To Memorize

Front 1

Requirements for a negotiable instrument

Back 1

WOSSUPP

Writing
payable to Order
Signed
for Sum Certain
containing Unconditional promise to pay and no additional promises
Payable on demand
Payable in currency

Front 2

When is corp. liable on contracts entered into by promotor?

Back 2

Only when corporation adopts, by express adoption or implied adoption (knowingly accepting benefits from K)

Front 3

What are preemptive rights, and when do SHs have them?

Back 3

Right to maintain percentage of ownership by buying additional stock on any new ISSUANCE

Only exist if certificate says so

Front 4

Duty of care

Back 4

Director must discharge duties in good faith and with that degree of diligence, care and skill that an ordinarily prudent person would exercise under similar circumstances

Front 5

Duty of loyalty

Back 5

A director must act in good faith and with the conscientiousness, fairness, morality and honesty that the law requires of fiduciaries.

Front 6

When will interested director transactions NOT be set aside?

Back 6

When director shows deal was fair and reasonable to corp. OR material facts and director's interest were disclosed or known AND deal was approvd by majority of disinterested directors (or all SHs)

Front 7

What is a corporate opportunity?

Back 7

Something the corporation needs, has an interest or tangible expectancy in, or that is logically related to its business.

Front 8

How to PCV?

Back 8

In closed corporation: SHs personally liable if they abused privilege of incorporating and fairness requires holding them liable

Fairness = if SH exercises complete dominion and control AND abuses corporate form to perpetuate fraud, wrong or injustice (look for comingling)

NY: no PCV if corporation has ANY mind, will or existence of its own

Front 9

Is a SH suit regarding corporate waste derivative?

Back 9

Yes

Front 10

Who gets judgment after derivative suit?

Back 10

Corporation

Front 11

Requirements for bringing derivative suit

Back 11

(i) SH held stock when claim AROSE (ii) SH adequately represents interests of corp. and SHs (iii) S makes demand (unless futile, b/c majority of board interested) (iv) SH pleads with particularity her demand or futility thereof and (v) corp. joined as DEFENDANT

SH might also have to post bond

Front 12

When will court dismiss derivative suit on motion from board?

Back 12

If it's in corp.'s best interests. Court will consider independence of those who made the investigation and suficienty of the investigation

Front 13

Who can vote to dissolve a corporation?

Back 13

Majority of SHs (no board vote required) OR

By judicial mandate on resultion by board or majority of shares entitles to vote

Front 14

Grounds for divorce

Back 14

Cruel and inhuman treatment, abandonment (voluntary, without justification, no intent to return - 1 YEAR), adultery, 3 years imprisonment, conversion, irretrievable breakdown of marriage (no fault)

Front 15

Requirements for conversion divorce

Back 15

Legal separation or mutial agt embodied in document (formal), couple lives apart for 1 year with no intent to reconcile

Party seeking divorce cannot have breached terms of separation agt

Front 16

How does NY distribute marital property?

Back 16

"Equitable distribution"

Front 17

Is an inheritance gift received by spouse in his sole name during marrige separate or marital property?

Back 17

Separate

Front 18

What kind of appreciation on separate assets is also considered a separate asset?

Back 18

Passive appreciation

Front 19

Can fault be used in dividing marital property?

Back 19

No, unless behavior amounts to egregious conduct (it shocks the conscience)

Front 20

How does court determine amount of child support payments?

Back 20

Under guidelines, using a formula which judge can modify with reason if modification is more generous

Front 21

When do child support obligations end?

Back 21

When child or parent dies, or when child reaches 2 or graduates from college

Front 22

When can child support obligations be modified?

Back 22

When circumstances have changed, e.g. discovery of learning disability, injury or loss of job by one parent, remarriage by one parent with new obligations

Automatic review every 3 years or if parent's income has changed up or own by 15%

Front 23

What standard governs custody adjudications?

Back 23

BIC

Front 24

What can court consider in determining BIC?

Back 24

Everything, but one parent is not preferred over the other for gender

Front 25

What standard governs custody proceeding between parent and non-parent?

Back 25

Still BIC, but non-parent only wins if he shows (i) parent is unfit or (ii) there are extraordinary circumstances

Front 26

When can custodial parent relocate?

Back 26

With court permission by showing that relocation would be in BIC.

Front 27

On what divorces is collateral attack allowed?

Back 27

Ex parte only (not bilateral)

Front 28

When can party challenge arbitration award?

Back 28

Only when

(i) corruption, fraud or misconduct was in the arbitration proceeding

(ii) arbitrator was biased

(iii) arbitraror exceeded his powers

Front 29

S/L breach of K (non-UCC)

Back 29

6 years, runs from date of breach

Front 30

S/L breach of warranties (UCC)

Back 30

4 years, runs from tender of delivery by marchant

Front 31

S/L indemnity / contribution

Back 31

6 years, runs from date of payment

Front 32

S/L personal injury and property damage

Back 32

3 years from date of injury

Front 33

S/L medical malpractice

Back 33

2.5 years from date of injury

Front 34

S/L medical malpractice - foreign objects

Back 34

2.5 years from injury or 1 year form discovery of object, whichever is longer

Front 35

S/L wrongful death

Back 35

2 years from date of death, but P msut also show that S/L on decedent's underlying personal injury claim had not expired on date of death

Front 36

S/L intentional torts

Back 36

1 year

Front 37

S/L municipal tort claim

Back 37

1 year 90 days, must serive Notice of Claim 90 days from injury

Front 38

Motion to dismiss standard

Back 38

Motion should be denied if there is any basis for relief under substantive law. P is entited to every favorable inference that can be drawn from the allegations of his complaint.

[Then discuss elements of CoA]

Front 39

Summar judgment standard

Back 39

Party shows before trial that even though the pleadings are sufficient on their face, there is no genuine issue of material facts that requires a trial. If a genuine issue of fact exists, the motion should be denied. Partial summary judgment allowed.

Front 40

Preliminary injunction standard

Back 40

P must show risk of irreperable harm (by affidavit) and a proability of success on the merits.

Available when P is seeking a permanent injunction or D threatens to harm P's interest in the subject matter of the action

Front 41

S/L for malpractice claim against member of learned profession

Back 41

3 years from date from when work product delivered or building completed

Front 42

S/L for exposure to inherently toxic substance

Back 42

3 years, runs from earlier of discovery of injury or date injury should have been discovered

does not apply to malpractice, just products liability against manufacturer of medicine, etc.

Front 43

Do you need personal jurisdiction for matrimonial actions?

Back 43

No, but you do need it for maintenance awards

Front 44

Matrimonial long-arm statute

Back 44

If P is resident of NY, P has personal jurisdiction if

NY was matrimonial domicile prior to separation

D abandoned P in NY, or

D's monetary obligation accrued under agt executed in NY or under laws of NY

Front 45

Durational Residency Requirement

Back 45

Both residents, grounds arose in NY: no requirement

One is resident + one additional link: 1 year

One has been resident for 2 years prior to action: no requirement

Front 46

Indemnity implied-in-law

Back 46

Retailer held liable for defective products entitled to indemnity from manufacturer

Owner of car held vicariously liable for tort of driver entitled to indemnity from driver

Front 47

Joint and several liability definition

Back 47

Each tortfeasor liable to P for full amount of P's damages, without regard to D's percentage of fault

Front 48

When is contribution not availble on MBE?

Back 48

Intentional torts

Front 49

What is collateral estoppel and when does it apply?

Back 49

Issue preclusion: party raising it must make three-part showing:

(i) Issue in former and current proceeding is identical

(ii) Issue was litigated and decided in prior proceeding, AND

(iii) Party against whom it's asserted had fair and full opportunity to litigate at prior proceeding

Front 50

Actual athority

Back 50

Agent has power based on principal's dealings with her - can be express or implied

Front 51

Apparent authority

Back 51

Authority third party reasonably believes the agent has based on third party's dealings WITH PRINCIPAL

Front 52

Inherent authority

Back 52

Authority courts will imply to protect innocent third parties, such as under respondeat superior

Front 53

Ratification by principal

Back 53

Must occur before third party withdraws

Front 54

Does death terminate agency?

Back 54

Yes

Front 55

When is principal liable for contracts entered into by agent?

Back 55

When agent has actual, apparent or implied authority, or principal ratified

Front 56

When is the agent liable on contracts?

Back 56

Agent bound unless existence and identity of principal are disclosed

Front 57

Choice of law in torts cases

Back 57

Governmental Interest Analysis (apply law of state with greatest stake in outcome of litigation) + Neumeier (apply law of place of injury unless both parties come from same other state)

Front 58

Who is covered under no fault?

Back 58

Owner, operator, occupant, pedestrians, anyone else entitled to first-party benefits

Front 59

What does no fault cover?

Back 59

Only personal injury, not property

Front 60

When can P still sue in tort for personal injury after recovering under no fault?

Back 60

When he "pleads past" the threshhold, either by showing he's suffered "serious injury" or his damages are in excess of "basic economic loss" (defined by statute)

Front 61

What is ex parte divorce and is it valid in NY?

Back 61

Only one spouse validly domiciled where divorce was granted. Valid.

Front 62

What are partners liable for?

Back 62

Contracts and torts of other partners.

Front 63

Are partners personally liable?

Back 63

Yes, they are personally and individually liable for the entire amount of partnership obligations.

Front 64

What happens if a partner dies?

Back 64

Partnership dissolves unless PRS Agt says otherwise.

Front 65

When can an attorney cure a concurrent conflict of interest?

Back 65

When (i) he reasonablye believes he can competently and diligently represent each party, (ii) representation is not prohibited by law, (iii) it does not involve assertion of claim by one client against the other and (iv) each client gives informed, written consent

Front 66

Requirements for contingent fees

Back 66

In writing, signed by client, and stating method by which fee is to be determined.

Not allowed in DR or criminal matters

Front 67

Requirements to create a trust

Back 67

SETTLOR, who makes DELIVERY of legal title to PROPERTY to a TRUSTEE, who holds legal title for benefit of a BENEFICIARY, with INTENT to create a trust for a LAWFUL PURPOSE in a VALIDLY EXECUTED document. No consideration required.

Front 68

Are trusts presumed revocable or irrevocable?

Back 68

Irrevocable

Front 69

When can settlor terminate irrevocable trust?

Back 69

Only if all beneficiaries "in being" consent

Front 70

What is purchase money resulting trust?

Back 70

Recognized in most states, but NOT New York

Arises when purchaser buys property and has title put in someone else’s name who is not a relative, and purchaser later claim that no gift was intended, asks for property back, and title holder refuses

Most states: purchaser may compel holder to give up title (not in NY)

In NY, if there is clear and convincing evidence that grantee had expressly or impliedly promised to re-convey land to purchaser, then constructive trust can be imposed to benefit purchaser b/c of fraud or deceit

Front 71

When can you still sue your boss if you recover worker's comp?

Back 71

You can't, but you CAN sue third parties

Front 72

Subject matter jurisdiction in federal court

Back 72

Diveristy: (i) action is between citizens of different states or citizen of a state and foreign country and (ii) amount in controversy must exceed $75k

Federal question cases

Front 73

Where is corporation a citizen for purposes of diversity jurisdiction?

Back 73

Where it's incorporated AND 1 place where it's principal place of business is located

Front 74

Where is an unincorporated association (partnership, LLC) a citizen?

Back 74

Use citizenship of ALL members / partners

Front 75

What must complaint show for federal question jurisdiction?

Back 75

A right or interest founded substantially on federal law

Front 76

What is supplemental jurisdiction?

Back 76

Once a case is already in federal court, an additional claim that doesn't meet federal question or diversity can be heard if "shares a common nucleus of operative fact" (always met when arising form same transaction or occurence)

Limitation: In diversity case, PLAINTIFF cannot use supplemental jurisdiction to overcome lack of DIVERSITY

(P can use to overcome ammount in controversy issue, and D can use it to overcome both prongs of diversity)

Front 77

Timeline for removal to federal court

Back 77

30 days after service of process of first removable document

Front 78

General est for removal to federal court

Back 78

D is allowed to remove if case would invoke diversity or FQ (all defendants must agree)

P can never remove

Front 79

What is special rule for removal of diversity cases?

Back 79

removal not allowed if any defendant is a citizen of the forum state

Front 80

What is special time limit for removal of diversity cases?

Back 80

Cannot remove diversity cases more than 1 year after it was filed in state court (still have only 30 days from service of first removable document)

Front 81

Erie doctrine

Back 81

In diversity cases, federal court must apply state substantive law

Front 82

How do you determine if a law is substantive for purposes of Erie?

Back 82

Outcome determinitive; balance of interest (does state or fed have stronger interest in seeing its rule applied?); avoid forum shopping

Front 83

When can SH of closed corp bring action for dissolution?

Back 83

Holders of 20% or more of a closed corporation (not traded on public market) may petition for dissolution if the assets of corporation are being looted, wasted or diverted by directors officers or those in control. In deciding an involuntary liquidation petition, the court considers whether liquidation is the only feasible way for the petitioner to receive a fair return on his investment. Other SHs can purchase petitioning SH's interst in corporation with approval of the court.