge:
* Rendering court had PJ over the person
* The person meaningfully participated in action
* The person in privity to P (i.e. children)
* The person remarried in reliance on divorce

- Support and alimony: PJ over D
- Child custody: child's home state
* Child lives with one parent for 6m
* Prior to filing of divorce

- In support/custody, the rendering court:
* "continuous and exclusive jurisdiction"
* Provided: one of child/parent lives there

- Divisible divorce doctrine

Front 38

Professional responsibility for matrimonial actions

Back 38

- No contingency fees
- No non-refundable retainer

- Writing fee engagement letter
* Signed by both lawyer and client
* Right to elect for fee dispute arbitration
* Periodical billing at 60 days
* Inform rights/duties before fee agreement

Front 39

PR: ways to discipline lawyers

Back 39

- Admonition
- Private or public censure
- Suspension
- Disbar

- Discipline in one state:
* Not automatically in another state
* But recognize comity

- Any state of admission may discipline
- Principal place of practice rule
- Principal effect rule

Front 40

PR: temporary out-state practice

Back 40

- Association with local lawyer
- Admitted pro hac vice
- Arbiration or mediation
- Reasonably related to in-state practice

- Multi-office firms:
* Letterhead must show admitted state

Front 41

PR: admission to bar

Back 41

- Requirement:
* ABA graduate
* 1y school + 3y supervised study
* MPRE + Bar exam

- Non-exam requirement:
* ABA law school graduate
* Admitted to a state
* State has reciprocal law with NY
* Practiced in 5/7 years

- Applicant has duty of full disclosure
- Applicant has burden of proof

- Non-applicant:
* may pairse applicant
* must report moral turpitude

- Register every 2 years

Front 42

PR: regulation of lawyers

Back 42

- Court of Appeals with its agencies

- Self-regulated
* Must report violations
* Must be available to testify

- No duty: representing another lawyer

Front 43

PR: client decisions

Back 43

- Commencement
- Jury or bench
- Settlement
- Appeal
- Take stand in criminal case

Front 44

PR: lawyer decisions

Back 44

- Reasonable adjournment
- Discovery strategy

- Incapacitated client:
* Dimished capacity
* Risk of substantial harm
* Client cannot adequately act

Front 45

PR: must withdraw situations

Back 45

- Mentally/physically incompetent
- Know that service leads to crime
- Client fires lawyer
- Client is harassing others

Front 46

PR: may withdraw situations

Back 46

- Claim is frivolous or meritless
- Reasonable belief of fraud/crime
- Client defaults on fees
- Non-cooperating co-counsel
- Service likely leads to violation of RPC

Front 47

PR: confidentiality

Back 47

- Must keep damaging information confidential

- Must disclose: perjury on court

- May disclose:
* Required by law or court order
* Substantial likelihood to death/serious injury
* Authorized for client's benefit
* Prevent crime
* Obtaining ethical advice

Front 48

PR: Curing incompetence

Back 48

- Associate with competent lawyer
- Research and become competent

- Competence:
* Mental/physical
* Knowledge of substantive law
* Time

Front 49

PR: conflict of interest

Back 49

- Requires:
* Client's written informed consent
* Not prohibited by law
* Ability of competent representation

- Conflict w/ former client:
* In the same case
* Has confidential info re same case
- May not represent unless:
* Confidential info publised
* Client written informed consent

- Conflict w/ current client: never good

- Intentionally conflicting out lawyers:
* Lawyer not conflicted out

Front 50

PR: firm names

Back 50

- Trade name not allowed
- Dead person allowed if worked here
- Suspended: may stay
- Disbarred: may not stay
- Full time public office: not stay

- Domain name: allowed
* Conspicuous firm name
* Not using domain name in practice
* Not misleading (imply results)

Front 51

PR: Advertisement

Back 51

- Front page: 'Attorney advertising'
- Principle address
- Phone number

- Allowed content:
* Education
* Time admitted
* Admitted state and organization
* Public office held
* Concentrated in ...
* Fluent language
* Client name w/ consent
* Bona fide professional rating
* Fee arrangement (binding)
* Acceptable credit arrangement

- Allowed if can prove at publish:
* Comparison with other firms
* Expectation of outcome
* Client endorsement (consent)
* 'past result don't guarantee outcome'

- Retain record:
* 1y for website
* 3y for other

Front 52

PR: solicitation

Back 52

- In person solicitation prohibited

- Exception:
* Non-pecuniary
* Non-real time
* Relative
* Close friends
* Former client
* Current client

- No solicitation if:
* misleading
* recipient refuse
* require moving to another place
* target physical/mentally unstable
* coercion, harassment


- unsolicited advice provided: not engage

Front 53

PR: targeted mail

Back 53

- May target recipient
- 'Attorney advertising'
- Source of identity and address
- 'Do not sign' if retainer enclosed

- For personal injury/wrongful death:
- Not w/i 30d normally
- Not w/i 15d if urgent filing needed

- File with Grievance Committee

Front 54

PR: specialty

Back 54

- May advertise specialty only if:
* Certifying org recognized by ABA/NY
* Disclose certifying org
* 'certification not required'
* Certified not necessarily better

Front 55

PR: Dealing with Client

Back 55

- No sex after engagement
- May continue sex
- No sex for domestic relations case
- No imputation

- May deal in ordinary course:
* Bank clients
* Dealer clients

- May deal only if:
* Written informing terms
* Advising to seek other counsel
* Terms are fair

- May not lend to client
- May advance filing fee
- May pay filing fee for poor

- No media right until case close

Front 56

PR: Fee engagement

Back 56

- If > 3,000: required
- Exception:
* Former client
* Current client
* Similar service

- Writing:
* Scope of services
* Basis of fees
* Calculations
* Billing practices

- Client may ratify:
* Even if misconduct
* Misconduct not inducing ratification
* Must know client's right
* Must in writing

- No maximum/minimum fee
- Max for medical malpractice
- Min: after settling expense schedule

Front 57

PR: client property / money

Back 57

- Property: warehouse or garage

- Money:
* Client trust account in NY
* Separate operating account
* Prompt withdrawal after notice
* Small account interest to IOTA
* Overdrawn notice enabled
* Cannot put in own money
* Can pay for account maintenance

Front 58

PR: communication with parties

Back 58

- No ex parte talk with juror
- De minimis ex parte with judge
- May talk ex parte with witnesses
- No talk with opponent directly

Front 59

PR: representing organizations

Back 59

- Make sure representing org, not:
* Employees
* Officers

- Reporting requirement:
* Goes up the ladder to board
* Report outside involving securities
* Minimize disclosure
* Protecting client org

Front 60

PR: zealous representation

Back 60

- Civil: no frivolous claims
- Crim: make prove every element

Front 61

PR: vicarious liability

Back 61

- Junior associate:
* must abide by code
* may follow order if arguable

- Senior lawyer:
* L if instructed junior lawyer/agent
* Known and did not report

Front 62

PR: adverse authority / facts

Back 62

- Adverse authority: must disclose
- Adverse facts:
* no need to disclose
* disclose if ex parte

- Prosecutor:
* disclose exculpatory evidence
* only prosecute with probable cause

Front 63

PR: fee sharing

Back 63

- No fee sharing with non-lawyer
- May share office with non-lawyer:
* Clearly separate
* No coercion to use the lawyer

- With lawyer:
* Total fee reasonable
* Client consent
* Per amount of service
* Any % if jointly responsible

- No referal fees to other lawyer

Front 64

PR: Accepting/rejecting cases

Back 64

- May reject any case before engagement

- Should (not must) accept:
* Oppressed
* Defenseless
* Fair share of pro bono work

Front 65

PR: non-competition for lawyers

Back 65

- Not allowed

- Allowed for retirement benefit
- Allowed for sale of practice

Front 66

PR: Trial publicity

Back 66

- Only:
* Dry facts
* Info necessary to arrest suspect
* Informing danger
* accusation w/ disclaimer

- No publicity:
* Guilty plea
* Inadmissible evidence
* Probable outcome
* Character, reputation, etc
* ID of witness

Front 67

PR: Testify for client

Back 67

- Not allowed, except
* Formality
* About legal service
* Uncontested matter

Front 68

PR: Contingency fee

Back 68

- Not allowed for crim
- Not allowed for domestic relations

Front 69

PR: Fee arbitration

Back 69

- 1,000 - 50,000
- At client's election
- Not for criminal case
- Not for malpractice

Front 70

Trust types

Back 70

- Express trust
* Private
* Charitable

- Totten trust
- Pour-over trust
- Joint account with survivorship
- Uniform Transfer to Minors Act

- Honorary trust
* Pet trust
* Cemetery trust

- Resulting trust
- Purchase Money Resulting Trust
- Constructive trust

Front 71

Requirements for express private trust

Back 71

- Settlor (18+; contract ability)
- Delivery (titled document: transferred formally)
- Property (settlor has title not expectation)
- Intent (wish insufficient)
- Trustee
- Beneficiary
- For lawful purposes
- Signed by settlor (notarized or 2 witnesses)

Front 72

Appointment of trustee (qualificatins)

Back 72

- Failure to appoint a trustee:
* Trust does not fail
* Court appoints a trustee

- Inter vivos (lifetime) trust: anyone

- Testamentary under court supervision:
* Generally, anyone
* Not under 18
* Not judicially declared incapacitated
* Not convicted felon
* Not dishonest, drunken, etc

- Non-NY-resident trustee
* Must be related to settlor
* Must have a NY co-fiduciary

Front 73

Express trust beneficiary

Back 73

- Private trust
* Definite
* Ascertainable
* 'heir' and 'next of kin': fine

- Charitable trust
* Indefinite
* A sufficiently large group
* May be 'masses' for relatives

- May not be a non-person except
* Pet
* Cemetery

Front 74

Express trust purposes

Back 74

- Private Trust
* Not to commit crime
* Not to destroy property
* Not violating public policy

- Public Policy - marriage
* Not compel marriage
* Not promote divorce
* May screen ethnic/religion
* May support widow until remarry

- Charitable trust: charitable purpose
* Education
* Health
* Religion

Front 75

Express trust intent

Back 75

- Precatory language is insufficient
- Must create duties in trustee

- Beneficiary may enforce
- Attorney General represents charitable trust
* AG is necessary party to suit
* Donor and AG may enforce charitable trust

Front 76

Pet trust

Back 76

- Pet trust is allowed
- Term: life of pet (not 21 years)

- Enforcement:
* Person named in trust
* Person appointed by court

Front 77

Cemetery trust

Back 77

- Deemd charitable trust
- May last forever

Front 78

Trust RAP Issues

Back 78

- Private trust:
* RAP for interests
* RAP for spendthrift restrictions

- Charitable trust: no RAP issue
- Cemetery trust: no RAP issue

Front 79

Express charitable trust

Back 79

- Not subject to RAP
- For indefinite large group
- For charitable purposes
- Enforced by Attorney General
- Cy pres doctrine to reform
* 'As nearly as possible'
* Match settlor's intent

Front 80

Totten Trust

Back 80

- Created by depositor 'ITF' beneficiary
- No 'magic words' necessary
- Depositor may deposit/withdraw freely
- Creditor may resort to account
- Beneficiary: no claim until depositor dies
- Upon death: goes to living beneficiary

- Revocation:
* Withdraw all money
* Formal revocation WB FIND
* Formal will WB FIND
* Death of beneficiary before depositor

- WB FIND:
* Writing
* Beneficiary
* Financial Institution
* Notarized
* Delivery to account bank

Front 81

Joint account with survivorship

Back 81

- Upon death, goes to suriving holder
- Creditors cannot reach upon death
- Each holds 1/2

- Defeating joing account:
* Clear and convincing evidence
* Survivorship not intended
* Merely for convenience

- If one holder transfers money w/ bad faith:
* Account is severed
* Creditor may resort to half amount

Front 82

Uniform Transfer to Minors Act (UTMA)

Back 82

- Purpose
* Avoid guardianship proceeding
* Avoid trust
* Gift tax exclusion of $13,000

- Must be explicit about UTMA
- Made to guardian
- The guardian of minor:
* Prudent investment
* Use money for minor
* Give to minor upon turning 21
* (prior to 97, upon turning 18)

- Guardian is not owner (minor is)
- Not a trust
- Gift exclusion NA if donor is guardian

Front 83

Pour-over trust

Back 83

- Will may make gift to a revocable trust
- Easier management and change

- Revocable trust
* may be partially funded or unfunded
* may be created by other persons
* must exist at or prior to executing will

- Life insurance may go to trust
* Revocable trust existing now
* Trust created in will
* Beneficiary: to trustee

Front 84

Revocable trust

Back 84

- Presumption: irrevocable
- Settlor must explicitly makes it revocable

- Settlor may not be both:
* sole trustee
* sole beneficiary
- Must exist at least one additional:
* trustee
* beneficiary

- Potential purpose:
* management
* avoid probate
* provide for incapacity
- No tax benefit if revocable

Front 85

Modification of trust

Back 85

- Modification by settlor: c.f. revocable

- For others: settlor intent is more important

- If conditions change, may modify:
* Could not achieve the purpose
* Designated entity no longer exists
- Cy pres doctrine: match intent

- Trustee/beneficiary has standing?

- Court may authorize invasions of principal

Front 86

Termination of trust

Back 86

Not revocable by presumption

Termination by settlor with consent:
- Requires consent of all beneficiaries
- Incapacitated cannot give consent
- Infant cannot give consent
- 'heirs' no need to consent
- Consent not required for fetus

Merge:
- not if there is any potential beneficiary
- only if sole trustee is sole beneficiary

Front 87

Resulting trust

Back 87

- Situations:
* Trust fails for indefiniteness
* Trust fails for non-human beneficiary

- PMRT
* One pays, title in non-relative
* Majority: PMRT, trustee must return
* NY: No PMRT, trustee no need to return

- Effect of PMRT
* Constructive trust if trustee promised
* Clear and convincing evidence required

Front 88

Constructive trust

Back 88

- Equitable remedy for fraud, etc
- Holder's duty: transfer to beneficiary

- Example:
* Slayer of testator
* Default on joint will contract
* Promise to induce PMRT

Front 89

Spendthrift rules regarding trust

Back 89

- Majority: presumed no spendthrift rules
- NY: presumed for income interests

- Income interest:
* Spendthrift rule
* may be explicitly excluded by settlor
- Beneficiary of principal
* No spendthrift rule
* may be explicitly provided by settlor

- Rule: not alienable by interest holder
- Exceptions:
* necessity creditor
* alimony, child support
* federal IRS
* excess of living and education
* 10% mandatory lien for all creditors
- NA to settlor's retained interest, if any

Front 90

Trustee's power

Back 90

- Fiduciary Powers Act
- Almost anything to dispose res
- Investment power

- Trustee may not:
* Self-dealing
* Borrow on behalf of trust
* Continue business put in trust

Front 91

Trustee's investment power

Back 91

- Uniform Prudent Investors Act (UPIA)
- Portfolio theory
- Not reviewed with hindsight
- Maximize total return as the goal
- Not evaluate individual investment
- May make adjustment for fairness

Front 92

Trustee's self dealing

Back 92

- Trustee may not:
* Buy trust property
* Sell property to trust
* Borrow from trust
* Lend to trust
* Use confidential information from trust
* By corporate trustee's shares for trust


- Trustee must:
* Separate personal and trust property
* Earmark trust property

Front 93

Trustee's comingling of assets

Back 93

- Gains: go to trust
- Losses: borne by trustee

Front 94

Remedy for trustee self-dealing

Back 94

- No inquiry about good faith
- No inqury about reasonableness

- Remove and replace trustee
- Damages
- Ratify if advantageous

(Beneficiary has standing)

Front 95

Trust and 3rd party re trustee' self-dealing

Back 95

- Trust has no resort to BFP 3rd party

- Not BFP if both:
* Know trustee's capacity as trustee
* Know trustee is self-dealing

- Treated as trustee:
* Trustee's relative
* Trustee's business (control, partner, etc)

Front 96

Contract by trustee

Back 96

If trustee signs in trustee's name:
- trust is liable
- trustee is not personally liable

If trustee signs in personal capacity:
- trustee is liable
- reimbursement if:
* within trustee's power
* signed in ordinary administration

Front 97

Tort by trustee

Back 97

- Trustee L for any tort by:
* trustee
* trustee's agent

- Trustee may seek reimbursement if:
* It is in trustee's power
* It is not the personal fault of trustee

- No exception if not able to reimburse
- Trustee may buy insurance
- Trust pays for the insurance

Front 98

Exculpatory provisions for trustee

Back 98

- Testamentary: void for public policy
- Inter vivos: allowed

Front 99

Intestate distribution

Back 99

- Spouse takes all
- Spouse and issues:
* Spouse take $50k + 1/2 of remaining
* Issues share 1/2 of remaining
- Issues takes all if no spouse
- No issues/spouse: parent
- No parent: siblings
- Grandparents
- Issue of G.Parent down to same level as T
- G.G.Children of G.Parents
- Eschew to state

Front 100

Issues take by representation or per capita in each generation

Back 100

- Seek to first level with living issue
- Divide by total threads (incl. dead)
- Living issue take one share each
- Dead shares combined
- Drop to the next level w/ living issue of dead
- Circle

- Effect: on each level, equal share

- Even if will says 'per stirpes to children':
* Children gets per stirpes
* Grandchildren on: per capita

Front 101

Effect of adoption re inheritance

Back 101

- Adopted children:
* full rights in adopting family
* no right in birth family

- Children adopted by new spouse of parent:
* full right via each parent
* full right via adopting spouse

- Children has birth and adoptive relations:
* Use birth relations
* Use adoptive relation if adopted by decedent

Front 102

Non-marital children re inheritance

Back 102

- Full right in biology mother's family

- Full right in biology father's family if:
* Father and mother marries afterwards
* Decree of filiation establishing paternity
* Notarized statement in Putative Father Reg
* Clear and convincing evidence of paternity

- Clear and convincing evidence:
* DNA test
* Open and notorious acknowledgment
* Mere support is not enough

Front 103

Situations spouse loses inheritance / elective share

Back 103

- Divorce valid in NY
- Invalid divorce by surviving spouse
- Separation decree ag. surviving spouse
- Marriage is incestuous or bigamous
- Abandon by surviving spouse
- Lack of support by surviving spouse

[DISMAL]

Front 104

Disclaimer by distributee or will beneficiary

Back 104

- Notarized writing
- Separate affidavit of no consideration
- Irrevocable
- Filed with Surrogate Court w/i 9m:
* Death of decedent
* Beneficiary becomes 21

- Effect:
* Disclaimant predeceased decedent
* Not disrupting distribution
* Otherwise: immediately after

Front 105

Simultaneous deaths

Back 105

- Revised Uniform Simultaneous Death Act

- Clear and convincing evidence
- Died 5d (120h) apart
- Effect if insufficient evidence:
* B dies first when distributing A's estate
* A dies first when distributing B's estate
* AB joint account: each has 1/2

Front 106

Execution requirement for will

Back 106

- T must be 18+
- Signed by T
- At the end thereof
- In presence of 2 witnesses
- Witnesses both sign
- Completed w/i 30d after W1 signed
- Publication

Front 107

Signing of will

Back 107

- T may sign by proxy
* Proxy sign directed by and in presence of T
* Proxy not witness
* Proxy sign (essential)
* Proxy provide address (non-essential)

- T signs at the end
* Everything after signature: void
* If essential provision after signature: will void

- T signs in the presence of witness:
* W no need in presence of each other
* T must sign or acknowledge before W
* W no need to sign when T signs/acknowledges

Front 108

Interested witnesses for will execution

Back 108

- Signing by interested witness: will still valid

- Interested witness loses gift, except:
* 2 other non-interested witness signed
* lesser of will gift or intestate share

Front 109

Proof of due execution of will

Back 109

- Burden on proponent

- Requires: testimonies of 2W
- If 1W unavailable, testimony of 1W fine
- If both unavailable, must prove:
* signature of T
* signature of 1W

- If self-proving: may go directly to probate
- If self-proving and contest: need to prove

Front 110

Attestation clause / affidavit for will witnesses

Back 110

- Attesting clause:
* Prima facie evidence
* Do not replace testimony
* May be used to impeach
* May be used if W is hostile

- Affidavit replaces testimony:
* W signs in front of attorney
* W under oath
* Reciting 7-point execution

- Neither is required by law

Front 111

Holographic will and nuncupative will

Back 111

- Holographic will: all in handwriting of T
- Nuncupative will: oral will

- Both invalid in NY except:
* Soldier in war until 1 year after discharge
* Marine at sea until 3 years after discharge
* recognized under Foreign Wills Act

Front 112

Foreign Wills Act

Back 112

- Foreign wills are valid if:
* Valid under NY law
* Valid under place of execution law
* Valid under T's domicile law (death/execution)

Front 113

Lapse of gifts in will

Back 113

- If beneficiary dies before T: lapses

- Anti-lapse saves gift if:
* Beneficiary has issue
* Beneficiary is T's issue/brother/sister

- Gifts then goes to Beneficiary's issue
- By representation at each generation
- Dead beneficiary's will: irrelevant
- Will may override anti-lapse statute
- It also applies to disclaimer situation
- Specifically named adopted-out child: applies

- Lapsed gifts goes to:
* Residuary estate
* Other beneficiaries of residuary

Front 114

Revocation of will

Back 114

- Explicit revocation:
* Revocation with 7-point formality
* Physical act with intent to revoke
* Physical act of another: 4 persons

- Implicit revocation:
* New will with 7-point formality
* If consistent: no revocation but codicil

- Presumed revocation with intent:
* Cannot find will last seen in T's possession
* Will damaged last seen in T's possession

- Presumed no revocation if:
* Will last seen in beneficiary's possession
* Beneficiary adversely affected

Front 115

Modification of will

Back 115

- New will with 7-point formality
- Codicil with 7-point formality
- Partial change with 7-point formality

- short of 7-point formality: no change
- Examples:
* cross words with T's initials
* change amounts with T's initials

Front 116

Reference to extrinsic writing and acts in T's will

Back 116

- Documents: allowed in majority; not NY
* Preexisting
* Identified
* Intention to incorporate

- NY requires: same 7-point formality

- Acts of independent significance:
* Good for non-titled property
* Not good for titled property

Front 117

Changes of marital status after execution of will (effects on gifts)

Back 117

- Marry: will still valid
- Effect: spouse may gain rights

- Divorce/anulment/separation:
* Requires formal decree
* Separation agreement not good
* File for divorce not good

- Effects:
* Terminates fiduciary appointment
* Terminates gifts
* Terminates life insurance benefit
* Terminates Totten trust
* As if spouse predeceased T
* Not terminate gifts to spouse's issue
* Not terminate custody
* NO anti-lapse for spouse

- Remarry: restored

Front 118

New children after execution of will (effects on gifts)

Back 118

- Pretermitted children
* Born or adopted after execution of will
* Living or in gestation at T's death
* Not provided for in settlement
* Not named or provided for in will

- T has >=1 child, pretermitted child gets:
* No gift to child: 0
* Gift to child: equal share
* Norminal gift to child: intestate share

- T has 0 child, pretermitted child gets:
* Intestate share

Front 119

Revival of wills after revocation

Back 119

- No automatic revival

- Revival requires:
* Re-execution with 7-point formality
* Codicil to republish with 7-point formality

- Dependent Relative Revocation:
* T had mistake in law re revival
* Similar: non-revocation and revival

Front 120

Proof of content with non-production of will

Back 120

- Burden on will proponent

- Prove:
* Due execution of will
* DRR or over presumption of non-production
* Specific terms of the will

Front 121

Incapacity of testator

Back 121

- Capacity: less than for other civil acts
* Understand the nature of act (will)
* Know the property (nature and value)
* Know natural ojbects of will (beneficiary)
* Understand disposition of gifts

- Lucid interval is sufficient

- Insane delution: no capacity
* Otherwise normal person
* Belief in supposed facts
* Against all evidence, probabilty, control

Front 122

Ambiguity in will

Back 122

- Latent: requires extrinsic evidence
- Patent: facial mistakes

- Extrinsic evidence allowed:
* Facts/circumstances: for both
* T's statement to preparer: for both
* T's statement of intent to 3P: for latent

Front 123

Undue influence in making will

Back 123

- Challenger has burden to prove:
* Existence and exertion of influence
* Effect of influence on T
* But for influence, will would be different

- Insufficient:
* Opportunity
* Susceptibility
* Inequality

- Sufficient:
* Gifts made to confident relaitonship
* Beneficiary prepared the will

- Automatic inquiry for gift to attorney

- Attorney must inform if named executor:
* In writing signed by T
* Witnessed by 2
* Anyone, even nonlawyer, may be executor
* Executor receives statutory compensation
* Executor names attorney, who get fees
- If fail to inform: 1/2 statutory fees

Front 124

Conditional wills, if CP not satisfied

Back 124

- CP is valid, and will not enforceable
- CP is to show motive, will still enforceable

Front 125

Joint wills contract

Back 125

- 2 persons share will with 7-point formality
* Deemed joint will only
* Is contract only by express provisions

- One party fail to honor contract:
* Probate according to his later will
* Constructive trust for first will beneficiary

Front 126

Advancement; satsifaction of legacies

Back 126

- Majority: deemed advancement

- NY: not advancement or satisfaction
- Exception:
* Contemporaneous writing
* Signed by donor or donee

Front 127

Abatement of will

Back 127

- Following sequence:
* Creditors
* Specific gifts
* Demonstrative legacy
* General legacy
* Residuary
* Intestate estate

- Pro rata for demonstrative/general legacy

Front 128

Ademption of will

Back 128

- Only for specific gifts
- Reason of destruction: irrelevant
- Exceptions:
* Insurance for the gift paid after death
* Executory K for the gift paid after death
* Proceeds traceable to guardian disposed gifts

- Specific source for demonstrative legacy:
* Demonstrative only
* If not exist: go to other sources

Front 129

Share certificate gifts in will

Back 129

- Public company: general gifts
* Exception: 'my ... stock'
- Closed company: specific gifts
- Share split: treated as specific
- Shares changed in form: not destroyed

Front 130

Elective share of spouse

Back 130

- $50,000 or 1/3 of elective share assets

- Elective share assets:
* Net probate estate (af/t debt, b/f tax)
* Testamentary substitutes

- Other beneficiary must contribute if deficient:
* Beneficiary of will
* Beneficiary of testamentary subs
* Intestate distributees
- No need to return gifts; cash is fine

Front 131

Testamentary Substitutes

Back 131

- Totten trust for others
- Survivorship interests
- Non-qualified employee benefits
- 1/2 of qualified employee benefits
- Irrevocable in marriage retain life estate a/f 92
- Revocable transfer anytime
- Gifts within 1 year of death in excess of $13k
- US bonds
- Paid on Death arrangements
- Presently exercisable, general POA

Front 132

Not Testamentary Substitutes

Back 132

- Life insurance
- Irrevocable transfer pre-marriage
- Irrevocable retain life estate in marriage pre 92
- 1/2 of qualified employee benefits
- Gifts outside 1 year of death
- Gifts less than $13K

Front 133

Testamentary substitutes (value)

Back 133

- Full value

- Survivorship interest with 3rd party
* 1/2 if prior to marriage
* all if post marriage
* consideration furnished as proved

- Survivorship interest with spouse: 1/2

Front 134

Elective share elections

Back 134

- File w/ surrogate court
- w/i 6m after letter is issued by court

- Personal to the spouse:
* Administrator/executor cannot elect
* Guardian/custodian may elect

- Waiver: in writing notarized
- Pre or post marriage: both allowed
- Waiving 'all rights in estate'
* waives elective share
* does not waive specific gifts

- No elective share if DISMAL

Front 135

Elective share choice of law

Back 135

- T domiciled in NY: NY law
- Will chooses NY: NY law for RE in NY
- RE in other state: ancillary proceeding
- probate in other state: NY ancillary proceeding

Front 136

Non-probate assets

Back 136

- Property transfers by operation of law
* Joint tenancy with survivorship
* Joint account
* Totten trust

- Property transfers by contract
* Life insurance
* Employee benefits

- Property in trust

- Property held in POA

Front 137

Power of appointment (types)

Back 137

- Presently exercisable POA
- Testamentary POA: exercise in will
- General POA: may designate any one
- Special POA: only within limit

Front 138

Exercise of POA

Back 138

- Testamentary: in will
* Residuary clause: sufficient
* Not referring POA: sufficient
* Donor may explicitly require reference

- Presently exercisable:
* may also exercise in will
* Unless donor specifically prohibits
- Failure to exercise, goes to:
* Beneficiary of donee's will
* Residuary of donee's will
* Intestacy distributee of donee

Front 139

RAP and POA

Back 139

- Testamentary or Special POA
* Validity of POA: execution from creation
* Validity of interest: vest from creation
* Second look
* Reform age limit to 21
* Consider spendthrift

- General, presently exercisable POA:
* Validity of POA: acquisition from creation
* Validity of interest: vest from exercise
* No second look
* Consider spendthrift
* Reform age limit to 21

Front 140

Health care proxy

Back 140

- Power of attorney granted to person:
* Effective when incapacitated
* Decision on treatment

- Requirements:
* Signed by principal
* Writing
* Witnessed by 2 adults
* Recite: grantor is free from duress

Front 141

Living will

Back 141

- Show desire regarding treatment:
* Terminally ill
* Vegetative state
* Artificial life support
* Artificial nutrition
* Relieving pain

- Right to refuse medical treatment: good
- Physician assisted suicide: unconstitutional

Front 142

Lawyer malpractice in preparing will

Back 142

- NL to beneficiary: no privity
- L to estate for bad planning advice

Front 143

Class gifts in will

Back 143

- Rule of convenience:
* Closes if any person may claim
* Including child in gestation

- Goes to surviving member at death
- Anti-lapse also applies
- Adopted out children is not w/i class

Front 144

Negative bequeaths in will

Back 144

- Common law: not valid

- NY: valid
- Treated as if predeceased
- Anti-lapse still applies

Front 145

Specific gifts of encumbered property

Back 145

- Common law: right to exornerate
- NY: exornerate only with specific instruction
- General direction of paying debt: insufficient

Front 146

Elective Share Trust

Back 146

- Good if T died prior to 94
* Outright >= $50,000
* Principal in trust >= 1/3
* Spouse has life estate

- Now: not good
* Kill trust if outright gift < elective share
* Not if outright gift >= elective share

Front 147

Exempted property before will distribution

Back 147

- $92,500 in total

- $25,000 for vehicle
- $20,000 for furniture
- $25,000 in cash
* Creditor cannot touch
* Funeral can touch
- $20,000 for farm machine; animal
- $2,500 for books etc

Front 148

Donee's creditor and POA

Back 148

- General, presently exercisable POA: can

- Specific or testamentary: cannot, except:
* Donee gives to her estate
* Donee is donor

Front 149

Mistake in will

Back 149

- No extrinsic evidence may come in

- T presumed to:
* Have read the will
* Understand the consequences

Front 150

No-contest provisions in will

Back 150

- C/L: not forefeit if:
* good faith
* probable cause

- NY: forefeit, except:
* Contest jurisdiction
* Construe will
* Forgery
* Later will exists
* Guardian/custodian contest

- Safe harbor: preliminary discovery
- T may explicitly exclude safe-harbor

Front 151

NY subject matter jurisdiction

Back 151

Supreme Court
- general subject matter jurisdiction
* No limit in amount
* Injunction
- exclusive jurisdiction:
* Matrimonial status
* Article 78 proceedings
* Declaratory judgment

Surrogate Court: probate will

Court of claims exclusive jurisdiction: monetary claims against the State

Front 152

NY requirements for personal jurisdiction

Back 152

- Proper commencement of action
- Proper service of process
- Basis of jurisdiction over D

Front 153

NY commencement of action

Back 153

- Filing process with court clerk
* Supreme Court: county clerk
* Summons and complaints
* Summons and notice

- complete service within 120 days of filing

- If cannot complete, move to extend:
* good cause of delay
* Justice requires

Front 154

NY notice of complaint content

Back 154

- Brief description of cause of action
- Remedy sought
- amount of damages required

- For tort case, no need to specify amount

Front 155

NY service of process on natural persons

Back 155

- Servicer: NY resident, 18+, nonparty

- Personal delivery
* Leave to D (each D a copy)
* May leave in vicinity if D refuses
* Complete upon delivery

- Leave and mail
* Leave to suitable age/discretion person
* Mail (no need certified mail)
* Completed within 20d of each other
* Complete 10d after filing proof

- Nail and mail
* Due diligence
* Nail (tape)
* Mail (no need of certified mail)
* Completed within 20d of each other
* Complete 10d after filing proof

- Tape/Leave:
* Actual dwelling
* Actual place of business

- Mail
* Last known dwelling
* Actual place of business

Front 156

NY service on corporations

Back 156

- Personal delivery to:
* Officer
* Director
* Agent for service of process
* Managing agent w/ supervising

- Domestic/licensed foreign corporation:
* Personal delivery
* 2 copies of process
* Secretary of State
* Secretary will mail to D Corp.

- Foreign unlicensed corporation
* 1 copy personal delivery to Secretary
* 1 copy certified mail to D corp

Front 157

NY service on out-of-state owner or driver of cars

Back 157

- ordinary methods are allowed

- Special:
* 1 copy personal delivery to Secretary
* 1 copy certified mail to D

Front 158

NY special service methods

Back 158

- Expedient service of process
* Ex parte motion to court
* With court leave, any reasonable way

- Mail and acknowledgement:
* 1 copy of process
* 2 acknowledge forms signed
* 1 envelop prepaid (no need certify)
* Mail to D (individual or corp)
- Not to infants/incapacitated
- D must sign and return
- Complete upon mailing return
- If D do not cooperate: pay expense

Front 159

NY service on out-of-state party

Back 159

- Use any NY allowed method

- Servicer 1 of 3:
* NY 18+ resident
* Authorized persons in service jurisdiction
* Attorney in service jurisdiction

Front 160

NY service on infants (minors)

Back 160

- Service to 1 of 4:
* Parents
* Guardians
* Persons with legal custody
* Adult spouse of infant

- Service must also be made to 14+ infant

Front 161

NY service on incapacitated (insane)

Back 161

- Service to both:
* Insane
* Guardian

- If no guardian:
* insane
* Guardian ad litem will be appointed

Front 162

NY basis of jurisdiction

Back 162

General:
- Domicile at commencement of action
- Doing business in NY
- Physically serviced in NY

Specific:
- Long-arm statute
- Long-arm for automobile owner/driver
- Consent if not:
* under duress
* overreaching
* unreasonable

Front 163

NY 'doing business in NY' jurisdiction

Back 163

- General jurisdiction
- Domestic corp. qualifies
- Foreign licensed corp. qualifies

- Foreign unlicensed corp:
* Systematic, continuous, on-going
* Some physical location in NY
* Employees/agents regularly in NY
* Advertisement: insufficient
* Officer travels to NY: insufficient
* Selling through retailers: insufficient

Front 164

Domicile

Back 164

- Capacity to fend onself
- Intent to remain permanently
- Presence in residence
- Domicile remains until acquire new one

- Length of stay irrelevant
- Motive irrelevant
- Action speaks louder than words

- Infants (who can't fend):
* Parents
* Person who have physical custody

- Woman: self
* historically: husband

Front 165

NY long-arm jurisdiction

Back 165

- Arising out of transactions in NY
- Selling goods into NY
- Performing service in NY
- Tort actions in NY

- Tort consequences in NY:
* Deriving substantial revenue in NY
* Regularly solicit business in NY
* Foresee consequence & incl. NY in sales

- NY use, possession or title of RE

- Defamation not included in tort prongs
- Consequence of tort:
* Injury in NY
* loss of NY customers/sales

- Constitutional check:
* Purposefully avail (directed to NY)
* Reasonably foresee being sued in NY

Front 166

NY automobile long-arm jurisdiction

Back 166

- Auto accident in NY
- May reach out-state:
* Drivers
* Owners (i.e. permissive use)

Front 167

SOL for Art. 78 review

Back 167

4 months after administrative decision

Front 168

SOL for defamation

Back 168

1 year

Front 169

SOL for intentional tort against person

Back 169

1 year

Front 170

SOL for claims against subdivisions of State

Back 170

1 year and 90 days from accident

- Notice of claim w/i 90d of accident
- Failure to state a claim w/o notice

Front 171

SOL for medical malpractice

Back 171

- 2.5 year from malpractice
- Continuous treatment toll

- Foreign substance:
* 1 year 'extension'
* from discovery/should discovery
* not medicine
* not medical device implant

- 10y toll cap for infants
- 10y toll cap for insane

Front 172

SOL for professional malpractice (non-medical)

Back 172

- 3y from malpractice
- continuous representation toll

- if sue after 10y under other theory:
* notice of claim 90d before filing
* D may move for summary judgment
* P must prove with substantial evidence

- 10y insane toll cap
- no 10y toll cap for infant

Front 173

SOL for negligence/strict liability tort

Back 173

- 3y from injury

- toxic substance from:
* discovery
* should discovery
* NA to medical malpractice

Front 174

SOL for breach of warranties under UCC

Back 174

4 years from tender of delivery to next merchant

Front 175

SOL for common law contract

Back 175

6 years from breach

Front 176

SOL for rape victim v. convicted criminal (in civil action)

Back 176

5 years from date of crime

Front 177

SOL for victim of non-serious crimes v. convicted criminal (in civil action)

Back 177

7 years from date of crime

Front 178

SOL for victim of serious crimes v. convicted criminal (civil action)

Back 178

- 10 years from conviction

- 3 years from date of discovery of source of money for recovery of damages

Front 179

SOL for indemnification or contribution

Back 179

6 years from payment of judgment

Front 180

SOL for real estate

Back 180

10 years

Front 181

SOL for recognition of judgment

Back 181

20 years

Front 182

SOL for adverse possession by co-tenant with voluntary absence

Back 182

20 years (implied eviction)

Front 183

SOL toll for survival claims

Back 183

Tolled for 1 year if still timely upon death

Front 184

SOL toll for wrongful death claims

Back 184

2 years from death if survival claims timely upon death

Front 185

SOL toll for infant

Back 185

Tolled until becomes adult (18), afterwords:
- Original SOL>3y: extension to 3y
- Original SOL&lt;3y: extension to original

- 10y cap for medical malpractice

Front 186

SOL toll for insane

Back 186

Tolled until regain ability:
- Original SOL>3y: extension to 3y
- Original SOL<3y: extension to original

- 10y cap for all causes of actions

Front 187

SOL toll for absence

Back 187

- Tolled if absent:
* upon cause of action accrues
* >4m after cause of action accrues
- AND: lack of personal jurisdiction

Front 188

SOL for fraud

Back 188

Longer of:
- 6 years from action
- 2 years from date of discovery

Front 189

SOL for equity claims (rescission, accounting, reformation)

Back 189

6 years

Front 190

SOL for replevin/conversion

Back 190

3 years

Front 191

SOL for proprety damages

Back 191

3 years

Front 192

NY timing of serving answer (or pre-answer MTD)

Back 192

- 20d after personal delivery
- 20d after mail-acknowledgement
- 30d after other methods of service
- 10d after pre-answer MTD denied

Front 193

NY content of answer

Back 193

- Denials
- Affirmative defenses
- Cross-claims against other D
- Counter-claims against P
* P may reply if D counterclaims
* P may not reply without leave otherwise

Front 194

NY ways to respond to summons and complaint

Back 194

- Serve answer
- Serve pre-answer MTD

Front 195

NY ways to respond to summons and notice

Back 195

- Serve demand for complaint
- Serve notice of appearance

- P must serve complaint w/i 20d
- Otherwise D may move to dismiss

- P must:
* Show cause of delay
* Affidavit of merits

Front 196

Defenses waived if not raised in the first response (answer or pre-answer MTD)

Back 196

Personal jurisdiction

If based on defective service:
- must follow with MSJ w/i 60d
- otherwise = withdrawn

Front 197

Defenses never waived after answer

Back 197

- Failure to state cause of action
- Subject matter jurisdiction
- Non-joinder of necessary parties

Front 198

Amendment of answers

Back 198

- w/i 20d after service of answer
- once as of right

- amended once / time expired:
* Obtain leave from court
* Granted if no irreparable injustice
* favor amendment

Prejudice if other party change position
* witness gone
* evidence gone

- If answer is the first one, may add in personal jurisdiction at amendment

Front 199

NY affirmative defenses in answer or pre-answer MTD

Back 199

- Documentary evidence
- Other actions between parties
- Want of capacity
- Non-joinder of necessary parties
- Failure to state a cause of action
- Lack of personal jurisdiction
- Lack of subject matter jurisdiction

- Statutory limitations
- Paid (already performed)
- Arbitration award
- Release
- Estoppel (collateral estoppel)
- Res judicata
- Infancy of defendant
- Bankruptcy discharge
- Statute of frauds

Front 200

NY service method after P served complaint

Back 200

- First class mail
- USPS
- in New York
- To all parties (attorney)

Front 201

Implead

Back 201

- D may implead 3rd party
- Anytime af. answer bf. judgment
- Service w/i 120d of filing 3P complaint
- Service on all parties

- P may sue 3PD w/i 20d of 3P answer
- Relation back SOL

Front 202

Relation back SOL

Back 202

- P's cause arose out of same transaction
- P's cause at D's filing would be timely
- P's case against 3PD is timely

Front 203

SOL grace period for dismissal

Back 203

- 6 months to refile properly

- No grace period if dismissed:
* Lack of personal jurisdiction
* Voluntary dismissal
* For pattern of delay
* On merits

Front 204

Motion on notice

Back 204

- Service at least 8d b/f return date

- Documents:
* notice of motion
* supporting affidavits
* memorandum of law (optional)

- Parties file b/f return date
- Court consider on return date

- Decision effective:
* Entry by court clerk
* Service of decision and notice of entry

- interlocutory appeals allowed
- 30d after serviced

Front 205

Motion by order to show cause

Back 205

- Motion papers submit to judge
- with draft order to show cause
- Judge signs and service on opponent

- May expedite return date
- TRO
- Required for some proceedings

Front 206

Ex parte motion

Back 206

- Only if authorized by law

- Examples
* Motion to extend service
* Expedient service
* Some provisional measures

- No appeal
- Motion on notice to vacate
- If denied: appeal

Front 207

Motion for summary judgment

Back 207

- No genuine issue of material fact
- Counter: triable issue of fact
- Search the record: SJ for either allowed
- SJ on liability leaving damages allowed

- Timing
* After answer
* b/f 120d after note of issues filed

If MSJ after 120d limit:
- Good cause for delay
- E.g. new evidence, settlement discussion

Front 208

NY special proceedings

Back 208

- Requires specific authorizations
- Court may convert:
* Action to special proceedings
* Special proceedings to actions

- Filing petition
- Service petition
* 8d b/f return date
* 20d for Article 78 proceedings

- May use order to show cause
* Expedite return date

Front 209

Article 78 Proceedings

Back 209

- Special proceedings
* 20d return date

- 4m SOL
- Supreme Court exclusive jurisdiction
- Remedy: injunction/declaratory

- Basis
* Certiorari
* Review
* Mandamus
* Prohibition

- May cause corporation to hold SH meetings

Front 210

Attachment (provisional remedy)

Back 210

- Requirements:
* Affidavit
* Probable success
* Bond for damages

- Situation: monetary damages
* D is not domiciled in NY
* D is foreign unlicensed corporations
* D threatens to remove property
* (i.e. defraud or frustrate judgment)

- Ex parte allowed
- Motion on notice to confirm
* 5d after threaten prong
* 10d after foreign prong

Front 211

Preliminary injunction and TRO

Back 211

- Motion on notice required

- Requirement:
* Affidavit
* Probable success on merit
* Bond

- Available:
* Seeking permanent injunction
* D threatens to harm interest in subject matter

TRO:
- Motion by order to show cause
- Order contains TRO
- My shorten return date

Front 212

Receivership (provisional remedy)

Back 212

- Element
* Affidavit
* Probable success
* Bond

- Available
* Equity claim
* on specific property as subject matter
* D threatens to destroy value of property

- Motion on notice required

Front 213

Seizure (provisional remedy)

Back 213

- Available
* P seeks reclaim physical possession

- Element
* Affidavit
* Probable success
* Bond

- P gets property if still in hand
- P gets damages if destroyed

- Ex parte motion allowed
- Follow by motion to confirm w/i 5d

Front 214

Form of attachment (provisional remedy)

Back 214

- On real property
* Order of attachment
* file with county clerk
* Lien

- On personal property
* Order of attachment
* On owner D or garnishee
* Injunction not to transfer
* Lien

Front 215

Notice of pendency

Back 215

- No need of court action
- For use, title, possession of RE
- Lien on property for subsequent buyer
- Required for mortgage foreclosure
- Remedy: motion to cancel

- May file prior to action
* Requires service of complant w/i 30 days
* Otherwise D may move to vacate

- Valid for 3 years
- Extend before expiry
- Not extended: cannot refile except mortgage

Front 216

SOL toll for death of D

Back 216

18 months added to remaining SOL

Front 217

Res judicata (claim preclusion)

Back 217

- Claim precluded if arising out of the same transaction

- Not for domestic relation:
* Divorce claim
* Personal injury claim

Front 218

Res judicata (issue preclusion)

Back 218

- Issue is precluded if:
* Actually litigated and decided
* Identical issue
* D has same incentive and full and fair opportunity to litigate

Front 219

Venue

Back 219

- Venue default
* Situs county RE
* One party lives in the county

- If contest:
* request and consent
* move to change venue if silence/object

- Grant if wrong venue chosen
- Discretion for:
* Prejudice
* Convenience (material witnesses)

Front 220

Pre-answer MSJ

Back 220

- Court conversion of pre-answer MTD
- Two situations
* Recognition of judgment
* Payment on instrument

Require:
- Summons
- Notice for motion of SJ
- Supporting documents
- Return day as answer

Front 221

Civil trial

Back 221

- On calendar after file of note of issues
- May request jury trial by either party

- Right to jury:
* Remedy at law (money)
* Replevin
* Claim on real property
* Anulment
* Divorce with fault (just for status)

- Jury: 6 members; 5/6 decision

Front 222

Arbitration under NY law

Back 222

- Policy in favor

- Threshold of arbitration
* Existence of K (writing)
* Validity of K (duress, fraud, coercion, PP)
* Scope of K
* CP for arbitration
* SOL

- Post-arbitration challenge
* Bias of neutral arbitrator
* Corruption/improper in procedure
* Exceeding scope

Front 223

Challenge of arbitration (procedure)

Back 223

- Motion to stay action and compel

- Special proceeding to stay arbitration

Front 224

Standing (constitution)

Back 224

- Injury
* Personally suffers injury
* Likelihood of future harm

- Causation and redressability
* must be caused by D

- No 3rd party standing
* Close relationship
* 3rd party unlikely to sue
* organization on behalf of member

- Not as citizen or taxpayer other than establishment clause challenging government spending (not grant)

Front 225

Mootness (constitution)

Back 225

- Moot if the injury was remedied
- Exception
* capable of repetition and avoiding suit
* voluntary cessation and may repeat
* class action >= 1 member still injured

Front 226

Ripeness (constitution)

Back 226

- No advisory opinion

- Preemptive suit allowed only if:
* Undue hardship
* Issue and record fit for adjudication

Front 227

Political Question

Back 227

Not adjudicate if issue concerns:
- republican form of government
- President's decision re foreign affairs
- partisan gerrymandering
- impeachment and removal

Front 228

Cases taken by Supreme Court

Back 228

- Through certiorari
* State court cases
* Federal circuit court cases

- Through direct appeal
* Federal 3-judge district court cases

- Original and exclusive jurisdiction: state v. state

- No interlocutory review

Front 229

US Supreme Court taking state cases

Back 229

- Requires no independent state law ground of decision

Not take:
- state ground and federal ground
- reversing federal ground not changing result

Front 230

Cases against state in federal court

Back 230

- Federal court may not take: 11A
- Federal agencies may not take: 11A
- State court may not take: immunity

Exceptions
- Waiver (must be explicit)
- under fed laws enacted under S.5 of 14A
- federal government sues state

Sue state officials:
- Injunction
- Damages out of official's own pocket
- Not if state retroactively pays

Front 231

Federal court abstainsion

Back 231

- If state court proceeding is ongoing, not enjoining

- Has jurisdiction
- Not exercise

Front 232

Organization's standing on behalf of members

Back 232

- member must have standing
- germane to organization's purpose
- no involvement of member required for:
* litigation
* remedy

Front 233

Federal legislative power

Back 233

- Express authority in the constitution
- Necessary and proper under Art.1.S.8

- No general police power except:
* military
* indian reservations
* federal land and territory
* D.C.

- Tax and spending for general welfare
- Commerce power
* Channels
* Instrumentalities
* Persons and things
* Activities that burdens interstate commerce

Cumulative effect for burden:
- For economic activities
- Not for non-economic activities

Front 234

Delegation of federal legislative power by Congress

Back 234

- Generally allowed. May delegate to:
* Federal agencies
* Courts

- Standard (usually satisfied):
* Clear criteria
* Intelligent principle

- May not delegate executive power to:
* Congress
* Congressional officers

Front 235

Bicameralism and presentation requirement

Back 235

- Must go through both houses
- Must signed to law by President

- Line item veto unconstitutional
- Legislative veto unconstitutional

Front 236

10A limit on federal legislative power

Back 236

- No commandeering: not compel state to act or regulate

- May attach conditions to federal grants to induce the state to act

- May prevent harmful commercial activities by state government

Front 237

14A S.5 power to legislate

Back 237

- May not create new rights
- May not expand scope of existing rights

Front 238

President's foreign affair powers

Back 238

- Executive agreement and treaties
* Treaties requires Senate 2/3 consent
* Executive agreement does not
* Both prevails against state law
* Treaties prevails older federal law
* Neither prevails constitution

- War: President and Congress shares
* President is command in chief
* President may use US troops in foreign soil
* Congress declare war
* Congress raise army and navy

Front 239

President's appointment and removal powers

Back 239

- Appointment:
* ambassadors
* federal judges
* federal officers
- Senate consent required for appointments

- Congress may vest appoinment power for inferio officers in:
* President
* Head of department
* Federal Court

- Removals: if no limit by Congress, President may remove any federal officer

- Limits by congress allowed:
* If independence from President is preferred
* May not prohibit removals
* May limit to good cause removals

Front 240

Impeachment and removal

Back 240

- House of Rep: 1/2 - impeach
- Senate: 2/3 - remove

- Impeach and removal are different
- President, VP, federal officers, judges
- Treason, Bribery, crimes and misdemeanors
- S.Ct. chief justice preside Senate

Front 241

President Pardon

Back 241

- May pardon
* federal
* crimes

- Not impeachments
- Not state crimes

Front 242

Executive privilege in communication

Back 242

- There is privilege

- But trumped by other important interest such as the interest to produce evidence in criminal cases

Front 243

President immunity

Back 243

- Immunity to civil actions for acts in office

- No immunity for acts prior to presidency
- Even no adjournment of trial

Front 244

Preemption (federalism)

Back 244

Basis: Article III

- Express preemption

- Implied preemption
* Mutually exclusive
* State law impedes federal objective
* Congress' evident intent to preempt

- State law can have more stringent standard

- State law may not burden federal activity

- State may not tax federal activity
* no tax if coming out of treasury
* may tax federal employee's income

Front 245

Dormant commerce clause

Back 245

- Burdens interstate commerce
- Individuals and corporations may sue
- No need of facial discrimination
- Burdens out-staters

- If neutral & burden: benefit > cost

- If facial discrimination:
* Important government purpose
* Least restrictive means

- Exception: market participant
- Exception: Congress authorizes

Front 246

Privileges and immunities (PI) re liberty and ability to earn living

Back 246

- Requires facial discrimination
- Against out-staters
- Only individuals may use PI
- Only for liberty/ability to earn living
- Ability to enjoy (hobby) not included

- Standard:
* Important govermnet purpose
* Necessity (least restrictive means)

Front 247

State taxation on interstate commerce

Back 247

Must be:
- substantially connected to state
- proportional to in-state activity

- May not use tax to help in-state business

Front 248

Rational basis review standard

Back 248

The challenger must prove:
- There is no legitimate interest; or
- Law is not rationally related

- Any conceivable interest counts
- No need to be good or best

Front 249

Intermediate scrutiny review standard

Back 249

Government must prove:
- Important governmental interest
- Substantially related

- No need to be least restrictve means
- Must be narrowly tailored
- Must be good means
- May consider actual purpose

Front 250

Strict scrutiny

Back 250

Government must prove:
- Compelling government interest
- Necessary to achieve

- Must be least restrictive means
- Must be the best
- Only consider actual purpose

Front 251

Bill of rights applicable to states

Back 251

Through 14A due process

Exceptions:
- 2A gun rights
- 3A soldiers quartering
- 8A excessive fines
- 5A Grand Jury
- 7A Jury

Front 252

State Actor (for protection of individual rights)

Back 252

Only government actions are within:
- Due process
- Equal protection
- Fundamental rights
- Freedom of speech

Exceptions: Congress may enact laws under Constitutional authority to apply to private actors:
- 14A, S.5
- 13A, S.2
- Commerce Clause (Civil Rights Act)

Exception:

- Traditionally exclusive government functions (company town)

- Government entanglement (may request government to cease or private actor to conform):
* Gov. authorization
* Gov. leases to private business that discriminates

- Mere gov. grant is not entanglement

Front 253

Procedural due process

Back 253

- life, freedom, property
- goverment intentional/reckless act
- balancing test
* Importance of interest
* Ability to improve accuracy
* Administrative efficiency

Insufficient:
- government negligence
- goverment inaction without duty

Front 254

Substantive due process (types)

Back 254

- Takings

Article I/substantive due process:
- Not affecting existing contract
- No bill of attainder
- No ex post facto (criminal) law

Front 255

Fundamental rights

Back 255

Substantive due process (privacy)
- marry
- procreation
- use contraceptives
- keep family together
- custodian of child
- upbringing child
- abortion
- private homosexual activity
- right to refuse treatment
- no right to education
- no right to physician assisted suicide

Equal protection:
- right to travel (not foreign travel)
- right to vote

Front 256

Abortion

Back 256

Protected under substantive due process privacy

Standard:
- Not viable:
* cannot prohibit
* can regulate for women's health
* cannot affect ability to obtain abortion
- Viable
* may prohibit
* except to protect women's health

- No right to gov. subsidy of abortion

Notice and consent:
- Spouse: not pass scrutiny
- Parent for unmarried minor:
* Allowed
* With judicial determination exception

Front 257

Equal Protection (Discrimination)

Back 257

- Facial discrimination
- Facially neutral but with both:
* discriminatory intent
* discriminatory effect

- Standard determined by type

Front 258

Discrimination based on race

Back 258

Standard: strict Scrutiny

- affirmative action:
* No numerical set-off
* may take into account (a factor)
* may not numerical add points

Redrawing district based on race: strict scrutiny

Disrupting seniority system: not pass

Front 259

Discrimination based on gender

Back 259

Standard: intermediate scrutiny

Affirmative Action:
- allowed to remedy:
* different opportunities
* past discrimination
- not allowed if based on stereotype

Front 260

Discrimination based on national origin

Back 260

Standard: strict scrutiny

Rational basis:
- Congress' immigration law
- Self-regulated professions
- Democratic process

Intermediate scrutiny:
- Undocumented aliens

Front 261

Discrimination of non-marital children

Back 261

Standard: intermediate scrutiny

- not pass if no non-marital children is benefited

- pass if some non-marital children are benefited and some are denied benefit

Front 262

Discrimination based on age

Back 262

Rational basis standard

Front 263

Discrimination based on disability

Back 263

Rational basis standard

Front 264

Discrimination based on wealth

Back 264

Rational basis standard

Front 265

Discrimination in economic regulations

Back 265

rational basis standard

Front 266

Discrimination based on sexual orientation

Back 266

Rational basis

Front 267

Fundamental right to travel

Back 267

- Not pass strict scrutiny if refusing entry of out-staters

- No fundamental right to foreign travel

- Durational residency requirement for voting no more than 50 days

Front 268

Fundamental right to vote

Back 268

- One person one vote

- Redrawing district re population: strict scrutiny

- Partisan gerrymandering: political question

- At large election: allowed, unless with discriminatory intent

- Counting uncounted vote without standard: not pass

Front 269

First amendment approach

Back 269

- Content-based/content-neutral
* Viewpoint based
* Subject matter based

- Strict scrutiny for prior restraints

- Time, manner, place regulations
* Public forum
* Limited public forum
* Private forum

- Low value speech
* Inciting illegal activities
* Obscenity
* Commercial speech
* Defamation
* Privacy

Front 270

First amendment - Prior restraints

Back 270

Standard: strict scrutiny

- Procedurally proper court order:
* Must obey
* Lost right to challenge if disobey

- Court order to restrain media coverage to prevent prejudicial effect in the community: not pass SS

- Licensing requirement:
* Important reasons for licensing
* Criteria is so clear - no room of discretion

- Fees for public demonstration: not pass SS

- Vagueness and overbroad regulation: not pass
* E.g. fighting words

Front 271

Symbolic speech

Back 271

- need independent gov. interest to regulate
- impact must be no greater than necessary

- Pass SS to prohibit:
* Draftcard burning
* Cross burning to intimidate
* Nude dancing

- Not pass SS to prohibit:
* Flag burning (i.e. allowed)
* Cross burning (i.e. allowed)

Front 272

Forum of speech

Back 272

Public and limited public forum:
- Strict scrutiny for content-based
- Intermediate scrutiny for content-neutral
* Time, manner, place regulation
* Important gov. interest
* Narrowly tailored
* Leaving sufficient alternative forum

Private forum: rational basis; reasonable and viewpoint neutral
- Military base
- Prison front gate
- USPS sidewalk

No 1A right to access private property

Front 273

Inciting illegal activity 1A

Back 273

- Substantial likelihood of illegal activity
- Directed to cause illegal activity

Front 274

Obscenity

Back 274

Critera:
- Prurient interest
- Patently offensive
- Lack serious redeeming value

Child porn:
- prohibited if actual child
- May punish possession
- May not punish possession of adult porn

Zoning for adult bookstore/theatre: allowed

Gov. may seize assets of business that violate obscenity.

Profane words: allowed except
- Broadcasting
- School

Front 275

Commercial speech

Back 275

Prohibited if:
- False or deceptive
- Ad. of illegal activity

Truthful, nondeceptive:
- intermediate scrutiny
- complete ban: not pass

Prohibit misleading prof. ads.: allowed
- in-person solicitation:
* laywers
* accountants
- Trade name for professionals

Front 276

Privacy interest in 1st amendment

Back 276

- Not prohibit media report using information acquired from government source (publish id of criminal from trial record?)

- Media's use of tape illegally acquired:
* Public concern
* Media not participating in illegal activity

- Public has right to attend crim trial
- No right to attend for other trials

Front 277

requirements for punishing associations

Back 277

- Must be active member
- Must know the illegal purpose
- Must intend to further illegal purpose

Front 278

Anti-discrimination for associations

Back 278

- May require the associations not to discriminate against members

- Requiring to disclose members if chill association: strict scrutiny

- Not:
* Intimate relationship
* Expressive associations

Front 279

Exercising clause (1A)

Back 279

- General application, facially neutral:
* allowed
* if not general/neutral: strict scrutiny

- May not withdraw welfare for people who quit job due to religious reasons

Front 280

Establishment clause (1A)

Back 280

- Not discriminate one religion among many religions

Law involving religion pass if:
- Secular purpose of law
- Not advocating or prohibit
- No excessive government entanglement

- Grant to parochial school allowed if not for religious instructions

- Sponsored religious acitivty in public schoo: not pass

- No school prayer even if voluntary

- But religious students/groups must have access to school facility

Front 281

Termination of social security disability benefit

Back 281

Post-termination notice

Front 282

Termination of welfare benefit (due process)

Back 282

Notice and hearing

Front 283

School discipline (due process)

Back 283

Notice and opportunity to explain

Front 284

Institutionalize child by parents (due process)

Back 284

Neutral fact finder to determine relevant facts

Front 285

Termination of custody (due process)

Back 285

Notice and hearing

Front 286

Civil conviction (due process)

Back 286

Notice and hearing

Front 287

Prejudgment goverment attachment or seizure (due process)

Back 287

notice and hearing

Front 288

Punitive damages (due process)

Back 288

- Must give jury instructions
- Must have judicial reviews

- Excessive punitive damages: not due process

Front 289

Local or state regulation impairs existing contract

Back 289

- Private contract: intermediate scrutiny
* Substantially burdens existing K
* Important gov. interest
* Narrowly tailored regulations

- Government contract: strict scrutiny

Front 290

Presumption that marital husband has custody of non-biological child

Back 290

- Valid for fundamental right privacy

Front 291

O to A and his heirs

Back 291

- Fee simple absolute
- 'and his heirs' is not required today
- Devisable, descendible, and alienable

Front 292

O to A and heirs of his body

Back 292

- C/L tradition: Fee tail
- not alienable
- passes to the linear descendant of A
- Under any circumstances

- Modern: creates a fee simple absolute in A

Front 293

Defeasible fees

Back 293

- fee simple determinable
- [NY: fee on limitation]

- fee simple subject to condition subsequent
- [NY: fee on condition]

- fee simple subject to executory limitation

Front 294

O to A so long as ...
O to A during ...
O to A until ...

Back 294

- fee simple determinable
- [NY: fee on limitation]
- automatically reverts to O if violated
- O: possibility of reverter
- 'with the purpose/wish/hope' insufficient
- O's interest not subject to RAP

Front 295

O to A, but if ..., O has the right to re-enter and re-take

Back 295

- fee simple subject to condition subsequent
- [NY: fee on condition]
- Right to re-enter and re-take: must be express
- O: right of entry
- [Power of termination]
- [NY: right of re-acquisition]
- Upon violation, O must take action
- Not automatic reverting to O
- O's interest not subject to RAP

Front 296

O to A, but if ..., to B

Back 296

- fee simple subject to executory interest
- B: shifting executory interest
- Upon violation, automatically goes to B
- O: reversion (if any)
- B's interest is subject to RAP

Front 297

O to A for life
O to A for life, then to B
O to A, and upon A's death, to B

Back 297

- A: life estate
- O: reversion
- B: remainder
- A is entitled to ordinary use and profits
- A may not commit waste
- A may transfer life estate
- If transfer: life estate pur autre vie

Front 298

Waste (real property)

Back 298

- affirmative, permissive or ameliorative
- affirmative/voluntary: overt act destroys value
- permissive: neglection that destroys value
- ameliorative: acts that increases value

Front 299

Affirmative waste

Back 299

- life tenant may not exploit the land
- exception: open mines doctrine
- exception: to the extent necessary to repair
- exception: express authorization by grant
- exception: expectation - only suitable use

Front 300

Permissive waste (life tenant)

Back 300

- duty to maintain and protect the land
- only for reasonable repairs
- pay ordinary taxes to the extent of:
* profit/income
* fair rental value

Front 301

Ameliorative waste

Back 301

- C/L: committing ameliorative waste requires:
* knowledge by remaindermen
* consent from remaindermen

- NY: committing amelorative waste permitted, unless remaindermen object

Front 302

Vested remainder

Back 302

Requirements:
- identified person/class
- no condition precedent (CP)

[No CP before or within same comma]

Front 303

Types of vested remainder

Back 303

- indefeasibly vested remainder
- vested remainder subject to
* complete defeasance [total divesture]
* open

[NY: remainder vested subject to complete defeasance]

[condition after granting clause, separated by comma]

Front 304

Rule of convenience

Back 304

Upon termination of preceding interest, when the remaindermen may claim possession, the class closes

[Womb's rule: unborn fetus at time of close may join if born alive]

Front 305

Contingent remainder

Back 305

- Unidentified holder (except class)
- Condition Precedent to vesting
- CP before or in the same comma

- NY: remainder subject to condition precedent

Front 306

Rule of destructability of contingent remainder

Back 306

- Remainder destroyed if:
* Preceding interests terminates
* Contingency unsatisfied

- Abolished now:
* O gets fee simple subject to EI
* Remainderman: gets springing EI

Front 307

Rule in Shelly's Case

Back 307

- It is by operation of law
* A gets present interests
* A's heir gets 'contingent' future interest
* [Contingent because A has no heir when alive]
- Grantor intent is irrelevant
- Abolished today

Tradition:
- O grants 'to A for life, then to A's heirs'
- A receives a fee simple absolute

Now:
- A gets life estate
- A's heir gets contingent remainder
- O gets reversion

Front 308

Doctrine of Worthier Title

Back 308

- It is a presumption
- Grantor may override by clear intent

- O grants 'to A for life, then to O's heirs.'

Tradition:
- 'to O's heirs' is void and O has reversion
- O and A may transfer fee simple together

Now (NY after abolishment 1967):
- A gets life estate
- O's heir gets contingent remainder

Front 309

Executory interest

Back 309

- divesting O: springing
- divesting A: shifting

[NY: remainder subject to condition precedent]

Front 310

Restriction of alienability

Back 310

- Absolute restriction: void
- Nov void:
* reasonable time limit
* reasonable purpose

Front 311

Rules against Perpetuities (RAP)

Back 311

- Applicable to:
* Contingent remainder
* Vested remainder subject to open
* Executory interests
* Right of first refusal
* Suspension of alienation
- Not applicable to:
* grantor interests
* indefeasibly vested remainder
* vested remainder subject to complete defeasance

- Identify interest
- Identify condition
- Identify measuring life
- Theoretically possible: life + 21 years
- No: struck the future interest
- If remaining part gramatically incorrect, delete the conditions as well.

Front 312

RAP violations (flat situatons)

Back 312

- class gift contingent on members reaching an age beyond 21

- executory interest with no limitation on condition

Front 313

RAP reforms

Back 313

- Second look: upon termination of preceding estate

- USRAP: 90-year alternative period

- Cy pres: reform the grant to match grantor intent as nearly as possible

- Reform age condition to 21 if violating

NY:
- Common law RAP
- No second look, no USRAP
- No cy pres
- Reform age to 21
- Suspension of alienation within RAP
- Women > 55 are infertile

Front 314

Joint tenancy

Back 314

- Joint tenant has right of survivorship
- Four identities:
* Identical time
* Identical title (instrument)
* Identical share
* Right to possess the whole
- Straw is necessary

- Grantor must expressly provide right of survivorship, otherwise it is tenants in common

- NY: no need of straw

Front 315

Tenancy by the entirety

Back 315

- Only available between married couples
- Has right of survivorship

- Conveyance to married couples presumed to be tenancy by the entirety (i.e. may change)

- Creditor cannot reach the property
- One spouse cannot convey title

NY:
- Creditor can reach one spouse' share
- But subject to all rights of the other spouse

Front 316

Tenancy in common

Back 316

- Has title in part of the property
- No need to be identical share
- Has right to possess the whole

- Tenancy in common may result from:
* Express grant
* Failure to create joint tenancy
* Severance of joint tenancy

Front 317

Severance of joint tenancy

Back 317

- One joint tenant sells property
- (even if sale did not close)
- Partition

- Mortgage severs:
* In title theory jurisdictions
* Not in lien theory jurisdictions (NY)

Front 318

Tenant rights and duties (in joint tenancy / tenancy in common / tenancy by the entirety)

Back 318

- Right to possess the whole
- Wrongful eviction if excluding other tenants

- No adverse possession if voluntarily absent
- NY: 20 years adverse possession

- No right to collect rent if voluntarily absent
- Right to account if rent to 3rd party

- May not commit waste
- Partition

Front 319

Partition (3 methods)

Back 319

- By agreement
- In kind through court
- Forced sale through court

Court may partition the property if it is in the best interest of all parties.

Front 320

Waste (co-tenant)

Back 320

- Voluntary/affirmative waste

- Permissive waste:
* co-tenant must repair the property
* co-tenant contribution with notification
* co-tenant must pay carrying costs (taxes)

- Ameliorative waste: upon partition, co-tenant is:
* entitled to credit if his efforts increased value
* subject to damage if his efforts decreased value

Front 321

Four types of leaseholds

Back 321

- tenancy for years
- periodic tenancy
- tenancy at will
- tenancy at sufference

Front 322

Tenancy for years (features)

Back 322

- Create by express grant
- Longer than 1 year: writing SOF
- 1d to many years available
- Notice not required to terminate

Front 323

Tenancy at will (features)

Back 323

- Must be explicit
- Both parties have right to terminate
- Reasonable notice necessary
- NY: landlord must give 30d notice

Front 324

Tenancy at sufference (features)

Back 324

- created for holdover tenants
- purpose: recover rent
- terminate upon:
* acceptance of holdover
* successfully evict through court

Front 325

Periodic tenancy (features)

Back 325

- May be of different periods
* week by week
* month by month
* year by year

- Terminate with notice of at least one period
- Notice be written
- 6 months for year-to-year or above
- Terminable only at the end of period

- Creation:
* Express
* Writing w/o length but with rent
* Accepting hold-over tenant
* Tenancy for years failed for SOF
- Periods implied by way of tender rent

Front 326

Rights and duties of tenant (leasehold)

Back 326

- Pay rent. Landlord's remedy differs:
* tenant in possession
* tenant not in possession

- Not commit waste
- Make ordinary repair
- Liable to 3-P in tort

- Assignment
- Sublease

Front 327

Tenant's liability to 3P in tort (leasehold)

Back 327

- T is liable even if L explicitly promise to repair

- T may sue L for indemnification under K

Front 328

If tenant does not pay rent and is in possession, landlord's remedy

Back 328

Landlord may:
* Sue to evict and claim past due rent
* Accept and sue for due rent

- No landlord self-help
* change premise (e.g. lock)
* remove T's property
* forcibly evict

- If self-help: civil/criminal liability
- NY: treble damages

Front 329

If tenant does not pay rent and is not in possession, landlord's remedy

Back 329

- treated it as a surrender and accepts
* If remaining period > 1y: SOF
* Acceptance deliver to last known dwelling

- minority: do nothing and sue for rent
- majority: try to sublease on behalf of tenant

- NY: no need to try (let others come to you)

Front 330

If tenant explicitly promises to repair and premises destroyed without fault of tenant

Back 330

- C/L: tenant must restore
- Now: tenant may terminate
- NY: unless expressly provided otherwise, tenant may surrender the premise and stop paying rent

Front 331

Tenant waste (leasehold)

Back 331

Removal of fixture is affirmative waste

Front 332

Fixture (real property)

Back 332

Fixture is movable property, when attached to realty, objectively show the intent to permanently improve the realty.

- Fixture belongs to owner of realty
- Removal causes substantially damage: fixture
- Otherwise: not fixture
- K may provide recognition of fixture

Front 333

Assignment of lease

Back 333

- contract may prohibit assignment
- if L consent to assignment, waived, unless expressly reserve right to deny future assignment

NY: without agreement for residential lease:
- assignment requires landlord's consent
- L may unreasonably withhold consent

- assignee in privity of estate
- L may sue T2 for covenants on land
- not in privity of contract
- if assumes all responsiblity: in privity

- assignor in privity of contract
- L may sue T1 for covenants on K
- T1 is secondarily liable to L

Front 334

Sublease

Back 334

- contract may prohibit sublease

NY: in residential buildings >= 4 units
- sublease requires L's consent
- L may not unreasonably withhold
- Unreasonable withhold = consent

- after sublease:
* L and T is in privity of K and estate
* T and S is in privity of K and estate
* No relationship between L and ST

Front 335

Landlord's rights and duties (leasehold)

Back 335

- Delivery
* English rule: legal and physical
* American rule: legal
- if failed: T may sue for damages

- Implied warranty of quiet enjoyment
- Implied warranty of habitability
- Constructive eviction
- Caveat lessee

Front 336

Implied warranty of quiet enjoyment (leasehold)

Back 336

- Residential and commercial
- Constructive eviction:
* T must actually vacate
* Severe interference
* T must give notice to L

- Landlord is NL for 3-P tort towards T:
* L should not permit nuisance
* L should control common area

Front 337

Implied warranty of habitability (leasehold)

Back 337

- Only residential
- Bare minimum for living
- Building code or cases for standard

- Violate:
* No plumbing
* No running water
* No heat in winter

- Tenant remedy:
* Reduce rent
* Repair and deduct rent
* Sue for damages
* Vacate

- L may not retaliate if T reports violation of housing code by:
* increase rent
* terminate lease

Front 338

Landlord's liability for tort

Back 338

- Caveat lessee: no duty to fix

- Landlord is liable:
* Defects in common area
* Known latent defect: must warn
* Landlord assumes to repair
* Lease of public space
* Short term, fully furnished lease

Front 339

Servitudes (types)

Back 339

- Easement
- License
- Profit
- Covenants
- Equitable servitudes

Front 340

Easement (types)

Back 340

Holder has a non-possessory right to some form of use or enjoyment of the servient tenement.

- Affirmative easement

- Negative easement (only by express grant)
* Air
* Water flow
* Light
* Support
* Minority - scenic views

- Easement appurtenant to dominant tenement

- Easement in gross

Front 341

Easement appurtanent to dominant tenement

Back 341

- Requires two parcel of land
* Dominant tenement gets benefit
* Servient tenement has burden

- Automatically follows transfer of land
- Exception: BFP of servient tenement
* For value
* Without notice

Front 342

Easement in gross

Back 342

- Only one parcel: servient tenement
- Not automatically transfer
- Exception: for commercial use

Front 343

Creation of easement

Back 343

- Express grant
* Requires writing for SOF if > 1y

- Prescription (adverse possession)
- Necessity (landlock situations)
- Implication (divide and sell)

NY SOL: 10y

Front 344

Easement by prescription requirements

Back 344

- Continuous for SOL
- Open and notorious
- Actual
- Hostile (no permission)

Front 345

Scope of easement

Back 345

- Determined by term of grant
- Condition giving rise to the easement

- Owner of servient tenement may determine the location of the easement arising out of necessity.

Front 346

Termination of easement

Back 346

END CRAMP
- Estoppel:
* Holder represents no more use
* Servient owner relied and changed

- Necessity: necessity ends
* Unless it is also by express grant

- Destruction of servient tenement without fault

- Condemnation of servient tenement

- Release by holder in writing

- Abandonment:
* Physical act of holder
* Showing intent to no longer use
* Not mere non-use

- Merge of dominant and servient lands
* Not automatically revived

- Prescription: COAH

Front 347

Profit (real property)

Back 347

Holder has non-possessory right to enter into servient tenement to take out soil or soil products (timber, oil, minerals)

Same rules as easement

Front 348

License (real property)

Back 348

Holder is granted the right to enter land for delineated purpose.

- May be oral (no SOF)
* Ticket
* Neighbor talking

- License is freely revocable
- Estoppel: relied and spent money and effort

Front 349

Covenant (real property)

Back 349

Covenant: P sues for money damages

Types: affirmative/negative

Requires:
- Covenant runs on benefited tract
- Covenant runs on burdened tract

Front 350

Covenant runs on burdened parcel

Back 350

- Covenant in writing
- Intent to run
- Touch and concern (i.e. relating to land)

- Horizontal privity
* Buyer-seller
* Landlord-tenant
* Mortgagor-Mortgagee

- Vertical privity
- Notice (actual, inquiry, record)

Front 351

Covenant run on benefited parcel

Back 351

- Covenant in writing
- Intent to run
- Touch and concern (relating to land)
- Vertical privity (non-hostile)

Front 352

Equitable servitudes (requirement)

Back 352

P sues for injunctive relief

- Writing
- Intent to run
- Touch and concern
- Notice

- Implied equitable servitude: general or common scheme doctrine

Front 353

Implied equitable servitude (general or common scheme doctrine)

Back 353

- Applicable to holder who's not bound by written covenant

- general scheme including holder's land

- Notice requirement:
* Actual
* Inquiry
* Record

MBE: record notice of others' deed
NY: no record notice of other's deed

Front 354

Adverse possession (land)

Back 354

Possession may ripen into title.

- Continuous

- Open and notorious
* Like an owner

- Actual (in possession)
- Hositle

---
- MBE: good faith belief of ownership not required

- NY: good faith belief of ownership is required

- Lease of property to others is like an owner (open and notorious) and is in possession (actual)

- NY: 20 years for co-tenant's possession

Front 355

Land Transfer Requirement

Back 355

- Land contract
* Written
* Citing consideration and tract
* Signed by grantor

- [SOF: part performance doctrine]

- Lawfully executed and delivered deed

Front 356

Land contract (real property)

Back 356

- Warranties of marketable title: no litigation or threatened litigation
* No violation of zoning regulation
* No encumbrance at closing

- Encumbrance: may be waived

- If there is mortgage and buyer understand that proceeds will release mortgage, buyer may not use marketable title defense.

- Warranty of full disclosure of material facts
* Non-disclosure or fraud: void

- No warranties of quality or habitability
- Except if builder-seller:
* workmenlike construction
* quality

Front 357

Risk of loss regarding land contract

Back 357

- Risk of loss transferred to buyer
* upon closing
* equitable conversion: upon signing

- NY: buyer assumes risks upon:
* Getting possession
* Obtains title (closing)

Front 358

Deed execution and delivery (land transfer)

Back 358

- Writing required
- Citing unambiguously the land
- No need to mention consideration
- Signed by grantor
- Delivery

- Delivery is legal delivery
- Showing present intent to transfer
- No need of physical transfer
- May by mail, messenger or agent
- No need to put into grantee's hand
- If rejected by grantee: not successful

Front 359

Three types of deeds

Back 359

- Quitclaim deeds
- General warranty deeds
- Statutory warranty deeds

Front 360

Quitclaim deeds

Back 360

There is no warranty at all made by the grantor

There is not even warranty that grantor has marketable title

Buyer may not resort to grantor

Front 361

General warranty deeds

Back 361

Grantor guarantees no breach by him or predecessor.

- Present warranties
- SOL runs from delivery
* Grantor has seisin (i.e. ownership)
* Grantor has right to convey
* There is no encumbrance

- Future warranties
- SOL runs from breach
* Quiet enjoyment (no double sale)
* Defend
* Further assistance

- Right to convey:
* Not subject to suspension of alienation
* Not infant
* Not insane

Front 362

Statutory warranty deeds

Back 362

- NY: Bargain and Sale Deed
- Grantor only guarantee no breach by him

Two warranties:
- not to double sell
- no encumbrance created by grantor

Front 363

Recording statutes

Back 363

- Race-notice statute: BFP trumps prior buyer if BFP records first

- Notice statute: BFP trumps prior buyer, even if subsequent to BFP's purchase, prior buyer records earlier than BFP

Front 364

Bona find purchase (for recording statutes)

Back 364

- Purchase for value
- Without notice
* Actual
* Inquiry (objective)
* Record

Inquiry notice if:
- someone else in possession
- deed mentions unrecorded transaction

No record notice if:
- Wild deed
- Deed prior to grantor obtains ownership

Front 365

Shelter rule

Back 365

- Grantee gets the same right as grantor
- It protects BFP

- applies if threads of sale of land > 1

Front 366

Wild Deed

Back 366

- prior deed is unrecorded
- missing link in the chain of title

- It does not give due record notice

Front 367

Estoppel by deed

Back 367

- Grantor grants when lacking title
- Grantee records deed
- Grantor later obtains title and record
- Grantor later grants to second grantee

- B/w grantor and grantee-1:
* grantee-1
* estoppel

- B/w grantee 1 and 2:
* grantee-2
* Presumed not to convey w/o title

Front 368

Mortgages requirement

Back 368

Deed:

- Writing
* a note
* a mortgage deed
* a security interest in land
* Sale and lease back
* a deed of trust

- citing land
- Priority
* recording statute determines priority
* purchase money mortgage priority

- Mortgagor has title and right to possess
- Mortgagee has lien
- Each party may transfer the interest

Front 369

Equitable mortgage

Back 369

- Parties have intent to mortgage
- Delivers an absolute deed

B/w parties: may use extrinsic evidence to prove the mortgage intent

Mortgagee transfers land to another:

- Owner has no recourse against BFP

- Owner may sue mortgagee for
* fraud (damages)
* disgorging proceeds of sale

Front 370

Sell of land subject to mortgage

Back 370

- If buyer assumes responsbility
* Buyer is personally liable
* Seller is personally secondarily liable

- If buyer takes 'subject to' mortgage
* Buyer is not personally liable
* Seller is personally liable
* Mortgage is still on land
* Mortgagee may foreclose on buyer

Under both, mortgage goes with land, unless BFP without notice under recording statute

Front 371

Assignment of mortgage

Back 371

- assignment in a separate agreement
- endorse and deliver the note to asignee

Assignee becomes a holder in due course:
- Negotiable to assignor
- Assignor endorses
- Assignor delivers to assignee
- Assignee has no notice of illegality
- Assignee pays more than nominal value

Front 372

Defense against holder in due course (commercial paper/mortgage)

Back 372

- Mortgagor has no personal defenses
* Lack of consideration
* Fraudulent inducement
* Unconscionability re original
* Waiver (by assignor)
* Estoppel (by assignor)

- Mortgagor has real defenses (MAD FIF IIII)
* Material alteration
* Duress
* Fraud in fact
* Infant
* Incapacity
* Insolvency
* Illegality

Front 373

Mortgage forclosure

Back 373

- Foreclosure through court
- Necessary parties:
* all junior lien holders
* debtor-mortgagor
- Parties not joined retains mortgage

- Foreclosure not terminate senior lien

- Priority:
* Attorney fees
* Forclosure expenses
* Principal and interest of senior lien
* each junior lien
* debtor

Front 374

Equitable redemption

Back 374

Mortgagor before foreclosure has the right to redeem by paying:
- all past due amount
- if accelerated, all outstanding balance
- plus cost and interest

- It is not waivable

Front 375

Statutory redemption

Back 375

- 6m/1y after the foreclosure
- redeem by paying sale price
- may remain in possession
- nullify the sale transfer

Front 376

Support and excavation standard of care

Back 376

- Strict liability if cave in without improvement

- Negligence otherwise

Front 377

Water rights

Back 377

- Riparian owner theory
* riparian owner has right
* reasonable use

- First appropriation theory
* state has right
* appropriate by beneficial use
* [agriculture OK]
* first in time, first in right

- Underground water
* reasonable owner theory
* no malicious or wasteful use
* C/L minority: absolute right

- Surface water: common enemy

Front 378

Taking forms (real property; constitution)

Back 378

- Express taking
* condemnation
* physical occupation

- Implicit taking

* removing all reasonable economically viable use of property

* exaction that are not proportional or congruent with the proposed use

Front 379

Taking requirements (real property; constitution)

Back 379

- Government may take for public use private property in exchange for just compensation

* public use: gov. reasonably belives that taking will benefit the public

* just compensation: market value (fair value) to owner; not benefit to taker

Front 380

Zoning regulations (real property)

Back 380

- Zoning is allowed under the general police power
- note first amendment

- taking if deprive prior conforming use in totality

Front 381

Exactions (real property; constitutional law)

Back 381

Exactions: conditions attached to zoning:
- proportional
- congruent
- to the impact of the proposed development

Front 382

Zoning variance

Back 382

Elements:
- Show undue hardship of current zoning
- Not decrease the value of neighboring land

- Decision by zoning board
- Administrative ruling

Front 383

Oral agreement in consideration of marriage

Back 383

Unenforceable
- Statute of Frauds

Front 384

Remedy after rejection of goods for non-conformity

Back 384

Refund
Return
Damages

- If seller refuses return request, then buyer may sell the goods and claim damages.

Front 385

Buyer of goods is insolvent upon delivery

Back 385

Seller may refuse to deliver except for cash, including payment of all goods previously delivered under contract

Front 386

Mistake as a ground for K rescission

Back 386

- Mistake is mutual

- Mistake is a basic assumption of the contract (materiality)

- Mistake materially affects the agreed-upon exchange

- The party seeking avoidance did not assume the risks.

[Mistake as to price is not material]

Front 387

Remedy for buyer of goods if buyer accepts the nonconformity goods

Back 387

Damages equal to the difference of:
- Expected value
- Actual value

(Market values)

Front 388

General contractor relies on the sub-contractor's bid (2 effects)

Back 388

- Option contract under Restatement 87 (acceptance by General Contracter through placing bid based on the sub-contractor's bid)

- Irrevocable offer by subcontractor for the subject matter even if there is no consideration (foreseeable reliance)

Front 389

Good faith oral moification by merchants for sale of goods, which violates the Statute of Fraud, has 2 effects

Back 389

- The modification is not enforceable

- The modification constitutes a waiver by the detrimented party; if a party relies on the waiver (e.g. incurred costs based on the increased price), the waiver may not be retracted.

Front 390

Two potential remedies for alleged breach of contract

Back 390

- Contract
- Restitution (for unjust benefit)

Front 391

Offer

Back 391

- Manifestation of intent to be bound

- Requirement contract valid under UCC

- No price: implies reasonable price
* Real estate sale: requires price
* UCC: reasonable at delivery

- Advertisement is not offer

Front 392

Unilateral contract

Back 392

Offer specifies acceptance by performance only (awards, competition, etc)

Front 393

Bilateral contract

Back 393

Offer allows flexible acceptance

Front 394

Offer termination

Back 394

- Lapse of time
* Contract specified time
* Reasonable time
- Revocation
- Rejection
- Death of party for revocable offer

Front 395

Revocation of offer

Back 395

- Express or implied:
* Acts showing intent to revoke
* Known to offeree

- Revocation effective upon arrival
- Offer must be revocable

Irrevocable:
- Option contract
- Foreseeable reliance
- Partial performance
- Firm offer under UCC

Front 396

Option contract

Back 396

- Promise to keep offer open

- Requires consideration under Common Law
- NY: signed writing enforceable

Front 397

Partial performance (irrevocable offer)

Back 397

Bilateral contract:
- Partial performance is acceptance
- MBE: also promise to complete

Unilateral contract
- Complete performance is acceptance
- MBE: partial performance irrevocable
- MBE: offeree may walk away
- NY: revocable until completion

Front 398

Firm offer under UCC

Back 398

- Promises to keep offer open
- In signed writing
- Made by merchant
- Specified time/reasonable time
- No more than 3 months

Front 399

Rejection of offer

Back 399

- Counter offer: rejection
- Conditional acceptance: rejection
- C/L: mirror image rule
- UCC 2: difference is acceptance

UCC altered terms included:
* Between merchant
* Not material terms
* Not objected within reasonable time

- Industry custom is not material

Front 400

Acceptance

Back 400

Bilateral contract:
- reasonable way
- starting performance
* also with promise to complete

Unilateral contract:
- complete performance

Improper performance:
- Acceptance and breach
- UCC: if accommodating, no acceptance

Offer may specify method of acceptance
* But not single-handedly make silence so

Timing: mailbox rule

Front 401

Mailbox rule of acceptance

Back 401

Acceptance effective upon mailing.

Exception:
- Offer is irrevocable (by arrival).
- Offer specifies differently.
- Rejection sent first (by arrival).

- If rejection sent second but arrives first, and offeror relies, then rejected.

Front 402

Defenses to formation of contract

Back 402

- Ambiguity
- Mutual mistake
- Public policy
- Unconscionability
- Material undisclosure/misrepresentation

Front 403

Defenses to enforcement of contract

Back 403

- Lack of capacity
- Duress (economic duress)
- No consideration
- Statute of fraud

Front 404

Incapacity defense to contract

Back 404

- Infant, insane, intoxciation
- May disaffirm after gaining/regaining ability
- Accepted benefits after ability: estoppel

- Liable for necessary items for restitution (fair value)***

Front 405

Economic duress defense to contract

Back 405

- Generally not good defense

Elements:
- Preexisting contract
- Current emergency
- Threat to breach unless additional K

Front 406

Consideration defense to contract

Back 406

Consideration:
- benefit/detriment
- bargained-for
- Adequacy irrelevant (unless illusory)

Issues:
- Past consideration
- Modification
- Discharge of debt
- Promissory estoppel

Front 407

Past consideration

Back 407

- MBE: not good
- NY: in signed writing, provable: good

Front 408

Modification consideration

Back 408

- C/L: new consideration required
- NY: signed writing is good

UCC 2 enforceable without consideration:
- Good faith modification
- Between merchants

Front 409

Discharge of debt: consideration

Back 409

Discharge of past due, undisputed debt: no consideration.

Discharge of not due, or disputed debt: consideration.

NY: in signed writing: good.

Front 410

Assumption of time-barred debt

Back 410

- Enforceable without consideration

Front 411

Promissory estoppel

Back 411

Even without consideration, a promise is enforceable if:

- Promisor reasonably foresees to induce detrimental reliance

- Promisee relied

Front 412

Ambiguity for Formation of Contract

Back 412

- 2 parties said same thing but meant different things: no contract.

- 1 party knows ambiguity: the other party's meaning controls.

Front 413

Mutual mistake for formation of contract

Back 413

- 2 parties both thought Fact A
- Turn out to be Fact B
- Fact A is the basic assumption of K
- Not about the price

Front 414

Unilateral mistake of contract

Back 414

K is still valid:
- One party mistake
- The other party does not

- No fraud or misrepresentation

Front 415

Undisclosure or misrepresentation re Contract

Back 415

- Contract is voidable
- No need to have fault
- Innocent non-disclosure is sufficient if mistake is material
- Fraudulent misrepresentation: voidable

Front 416

Public Policy (non-compete)

Back 416

- No non-compete for lawyers, except
* Sale of business
* Conditional retirement benefit

- Reasonable in duration and scope
- Reasonable in person to be bound

Front 417

Unconscionability for contract

Back 417

- Substantive unconscionability
- Procedural unconscionability
- 'Shock the conscience'

Front 418

Statute of fraud: list of situations

Back 418

- Real estate
- Performance > 1y
- UCC 2: $500 or more
- UCC 2A: $1,000 or more
- Suretyship
- Modification
- NY mics

Front 419

Statute of fraud: real estate

Back 419

Land contract within statute of fraud

Requires:
- Consideration
- Description of land
- Signed by transferor

- Lease agreement > 1y is SOF
- Deed is SOF
- Mortgage deed is SOF

- Except partial performance doctrine

Front 420

Partial performance doctrine

Back 420

2 of 3 suffices statute of fraud:
- Partial payment
- Possession
- Substantial improvement

Front 421

Statute of fraud: performance

Back 421

- Performance not complete within 1y
- Not duration of performance
- MBE: life K within 1y (not SOF)
- NY: life K is beyond 1y (SOF)
- Complete performance exception

Front 422

Statute of fraud: UCC 2

Back 422

- Sale of goods $500 or more: SOF
- Requires quantity and sign

Exception:
- Party admission in judical proceeding
- NA for partially paid/accepted goods
- NA for custom-made goods
- Merchant:
* Between merchant
* Sends confirmation
* Citing agreement/quantity
* No objection within 10 days

Front 423

Statute of fraud: UCC 2A

Back 423

- Lease of personal property (not RE)
- $1,000 or more
- Requires:
* 'lease'
* term, rent, and quantity
* signed

Front 424

Statute of fraud: suretyship

Back 424

- One is liable for other's debt
- Requires all material terms and sign
- Except: primary purpose is benefit self

Front 425

Statute of fraud: modification

Back 425

If modified agreement within SOF: modification requires SOF

- No matter the writing of current K

Private SOF for modification:
- C/L: not allowed
- UCC 2: allowed

Front 426

Statute of fraud: NY specific

Back 426

- Promise to pay discharged debt
- Transfer of insurance policy
- Finders fee, except to:
* Attorney
* Auctioneer
* Licensed RE broker

Front 427

Parol evidence rule

Back 427

Writing supercedes:
- Prior writing
- Prior/contemporaneous oral agreement

- Not affecting subsequent oral
- May supplement agreement
- May not supplement if merger clause
- May attack validity
- May show clerical error
- May explain ambiguity

Front 428

Conducts to explain contract

Back 428

- Prior course of performance
- Prior dealings between parties
- Trade usage / industry custom

Front 429

Express warranty

Back 429

- Specimen or sample
- Hard to disclaim

Front 430

Implied warranty of merchantibility

Back 430

- UCC 2 sale of goods
- Seller is merchant
- Fit for ordinary use
- Not for financial lessor

Disclaimed by:
- Magic: 'as is' or 'with all fault'
- Conspicuous disclaimer w/ 'merchantibility'

Front 431

Implied warranty of fitness for specific purpose

Back 431

Seller knows:
- Buyer has specific purpose
- Buyer relies on seller to pick

- Not for financial lessor

Disclaimed by:
- Magic: 'as is' or 'with all fault'
- Conspicuous disclaimer

Front 432

Limit in remedy (disclaimer in K)

Back 432

- Seller may limit if conscionable
- Unconscionable if:
* Consumer goods; and
* Personal injury

- Limit: 'Damage is limited to [number].'
- Limit: 'Damage is limited to replacement.'
- Warranty disclaimer: 'Not responsible for ...'

Front 433

Risk of loss (UCC 2)

Back 433

- Contract provisions
- Breaching party

Carrier shipment:
- Shipment: handing to carrier
- Destination: tender to buyer

Non-carrier delivery:
- Merchant: buyer actual possession
- Non-merchant: tender to buyer

- Lease of goods: lessor
- Financial lease: lessee

Front 434

Risk of loss: land transfer

Back 434

- C/L: upon signing contract

- Now/NY: transfer to buyer upon:
* Taking possession
* Transfer of title (closing)

Front 435

Shipment contract (risk of loss)

Back 435

FOB. Seller address
- Delivery to common carrier
- Carefully choose carrier
- Get all paper for buyer to take possession

Front 436

Destination contract (risk of loss)

Back 436

FOB. Buyer address
- Select carrier
- Arrange for shipping
- ROL transfer upon tender

Front 437

Performance of contract

Back 437

Common law: substantial performance

UCC: perfect tender rule
- Option to cure before deadline
- Post-deadline: see prior dealing

Payment:
- Buyer may tender check
- Seller may refuse
- Buyer has reasonable time to tender cash

Front 438

Excuse for performance

Back 438

- UCC 2: reject delivery
- Installment: substantial impairment
- Common law: substantial breach
- C/L: late in time not material
- C/L: K may specify time essential

- Impossibility
- Condition not satisfied
- Subsequent agreements
* Recission
* Modification
* Accord and satisfaction
* Novation
- Anticipatory repudiation
- Inadequate assurance

Front 439

UCC 2 rejection of goods

Back 439

- If not perfect tender, buyer may reject

Accepted:
- Express acceptance
- no objection with opportunity to inspect

- Revocation of acceptance if:
* Latent defect
* Substantial impairment of value

- Remedy for rejection/revocation:
* Refund
* Return
* Damages

Front 440

Installment contract

Back 440

- No rejection for imperfect tender
- Rejection only if substantial impairment

Front 441

Common law breach as excuse of contract performance

Back 441

- Substantial performance: must perform
- Material breach: excused

- Divisible contract: material breach regarding each part

Front 442

Impossibility as excuse of performance

Back 442

- Destruction of property essential for K
* Common law: excuse
* UCC 2: risk of loss; earmarked goods

- Death of essential persons
- Governmental policy change
- Primary purpose known to promisor

Front 443

Anticipatory repudiation as excuse of contract performance

Back 443

- It equals material breach
- It may be retracted if not relied on

Front 444

Inadequate assurance as excuse of contract performance

Back 444

- It works as anticipatory repudiation
- It equals material breach
- May not demand specific assurance
- May not used to reform contract

Front 445

Unsatisfactory conditions as excuse to contract performance

Back 445

- Conditions:
* Precedent
* Concurrent
* Subsequent

- Satisfaction condition:
* Objective as default
* Taste, personal service: subjective

- Condition must be fully satisfied
- Non-cooperative party cannot use this
- Protected party may waive
- Protected party may retract waiver not relied

Front 446

Recission as excuse for performance

Back 446

- Both party partially performed
- Both party consent

- No consideration if either fully performed

Front 447

Accord and satisfaction as excuse for performance

Back 447

- Accord: future performance as satisfaction
- Performance: performed

Front 448

Novation of contract

Back 448

Assignment and delegation with other party's consent
- Releases original party
- New party has obligation

Front 449

Increase of costs of performance

Back 449

MBE: Not good reason
NY: Depending on amount and %

Front 450

Contract remedy

Back 450

- Specific performance
- Reclaim of delivered goods

- Damages
* Punitive damages not allowed
* Liquidated damages
* Expectation damages
* Incidental damages
* Consequential damages
* Avoidable damages

Front 451

Contract specific performance

Back 451

- Valid, enforceable contract
- Monetary damages inadequate

- RE: inadequate
- Goods: unique; proper circumstances
- Service:
* no specific performance
* injunction proper

- [Sort of remember: also requires mutual; the opposing party must be able to fully enforce his right.]

Front 452

Reclaim of delivered goods

Back 452

- Usually cannot reclaim

Exceptions:
- misrepresentation within 3/m of delivery
- Notice after delivery:
* insolvency upon delivery
* demand return within 10 days

Front 453

Liquidated damages

Back 453

C/L: valid if at time of contract:
* Difficult to assess damages
* Reasonable forecast of damages
* Not punitive (i.e. flexible)

UCC 2: valid if 3 above
* At time of contract
* At time of breach

Front 454

Expectation damages

Back 454

- C/L: difference between
* Expected value
* Actual value

- UCC 2: Buyer
* Cover - K: good faith
* market - K: bad faith
* expected value - actual value if retains

- UCC 2: Seller
* K - resale: good faith
* K - market: bad faith
* Lost profit: lost volume dealer
* K price: cannot resale

Front 455

Consequential damages

Back 455

- Only reasonably foreseeable to D

Front 456

Avoidable damages in K

Back 456

- Damages reduced by avoidable amount

Personal service:
- Same location
- Same job

Front 457

Entrustment (3rd party)

Back 457

- Owner entrusts to merchant
- Merchant deals with goods of same kind
- 3rd party BFP
- Owner has no claim against BFP

Front 458

Intended beneficiary

Back 458

May not modify if vested, except:
- Contract provides modifiable
- vested: beneficiary known and relied

- Promisor L to intended beneficiary
- Promisor has same defense
- Promisor L to promisee
- Promisee L to creditor beneficiary

Front 459

Delegation of K duty to 3rd party

Back 459

- Does not require consent from promisee

- Promisee may sue:
* Delegate (if for consideration)
* Delegaing party

- Delegation prohibited:
* K prohibits delegation
* K prohibits assignment
* Service: rely on skill or reputation

Front 460

Assignment of rights to 3rd party

Back 460

- No consent required
- May be gift or for consideration

- No assignment if:
* K prohibits assignment (damage)
* K makes assignment void
* Substantially changes obligor's duty

- Obligor L to assignee if notified
- Obligor has same defense

Front 461

Modification of assignment of K

Back 461

Gift assignment:
- Later assignment revokes prior ones
- NY: irrevocable if in signed writing

Assignment for consideration:
- First prevails against later assignments
- Prevails against gift assignments

Later assignment w/ consideration prevails:
- Gets payment first
- Gets judgment first

Front 462

Contract applicable law (contract)

Back 462

- Most important part of subject matter
- Sale of Goods: UCC
- Lease of Goods: UCC in NY
- Other: Common law

Front 463

Relevance (evidence)

Back 463

- Increase or decrease probability
- General balance exception
- Policy exceptions
- Character evidence exception
- Hearsay exception

Front 464

Exception of balance for relevant evidence

Back 464

Probative value outweighed by pragmatic concern

- Undue prejudice
- Misleading (confuse issues/misleading facts)
- Waste of time

* Cumulative
* Waste of time
* Undue delay

Front 465

Policy exceptions for relevant evidence

Back 465

- Liability insurance
- Subsequent remedial measures
- Settlement discussion
- Plea bargains
- Offer to pay medical exp

Front 466

Liability insurance (evidence)

Back 466

Liability insurance is irrelevant for fault

Relevant for:
- Ownership
- Control
- Impeachment

Front 467

Subsequent remedial measures (evidence)

Back 467

SRMs are irrelevant to prove:
- Defective product
- Negligence
- Lack of warning
- Wrongful conduct

SRMs are relevant:
- Ownership
- Control
- Feasibility of alternative
- Impeachment

NY: SRM admissible for manufacturing defect in product liability case (Admissible for Manufacturing Defect: AMD)

Front 468

Settlement discussion (evidence: relevance)

Back 468

Settlement discussion not admissible:
- Disputed claim (no need to formally sue)
- Settlement offer
- Settlement
- Settlement discussion
- To prove liability

- Admissible for impeachment

Front 469

Offer to pay medical exp (evidence)

Back 469

Inadmissible:
- Offer to pay medical expenses
- prove liability

- No need of dispute
- Only about offer, not discussion

Front 470

Plea bargain in subsequent criminal or civil action (evidence)

Back 470

Inadmissible for ALL purposes:
- Plea nolo contendere
- Withdrawn pleas
- Plea offers
- Plea discussions

NY: withdrawn pleas admissible for CIVIL cases

All: accepted pleas admissible

Front 471

Character evidence (definition)

Back 471

Evidence about past act or propensity to prove conformity with the propensity: inadmissible

Admissible for non-propensity purposes:
- MIMIC
- Habit
- Essential element (civil; no criminal)

True character evidence exceptions in criminal case

- Must give pre-trial notice of use character evidence

Front 472

MIMIC character evidence

Back 472

Motive
Intent
Absence of mistake
Identity
Common scheme or plan

Front 473

Essential element exception of character evidence

Back 473

Civil
- Defamation
- Negligent entrustment

Criminal: none

Front 474

Habit exception of character evidence

Back 474

Elements:
- Specificity
- Frequency

MBE: business routine and personal habit
NY: only applicable to business routine

Front 475

Character evidence for propensity

Back 475

MBE: prior sexual misconduct can be used in sexual offense crimes

Rape victim:
- Promiscuity inadmissible
- Sex with D: show consent
- Sex with others: show physical evidence
- NY: prostitution conviction within 3 years

Propensity:
- D may use character evidence
- P may rebut with character evidence
- MBE: D may show victim first aggressor
- D may show knowledge of prior violence of victim

Front 476

Form of character evidence

Back 476

MBE: reputation and opinion
NY: only reputation

Specific facts:
- Only allowed in cross-exam
- Cannot show by extrinsic evidence

Front 477

Hearsay definition

Back 477

Elements:
- Out-court statement
- By a person (not machine)
- Show truth of the stated matter

Inadmissible unless exceptions apply

Front 478

Party admission exception to hearsay

Back 478

- Statement of a party
- Used against that party

- Not about truth, but estoppel
- Plea bargain is party admission
- Include agents/employees within scope
* NY: requires speaking authority

Admissions by co-conspirators:
- Inadmissible if after-the-fact
- During crime, in furtherance: admissible

Front 479

Unavailability for hearsay

Back 479

- Illness or death
- Privileged
- Out of jurisdiction

- MBE: witness forgetful
- MBE: witness stubborn

- NY: 100 miles away
- NY: declarant is doctor

Front 480

Statement against interest exception to hearsay

Back 480

- Declarant unavailable
- Pecuniary or penal interest
- Embarrassment/disgrace insufficient

- Requires corroboration in criminal case

Front 481

Requires corroborative evidence

Back 481

- Statement ag interest hearsay in crim
- NY: Unsworn witness (children under 9)
- NY: Current sense perception
- NY: Current physical/mental (intent) proving third party

Front 482

Dying statement exception to hearsay

Back 482

- Declarant unavailable
- Declarant believes impending certain death
- Statement about cause

MBE: civil case and homicide
NY: only homicide

Front 483

Former testimony exception to hearsay

Back 483

- Declarant unavailable
- Formal proceeding or deposition
- Under oath
- Party against whom have same incentive and opportunity to cross (substantially same context)

NY: in criminal case.
- Require: prior criminal case testimony
- Suppression hearing not sufficient.

Front 484

Forfeiture exception to hearsay

Back 484

- Party deliberately and wrongfully
- Made declarant unavailable

MBE: POE standard
NY: Clear and convincing

Front 485

Current sense perception

Back 485

- Report by the declarant
- Event ongoing (or immediately after)

NY: requires corroborative evidence

Front 486

Current physical/mental condition

Back 486

- Physical condition
- Mental condition (including future intent)
- Not memory

NY:
- Report of symptoms to lay person:
* declarant must be unavailable

- Current intent to prove third party:
* Declarant must be unavailable
* Corroborative evidence required to convict

Front 487

Excited utterance

Back 487

- Startling event
- Declarant still under pressure

Front 488

Statement to obtain medical treatment exception to hearsay

Back 488

- Statement to doctor
- For diagnosis and treatment
- Past/present symptoms
- General cause of conditions
- Not including fault
- Not including identity

- Domestic violence: include identity

- NY: statement to trial expert: not applicable
- Also consider attorney-client privilege

Front 489

Business record exception to hearsay

Back 489

- Business or governmental authority
- Routinely prepares such record
- Record prepared during time of event
- Include observations by *employee*
- MBE: include employee conclusions
- MBE: not police report conclusions
- NY: not include conclusions
- Witness statement: double hearsay

Foundations:
- Witness
- Affidavit
- NY: affidavit only in civil case for business record of third party

Front 490

Non-hearsay purposes

Back 490

- Impact on listener
- Insanity of declarant
- Verbal act (words are operative)
- Impeachment purpose

Front 491

Witness' own prior statement exception

Back 491

- Identification statement
- Made at the earlier time
- Only usable by witness herself

MBE: Prior inconsistent statement
- Made in formal proceeding under oath
- Inconsistent
- Can use for impeachment
- Can use for substantive truth

MBE: Prior consistent statement
- Witness accused of lying motive
- Made prior to motive arises
- Consistent
- Can use for rehabilitation
- Can use for substantive truth

Front 492

Past recollection recorded exception to hearsay

Back 492

- W has personal knowledge
- W cannot remember (not jogged)
- Statement prepared or adopted by W
- Made around time of event w/ fresh memory
- W attest to the accuracy

- May read to jury
- MBE: opponent may introduce to evidence
- NY: both party may introduce to evidence

Front 493

Judicial notice (evidence)

Back 493

Judicial notice is treating something as true without presenting to the jury.

- Common knowledge
- Facts easily verifiable through unquestionable source

- Can be taken at any time
- No need to actually verify
- Rebuttable presumption in criminal case
- Conclusive in civil case
- Judicial notice for other state's law

Front 494

Real evidence

Back 494

[Items, things, etc.]

Foundations:
- Unique item: personal knowledge
- Generic item: chain of custody

- Chain must be substantially unbroken
- No need to be perfect
- If condition is important, real evidence must in substantially the same condition

Front 495

Authentication of document evidence

Back 495

- Personal knowledge of execution
- Solicited reply doctrine
- Handwriting by familiar lay person
- Handwriting by expert
- Handwriting by jury comparison
- Ancient document doctrine
- Self-authenticated documents

Front 496

Ancient document doctrine

Back 496

- MBE: 20 years; NY: 30 years
- Found in the place expected
- No facial suspicion of tampering

Front 497

Self-authenticated documents

Back 497

- Newspaper and periodicals
- Official publications
- Trade inscriptions
- Acknowledged documents
- Business records
- Commercial paper
- Certified public documents

Business record:
- Certified by person who knows preparation
- Made normally and around time of event

Front 498

Best evidence rule

Back 498

Document is writing:
- Content is operative
- W' knowledge based solely on reading

Best evidence:
- produce original
- produce duplicate
- provide excuses or escapes

Front 499

Original and duplicate (documentary evidence)

Back 499

- Original include print-outs
- Duplicate: identical machine copy

- Not if handwritten copy
- Without facial suspicion
- NY: duplicate in regular course of business

Front 500

Escapes or excuses for best evidence rule

Back 500

Excuses:
- Lost or cannot find with DD
- Destroyed without bad faith
- Cannot obtain with legal process

Escapes
- Summary for voluminous docs
- Collateral documents
- Certified copy of public documents

Front 501

Privileges (evidence)

Back 501

- Applies only to communication
- Applies when confidential
- Requires status-relationship
- Usually have specific purpose
- May be waived by holder

- Not to:
* Underlying facts
* Physical evidence
* Pre-existing documents

Front 502

Waiver of privileges (evidence)

Back 502

- 3rd party present in communication
- partial disclose requires full disclosure
- client sues professional
- Holder puts in issue
- FUTURE CRIME OR FRAUD

Mistake disclosure not waiver:
- reasonable steps to protect
- reasonable steps to rectify mistake

Front 503

Federal privileges (evidence)

Back 503

- Spouses
- Spousal immunity
- Attorney-client
- Clergyman-penitent
- Psychiatrist-patient

Front 504

NY Privileges (evidence)

Back 504

- Attorney-client
- Clergyman-penitent
- Spouses (not immunity)
- Doctor-patient
- Social worker-client
- Reporter-source

Front 505

Attorney client privilege (evidence)

Back 505

- Between attorney and client
- For obtaining legal advise
- Communication/confidential

- Attorney includes representatives
- Client includes prospective
- Client includes employees

Lost privilege:
- If client instructs attorney to disclose
- Between joint clients

Front 506

Doctor-patient privilege (evidence)

Back 506

- Between doctor and patient
- For medical treatment
- Confidential
- Communication

MBE: only applies to psychiatrist-patient

Front 507

Spouses communicative privilege (evidence)

Back 507

- Between spouses
- Married at communication
- For any purposes
- Confidential
- Communication

- Intended to protect intimacy
- Cannot be waived by one spouse alone
- No privilege for destroying family union

Front 508

Spousal immunity (evidence)

Back 508

- Only available in federal court
- Only for criminal case
- Testimony against the other
- Married at time of trial
- Can be waived by one spouse

- No privilege for destroying family union

Front 509

Learned treaties (evidence)

Back 509

Foundation (reliable):
- Judicial notice
- Expert witness
- Admissions

Use:
- Exam/cross-exam
- Read to jury
- NOT introduce to evidence

NY (not for substance), allowed only:
- Direct: show basis
- Cross: credibility if
* relied on by opposing expert
* admitted by opposing expert

Front 510

Lay person witness (evidence)

Back 510

- Observation
- Simple conclusion from direct observation
* Smell
* Angry
* Sobriety
* Handwriting
* Voice
- Simple conclusions must be helpful

Front 511

Dead Man's Act

Back 511

No federal DMA

States have DMA (including NY):

Not testify if:
- Personally interested in outcome
- Testifying against dead party
- Transaction and communication
- Civil action

Waived:
- Successor put in issue
- Successor waived
- Dead party's testimony introduced

NY: accident based on negligence
- May testify about circumstances
- Not testify about communications

Front 512

Writing in aid of memory (evidence)

Back 512

- allowed to revive memory

Other party:
- May introduce to evidence
- May inspect
- May use on cross

Front 513

Expert witness (evidence)

Back 513

- Qualification of witness
- Specialized knowledge is helpful
- Reliable
- Proper basis

Front 514

Basis of expert witness (evidence)

Back 514

Proper basis include:
- Expert's personal knowledge
- Admissible evidence in record
- Inadmissible evidence (hearsay) commonly relied on by experts in the same fields

- Inadmissible basis may not be disclosed
- Opponent may disclose basis

Front 515

Reliability of expert opinion (evidence)

Back 515

- Reliable method
- Reliable application

MBE test:
- Method tested?
- Known error rate?
- Peer reviewed?
- Generally accepted by experts?

NY test:
- Generally accepted by experts?

Front 516

Impeaching witness (evidence)

Back 516

Intrinsic/extrinsic: direct attack
- Inconsistency
- Bias
- Misconception

Indirect attack on character
- Character witness (extrinsic)
- Prior crimes (extrinsic allowed)
- Prior misconducts (intrinsic)

Witness must be able to reply:
- MBE: flexible
- NY: must raise in cross

Front 517

Prior crimes as impeachment (evidence)

Back 517

MBE: by type of crimes
- Veracity: allowed
- Non-veracity:
* allowed: felony within 10 years
* balance prejudice and probative value
* misdemeanor not allowed

NY: by type of witness
- Witness: allowed
- D witness:
* balance prejudice and probative value

Front 518

Prior misconduct as impeachment (evidence)

Back 518

MBE: veracity
NY: mental turpitude

- Good faith requirement
- May ask in cross (intrinsic)
- Stuck with answer

Front 519

Rehabilitation (witness)

Back 519

- No bolstering evidence
- May use prior consistent statement
- May use character witness

MBE: prior consistent statement can prove substance

Front 520

Confrontation 6th Amendment (evidence)

Back 520

- Criminal case
- Testimonial witness

Satisfied if:
- D forfeited
- D had opportunity
- D has present opportunity

Not admissible if witness has privilege not to testify


Police report (business record):
- Testimonial if for prosecution
- Not testimonial if for emergency (911 call)

- Business record not testimonial
- Grand jury testimonal

Front 521

Photo and video authentication (evidence)

Back 521

If illustrative of witness testimony:
- No need to authenticate
- Not introduced to evidence

If standing alone:
- Device working properly
- Device properly installed
- Chain of custody for tapes

Front 522

State rule applicable in federal diversity cases

Back 522

- Burden of proof
- Dead Man's Act
- Privileges

Front 523

Witness competancy (evidence)

Back 523

- Personal knowledge
- Testifying live
- Swear oath
* Understands duty to tell truth
* Promises to tell truth

NY: Children < 9 may testify unsworn
NY: not convict solely on unsworn testimony

Front 524

Leading questions (evidence)

Back 524

- direct: not allowed (DNA)
- cross-examination: allowed

Exception for direct:
- Forgetful witness
- Opposing party
- Stubborn witness
- Introductory question

Front 525

Cross examination (evidence)

Back 525

Scope:
- Facts raised in direct
- Witness credibility

If cannot cross-examine, struck testimony

Front 526

Ultimate issue opinion (evidence)

Back 526

Opinion is admissible even if addressing ultimate issue.

Criminal case:
- Inadmissible if proving state of mind

Front 527

Impeaching own witness (evidence)

Back 527

MBE: freely (no voucher rule)

NY: voucher rule
- Not impeaching own witness
- Criminal case: only if directly damaging
- Required form for inconsistent statement:
* Writing signed by witness
* Testimony under oath

Front 528

Preliminary questions (evidence)

Back 528

Judge:
- Admissibility (may have jury around)
- Qualification of expert

Jury:
- Conditional relevance
- E.g. authenticity of documents

Front 529

List of intentional torts

Back 529

Battery, assault, false imprisonment, IIED, trespass, conversion, trespass to chattel.

Front 530

Intent (intentional tort)

Back 530

Desire to do something.
Incapacity is not a defense (i.e. insane person could do intentional tort)

Insanity may negate the content of the intent (e.g. not intend to hurt a person).

Front 531

Tort battery elements

Back 531

Intent
Contact with P's person
Harmful or offensive

Offensive is reasonable person standard.
No need to touch with D's person or at the same time (e.g. posion).
Things connected to P's person is also included.

Front 532

Tort assault elements

Back 532

Intent
Create apprehension of
Immediate battery
--
Apprehension is not fear.
Requires P to know.
Words alone insufficient.
Words (conditional, future) may negate intent.

Front 533

Tort false imprisonment

Back 533

- Intent
- Confine someone
- Bounded area
- P knows or is harmed

- May be act or omission (with duty)
- May be threat
- No reasonable escape
- Escape not reasonbly known to P
- Dangerous/humiliatory escape unreasonable
- Concealed escape not known to P

Front 534

Intentional infliction of emotional distress

Back 534

Intent or reckless
Outrageous
Severe emotional distress

- Outrageous: beyond all boundary of decency tolerated by a civilized society.

- Hallmarks:
* elderly, children, pregnant women
* repetitive or continuous
* inn keeper or common carrier

- Emotional distress must be severe (mild irritation not count).

Front 535

Tort trespass

Back 535

Intent
Physical invasion
Of another's real property

- Physical intrusion required (light, sound, noice, etc)

- Throwing in object (even innocent or benign) is trespass.

- No need to know on other's land (buy a map)

- Includes air above and soil below

Front 536

Tort conversion/trespass to chattel

Back 536

Intent
Intereference with
Possession of personal property

- Personal property: everything other than building and land.

- Severe intereference: conversion
- Mild interference: trespass to chattel

Conversion: fair market value
Trespass to chattel: damages/rent

* NY: BFP or stolen goods not converter

Front 537

Defense to intentional torts

Back 537

- Consent
- Necessity
- Self-defense

Front 538

Tort consent defense

Back 538

Consent: express/implied

Consent must be voluntary
- Not due to fraud or duress

Consent requires capacity
- Intoxciated, insane or infant cannot consent

Consent has scope
- Doctor: adjacent parts (has consent) and remote parts (no consent)

Front 539

Tort self-defense

Back 539

- Proportional
- Simultaneous
- Reasonable belief of harmful act towards victim (i.e. reasonable mistake is fine)

Deadly force:
- Only against deadly force
- not defending property

NY: must retreat before deadly force.
Exception: dwelling; cannot safely retreat
Exception: police officer on duty

Front 540

Tort necessity defense

Back 540

Only defense to tort against property (trespass/conversion)

Public necessity: absolute defense; some crisis

Private necessity: partial defense.
- L for damages
- NL for punitive or nominal damages
- May stay as long as condition remains.

Front 541

Tort defamation (MBE)

Back 541

False statement
Identifying P (P alive)
Adversely affects reputation
Publication due to some fault
Damages (for some)

- Statement allude to factual basis

- Publication is de minimis (any 3rd party reasonably foreseeable to hear)

- Some fault with publication (e.g. negligent)

- Damages required for slander not per se
- Damages presumed for libel and slander per se

Front 542

Tort defamation (define libel)

Back 542

Libel is defamation where false statement is fixed to tangible media.

Front 543

Tort defamation (slander)

Back 543

Slander is defamation where false statement is not fixed to tangible media.

Front 544

Per se category of slander

Back 544

MBE (4)
- Professional/business
- Crime of moral turpitude
- Chastity of women (promiscuity no need)
- Loatham disease (STD, leprosy)

NY: add
- Homosexuality

Front 545

NY defamation damages requirement

Back 545

Damages not required for:
- Libel per se
- Libel not pro quod
- Slander per se

Damages required for:
- Libel pro quad and not per se
- Slander not per se

Front 546

NY libel pro quod

Back 546

Libel that requires extrinsic evidence to assess impact of reputation

Front 547

Defamation 1st Amendment (low value speech)

Back 547

If public concern:
- P must show falsity

Economic damages:
- Public figure P show actual malice
- Private figure P show negligence

Presumed/punitive damages:
- Private figure P show actual malice

If NOT public concern:
- Private figure no need actual malice for punative/presumed damages.

Front 548

Privacy tort list

Back 548

Misappropriation (Fed and NY)
Intrusion (Fed only)
Disclosure (Fed only)
False light (Fed only)

Front 549

Privacy tort: appropriation

Back 549

- Use of name or image
- For commercial purposes

- Newsworthiness exception (limits the tort to ads. or promotions)

- NY: newsworthiness exception interpreted broadly

Recognized in NY

Front 550

Privacy tort: intrusion

Back 550

- Invasion to seclusion
- Reasonable expectation of privacy
- Objectionable to average person
- Trespass not required

* Not recognized in NY.

Front 551

Privacy tort: disclosure

Back 551

- Disclosure
- Private, confidential info
- Objectionable to average person

- Not double world scenario
- Newsworthy exception (scandal exposure)

* Not recognized in NY

Front 552

Private tort: false light

Back 552

- Widespread dissemination
- False statement about P
- Objectionable to average person

- No need to be defamatory
- Reasonable mistake not defense

* Not recognized in NY

Front 553

Defamation defense

Back 553

- Consent
- Truth
- Privilege

Front 554

Privilege defense to defamation

Back 554

Absolute:
- Spouse
- In court speech by actors

Partial privilege:
- Situation of candidacy
- Relevant to topic
- Reasonable mistake

Front 555

Defenses to privacy torts

Back 555

- Consent: to all 4
- Newsworthyness: to false light and disclosure

Front 556

Tort fraud

Back 556

- Misrepresentation
- Material (tend to induce)
- Intent to induce reliance
- Actual reliance by P
- Damages

Front 557

Misappropriation of trade secret

Back 557

- Trade secret
- Acquire through improper method

Trade secret elements:
- Business advantage
- Kept as secret
- Reasonable protection

Front 558

Negligent misrepresentation

Back 558

- Misrepresentation
- Material
- Duty
- Causation
- Damages

Front 559

NY prima facie tort

Back 559

Basket tort
- Damages (Harm)
- Intent to do harm

Front 560

Intentional interference with business relationships

Back 560

- Contract or expected relationship
- D knows K or relationship
- Intent
- Intereference
- Damages

- Defense: advisory role of D
- Party to K may sue under K or tort

Front 561

Elements of negligence

Back 561

- Duty
- Breach
- Cause in fact
- Proximate cause
- Damages

Defense:
- Contributory negligence
- Assumption of risks
- Comparative negligence

Front 562

Tort negligence (duty)

Back 562

Duty to foreseeable P:
- rescuer is foreseeable
- physical distance is key

Content of duty:
* the standard of care of that of a reasonable prudent person
* under similar circumstances

- Raise if special knowledge/skill
- Lower if physical disability
- Knowledge of peculiar fact relevant

- 6 Special categories of duty

Front 563

NY duty regarding unborn child

Back 563

Impact on mother
- If born with defect: child can sue
- If unborn: fetus cannot sue

Misdiagnosis of birth defect:
- Sue for increased care costs
- No L for normal costs

Botched contraception:
- NL because joy > costs

Front 564

Duty content children

Back 564

- Children under 4 has no duty
- Children 4-18: subjective duty

* Intelligence
* Experience
* Age

- Adult activities: adult duty

Front 565

Duty content customs

Back 565

- Professionals uses custom
- Average pro in community
- Expert witness required
- Specialist for specialist
- City for city

Front 566

NY consent for doctors (duty to inform)

Back 566

Duty of doctors to inform the risks involved in medical procedure.

NY Exceptions. No duty to inform if:
- P refuses information
- P is incapacity
- Professional judgment: more harm
- Common risks

Front 567

Duty content: premises liability

Back 567

- No duty to unknown trespassors
- Default duty to all others for activities
- Duty for conditions:

* Known/anticipated trespassor: man-made, concealed, serious, known
* Licensees: known concealed
* Invittees: should known, concealed

- Either warn or fix
- Attractive nuisance doctrine
- Firefighter: not for inherent risks

Front 568

Attractive nuisance doctrine

Back 568

- Artificial condition
- Known or should know children frequent in vicinity
- Conditions that children cannot understand risks due to age
- Precaution if benefit > costs

* Need not be injured due to thing that lures him to land.

Front 569

NY premise liability

Back 569

Default duty for all; but consider different types of entry in breach

Front 570

Duty content: statutes

Back 570

Statutory standard applicable:
- P within class of protected person
- Injury within class of protected harm

- Statute is criminal or regulatory
- If applicable, violation = breach
- No assumption of risks defense for protected P
- NL if compliance more dangerous
- NL if compliance impossible

* NY: local ordinance not per se.

Front 571

Duty content: omission

Back 571

- No general duty to act/protect
- Duty if:

* Close relationship
* D put P in danger

- If rescue, have duty
- NY: NL for simple negligence if rescuer is health professional

Front 572

Negligent infliction of emotional distress (NIED)

Back 572

- D is negligent (duty-breach)
- P has severe emotional distress
- P has some physical harm

One of three categories:

- Near miss:

* P is in zone of danger

- Bystanders

* D hits close relative
* P witness simultaneously
* NY: P is in zone of danger

- Close relationship so likely for harm
* Disclosure by doctor of patient info

Front 573

Breach of duty (tort)

Back 573

Discuss reasonable prudent person

Per se: statutory standard and violation

Res ipsa: makes it triable
- Type of harm normally with negligence
- Negligence attributable to D
- (Within D's exclusive control)

Front 574

Cause in fact (tort)

Back 574

- But for cause
- Merging cause: either one
- Uncertain attribution: shift burden

Front 575

Proximate cause (tort)

Back 575

D liable for foreseeable harms

Foreseeable if direct cause
Foreseeable for indirect cause:
- Rescuer botch
- Doctor botch
- Subsequent harm
- Reaction of victims

Front 576

Damages (tort)

Back 576

Physical or economical
Pain and suffering

- Eggshell skull rule: actual damages

Emotional distress: NIED

Front 577

Contributory negligence defense

Back 577

Common law tradition: bars negligence liability completely

Front 578

Comparative negligence defense

Back 578

Pure comparative negligence: P may recover even if P>50% fault

Partial/modified comparative negligence:
P can recover only if D>=50% fault

Front 579

Assumption of risks defense to tort

Back 579

P must:
- Voluntarily assume
- Appreciate the risks

* No defense if P is protected class under statute

Front 580

Nuisance

Back 580

- D intereferences P's enjoyment of RE
- Unreasonable intereference
- Balance of benefits between P/D

- Public nuisance: only if P has peculiar harm
- Sensitivity of P: NL
- Special business of P: NL

Front 581

Strict liability tort

Back 581

- Wild animals
- Domestic animals with known vicious propensity
- Ultra-hazadous activities
- Product liability

Front 582

Product liability elements

Back 582

- Strict duty to make safe
- Breach (design/manufacture defect; defective warning)
- Causation
- Damages

Front 583

Strict liability: strict duty element

Back 583

- D is a merchant (incl. commercial lessor)
- Everyone in chain of distribution L
- Foreseeable use (inc. misuse)
- P did not alter the products

- Presumed no alter if bought new
- Not presumed if second-hand

Front 584

Defense to strict liability tort

Back 584

Comparative/contributory negligence

Front 585

Ultrahazadous activity

Back 585

- Risks of severe harm
- Precaution impossible
- Uncommon in the community

Front 586

No fault insurance: basics

Back 586

- Owner, driver, passenger, pedestrian
- Reover in small stake cases directly
- NY: $15,000
- Go to the car owner's insurance
- Out-state accidents also covered

- Only personal injury
- Not for pain & suffering
- Not property damages

Front 587

Not covered by no fault insurance

Back 587

- Drunk driving
- Fleeing felons
- Race or speed test
- Stolen cars

Front 588

P may still sue despite no fault insurance

Back 588

- Serious injuries
* Lost of limbs
* Serious disfigurement
* Disability

- Beyond basic economic damages (>$50,000)

* Medical bill
* Lost salary
* Misc costs of $25/day

Front 589

Finder of personal property

Back 589

Abandoned (intent + act): finder gets title
Loss/mislaid (no intent + act):
- Owner retains title
- Finder must return or conversion
- Depending on value:

Finder gets title:
- value <$20: finder diligently find 1y
- value > $20: submit to police

* 3m-3y depending on value
* not reclaimed --> finder claim title

Front 590

Gift causa motis

Back 590

- Donor: face certain, impending death
- Donor must die
- Donee cannot die eariler

Front 591

Gift inter vivos

Back 591

- Intent to give TITLE
- Acceptance (no rejection)
- Delivery

- Small item: physical delivery
- Large item: symbolic delivery

Front 592

NY gift delivery requirements

Back 592

- 1st party check: upon cashing
- 3rd party check: upon endorsement
- Share certificate: no need registration
- Through agent: to donee's agent

Front 593

Liens on personal property

Back 593

- General lien: release one item does not release lien

- Specific lien: release one item releases lien

Front 594

Bailment (bailee duty)

Back 594

Bailment: delivery of possession to bailee for specific purposes.

Bailee: duty to protect the property
- Ordinary items included
- Extraordinary items not included
- Safe-deposit: everything included

Car parking: giving key is bailment

Bailee may limit liability but cannot disclaim completely.

Front 595

Worker's compensation

Back 595

- Workers can recover for injury within scope
- No pain, suffering, punitive damages
- No longer sue employer (barred)
- Worker may sue third party
- Third party may not sue employer for contribution (except for grave injury)
- Employer buys the insurance
- Not cover independent contractor
- Not cover teachers/NGOs
- Not cover household employees

Exception:
- Self-inflicted
- Intoxciation on work
- Voluntary participation in sports

Scope: distinguish horse play and out-scope

Front 596

Equitable relief in tort

Back 596

- Tort established
- Protectable rights infringed (easy)
- Remedy at law insufficient
- Injunction is enforceable
- Balance of harm (D) and benefit (P)
- No defense to injunction applies

Front 597

Equitable relief in tort (priliminary)

Back 597

- Irreparable harm to P without
- Probable of success on merit

Front 598

Defenses to equitable relief in tort

Back 598

- Laches: P delays and D changes position
- Unclean hands of P
- First amendment

* No injunction for media coverage even if to prevent undue prejudice

Front 599

Loss of consortium tort

Back 599

- Loss of society
- Loss of service
- Loss of sex

Front 600

Tort vicarious liability

Back 600

- Employer-employee
- Owner-driver
- Merchant-manufacturer
- Parent-child

Front 601

Vicarious liability of employer

Back 601

- Within the scope of work

NL for intentional tort except
- Use of force within scope
- Nature tends to friction with others
- Intends to help employer

NL for independent contractors except:
- Land owner to invitee when IC on site

Front 602

Vicarious liability parent to child

Back 602

Parent NL for child tort except:
- NY: to modest amount $5,000

Front 603

Vicarious liability owner to driver

Back 603

L if driver runs errand

NY: Permissive use state
- L if driver has permission
- Permission presumed
- NL for car lessor

Front 604

Tort indemnification

Back 604

- May arise out of contract
- May arise due to relationship:
* Vicarious liability
* Merchant from manufacturer

Indemnification not barred by settlement
6 years SOL from payment of judgment

Front 605

Tort contribution

Back 605

D may go after TPD for contribution:
- TPD breached duty of care
- TPD contributed or aggravated damage
- Not after employer unless grave
- MBE: D not intentional or reckless
- NY: D may be intentional/reckless

D may go after TPD even P barred
Settlement bars contribution
Contribution limited to equitable % of TPD

Front 606

JSL liability

Back 606

- Judgment against each D for full amount
- P may go after any for full amount
- NY: Article 16 Limitations

Settlement reduces amount by larger of:
- Settled amount
- % of settled D's fault

Front 607

NY Article 16 Limits to JSL

Back 607

Applicable:
- Non-economic damages
- Personal injury

Not applicable:
- Economic (medical exp; loss income)
- Property damages

Limits: P&lt;=50% fault is not JSL
Except:
- Intentional/reckless: JSL
- Drivers (except police): JSL
- Ultra-hazadous activity: JSL

Front 608

Elements for crime

Back 608

- mens rea
- actus reus
- causation
[note concurrent principle for larceny/burglary]

Front 609

Form of actions (actus reus)

Back 609

Commission
Omission

Front 610

Commission for actus reus requires

Back 610

Only the volitional act of D. Not sufficient:
- Pushed/grabbed
- Reflex/convulsion
- Sleepwalking

Front 611

Ommission for actus reus requires

Back 611

- Duty to act
- Ability to act
- Knowledge of the duty

Front 612

Duty to act for criminal purposes arises out of

Back 612

- Law
- Contract
- Status relationship
- Voluntary assumption of care that prevented help from others
- D created the dangerous situation in the first place

Front 613

Common law mens rea (4)

Back 613

Malice
Specific intent
General intent
Strict liability

Front 614

Common law specific intent crimes

Back 614

- Assault; D1-Murder
- Larceny, embezzlement, false-pretense, forgery, ROBBERY
- Burglary
- Solicitation, attempt, conspiracy

Front 615

Common law malice crimes

Back 615

Murder
Arson

Front 616

Common law general intent crimes

Back 616

battery
kidnapping
false imprisonment
sex assault

Front 617

Common law strict liability crimes

Back 617

Welfare crimes (selling to minor)
Statutory rape

Front 618

Criminal cause in fact

Back 618

But for cause
Acceleration of result

Front 619

Criminal proximate cause

Back 619

- Intervening factors would cut

- Eggshell victim would not cut

Front 620

Common law accomplice elements

Back 620

- Encourages and Aids
- Specific intent that crime be committed
- no defense to accomplice

Front 621

Common law accomplice vicarious liability

Back 621

- L for all crimes committed by principal aided or encouraged

- L for all foreseeable crimes committed by principal

Front 622

Common law withdrawal defense for accomplice liability

Back 622

- Encourages: discourages

- Aids: take substantial steps to prevent the crime from being committed

Front 623

NY accomplice elements

Back 623

- Aids or encourages the conduct
- Intends that the crime be committed
- No defense for accomplice

Front 624

NY criminal facilitation

Back 624

- Knowledge that crime be committed

- Aids or encourages the conduct

Front 625

NY defense of withdrawal from accomplice liability

Back 625

'Voluntary and complete' withdrawal
Both aids/encourages: take substantial step to prevent the crime from being committed

Front 626

Defenses to accomplice

Back 626

- Mere presence
- Mere knowledge (NY: facilitation)
- Victim of protected class

Front 627

Common law solicitation

Back 627

- asking, inciting, counseling or urging another to commit a crime
- Specific intent that the crime be committed

= Asking is the act targeted

Front 628

Common law conspiracy elements

Back 628

- Agreement (2 or more) to commit a crime
- Specific intent to agree
- Specific intent to accomplish the objective
- Overt act (preparatory is OK)

Front 629

Common law vicarious liability for consiprator's crimes

Back 629

- L for all crimes committed by co-conspirators in furtherance
- L for all foreseeable crimes committed by co-conspirators

Front 630

Common law withdrawal from conspiracy

Back 630

One cannot withdraw from 'conspiracy.'

- Still L for past crime committed by D and co-conspirators

- But no longer liable for crimes committed by other co-conspirators after withdrawal

Front 631

NY withdrawal from conspiracy

Back 631

It is an affirmative defense if:
- Withdrawal is due to change of heart
- Withdrawal is complete and voluntary (prevent the crime from happening)

Front 632

Common law requirements for # of D for conspiracy

Back 632

- Requires 2
- Wharton's rule: requires 1+ (# required by underlying crime) if # is 2 or more

Front 633

NY law requirement for # of D for conspiracy

Back 633

- Unilateral conspiracy is fine
- Wharton's rule

Front 634

Common law and NY attempt (minority MBE)

Back 634

- Specific intent a crime committed
- Dangerously close to completion
- Incomplete due to reason outside of control

Front 635

MPC attempt (majority MBE)

Back 635

- Intention a crime be committed
- Substantial step towards commission corroborative of intent (preparation insufficient)
- Incomplete for reason outside of control

Front 636

MBE impossibility defense to attempt

Back 636

- Legal impossibility (to commit the underlying crime) is defense
- Factual impossibility is not defense

Front 637

NY impossibility defense to attempt

Back 637

Neither legal impossibility nor factual impossibility is a defense

Front 638

MBE merge of inchoate crimes

Back 638

Merge: attempt, solicitation
Separate: conspiracy

Front 639

NY merge of inchoate crimes

Back 639

Merge: attempt
Separate: solicitation, conspiracy

Front 640

Impossibility (of the underlying crime) defense to conspiracy

Back 640

NEVER

Front 641

NY vicarious liability for conspiracy

Back 641

NO vicarious liability for crimes D does not participate in

Front 642

Common law withdrawal defense to solicitation

Back 642

NO

Front 643

NY withdrawal defense to solicitation

Back 643

NO

Front 644

Common law withdrawal defense to attempt

Back 644

No withdrawal defense
- MPC recognizes abandonment

Front 645

NY withdrawal defense to attempt

Back 645

No, but:

Abandonment is affirmative defence:
* Voluntary
* Complete
* Preventing commission

Front 646

Defenses to crimes

Back 646

- Incapacity (age, insanity, intoxication)
- Mistake
- Self-defense
- Duress
- Necessity
- Entrapment

Front 647

Common law infancy defense for crime

Back 647

- under 7: not liable
- 7-14: presumed not to be liable
- >14: prosecute as an adult

Front 648

NY infancy defense for crime

Back 648

- Under 13: not prosecute as an adult
- 13: only prosecute for 2nd degree murder
- 14/15: prosecute for serious crimes against person/property
- 16 and above: prosecute as an adult

Front 649

Common law insanity (M'Naughten)

Back 649

Due to mental disease or defect, D lacks the *ability* to:
- understand the nature and *quality* of the act
- appreciate the wrongfulness of the act

Front 650

Common law insanity (Duham)

Back 650

D's action is a product from mental disease or caused by mental disease (not used anywhere)

Front 651

Common law insanity (volitional test)

Back 651

Due to mental disease or defect, D lacks the *ability* to:
- control the actions
- conform the conduct with requirements of law

Front 652

MPC insanity

Back 652

Due to mental disease or defect, D lakcs *substantial ability* to:
- appreciate the *criminality* of the act
- conform the conduct with requirements of law

Front 653

NY insanity test

Back 653

Due to mental disease or defect, D lacks *substantial ability* to appreciate:
- the nature and *consequence* of the act
- the *wrongfulness* of the act

Front 654

Common law voluntary intoxciation defense to crime

Back 654

- Only available to specific intent crime
- Requires high level of intoxciation to negate the specific intent

Front 655

NY intoxciation defense to crime

Back 655

- Only if intoxication negates necessary mental status for a crime (intent/knowledge)
- requires high level of intoxciation

Front 656

Criminal case burden of proof

Back 656

- Element of crime and defense:
* prosecution has burden of proof
* standard: beyond reasonable doubt
* Content: each element of crime
* negate ordinary defense
- Affirmative defense:
* D has burden
* Standard: POE
* Content: establish affirmative defenses

Front 657

Common law mistake defense

Back 657

Negates necessary mental status:
- Specific intent: any mistake
- General intent and malice: reasonable mistake

- Strict liability: mistake not a defense

Front 658

NY mistake defense

Back 658

Negates necessary mental status:
- Intentional, Knowing, Reckless: any mistake
- Criminal negligence: reasonable mistake

- Strict liability: no mistake defense

Front 659

Mistake of law as defense

Back 659

- In attempt: NL if
* commit an act which is not a crime
* mistakenly believes that it is a crime

- Not a defense in general: liable
* mistakenly believe it is *not* a crime
* in fact it *is* a crime

Front 660

Common law criminal self-defense

Back 660

May use self-defense if victim reasonably believes that use of force is necessary to protect himself from immediate use of unlawful force against him.
- Simultaneous
- Proportional
- No retreat requirement
- First aggressor rule
- Reasonable mistake in defense

Front 661

NY criminal self-defense

Back 661

May use self-defense if victim reasonably believes that the use of force is necessary to prevent unlawful use of force against him.
- Simultaneous
- Proportional
- Retreat requirement
- First aggressor withdrawal requirement
- Reasonable mistake in defense

Front 662

First aggressor rule in self-defense

Back 662

First aggressor cannot use deadly force in self-defense.

- Common law exception: withdrawal *or* escalation

- NY exception: withdrawal *even if* escalation

Front 663

NY rule of retreat in self-defense

Back 663

- Must retreat before using deadly force
- No need to retreat if at dwelling (inside)
- No need to retreat if cannot retreat safely
- [No need to retreat for rape, kidnapping, burglary, robbery or arson]
- No duty to retreat for police

Front 664

Use of force to prevent crime

Back 664

- may use non-deadly force to prevent any crime

- may use deadly force only for felony risking human life

Front 665

Use of force to arrest

Back 665

- Deadly force can be used only if:
* D tries to escape;
* risking life or serious bodily harm to others
- Non-deadly force can be used for any crime

Front 666

Self-defense against arrest

Back 666

Common law: unlawful arrest
NY: no self-defense against arrest unless police uses excessive force

Front 667

Mistake in criminal self-defense

Back 667

- Reasonable mistake is defense

- Unreasonable mistake is not defense (NY and common law majority)

- Unreasonable mistake mitigates crime (MPC/minority)

Front 668

Common law criminal duress defense

Back 668

Duress:
- Forced to commit a crime
- Force of threat of force
- Death or serious bodily harm
- D or D's family
- Not a defense to homicide

Front 669

NY criminal duress defense

Back 669

Duress:
- Forced to commit a crime
- Force of threat of force
- Death or serious bodily harm
- D or D's family
- Defense to homicide

Front 670

Common law criminal necessity defense

Back 670

D reasonably believes that the crime committed is necessary to prevent a greater harm.

- Not a defense to homicide

Front 671

NY criminal necessity defense

Back 671

D reasonably believes that the crime committed is necessary to prevent a greater harm.

- It can be defense to homicide.

Front 672

Criminal entrapment defense

Back 672

- Government initiates the crime (sting)

- Proof that D has no predisposition of committing the crime.

Front 673

NY Murder 1st Degree

Back 673

D must be 18
Intentional killing

One of the aggravating factors:
Kill for hire
Kill a judge
Kill witness
2 or more victims
Kill officer on duty
Intentional kill during BRAKES

Front 674

NY Murder in 2nd Degree

Back 674

- Intentional killing

- Reckless killing with depraved heart

- Felony murder (killing is unintentional)

Front 675

NY Manslaughter 1st Degree

Back 675

- Intentional killing with EED defense

- Intentional infliction of serious bodily harm resulting in death

Front 676

NY Manslaugther 2nd Degree

Back 676

- Normal reckless killing

Front 677

NY Criminally Negligent Homicide

Back 677

- Criminally negligent
- Killing another

Front 678

Common law murder

Back 678

Killing another with malicious aforethought

Malice:
- Intent to kill
- Intent to inflict serious bodily harm
- Reckless with depraved heart
- Intent to commit dangerous felony

Front 679

Common law 1st Degree murder

Back 679

In many states:
- Premeditated or deliberate murder
- Felony murder with serious underlying crimes

Front 680

Common law voluntary manslaughter

Back 680

Murder with heat of passion after adequate provocation
- Provocation is reasonable
- Actually provoked
- No time to cool off
- Actually not cooled off

Front 681

Common law involuntary manslaughter

Back 681

Criminally negligent manslaughter
Misdemeanor manslaughter

Front 682

Common law battery (crime)

Back 682

- General intent
- Unlawful application of force
- Causes injury or offense

Front 683

Common law assault (crime)

Back 683

- Specific intent

- attempted battery
*OR*
- creating apprehension (fear)
- immediate battery
- actual apprehension (fear)

Front 684

NY assault (crime) 1st degree

Back 684

- Intent
- Unlawful application of physical force
- causes *serious* injury
- with weapon

Front 685

NY assault (crime) 2nd degree

Back 685

- Intent
- Unlawful application of physical force
- causes *serious* injury
- NO weapon

Front 686

NY assault (crime) 3rd degree

Back 686

- Intent
- Unlawful application of physical force
- causes *injury*

Front 687

Common law false imprisonment (crime)

Back 687

- General intent
- Confining another
- Without consent

Front 688

NY False Imprisonment 2nd Degree

Back 688

- Knowing restrain is unlawful
- Confining another
- Without consent

Front 689

NY False Imprisonment 1st Degree

Back 689

- Knowing confinement is unlawful
- Confining another
- Without consent
- Risks of causing serious bodily injury

Front 690

Common law kidnapping

Back 690

- General intent
- Confining another
- Without consent
- Moving or concealing victim

Front 691

NY kidnapping 2nd Degree

Back 691

- Intent or knowledge
- Abducting another

Front 692

NY kidnapping 1st Degree

Back 692

- Intent or knowledge
- Abducting another

One of three aggravating factors:
- For ransom
- For > 12 hours, to rape, injure or rob
- Cause death of victim

Front 693

Common law and NY rape

Back 693

- General intent
- Sexual intercourse
- Without consent
- Force, threat of force, or unconscious victim

Front 694

Common law statutory rape

Back 694

- Strict liability
- Sexual intercourse
- Victim under age of consent

[MPC/minority: reasonable mistake is defense]

Front 695

NY statutory rape

Back 695

- Strict liability
- Sexual intercourse
- Victim under 17
- D over 21

Front 696

Common law larceny

Back 696

- Trespassory (wrongful)

- Taking; personal property; of another

- Specific intent to retain permanent possession

Note:

- Another must have lawful custody

- Later changed intent to retain: concurrent doctrine

- No claim of right

Front 697

Common law embezzlement

Back 697

- Taking; personal property; of another

- Specific intent to defraud

- Within D's discretionary power and possession

Front 698

Common law false-pretense

Back 698

- Obtain *title* of property
- Through intentional false statement
- Specific intent to defraud

False statement must be about past/current facts; not about future.

[Writing check knowing no account]

Front 699

Common law forgery

Back 699

- Write or alter an instrument
- So that it is false
- Specific intent to defraud

Front 700

NY larceny (with degrees)

Back 700

Including common law larceny, false pretense, embezzlement and larceny by trick.

1st Degree: 1 million
2nd Degree: 50,000
3rd Degree: 3,000
4th Degree: 1,000
Petit larceny: &lt;1,000

Front 701

Common law robbery

Back 701

- Larceny (take property from another)
- In the physical presence of victim
- Force or threat of force
- Specific intent to steal

Note:
Threat of embarassment: blackmail
Threat of future injury: extortion

Front 702

NY robbery 3nd Degree

Back 702

Forcible stealing:
- Tresspassory take
- Personal property of another
- Force or threat of force

Front 703

NY Robbery 2nd Degree

Back 703

Forcible stealing:
- Tresspassory take
- Personal property of another
- Force

Plus:
- Presence of another in aid
- Stolen a car
- Causing injury

Front 704

NY robbery 1st Degree

Back 704

Forcible stealing:
- Tresspassory take
- Personal property of another
- Force

Plus:
- Causing *serious* injury
- With weapon

Front 705

Common law arson

Back 705

- Burning of building
- Malicious

Not required anymore: dwelling; 'of another'

Charring is sufficient (previously requires some pieces of building to burn)

Must burn the building itself

Front 706

NY Arson 4th Degree

Back 706

- Reckless burning of building or motor vehicle
- Start fire intentionally

- Affirmative defense: D is owner

Front 707

NY Arson 3rd Degree

Back 707

Intentional burning of building

Front 708

NY Arson 2nd Degree

Back 708

- Intentional burning of building

- D knew or should have known there is person inside

Front 709

NY Arson 1st Degree

Back 709

- Intentional burning of building

- D knew or should have known there is person inside

- Using explosive or incendiary device

Front 710

Common law burglary

Back 710

- Break
- Entry
- Dwelling
- At night
- Specific intent to commit felony

Now: at night; break; felony; dwelling; etc are removed or modified

Front 711

NY Burglary 3rd Degree

Back 711

- Enter or remain
- In a building
- With intent to commit crime

Front 712

NY Burglary 2nd Degree

Back 712

- Enter or remain
- In a building
- With intent to commit crime

1 of 3 factors:
- Dwelling
- Causing serious injury
- Weapon

Front 713

NY Burglary 1st Degree

Back 713

- Enter or remain
- In a building
- With intent to commit crime
- D knows the building to be dwelling

1 of 2 factors:
- Causing serious injury
- Weapon

Front 714

NY menacing

Back 714

- Specific intent to create fear
- of imminent battery
- (cf. Common law assault)

Front 715

A year and a day rule

Back 715

Death must result within 1 year and a day (historically) for homicide

Abolished now

Front 716

Common law felony murder

Back 716

- Commission of felony (convicted)
- Felony is inherently dangerous
- Felony is unrelated to murder
- A non-felon is killed
- During crime or immediate flight
- Killing is foreseeable

[Flight: ends at 1st temporary safe house]
[Co-felon killed: not felony murder]

Front 717

NY Felony Murder

Back 717

- Commission of BRAKES
- No need of conviction; sufficient evidence for commission is good
- Intentional or unintentional killing
- Non-felon is killed
- During crime or in immediate flight
- Killing is foreseeable
- Non-slayer rule N/A

BRAKES:
Burglary
Robbery
Arson
Kidnapping
Escape
Sexual assault

Front 718

NY Non-slayer rule

Back 718

Defense of felony murder
- Not the person who kills
- Not bringing a weapon

- No reason to know a co-felon brought weapon

- No reason to expect use of force that could kill

Front 719

NY 'Aggravated Homicide'

Back 719

Any homicide with aggravating factor:

- Kill office in line of duty

- Kill child under 14, D > 18, in cruel and wanton manner

Front 720

Common law possession crimes

Back 720

Possession
- Actual possession
- Dominion or control (constructive)

Front 721

NY Possession Crimes

Back 721

- Controlled substance
- Weapon (loaded and operable)
- Stolen property

Front 722

Search and Seizure (elements)

Back 722

- 4th Amendment applies
- Search with warrant
- Search without warrant
- Admissibility of evidence obtained in unconstitutional search and seizure

Front 723

Elements to apply 4th Amendment to Search and Seizure

Back 723

- Government Agent
- Reasoanble expectation of privacy

Front 724

Government Agent for 4th Amendment

Back 724

- Publicly paid police
- Private citizens under the direction of police
- Private police deputized with power to arrest
- Public school principals

Front 725

Places expressly within 4th Amendment for expectation of privacy

Back 725

Person, effect, papers, and house (including curtilage)

Front 726

Places with no expectation of privacy for 4th Amendment search and seizure

Back 726

voice, handwriting
account record
open fields, view from air
garbage, odor
paint scrap

Front 727

Standards for reasonable expectation of privacy for 4th amendment search and seizure

Back 727

Subjectively, actual expectation
Objectively, reasonable expectation

Front 728

Standing to challenge for 4th Amendment Search and Seizure

Back 728

D's own constitutional rights must be impaired.
- D is owner, tenant of house
- D, guest, re area D has access
- D, owner of item, has reasonale expectation

Note:
- Temporary guests for business purpose has no expectation and no standing

- NY: Driver/passenger has standing if possession of weapon is attributed to them

Front 729

Valid warrant search under 4th Amendment: elements

Back 729

- Warrant is valid
- MBE: Good faith if warrant is invalid
- Execution complies with warrant

Front 730

Valid search warrant requirement

Back 730

- Probable cause
- Particularity
- Neutral and detached magistrate

Front 731

Probable cause for search warrant

Back 731

- MBE:
* a fair probability
* contraband would be found in the searched area
* under the totality of circumstances (POE)

- Informant: anonymous allowed in MBE
* No need to disclose basis of information
* No need to demonstrate reliability of informant
* No need to disclose identity of informant
* "Common sense practical determination"

- NY: all are required (higher standard)

Front 732

Affidavit requirement for MBE search warrant

Back 732

- Hearsay is fine

- Affidavit must provide sufficient corroborative evidence for the magistrate to make a 'common sense practical determination' of probable cause

Front 733

Affidavit requirement for NY search warrant

Back 733

Affidavit must show:
- Basis for the information
- Veracity and reliaiblity of informant

Front 734

Particularity for search warrant

Back 734

- Specify the area to be searched
- Specify the item to be seized

Front 735

Wiretap (surveilance) warrant

Back 735

Affidavit must show, in particular:
- Crime
- Conversation
- Persons to the conversation
- Time limit

Front 736

Other party agreed to wiretap

Back 736

D assumes the risk that other party may agree; no violation of D's 4th Amendment rights.

Front 737

MBE Good Faith saving invalid search warrant

Back 737

If the police obtained the warrant in good faith, it may still use.

Not good faith:
- Eggregious lacking probable cause
- No particularity (reasonable officer can't rely)
- Knowing or reckless misrep of facts
- Biased magistrate

Front 738

Valid execution of warrant

Back 738

- Compliance with terms
- Knock and announce

No need to knock & announce if:
- futile
- dangerous
- hindering investigation

Even if no knock and annonce, evidence still admissible.

Front 739

Warrantless search & seizure permitted: situations

Back 739

Exigent circumstances
Search incidental to arrest
Consent
Automobile search
Plain view
Inventory
Special needs
Terry stops and frisks

Front 740

Exigent circumstances exception for search warrant

Back 740

- Evanascent evidence
- Hot pursuit (enter house; seizure)
- Emergency aid

Front 741

Search incidental to arrest exception for search warrant

Back 741

- Arrest must be lawful
- Search for weapon or preserve evidence related to arrested crime
- Contaporaneous with arrested crime

Front 742

Scope of search for search incidental to arrest

Back 742

MBE: Wingspan (person, cloth, effect, container within arrestee's immediate control)

NY: cannot search container unless suspect to be armed

Front 743

Search vehicle incidental to arrest exception to warrant

Back 743

MBE
- Unsecured: cabin (not trunk) including container
- Secured: no search unless reason to believe that there is evidence relating to arrested crime

NY: once out of car, cannot search car for evidence

* See other potential automobile search exceptions

Front 744

Consent exception to warantless search

Back 744

- Voluntary and intelligent
- Apparent consent (reasonable belief)
- Co-tenants: objector wins
- Scope of consent: reasonable belief

Front 745

5th Amendment Miranda (violation)

Back 745

Violated if:
- Custody: atmosphere suggesting not free to leave
- Interrogation:
* known or should have known
* likely to lead to confession

- No waiver: knowing, intelligent and voluntary
- Not for public safety questioning
- Not for spontaneous blurt out confessions
- Only for testimonial evidence
* confession
* lie detector
- Not for underlying physical evidence

Front 746

5th Amendment Miranda (content)

Back 746

- Right to silence
- Used against D in court
- Right to counsel
- Appoint on for free if can't afford

Front 747

5th Amendment Miranda (waiver)

Back 747

- Knowing
- Intelligent
- Voluntary

- May be express (signed writing)
- May be implied (e.g. cooperating)

NY: if kept child from parent, waiver invalid

Front 748

5th Amendment Miranda (invoke)

Back 748

- Express invoke for right to silence
- Unambiguous for right to counsel

Front 749

5th Amendment Miranda (result of invocation)

Back 749

Once you say: I want a lawyer

Police must scrupulously honor:
- Stop questioning
- May not re-initiate

Reinitiate:
- By defendant
- By police, 14 days after release, obtain a valid waiver

Front 750

Pretrial identification (5th Miranda)

Back 750

NO Miranda right to counsel for line-up, show-up or photo-array
(Miranda is for testimony)

Front 751

Pretrial identification (6th Amendment)

Back 751

MBE:
Line-up: after charge
Show-up: after charge
Photo-array: No

NY: indelible right to counsel.
Line-up/show-up pre-charge if:
- D is aware he has counsel
- D requests counsel

Front 752

Pretrial identification (Due Process)

Back 752

Unconstitutional if so suggestive that there is substantial likelihood for misidentification.

Front 753

Pretrial identification (remedy)

Back 753

Remedy: no in-court identification

Exception: prosecution prove:
- Specificity of identification
- Certainty of identification
- Ample opportunity to observe

(Usually only violation to right to counsel; but not due process for suggestiveness)

Front 754

MBE Grand Jury

Back 754

- Functions: issue indictment
- Secretive
- Not required under constitution

- No Miranda right or right to counsel

Front 755

Detention hearing not required if

Back 755

- Grand Jury indicted
- Arrest warrant issued

(Detention hearing is to determine probable cause to take D into custody)

Front 756

After arrest, D must be brought before a magistrate to

Back 756

- Advise D of his right
- Set bail
- Appoint a counsel, if necessary

Front 757

NY Grand Jury

Back 757

Grand Jury indictment required.

Sufficient evidence to establish:
- All elements of crime
- Reasonable cause to believe that defendant committed the crime

D may request to testify

Front 758

Defendant's trial right

Back 758

- Prosecutor must disclose all exculpatory evidence
- Unbiased judge (no financial stake; no actual prejudice)

Front 759

Criminal right to jury

Back 759

Right to jury trial for offenses > 6 months.

- Jury trial (6-unanimous;12-no need to be unanimous)

NY: Jury: 12/11; unanimous

- Pool of cross-section of community
- 3 peremptive strikes not racial or gender based

Front 760

Criminal ineffective assistance of counsel

Back 760

- Deficency
- But for deficiency, D would win

It requires colorable argument that D is not guilty. Difficult to meet.

Front 761

Plea bargain (requirement)

Back 761

Judge must inform D (on record):
- Nature of charges, incl. maximum sentence
- Consequence of plea bargain: waiving right to trial

D must agree knowingly, intelligently, and voluntarily.

Front 762

Withdrawal of plea bargain after sentencing (requirements)

Back 762

- Involuntary bargain
- Ineffective assistance of counsel
- Prosecution breach bargain
- Jurisdictional defect

Front 763

Punishment (8th Amendment)

Back 763

Cruel and unusual punishmet prohibited.

Death penalty violates if:
- categorically automatic death sentence
- on mentally retarded D
- execution when D is insane
- D was under 18 at commission

Jury must be able to consider all mitigating evidence

Front 764

Double Jeopardy (attach)

Back 764

- Jury trial: 1st juror swears in
- Bench trial: 1st witness swears in
- Plea bargain: unconditionally enters

No double jeopardy for same crime in same sovereign

Front 765

Double jeopardy (double)

Back 765

MBE: not if each crime has a different element from the other

NY: transactional. Not double if:
- Substantially different elements
- 1 different element AND for different harms
- Different crimes for different victims
- One possession and one use

Front 766

Double jeopardy (second trial requirement)

Back 766

- Hung jury
- Mistrial for manefest necessity (e.g. defect in indictment)
- D successfully appeals (other than insufficient evidence)
- Defendant did not hold bargain

Front 767

Take the 5th

Back 767

One may refuse to testify under oath

NY Except: Grand Jury
Exception: immunity granted
Exception: statutory limitation passed

Waiver
Once testify, forever waives taking 5th
Defendant takes the stand

Front 768

Take the 5th (immunity)

Back 768

MBE: grand immunity to use testimony against witness for same crime - may not take 5th

NY: grant immunity for the transaction

Front 769

5th Amendment (Prosecutor conduct)

Back 769

Prosecutor may not allude to:
- Defendant invoking right to silence
- Defendant invoking right to counsel
- Defendnat decides not to testify

Front 770

Automobile search exception under 4th Amendment

Back 770

- Probable cause that contraband or evidence of crime can be found on the car
- Can search anywhere in the car including trunks (container, package, and luggage)

Search after traffic stops:
- Must have probable cause prior to initiate search

Front 771

Plain view exception to 4th Amendment search and seizure

Back 771

- lawful access to the area searched
- lawful access to the item searched
- the item must be plainly recognizable as contraband or evidence of crime

* NY: for obscene materials, search warrant is required even if in plain view

Front 772

Inventory exception for 4th Amendment search and seizure

Back 772

- Upon booking into incarceration
- Upon impounding of vehicles

Requirements:
- State must have relevant regulations that are reasonable (considered in the totality)
- Police must follow the requirements of the regulations

Front 773

Special needs exception to 4th Amendment search and seizure

Back 773

- Element:
* Special needs
* not be general interest in law enforcement

- Random drug testing
* for customs officers handling drug interdiction;
* railroad employees after accident;
* public schoolchildren in extracaricular activities

- Public school principal may search to enforce school rules (not unreasonably offensive)

- Government employees' desks may be searched for work-related misconduct

- **No 4th Amendment right at border (may search if reasonable suspicion)**

Front 774

4th Amendment right at border

Back 774

None

Front 775

Terry Stops and Frisks

Back 775

Terry stops: stop (seize) suspected individuals to investigate
Terry frisks: search individuals only to protect officer safety

- Only exception not requiring probable cause
- reasonable suspicion of criminal activity or armed is sufficient (i.e. specific, articulable reasons)

Front 776

Terry Stops

Back 776

- seized if reasonable belief of:
* no freedom to leave
* no freedom to refuse questioning

- Hot pursuit MBE: seized if:
* physically restraining suspect
* submit to police
- Hot pursuit NY: seizure in itself

- Seize cars: drivers and passengers are seized
- dog sniffs: not seizure if not substantially proloning traffic stop

Front 777

Terry Frisks

Back 777

Officer may pad the suspect for weapon
MBE: officer may seize:
- Weapons
- Contraband or evidence if recognize without physical manipulation

NY: officer may seize
- Weapons
- Contraband or evidence only if thought it is a weapon

Car frisks: may search car for weapons (no locked containers)

Protective sweeps for criminal confederates
- Adjacent area: reasonable suspicion
- Remote area: reasonable prudent officer could conclude that confederates are there

Front 778

Crim Pro Arrest requirement

Back 778

Arrest: place into custody for prosecution or interrogation; call to police station for fingerprinting

- Probable cause
- Can arrest for any offense even if only punishable by civil fines

- requires an arrest warrant if suspect is at home and no emergency
- requires an arrest warrant and a search warrant if suspect is in a 3-party home

- may arrest without warrant if on public property

if suspecting common enterprises among driver/passenger, may arrest all

Front 779

Crim Pro confessions applicable law

Back 779

- 14th amendment due process
- 5th amendment Miranda rights
- 6th amendment right to councel

Front 780

Confessions (14th Amendment)

Back 780

- confessions must be voluntary
- there must not be any police coersion

Front 781

Confessions (6th Amendment) - MBE

Back 781

- it starts only after formal charges are made
- it applies only to the specific crime charged (not relating to other crimes)

Confession obtained violates right to counsel if:
- No knowing, intelligent and voluntary waiver is made
- Deliberately solicited by the police

Front 782

Confessions (6th Amendment) - NY

Back 782

It arises if:
- Significant judicial process starts (arraignment; formal charge; etc)
- Procedures overbearing defendant's free will starts (police want to overwhelm D)
- Presence of counsel is beneficial to defendant

* if released, and later taken into custody for unrelated crime, not automatically attach to that

Scope:
- it applies to all confessions, including other crimes not charged
- deliberately solicited by the police

Waiver:
- Knowing, intelligent, and voluntary requirement
- Indelible right to counsel requires counsel presence if one is appointed

Front 783

Use of evidence obtained in violation of constitution (Crim Pro)

Back 783

Police's deliberate, reckless or gross negligent violation:
- Prosecution case-in-chief: inadmissible
- Impeachment of D's testimony if D takes stand: admissible
- Miranda violation against 3rd party: inadmissible

Exceptions:
- If only violating knock and annonce: admissible
- If police makes reasonble mistake: admissible

Fruit of poisonous tree: subsequent evidence also inadmissible.
Evidence is inadmissible if discovered due to prior inadmissible evidence

Exception to poisonous tree:
Physical evidence discovered by Miranda-violated confession: admissible
Prosecution proves break of the chain:
- Independent source
- Inevitable discovery
- Defendant regains free-will (second try for Miranda right violation to obtain same evidence if the first one is not coercive)

Front 784

Security interests elements

Back 784

- Attach
* Value provided
* Authenticated record reasonably describing collateral
* Rights in the collateral (including after acquired)

- Perfection
* Filing of financing statement for most collateral
* Possession
* Automatic perfection for PMSI in consumer goods

Front 785

Financing statement requirement

Back 785

- Describe collateral: general description is sufficient
- Debtor's name and address
- Creditor's name and address

- Filed at the debtor's domicile county
- For fixture, file at location county

Front 786

Security interest priority

Back 786

- Attached unperfected creditors:
* Over debtor
* Over subsequent attached but unperfected
* Over general unsecured creditors
* Trumped by all others

- Perfected creditors:
* Over buyer not in ordinary course
* Over debtor
* Over subsequent perfected creditor
* Over general unsecured creditors
* Trumped by PMSI
* Trumped by buyer in ordinary course

- PMSI:
* For equipment: file within 20d after possession
* For inventory: notice and file prior to possession

Front 787

Default and remedy for security interests

Back 787

- Default defined in SI agreement

- Self-help
- Recover collateral through judicial writ of replevin
- Strict foreclosure
- Foreclosure sale
- Deficiency claims

- Debtor has right of redemption

Front 788

Self-help in security interest

Back 788

- Not breach peace

- Breach peace if:
* Likely to cause violence
* Act under color of law
* Break into home
* Debtor expressed objection

Front 789

Strict foreclosure

Back 789

- Consumer goods, notify:
* Debtor
* Secondary obligor

- Other goods, notify:
* Debtor
* Secondary obligor
* Secured creditor who notified
* Perfected secured creditor

- Strict foreclosure: in satisfaction of the debt

- No strict foreclosure for consumer goods if:
* Paid more than 60% of loans
* Paid more than 60% of PMSI price

Front 790

Foreclosure sale of collateral (secured transactions)

Back 790

- Commercially reasonable in every aspect

- Notice must be reasonable:
* Form provided
* Time/place for public sale
* Earliest time for private sale
* reasonable in advance of sale
* To debtor/secondary obligor/known secured creditors

- May buy at public sale
- May not buy without market check at private sale
- Deficiency calculated by market price if sold to insider at low price

Front 791

Redemption of collateral in secured transactions

Back 791

- Done prior to foreclosure sale

- Pay all past due amount, including accelerated
- Costs
- Expenses (including legal fees)

Front 792

Goods in secured transactions

Back 792

- Consumer goods
- Equipment
- Farm machines
- Inventory
- FIXTURES

- Goods are categorized subjectively

Front 793

Intangible collateral in secured transactions

Back 793

- Money
- Commercial paper
- IP
- Accounts (account receivables)
- Proceeds

Front 794

Commercial paper elements

Back 794

- Writing
- Pay to the order, cash, assign, bearer
- Sum certain
- Signed by maker/drawer
- Unconditional promise to pay
- Payable in currency
- Payable in definite time or upon presentation

- Sum certain:
* Interest alone means judgment rate
* Referring to outside source is fine
* Identified source: not good

- 'On sight': upon presentation
- Currency includes foreign currency
- Reference to collateral matter is not condition

- Timing:
* On demand
* Before definite time
* Within definite period after a definite time

Front 795

Negotiation of commercial paper

Back 795

- Negotiation = due transfer

- Desginated payee: by delivery
- Destignated payee to transferee
* Payee indorse
* Delivery to transferee
- No payee: by deliver

- Indorsement:
* Blank: no payee
* Special: designating a payee
* 'w/o recourse': disclaimed
* Restricted indorsement

Front 796

Commercial paper potential defendants

Back 796

- Signature liability: P may sue
* Drawer/maker
* Any indorser
* Not drawee
* Not if 'w/o recourse'

- Warrantor liability: P in possession of paper may sue
* Any person who indorsed
* Any immediate transferor of bearer form
* Not donor

- Warranties:
* Valid title
* Valid authorization
* No material alteration
* No knowledge of insolvency
* No knowledge of defense (i.e. enforceable)

Front 797

Commercial paper - holder in due course

Back 797

- Received through proper negotiation
- Paid value
* Past value is fine
* Promise is insufficient
- In good faith (subjective)
- Without notice of:
* Past due principal (not interest)
* Any defense (void/cancelled/paid/etc)

- If dealing with fiduciary, actual knowledge of violating duty is required

- Shelter rule
- Only subject to real defenses (MAD FIF IIII)

Front 798

Real defenses to holder in due course

Back 798

- Materal alteration without maker/drawer negligence
- Fraud in factum
- Duress
- Insolvency
- Incapacity
- Infancy
- Illegality

Front 799

Incorporation requirements

Back 799

- Natural person with capacity (at least one)

- Certificate of incorporation
* Name (corp, ltd, inc)
* Address specific to county level
* Designate secretary of state as agent (no need of more)
* Forwarding address
* Name and address of incorporator
* May say term (perpetual by default)
* Must say scope, but general scope is fine
* # of authorized shares
* Classes of shares and # in each class
* Preference, rights and limits of classes
* Series of preferred shares

- Actions:
* Incorporator executes the CI and deliver to Department of state
* Incorporator pays fees
* Department reviews and files
* Incorporator holds organizational meeting

Front 800

Effect of incorporation/failure to incorporate

Back 800

- Department filing: de jure corporation conclusive
- Internal affairs governed by NY law

- De facto corporation: very limited
* Incorporating statute exists (BCL)
* Colorable attempt to incorporate
* Conduct business as corp
- Corporation by estoppel: abolished in NY

- Limited liability for SH
- $5,000/year/candidate political donation
- Charitable donations
- Guarantee loans by 2/3 SH vote

- Ultra vires:
* Act is valid
* SH may seek injunction
* Manager is liable to corp.

Front 801

Promoter liability re incorporation

Back 801

- Promotor is L until novation
- Corporation is L after adoption:
* Express
* Implied through acceptance of benefit

- Promoter may not have secret profits
* Secret: not informing board
* Profit: Purchase price - FMV(pre)/price(post)

Front 802

Foreign corporations

Back 802

- Foreign corporation doing business must qualify

- Qualifaction:
* Summary of CI
* Good standing
* Pay fees

- Foreign corporation may be sued
- Foreign corporation may not sue until qualify
* Must pay past due fees, taxes, interests accrued

Front 803

Issuance of stock

Back 803

- Subscription: written offer to buy
* Irrevocable for 3m for pre-incorporation subscription
* Revocable until acceptance after incorporation

- Not issue at consideration under par
- No par/treasury: any consideration

Front 804

Considerations for issuance of stock

Back 804

- Form of considerations
* Money and property
* Past services
* Binding obligation to give money or property
* Binding obligation to perform service at agreed value

- Invalid consideration: water
* Director liable
* Initial buyer liable
* Third party BFP not liable

- Board determines non-money consideration
- Grossly inadequate: waste
- Board determination is binding if w/o fault

Front 805

Preemptive rights for stock

Back 805

- Only if provided in CI, and only for
* New issuance
* For money

- Issuance not including authorized at incorporation and sold within 2 years

- Pro rata among each class

Front 806

Organizational meeting

Back 806

- Elect directors
- Adopt bylaws

Front 807

Bylaws of corporation

Back 807

- Not binding third parties
- SH may adopt
- Board may adopt if CI/SH bylaws allow
- SH may amend/repeal board bylaws

Front 808

Partially paid subscription of stock

Back 808

- If less than half:
* Retain cosideration
* Cancel stock

- If more than half:
* Seek alternative buyer
* Surplus minus expense goes to subscriber

Front 809

Directors requirement for corporations

Back 809

- at least 1 director
- Increase the number:
* By SH actions
* By SH bylaws
* By board if SH bylaws allow

- Closed corporations: may use managing SH if
* All incorporators and SH agree
* All subsequent SH get notice
* Noted on front and back of SH certificate
* SH not traded publicly
- Managing SH has duty of care to:
* Corp
* Dealing with each other

Front 810

Director meetings

Back 810

- Acts through unanimous written consent
- Acts through meetings (con call ok)
- No voting proxy or trust

- Quorum: majority
* decrease by CI/bylaw to 1/3
* increase by CI
- Threshold: majority of present
* not decrease
* increase by CI

- Notice
* Regular meeting: no need to notice
* Special meeting: notice of time/place
- Without notice: void unless
* Written waiver anytime
* Appear without objection

Front 811

Director and officer duties

Back 811

- Duty of care
* Good faith
* Diligence, care and skill
* Ordinary prudent person
* Under similar circumstances
* Causation for omission
* BJR for commission

- Duty of loyalty
* Good faith
* Conscientiousness, morality, honesty, fairness
* Required for fiduciary
* No self-dealing
* No competition
* No usurp of opportunities

- No loan to director unless in the interest of corp
- Sarbanes Oxley: CEO/CFO certification

Front 812

Business judgment rule

Back 812

- Court will not second guess
- Requirements:
* Good faith
* Reasonably informed
* Rational basis
- Easy to meet

Front 813

Duty of loyalty (D&O)

Back 813

- NO BJR

- Self-dealing must be fair and reasonable OR:

- Disclosure to board or known and approved:
* By quorum and disinterested director vote
* By unanimous disinterested director vote
* By SH vote

- No competition with corporation
- No usurp of opportunities:
* Need, has interest, tangible expectation, logically related
* Must report to board waiting for rejection
* Must assist in obtaining financing

- Otherwise: set aside and disgorge benefits through constructive trust

Front 814

Election and removal of directors

Back 814

- SH may elect in annual meeting
- SH may use cumulative voting if provided in CI
* SH x seat
* Requires: 100/(seat+1) x Share # + 1
- May use classified board

- SH may remove for cause
- SH may remove without cause if CI/bylaws authorizes
- Board may remove for cause if CI/bylaw authorizes

- Filing vacancies:
* Board
* SH for SH removed directors

Front 815

Officers in corporation

Back 815

- Board appoints and removes
* Unless CI provides that SH may appoint

- Board set compensation
- Same duty as directors
- May bind corporation for authorized transaction

- Attorney general and 10% SH may petition to court to:
* remove
* Prohibit re-appointment by board

Front 816

Indemnifications for D&O

Back 816

- As of right: if D&O wins
- Prohibited: if D&O loses
- Permitted: otherwise (e.g. settles)

- Discretion by board:
* D&O acted in good faith
* Purpose is for the interest of corp
- Determination in permissive category:
* By non-party director vote
* If insufficient: by SH vote
* Acting relying on outside counsel report

- CI may provide indemnification
* by board resolution
* by SH approval
* by agreement

- CI may not limit D&O liability
* intentional misconduct
* act in bad faith
* unlawful distribution
* Receives improper benefits

Front 817

Delegation of duties by board to committee

Back 817

- Delegate to committees allowed

- Committee cannot:
* Set director compensation
* Make fundamental changes to CI
* Fill vacancies
* Amend bylaws

- Commttee may recommend the above to board

Front 818

Director disclaim liability

Back 818

- D&O may disclaim by vote against resolution

- Requirements:
* Writing (minute; writing during and after)
* May not vote for resolution
* Absentee: may write after meeting

- D&O may good faith rely on:
* Officers with competence and reliable
* Accountants/counsel with competence
* Special committee reports

Front 819

Shareholder liability to corporation

Back 819

- Limited liability
- 10 largest SH liable for employee salary and benefits

- Pierce corporate veil:
* Abuse corporate form
* Fairness requires SH liable
* Tort: likely
* Closed corporation only

- Complete dominion and control
- Use corporation to perpetrate:
* Wrong
* Injustice
* Fraud

- Alter ego and undercapitalization scenario

Front 820

Shareholder voting

Back 820

- SH may act by unanimous consent or through meeting
- Record owner on record date may vote
- No vote on treasury stock

- majority quorum
* decrease by CI/bylaw to 1/3
* increase by CI
* Never lose quorum
- threshold: majority of voted
* No decrease
* Increase by CI

- Notice: any SH meeting, 10-60d in advance
* Time and place
* Specific purposes for special meetings

- Outside of purpose: void
- No notice: void unless:
* Written waiver
* Appears without objection

Front 821

Voting proxy, agreement and trust

Back 821

- Voting proxy:
* revocable even if says 'irrevocable' unless agent has interest
* Writing, to secretary, signed, appoint agent
* Valid for 11m by default

- Voting agreement:
* Writing signed
* Irrevocable if says 'irrevocable'
* Not specific performance
* May provide for directors only if they are sole SHs

- Voting trust
* Signed writing
* Copy to corporation
* Transfer title of share to trustee
* 10 year term extendable by 6m notice
* SH has voting trust certificate (all rights except voting)

Front 822

Transfer of shares

Back 822

- CI, bylaw and agreement may restrict
- May not restrict without any reason
- May restrict if retire or quit

- Enforce against third party:
* Actual knowledge of restriction or
* Noted on share certificate

Front 823

Shareholder derivative actions

Back 823

- Recovery goes to crop
- Recovery goes to SH if enriching wrongdoer
- May not dismiss or settle without court approval
- Res judicata for following actions

- Requirements
* Have share from accrual to end of trial
* Adequate representation
* Bond if less than 5% or $50,000
* Demand or futile of demand

- Corp may move to dismiss relying on special committee
- Not dismiss only if:
* No independence
* No adequate investigation

D&O may sue other D&O without these difficulties:
* Breach of duty
* Misappropriation of corporate assets

Front 824

Demand requirement in shareholder derivative suits

Back 824

- Must plead particularly:
* Efforts to demand
* Futility of demand

- Futile of demand:
* Majority of board is interested
* Not reasonably informing themselves
* Egregrious transaction that cannot be reasonable

- If demanded and refused:
* Majority of board is interested
* Inadequate/incomplete investigation

Front 825

Shareholder inspection rights

Back 825

- Director has unfettered rights always
- Common law right of inspection:
* Reasonable notice
* Proper time and place
* Proper purpose
* Scope is ambiguous

- 5d written notice for SH minutes and list
* May require affidavit of not selling list/interest of corp
* If refuse to give affidavit: refuse inspection
- 2d written notice for list of D&O
- Written request for financials

Front 826

Distribution to SH

Back 826

- Only surplus, not stated capital
* Par is stated capital
* No-par: board determines (at least part to be stated capital)

- No distribution if insolvent after distribution
- May distribute even if loss in the past year

- Liability:
* D knowing unlawfulness: L
* SH knowing unlawfulness: L

- Pro rata in each class
- Note preference, participation and cumulative shares
- Redemption: pro rata
- Repurchase:
* individually negotiated
* must give equal opportunities

Front 827

Professional corporations (P.C.)

Back 827

- SH, D&O: all must be licensed
- CI must provide:
* name and address of each initial SH and D&O
* profession
* P.C.
* certification that they are licensed

- Professional liable for own malpractice
- Corporation liable for other liabilities
- If pro dies: corp must buy back his stock

Front 828

Appraisal rights for SH

Back 828

- NA to public company shareholders
- No minority discount

- Available:
* Amendment to CI affecting SH rights
* Merger, consolidation, share exchange
* Sale of substantially all assets

- Perfect:
* File objection and intention to demand b/f meeting
* Vote against or not voting at meeting
* File demand after meeting

- Get FMV in forced buy out of dissenting shares

Front 829

Amendment of CI requirements

Back 829

- Board approval for ordinary amendments
- Board and SH (outstanding) approval for fundamentals
- 2/3 SH vote for special threshold amendments

- Deliver Certificate of Amendment for filing
- Appraisal right if affecting SH major rights

Front 830

Merger and consolidation requirements

Back 830

- Board approval required
- SH (outstanding) approval required
- No approval for 90% parent-sub merger (short-form)

- SH of disappeared corp has appraisal right
- SH of sub in short-form merger has appraisal right

- Deliver of Certificate of Merger for filing
- Successor liability

Front 831

Sale of assets requirements

Back 831

- Board approval required
- SH approval (outstanding) of seller required
- SH approval of buyer not required
- No need to change certificate

- No successor liability except
* Fraud
* Mere continuation
* Provided in the deal

Front 832

Share exchange

Back 832

- Board approval required
- SH approval (outstanding) required for seller
- No SH approval required for buyer unless insufficient authorized stock
- Plan of Exchange delivered for filing

Front 833

Dissolution of corporation

Back 833

- Voluntary: SH voting (outstanding) sufficient

- Involuntary:
* Board & SH approval for insolvency
* Majority of SH for deadlock management
* Any SH for no election of director for 2 years
* 20% SH in closed corporation for oppression or management looting

- Management may buy out and avoid disolution:
* Within 90 days
* At terms approved by court

Front 834

Winding up of corporation

Back 834

- Gather assets
- Liquidate
- Pay creditors
- Pay SH according to preference, if any

- No agreement to pay SH before creditors

Front 835

Controlling Shareholders

Back 835

- Working control sufficient

- May get control premium except:
* Sold to looters without reasonable investigation
* Selling key asset in fact
* Selling board seat
- Remedy: damages and disgorge benefit

- Freeze-out
* Fair price
* Fair dealing
* Business purpose

Front 836

Insider trading

Back 836

- Public company on market: derivative

- Dealing w/ SH directly and without information (material):
* Direct action
* Get difference b/w price paid and FMV

Front 837

Pre-marriage agreements

Back 837

- Agreement between unmarried couple:
* Valid if no part is for sex
* No implied agreement

- Pre-marital agreement (for anything) valid if:
* Writing, signed, akcnowledged
* No duress
* Reasonable at execution
* Not unconscionable at divorce

Front 838

Getting married

Back 838

- Homosexual marriage allowed

- Ceremony (WOE)
* Witness
* Officiant
* Exchange of promise

- No common law marriage in NY
- Out-state common law marriage recognized in NY

Front 839

Non-marital children (filiation proceeding)

Back 839

- Full right as marital children
- Filiation proceeding at family court
- Proceed before child is 21

- Clear and convincing evidence required
* Wife testimony no corroboration needed
* Husband testimony need corroboration

- 95% DNA test rebuttable presumption:
* Absence during conception
* Sterile

- Estoppel of father/mother

Front 840

Termination of marriage

Back 840

- In Supreme Court

- Declaration of nullity
- Annulment
- Separation (no jury)
- Divorce
- Dissolution (disappear for 5y)

Front 841

Declaration of nullity of marriage

Back 841

- Null even without declaration

- Bigamy
- Incest
* Linear ancestor/descendent
* Siblings
* Siblings of parent
* Siblings' children

Front 842

Annulment of marriage

Back 842

- Non-age (waivable)
* &lt;14: no capacity
* 14/15: parent + judge consent
* 16/17: parent consent
* 18: full capacity

- Incapacity at marriage (waivable)
- Duress at marriage (waivable)
- Uncurable inability to have sex (no jury; 5y SOL)

- Fraud
* Misrepresentation or concealment
* By one party
* Prior to marriage
* Intent to mislead reasonable person
* Essential aspect to marriage

- Incurable incapacity for 5 years
* 3 court appointed psychiatrists agree

Front 843

Separation and divorce grounds

Back 843

- Cruel and inhuman treatment
* Physical: one episode (wellbeing; unsafe)
* Mental: course of dealing

- Abandonment
* Voluntary leaving
* No consent; no justification
* Intent not to return
* Constructive if refuse sex

- In prison for 3 years

- Adultery, defenses:
* recrimination
* connivance
* condonation
* SOL: 5y

- Lack of support: separation only

- Convert from separation to divorce
- No fault divorce:
* Under oath testify 6m of irretrievable marraige breakdown
* No divorce decree until collateral matters are set

Front 844

Conversion of separation to divorce

Back 844

- 1 year separation

- Separation agreement is valid
* Writing signed acknowledged
* No duress
* Not rescinded by intent to reconcile + cohabit
* Filed at any time prior to filing of divorce

- Application to court to convert

Front 845

Dissolution of marriage

Back 845

- 3 weeks request on English newspaper
- 5 year disappear without information
- P lives in NY for 1 year; or NY is matrimonial domicile
- No SOL
- No collateral matters

Front 846

Automatic decree upon filing of divorce

Back 846

- Freeze assets:
* No unusual increase of debts
* No transfer or concealment
* No change to insurance

- Report financial status to court
- File tax return with court

Front 847

Maintenance of spouse

Back 847

- Presumed maintenance pending divorce:
* preserve status quo
* provide support to applicant

- Post-judgment maintenance (alimony): % set by factors

- Modification upon substantial change
- Modification is prospective
- If affecting agreement: extreme hardship

- Termination upon:
* Remarries
* One dies
* Specified time by court
* Specified by agreement

- Enforcement:
* Wage reduction order
* Suspending licenses
* Seizure of assets
* Jail time for contempt

Front 848

Separation of assets in divorce

Back 848

- Separate asset:
* Prior to marriage
* Gifts/inheritence to one spouse
* Personal injury compensation
* Agreed to be separate
* Passive increase in value of above

- Marital assets:
* Post marriage and before filing divorce
* Active effort increase in value
* Degrees/licenses in marriage

- Distribution set % by factors
- Fault is not considered
- In kind distribution
- Distributive award may be made

Front 849

Child right termination

Back 849

- Family court; court appoints counsel for parent

- Abandonment: 6m no contact

- Neglect:
* No contact or provision for support
* 1y
* Requested by agency
* Ability to support

- Child abuse
- Incapacity
- Murdered one child

Front 850

Adoption requirement

Back 850

- Eligible:
* Adult married couple jointly
* Single adult
* Intimate relationship couple
* Minor adopting adult spouse's child

- Eligible to be adopted: anyone with sufficient consent
- Child (all of):
* Consent by parents/guardians
* Consent by child if > 14
- Adult: consent by him/herslef

- Questionnairs, interviews, home visits, etc
- 3m trial period
- Religion is honored
- Parent may submit custody around birth by writing

Front 851

Child support

Back 851

- Biological and adoptive parent L for support:
* to 21
* through college if both child and parent are able

- Amounts set in guidelines.
- Agreement if:
* Stating that informed about guideline
* Judge may alter agreement

- Modification if substantial change in circumstances
* Presumed every 3 years
* Presumed if change in income by 15%

- Termination: 21/finish college/dies
- Enforcement: wage reduction/jail/seizure/suspend license

Front 852

Child custody

Back 852

- No preference for any parent
- Best interest of the child
- Judge may interview child in camera

- Between parent and non-parent:
* Unfit
* Balance of factors (extrodinary circumstances)

- Visitation never denied to parent
- Denial of visitation: contempt

- Move requries court approval, balancing:
* Advantage to child
* Impact on visitation

- Visitation by non-parent:
* Parent presumed to win
* Unless showing strong state interest and special circumstances

Front 853

Federal personal jurisdiction

Back 853

Same as state court rules

Front 854

Federal subject matter jurisdiction

Back 854

- Diversity (complete)
- Alienage (citizen v. alien)
- Federal question
- Supplemental jursidcition
- Removal jurisdiction

Front 855

Diversity and alienage jurisdiction

Back 855

- Complete diversity or alienage plus $75,000
- diversity upon filing

- Citizen:
* Natural person: domicile
* Corporation: incorporate state; PPB (nerve center)
* Partnership: domicile of each partner
* The decedent/insane/infant not the representative

- U.S. citizen domiciled outside U.S.
* Not a citizen
* Not an alien

- Claim in dispute: > $75,000
* Aggregate for 1P1D
* Aggregate for joint tortfeasors
* No aggregate for others
* If recovers less, pay costs (not attorney fees)
* Injuction (value to P or cost to D)

- Not for divorce/separation/custody
- Not for probation of will

Front 856

Federal questions jurisdiction

Back 856

Enforcing a federal right (patent, copyright, antitrust, bankruptcy, etc)

No amount requirement

Front 857

Supplemental jurisdiction

Back 857

- Common nucleus of operative fact (T/O)

- Limit: if base claim is diversity, NA if:
* Used by P
* Overcome lack of diversity

- If base claim is diversity, available for amount
- If base claim is FQ: fine

- Discretion to decline:
* Federal Q dismissed early
* State claim is complex
* State claim dominates

Front 858

Removal jurisdiction

Back 858

- P may not remove
- Forum state D may not remove diversity case
- No removal 1y after filing
- May remove if diversity/alienage/FQ

- File 30d after giving arise to diversity:
* notice of removal at Fed
* all papers served
* copy to other parties
* notice of removal to state court

- Challenge:
* 30d for defective process
* Anytime for lack of subject matter jurisdiction

- Waiver: probably if raise permissive counterclaim

Front 859

Erie doctrine

Back 859

- Apply state substantive law in diversity case

- Apply federal law on point
- Apply state law:
* Element
* SOL or toll
* Conflict of laws

- Balance of factors:
* Determinative of outcome
* Interests
* Forum shopping concerns

Front 860

Venue in federal court

Back 860

- Proper venue:
* court has personal jurisdiction
* location for RE title, possession and injury
* transitory cases: all Ds' residence or substantive part of event

- If Ds reside in same state: any district in state

- If both courts are proper:
* Convenience of parties/witnesses
* Justice requires
* 'public and private factors indicating center of gravity'

- If original court is improper:
* Dismiss
* Transfer in interest of justice

- Apply the law transferor court would apply

Front 861

Residence for venue in federal court

Back 861

- Natural person: domicile
- Corporations, etc: anywhere with personal jurisdiction

Front 862

Service of process in federal court

Back 862

- 18+ non party
- Federal methods:
* Personal delivery
* Left at usual abode with person of suitable age/discretion
* Serve on agent
* Waiver x 2, prepaid return, process

- If using waiver:
* D must return within 30d
* If not, pay expenses for service
* P file waiver with court

- State methods:
* Forum state
* Service place state

- Outstate service: same as state court

Front 863

Counterclaims in federal court

Back 863

- Must hav subject matter jurisdiction

- Compulsory:
* Same transaction or occurence
* Waived if not asserted (other than MTD)
* Can use supplementary jurisdiction

- Permissive: any other counterclaims

Front 864

Crossclaims in federal court

Back 864

- Arising out of same transaction or occurence
- Against co-party
- Not compulsory
- Note subject matter jurisdiction

Front 865

Impleader in federal court

Back 865

- Note subject matter jurisdiction
- Note personal jurisdiction over TPD
- File w/i 14d after serving answer
- Service made on TPD

- P and TPD may assert claims for same transaction
- Note subject matter jurisdiction

Front 866

Necessary parties in federal court

Back 866

- Arising out of the same transaction or occurence
- One common question
- Not joint tortfeasors
- If not joined:
* No complete remedy
* Harm absentee
* Subject D to multiple suits
- Note personal jurisdiction over the absentee
- Note subject matter jurisdiction over absentee

- If cannot join, court has discretion:
* Dismiss if indispensible
* Proceed if not
* Factors: remedy, alternative forum, likelihood of harm

Front 867

Permissive parties in federal court

Back 867

- Same transaction or occurence
- 1 common question
- Note subject matter jurisdiction

Front 868

Intervention in federal court

Back 868

- Absentee may intervene:
* As of right if harming absentee
* Permissive if has common question
- Note subject matter jurisdiction

Front 869

Interpleader in federal court

Back 869

- Claimants and stakeholders

- Rule:
* Diversity between stakeholder and claimants
* 75,000 amount in dispute
* normal service
* normal venue

- Statutory:
* 1 claimant v. another in diversity
* $500 or more
* Nationwide service
* Proper venue if has personal jurisdiction

Front 870

Class actions in federal court

Back 870

- Numerous, common, typical and representation
- Three types:
* Injunction
* Prejudice
* Damages if predominate and superior method
- No settlement without court approval
- Court certify class, define class and appoint counsel

- Damages type:
* Notice to everyone
* Inform: opt out; bound if not opt out; separate appearence
* 2nd chance to opt out at settlement

- Jurisdiction
* Federal question
* Diversity: representative
* CAFA: 100P, $5mm damages, 1P-1D diversity

Front 871

Jury trial in federal court

Back 871

- Jury tries cases at law
- Judge determines facts for equity
- 7th amendment NA to state
- Parties may request w/i 14d after last pleading with jury right

- voir dire:
* no race/gender discrimination for peremptory
* 3 peremptory
* unlimited for cause

Front 872

Judgment as a matter of law in federal court

Back 872

- D may move at close of P's evidence
- Both may move at end of case
- If moved, may renew w/i 28d after judgment

- Standard:
* reasonable people could not disagree
* most favorable to non-moving party

Front 873

New trial in federal court

Back 873

- May move w/i 28d after judgment

- Error:
* prejudice
* party/juror misconduct
* erroneous judgment by jury
* new evidence unavailable at trial

- Set aside and retry

Front 874

Pleadings in federal court

Back 874

- Defenses in first pleading/MTD:
* Process
* Service
* Personal jurisdiction
* Venue

- Defense before close of trial
* Necessary party
* Failure to state a claim

- Not waived: subject matter jurisdiction

- Must provide sufficient facts for plausible claim
- Particularity required for:
* Fraud
* Mistake
* Special damages