Multistate and NY Bar Exam Outline

Table of Contents
Torts ........................................................................................................................................................................ 10 I. II. A. III. A. IV. VI. VII. VIII. I. II. III. IV. VI. VII. Intentional Torts ................................................................................................................................... 10 Defenses to Intentional Torts .............................................................................................................. 15 Negligence ........................................................................................................................................... 19 Defenses to Negligence .............................................................................................................. 29 Harm to Economic and Dignity of Others ............................................................................... 33 Defamation ..................................................................................................................................... 33 strict liability ...................................................................................................................................... 33 Vicarious Liability............................................................................................................................. 36 Codefendants...................................................................................................................................... 38 loss of consortium ........................................................................................................................ 39

V. nuisance .................................................................................................................................................... 36

Contracts ............................................................................................................................................................... 41 Formation ................................................................................................................................................ 41 Defenses against formation .......................................................................................................... 47 SOF ................................................................................................................................................................. 50 Contract Terms .................................................................................................................................. 56 Performance ....................................................................................................................................... 58 Remedies.............................................................................................................................................. 64 Third Party .......................................................................................................................................... 66 Formation ......................................................................................................................................................... 41

V. Excuse Based on Later Events.......................................................................................................... 60

Some Important point under Article 2 ............................................................................................. 69 Real Property ....................................................................................................................................................... 70 I. Estates in Land ....................................................................................................................................... 70

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A. B. C. D. E. II. III. IV. VI. A. B. C. D. I.

4 present interests:...................................................................................................................... 70 _future interests:........................................................................................................................... 70 Special rules ................................................................................................................................... 72 Rules Against perpetuities RAP .............................................................................................. 73 NY rules against S ......................................................................................................................... 73 Concurrent estates ........................................................................................................................... 73

rights of co-tenants .................................................................................................................................. 74 Land Lord and Tenant .................................................................................................................... 74 Right in the property of others .................................................................................................... 75 Conveyances ....................................................................................................................................... 78 land sale k........................................................................................................................................ 78 Deeds ................................................................................................................................................. 78 recording ......................................................................................................................................... 78 foreclosure ...................................................................................................................................... 79

V. Adverse Possession .............................................................................................................................. 77

Constitutional Law............................................................................................................................................. 81 Federal Judicial Bower ........................................................................................................................ 81 A. B. C. II. III. A. B. IV. A. B. C. D. Justiciable, Cases and Controversy ........................................................................................ 81 Supreme Court Review .............................................................................................................. 83 Lower Federal Court Review ................................................................................................... 84 The federal Legislative Power ..................................................................................................... 84 Federal Executive Power ............................................................................................................... 85 Foreign Policy ................................................................................................................................ 85 Domestic Affairs............................................................................................................................ 86 Federalism ........................................................................................................................................... 87 Supremacy Clause, Preemption .............................................................................................. 87 Dormant Commerce clause and Privilege and immunity clause ............................... 87 State Taxation of Interstate Commerce ............................................................................... 88 Full Faith and Credit .................................................................................................................... 88

V. The structure of Con Protections of individual liberties ....................................................... 89 2|Page

A. VI. A. B. VII. A. VIII. A. B. C. D. I. II. III. A. B. D. C. D. E. IV. A. G.

government action ....................................................................................................................... 89 Individual Liberties.......................................................................................................................... 91 Procedural DP ................................................................................................................................ 91 Substantive DP .............................................................................................................................. 92 Equal Protection ............................................................................................................................... 93 Classification based on race or ancestor origin ................................................................ 94 First Amendment ......................................................................................................................... 95 General Rules pertaining to free speech ............................................................................. 95 Unprotected and less protected ............................................................................................. 96 Places available for speech ....................................................................................................... 97 Freedom of religion ..................................................................................................................... 98

Levels of Scrutiny: .................................................................................................................................... 90

Substantive Criminal Law ............................................................................................................................. 100 Intro/Overview .................................................................................................................................... 100 Essential Elements of a crime .................................................................................................... 101 Crimes against the person: ......................................................................................................... 104 Assault Battery ............................................................................................................................ 104 Common law Homicide Crimes: ........................................................................................... 106 Felony murder:............................................................................................................................ 107 NY Murder ..................................................................................................................................... 108 Confinement Offenses............................................................................................................... 110 Sex Offenses .................................................................................................................................. 110 Property Crimes: ............................................................................................................................. 111 Theft Offenses .............................................................................................................................. 111 Habitation offenses .................................................................................................................... 113

C. Possessory Offenses .......................................................................................................................... 114 V. Liability of the conduct of Others: ................................................................................................ 115 A. VI. VII. Accomplice Liability .................................................................................................................. 115 Inchoate Crimes .............................................................................................................................. 115 Defenses ............................................................................................................................................. 118

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A. B. C. D. E. I.

Capacity defenses ....................................................................................................................... 118 other defenses ............................................................................................................................. 120 self-defense (justification) ...................................................................................................... 120 Necessity and Duress ................................................................................................................ 121 Entrapment................................................................................................................................... 121

Criminal Procedure ......................................................................................................................................... 123 Search and Seizure, 14th Amendment ......................................................................................... 123 A. B. C. D. II. III. IV. A. B. C. D. I. Issue one: is the search governed by the 14th? ............................................................... 123 Issue two: Warrant .................................................................................................................... 124 issue three warrant exceptions ............................................................................................ 126 Issue Four: extent of inadmissibility? ................................................................................ 128 Wiretapping ...................................................................................................................................... 129 law of Arrest ..................................................................................................................................... 129 Confessions ....................................................................................................................................... 129 Fourteenth Amendment Volutariness ............................................................................... 129 Miranda .......................................................................................................................................... 129 Sixth Amendment right to Counsel ..................................................................................... 130 NY rules .......................................................................................................................................... 130

Evidence .............................................................................................................................................................. 132 Relevancy ............................................................................................................................................... 132 Public Policy Exclusions ....................................................................................................................... 132 A. B. II. A. B. III. IV. Character evidence .................................................................................................................... 132 defendants other crimes of bad acts for not-Character purposes........................... 134 witnesses ........................................................................................................................................... 134 Testimonial ................................................................................................................................... 134 Impeachment ............................................................................................................................... 135 Privileges ........................................................................................................................................... 137 Hearsay ............................................................................................................................................... 137

writing recollection ............................................................................................................................... 136

Hearsay exclusion................................................................................................................................... 137 4|Page

Hearsay Exceptions: .............................................................................................................................. 138 V. Sixth Amendment ............................................................................................................................... 142 VI. Judicial Notice .................................................................................................................................. 142 ........................................................................................................................................ 146 NY1 Practice CPLR ........................................................................................................................................... 147 I. II. I. II. I. Subject matter Jurisdiction ............................................................................................................. 147 Statute of Limitations (SOL) ....................................................................................................... 148 Agency ..................................................................................................................................................... 151 Partnership ....................................................................................................................................... 153 Organization of New York Corporation ...................................................................................... 156 A. B. B. C. D. E. C. II. A. B. C. III. D. E. G. H. IV. Formation Requirements ........................................................................................................ 156 Effects of Formation .................................................................................................................. 158 De facto Corporation / Corp by Estoppel.......................................................................... 158 Bylaws ............................................................................................................................................ 159 Pre-incorporation Contracts .................................................................................................. 159 Secret Profits dealing with co. itself .................................................................................... 160 Foreign Corporation.................................................................................................................. 160 Issuance of Stock ............................................................................................................................. 160 Subscription ................................................................................................................................. 161 Consideration for stocks .......................................................................................................... 161 Pre-empted Rights ..................................................................................................................... 162 Directors and Officers ................................................................................................................... 162 Duty of Care .................................................................................................................................. 164 Duty of Loyalty ............................................................................................................................ 165 officers ............................................................................................................................................ 166 Reimbursement (indemnification) of Directors and officers .................................... 166 Shareholders .......................................................................................................................... 167

NY2 Agency and 3 Partnership ................................................................................................................... 151

NY4 Corporations ............................................................................................................................................ 156

F. Other basis for directors liability ............................................................................................. 165

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A. B. C. D. E. G. A. B. C. D. E. VI. A. B. C. VII.

Shareholder Management ....................................................................................................... 167 SH Liability .................................................................................................................................... 168 SH derivative suits ..................................................................................................................... 168 SH voting........................................................................................................................................ 170 Transfer of Stock By a SH ........................................................................................................ 173 Distribution .................................................................................................................................. 174 Characteristics ............................................................................................................................. 175 Amendments to Certificate of Incorporation .................................................................. 176 Mergers or Consolidation........................................................................................................ 176 Transfer of All of Substantial assets .................................................................................... 176 Dissolution .................................................................................................................................... 177 Controlling SH .................................................................................................................................. 177 Controlling Shareholders ........................................................................................................ 178 Freezouts ....................................................................................................................................... 178 Inside Trading ............................................................................................................................. 178 Corporations Glossary .................................................................................................................. 179

F. SH Inspection Rights ..................................................................................................................... 173 V. Fundamental Corp Changes ............................................................................................................ 175

Essay Tips ....................................................................................................................................................... 179 NY5 Secured Transaction /NY6 Commercial Paper ........................................................................... 181 I. II. Secured Transaction .......................................................................................................................... 181 Commercial Paper .......................................................................................................................... 181

NY7 Professional Responsibility ................................................................................................................ 183 NY8 Conflicts of Law ....................................................................................................................................... 184 I. Recognizing Foreign Judgments .................................................................................................... 184 Full Faith and Credits ............................................................................................................................ 184 Domicile ..................................................................................................................................................... 184 II. Choice of Law ................................................................................................................................... 185 NY Approach............................................................................................................................................. 185 Specific Applications ............................................................................................................................. 185 6|Page

NY9 No Fault Insurance ................................................................................................................................. 187 NY10 workers Compensation ..................................................................................................................... 189 NY11 Ny Trusts ................................................................................................................................................. 191 I. II. III. IV. VI. I. II. III. A. B. C. D. IV. A. Requirements for Trusts .................................................................................................................. 191 Types of Trusts ................................................................................................................................ 192 Modification and Termination................................................................................................... 195 Trust Administration .................................................................................................................... 195 Rules against Perpetuities........................................................................................................... 197 Intestacy ................................................................................................................................................. 198 Wills ..................................................................................................................................................... 200 Wills formation ........................................................................................................................................ 200 Revocation of Wills ........................................................................................................................ 201 Physical Act and Writing ......................................................................................................... 201 Revival ............................................................................................................................................ 201 Revocation by operation of law ............................................................................................ 202 Pretermitted Children (child Not in Will) ......................................................................... 202 Changes in Beneficiary and Property during Ts Life ...................................................... 203 Anti-lapse Statute ....................................................................................................................... 203

V. Liabilities of Trustee .......................................................................................................................... 196 NY12 Wills .......................................................................................................................................................... 198

Simultaneous Death Act ....................................................................................................................... 203 Abatement and Ademption................................................................................................................. 203 V. Components of the Will .................................................................................................................... 204 A. B. VI. A. B. C. D. 7|Page INCORPORATION BY REFERENCE ...................................................................................... 204 Acts of independent significant ............................................................................................ 205 Will Contests..................................................................................................................................... 205 Mistake ........................................................................................................................................... 205 Ambiguity ...................................................................................................................................... 205 Contract to Make a will ........................................................................................................... 205 Conditional wills ......................................................................................................................... 205

E. G. VII. VIII.

Testamentary Capacity ............................................................................................................ 205 Admitting destroyed will to probate .................................................................................. 207 Elective Share ................................................................................................................................... 207 Power of Appointment ............................................................................................................. 208

F. No contest clause In Terrorem .............................................................................................. 206

RAP, Suspension and Power of Appointment .............................................................................. 209 NY13 Domestic Relations.............................................................................................................................. 211 A. B. C. D. E. Pre-marriage ................................................................................................................................ 211 Marriage: Undergoing and Altering .................................................................................... 212 Economic Issues.......................................................................................................................... 215 Provisions for Children ............................................................................................................ 217 Full Faith and Credits................................................................................................................ 219

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The Bar Outline

Topic 1. 2. 3. 4. Contract/sales NY Practice Wills Criminal Law/Procedure 5. Torts 6. Domestic relations 7. Corporation 8. Real property / mortgages 9. Trusts 10. Evidence 11. PR 12. Partnerships 13. Federal courts 14. Conflicts of law 15. Agency 16. Commercial paper 17. Secured transaction 18. No fault insurance 19. Future interest 20. Workers comp 21. Constitutional law Frequency in last 59 exams 1. 58 2. 57 3. 57 4. 56 5. 51 6. 50 7. 46 8. 35 9. 29 10. 26 11. 17 12. 17 13. 14 14. 13 15. 13 16. 12 17. 8 18. 7 19. 5 20. 5 21. 4 Multiple choice Out of last 300 1. 58 2. 107 3. 60 4. 57 5. 54 6. 50 7. 48 8. 39 9. 28 10. 30 11.

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TORTS
Torts Contents (I.) Intentional Torts A. List B. Defenses (II.) Harm to Economic and Dignitary Interests (III.) Negligence (IV.) Strict Liability (V.) Product Liability (VI.) Nuisance (VII.) General issues A. Vicarious Liability B. Parties C. Survival an wrongful death D. Tortious interference w/ family relationship E. Tort Immunity

I.

INTENTIONAL TORTS
I. Intentional Torts

A. General Issue List of intentional torts

Rules 7 intentional torts: 1) Assault 2) Battery 3) False Imprisonment 4) Intentional infliction of emotional distress 5) Trespass to property 6) Trespass to chattel 7) Conversion 1) NO HYPERsensitive 2) No incapacity defense. Children, mentally impaired all subject to intentional T 3) Intent = understands consequence of actions

NY Distinction

Overview Observatio n

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Prima facia Tort

n/a see NY

A prima facia tort consists of intentional infliction of pecuniary harm without justification Elements: 1) Intent to do harm, as distinguishe d from requisite intent for other intentional torts 2) must allege and prove special damages. Pecuniary loss is an essential element.

A. Specific Torts: 1. Battery Elements (1) Harmful of offensive contact (Intent (2) to s person +2) (1)Offensive contact 11 | P a g e

 (2)Person

Testable: harmful conduct is too easy. offensive = unpermitted. Focus on normal persons sensitivities Not extreme sensitivities. E.g. classmate taps you on shoulder to ask a q, never battery even if

Simple rule anything connected to the , ot that the is holding. E.g. bar q, woman riding on a horse and got lost, asked for direction, d hits horse, battery against the

2. Assault Elements (1) Reasonable apprehension (2) Relates to an immediate battery (1)reasonable apprehension Apprehension is really a misnomer, apprehension = knowledge. In modern vernacular apprehension means fear, not for the bar. Apprehension means knowledge. Apprehension = knowledge (apprehension is not fear) Testable: bar will small little David goes after a huge barbarian, who is not scared., is there an assault? Bar will try to trick and say: no assault because no fear wrong, Unloaded gun, an empty threat: focus on knowledge. If knows the gun is loaded then assault, if knows its not loaded then no assault. If the does not know, reasonableness, reasonable to assume loaded (2)must relate to an immediate battery a. Words alone are not assault. if you take another step I will beat you not assault. Say that while moving your hand might be battery b. conditional words, words in future tomorrow I will kill you.. not assault

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3. False Imprisonment (FI) Elements 1)act of restraint 2)bounded area 3)causation (1)Act of restraint 3 points) a. Threats are sufficient, d has a gun, says if you leave this room I will shoot you. There is false imprisonment. (threat, fear must be reasonable) o If you leave I will call cops = FI (most common FI) b. Omission can be an act of restraint if there was a previous duty. o Airline employees let a disabled passenger but ignore her when they arrive they simply ignore her. There is FI c. The has to know that he was restraint, or actual injury. Lock sleeping persons door no FI (2)Bounded area An area is not bounded if there is a reasonable means of escape that the can reasonable discover. In basic English, plaintiff is not locked in if plaintiff can get out. Old exam q: Butler locks guest in the house mansions library. doesnt know there is a secret bat cave by pulling an old book this is FI because cant reasonable discover the passage way Only wat to leave is naked = FI because embarrassment Examples of FI Telling that he wont get his luggage back if he leaves airport 4. Intentional Infliction of Emotional Distress Note 13 | P a g e The one intentional tort that can be done w/o intent but

with reckless conduct (note: out of the 7 intentional torts, the only one that has intentional in the name can be committed with even reckless conduct) Testable elements Testable Elements (1) Outrageous conduct. Definition of outrageous: when it exceeds all bounds of decency tolerated in a civilized society. (may not be helpful for an answer but good for definition section) There are 2 red hearings: 1) mere insults are not outrageous. 2) an exercise of 1st amendment rights is not outrageous Indicators/hallmark of outrageousness: The ds conduct is repetitive of continuous. Innkeepers and carriers, this entities are supposed to be nice and courteous. Keep in mind it must be intentional or reckless. Simple carelessness is not enough is a member of a fragile class of persons. E.g. o a) young children, tell a child o b) elderly o c) pregnant woman. Must know that the pregnant woman is pregnant. Remember common sense. Exception: If knows of the s super sensitivity then it is outrageous. It is outrageous to attack someones emotional Achilles heel. (2) Must cause an severe emotional distress There is no specific evidentiary requirement How do they test this? MBE will negate it subtly, . A was mildly annoyed by the prank no IIED since it is only mild distress and not severe emotional distress

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5. Trespass to property Testable elements Elements: (i) Intent (ii) to go onto the real property (iii) Causation (no requirement of damages, can get nominal) (1) Intent to go onto the land need not know that the land is of another just simply intent to enter the land. Can be projected, propelled onto the land Even if beneficial to the land Must be a physical invasion Shining light on the land is not (2) must be an interference with your possessory rights If you trespass on a rental property the landlord has not action because he does not possessory rights (3) Includes the reasonable vicinity 6. Trespass to chattel 7. Conversion Both involve interference with personal property (includes any property that is not buildings and land, includes money) This is the private course of action for vandalism and burglary of personal property Conversion: you dilebratly break it, you bought it has the option to collect for the full value not the repair of damages. In many cases conversion is a forced sale. Mistake of ownership will NOT immunize the .

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DEFENSES TO INTENTIONAL TORTS

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B. Defenses to Intentional Tort (1) Consent (1) You do need capacity to give consent E.g. a drunk cannot consent to punching it face (1) Child may consent to certain intentional torts. Depends on age and capacity. A child may consent to wrestle with another. Child may consent to letting another person borrow her dolls (2) Must express consent. Very strait forward. Testable: Expressed consent is void if obtained through fraud or duress. E.g. go into a doctor office nurse tells lady to undress and person dressed as doc asks lady if he can touch her, she says yes. Latter finds out he is not doc, the express consent is void because obtained fraudulently (3) Implied consent a. May be obtained through custom or routine. i. E.g. sit in a barber chair without saying a/t, barber cuts hairimplied consent, no battery. ii. E.g. playing sports there is implied consent to all contact in the game. b. Implied consent based on s conduct and surrounding circumstances, body language consent i. Assumes rational interpretation of the situation. Must be reasonable ii. E.g. people dating for many months, alone. May be rational to believe from the circumstance that touching is reasonable iii. E.g. old case, on a hip everyone was getting vaccine, stood in line, rolled up her arm,.left her hand out doc gave her a shot. Held implied consent.

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(4) All consent has a scope. Exceed the consent then you go back to tort. E.g. playing football, consent to get tackled, no consent to shoot opponent E.g. doctor operating on a part of the bay remote from the area had consent to operate on. Foot operation but doc decides to give nose job. There is battery. (2) Protective Privileges a. Must react that is happening right now, or imminent No revenge, b. Reasonable belief that the threat is genuine If you reasonable believe that the property is yours, even if it is not you still may invoke the defense c. May use amount of force that is reasonable necessary and no more i. If you use excessive force you will be liable. o Never permitted to use deadly force to protect property Cannever use mechanical killing devise to protect Deadly force Duty to Retreat: NY Distinction: Before you use deadly force in NY you have a duty to retreat. Unless: i)cannot do so safely ii)castle iii)police officer iv)assisting officer MBE: NO DUTY TO RETREAT Exception: NY: castle doctrine, no duty to retreat.

(3)Necessi ty

(1) Public necessity in a public necessity scenario has no liability. If there is an immediate or imminent public disaster no liability to destroy property E.g. dog with rabies attacks a group of children at a park, shoots the dog to save dozens of incident children. Dog owner sues you on conversion (converting the dog) has affirmative defense of public necessity

(2) Private necessity is acting out of self-interest, 1) Private necessity remains liable for compensatory damages. 2) Private necessity is never liable for nominal or 17 | P a g e

punitive damages 3) As long as the private necessity the may not evict the trespasser from property until the emergency is over. Right of sanctuary. Hypo: stupid hiker in middle of the snow storm, he is about to die, finds shelter in a farm house. a.) he breaks the window and sleeps in the farm house. Farmer sues for broken window. Farmer will win. No defense b.) door is open and sleeps in the corner. Farmer sues for nominal damages or punitive. Farmer will lose. Private necessity is defense for nominal and punitive, c.) enterd the farm house and turns out that the farmer is there. Farmer tries to kick him out. Farmer must let him stay until the emergency is over.

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II.

NEGLIGENCE

(50% of Torts Qs on Negligence) NEGLIGENCE Issue Elements Rule 1. 2. 3. 4. Duty Breach Causation Damages NY distinction

1.Duty of Care

To who is duty owed? Owe a duty to foreseeable victims Zone of danger Palsgraf case, pushed P1 on LIRR who dropped a package of fireworks hit p2 very far away not in zone of danger, not foresebbale Minority- e/o is foreseeable Exception: a. Rescuer is always considered foreseeable (see firefighter rule below) Duty of care to prenatal injuries: i. Defendant negligently runs into a pregnant lady. ii. Doctor misdiagnoses certain birth defects. Doc is negligent. Turns out that child is born with defects May recover out-of-pocket expense but no emotional distress iii. Doctor messes up birth control No recovery available NY: if child is born alive and is born with deformities baby gets separate cause of action in own name If child dies, only parent brings cause of action

Standard of care 19 | P a g e

Standard of care: RPP Reasonable prudent person objective standard

Conduct is measured against what what average person with average mental capacity would do. mental state is not taken into consideration But physical characteristics is. Standard what RRP with physical attributes.. E.g. RP Blind P, note blind people dont fly planes..)

Exception - If has superior knowledge of skill is held to the higher standard. So move standard up for smart and strong but not down for stupid and weak 6 special standards of care 1. 2. 3. 4. 5. 6. Children Children Professional Land owners Statutory borrowing No duty to act affirmatively Emotional distress

(1)children a. under 5 immune from negligence b. over 5, obligated to exercise care as like age, education, intelligence, and experience -subjective test Exception: - Child engages is adult activity - *testable: usually involves motor vehicle (jet ski, car, snow mobile..) (2) Professional Standard: required to possess the knowledge and skill of a member of the profession in good standing And similar community -medicine: trend is national trend Additional duty to Docs: Duty to disclose risk of treatment unless i. Commonly known risk (surgery requires cutting) ii. Consent to no disclosure iii. Patient incompetent

Profession als

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Land liability

iv. Harmful in telling (patient would get heart attack ) (3) Premises liability Off premises: no duty to people off premises for natural conditions. Duty for artificial conditions On premises: 3 types of A)trespasser, B) licensee C) invitee A)Trespasser: No duty to an undisclosed Tres Disclosed or anticipated Tres duty to 4 part test a. Make artificial conditions and b. concealed c. That pose risk of death or severe bodily harm d. Only if owner knew of condition Exception: trespassing children Attractive nuisance a. owner should be aware of b. knows children are there c. condition likely cause injury NY abolished the distinction of categories (trespasser, invitee, licensee..) they just use the reasonable prudent person standard. The standard is the reasonable prudent person under the condition. A reasonable person does not take the same measures to protect a trespasser as they would to an intitee. So distinctions are still relevant for but under the RPP standard.

B)Licensee Defined: one who enters onto the land with the possessors permission for own benefit not for benefit of possessor (solicitors) Duty to (i) Warn of dangerous conditions (ii) Exercise reasonable care 21 | P a g e

C)invitees Come in response to invitation of possessor (store, guest) Duty (i) Same as licensee pluse (ii) Duty to make reasonable inspections Note: Invitees loses invitees status once leaves scope of invitation E.g. shopper goes into storage room of a store. Exception (a) Firefighter doctrine FF cant bring action from obvious harms Rational assumption of risk End note: Satisfying duty 1) no problem, (2) Possessor can fix the problem, thereby satisfying the duty of care. (3)adequate WARNING. Warning satisfy duties. o Exam answer: A is liable to B unless he warned B about the danger. o We face this every week, wet floor, possessor owes a duty to invitees, licensees about the duty.. they satisfy the duty they place the yellow warning (end of premises liability) (4) Statutory Borrowing may ask the court to borrow a relevant criminal statutes standard for the standard of care. o Criminal standard has no binding standard on the civil standard, can only ask court to borrow o Example: didnt stop at a red light, ran into . asks court lets use proof of criminal breach as negligence per se. When can do that? o 2 part test o 1)Class of Person must demonstrate that he is a member of class of persons that statute seeks to protect o 2)Class of Risk must demonstratethat the accident is among the risks that statute seeks to protect. o Hypo: marijuana NY firefighter doctrine is partial abolished. FF may sue a negligent arson FF may not sue employer.

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Exceptions o 1)if obeying a statute would be more dangerous than violating, you do may not violate statute Ex driving, child runs into the road, swerves over double yellow line no o 2) if compliance was impossible under the circumstances

(5) No duty to act affirmatively (no duty to rescue) Exceptions: a. preexisting relationship triggers duty i. Formal relationship: innkeeper- guest; landlordinvitee; ii. Informal relationship: friends. Modern trend is duty exists b. defendant caused the peril i. Caused regardless whether created peril negligently or not o When the duty arises the duty is to act reasonable. You never have to put your own life in jeopardy. c. chose to help. A gratuitous rescuer is liable for negligence i. Good Samaritan protection only applies to nurses and doctors who chose to gratuitously rescue. (recently some states added veterinarians) Negligent infliction of emotional distress (6) Emotional Distress Defendant does something to a that has no physical damage but emotional damage Requirements: (1)zone of danger and (2)some physical symptoms 3 special scenarios 1) near miss, zone of danger o Put into a zone of physical danger o negligently flies his car off road and goes within 10 inches of body. o must prove that after the moment of distress there was subsequent physical manifestations of the distress. The obvious manifestation is a heart attack. The reason is to rule out fraudulent claims. So the court is liberal with the physical manifestation. 23 | P a g e

Bystander: NY adds that the bystander must also be in the

Rashes satisfy. 2) bystander o Negligent injures a 3rd party, is mentally distressed because V has been hurt o Only if: a. close family member b. must see it as it happens contemporaneous witness f (ring side seat) c. must know, personally observed or perceived 3)preexisting business relationship o Example: medical o Example: funeral parlor is negligent in their work it is reasonable that the 3rd party will be emotionally distressed.

zone of danger himself.

2.Breac h

2. Breach breaches a duty when conduct falls short of the level of applicable standard of care owed by to the Simple and strait forward Res Ispa Louqitor the thing speacks for itself Breach doctrine utilized by who lack information about s activity. it relates to breach. o E.g. Burn v Bottel, walking past bakery, a barrel fell on his head as he walked by, (before discovery) allowed case to go further although can prove that has negligent Two requirements 1. The event is normally the result of negligence. o Key is normally, must prove that look at world barrels dont normally fall out of the sky. Also can rule out all non-negligence possibility, e.g. prove no earth quake o Defense, can rule out negligence or prove no negligence 2. The accident of this type is normally the result of negligence of the person in the position. o Point is we need to make sure that we pulled the right into court. Note: Res Ipsa case only lets the case go to the jury, its no guarantee of success it is only a method of avoiding directed verdict.

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o Example: (before strict liability days) purchased chewing tobacco, first bite was alright, kept eating,made him foam at mouth..,found out it was human toe. Negligence case. H: we could not find a reasonable reason that a human toe will be found in chewing tobacco.

3.Causat ion

s action must cause the harm 2 types 1) actual cause 2) proximate (legal) cause always start with actual then determine if there is legal/proximate note in semantics: o Defendants are not factual causes, breaches are factual cause. On an essay do NOT say defendant actual causes. Rather the defendants breach was a factual cause.. o Never say the breach was the cause there are infinite causes so say the s breach was A factual cause. Actual cause But for causation But for the s action the s would not have suffered injury. Imagine parallel universe where everything happens but action would the same result have happened E.g. boat owner was negligent for failure to put out life jackets, was no where near life vest Exception to but for causation a. Substantial factor analysis Merged caused: 2 negligent they each conduct a breach, they each set out a destructive forced. Courts then use substantial factors and each are individually liable E.g. 2 separate s start a massive forest fire, fires merge. The fire merge cause damage. Each was theoretically causing

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the entire damage. So technically no but for. Courts then use substantial factors and each are individually liable b. Unascertainable cause E.g. 3 people go hunting quale, first step find quale, shot gun.., shots cartridge and many little pellets. 2 of the 3 shot their guns one pellet hits 3rd hunter in the eye. 3rd guy sues the other 2. Problem: only one breach caused the harm. Both s breached a duty but we dont know which one and has burden of proof on every element of the case. cannot prove that either individually is liable. Solution, Rule: when no ascertainable cause and both breached the duty burden of proof shifts to the defendants Proximate legal cause must show that what happened in this particular instance was a foreseeable consequence of the breach. It is within the scope of the breach. The saw it coming o because every act has infinite consequences we need a limit on liability must convince us that liability is fair, sensible of coherent Indirect cause scenario, 4 precedential situations (well settled quartette) 1. Intervening medical negligence (malpractice). o E.g. negligent hits , negligent doc negligently puts leg in a too tight cast causing amputation. o Rule: is liable, rational, it is foreseeable that must seek medical attention and medicine is not perfect. o Note: doc will also be liable 2. Rescuer o E.g. negligent driver, rescuer comes and further injures , o Rule: is liable, it is foreseeable that risk creates rescue 26 | P a g e

3. Intervening protection or reaction forces o E.g. car drives into shopping mall, creates stampeed, 3rd party stampedes . o Rule: liable for 3rd parties injury, its foreseeable 4. Subsequent disease or accident o E.g. negligent drivergets leg cast, falls the next daybreaks a new area o Rule: careless cause injury it is foreseeable that they will be in a weaken condition and other injury will come

4.Damag 2 types of Damages awarded es 1.At law (Money) 2.Equitable (e.g. injunction) remember damages is an element to negligence, no damages no cause of action. At Law Money NY specific rule: (not majority The egg shell skull principal rule) o Once a has established all elements of a case, recovers from all damages suffers even if the great in Recovery in tort will be scope reduced by o Take your has you find him. any money E.g. you dont behave as a reasonable prudent received person, your breach is knocking over humpty from other dumpty, causing him to shatter every rule in body. sources is liable for all damages despite normal person such as would not have that damage. insurance. Applies to all torts o NY specific rule: (not majority rule) If you have Recovery in tort will be reduced by any money received from health other sources such as insurance. insurance from o If you have health insurance from work, damages is work, damages reduced by that amount. is reduced by o Has never been on the exam. that amount. 27 | P a g e

o Has neve r been on the exa m. Equitable Relief See CPLR for specific Specifically injunction equitable 2 kinds issues o Preliminary (beginning at law suit) o Permanent (at closing after merits) Either injunction can be negative, (i.e. do not do x), mandatory (i.e. go out and do xyz) Permanent o After you prove liability on the merits you must prove 4 things a) No adequate remedy at law (money will not compensate me on this) 1) Where has no money 2) Harm cant be relieved with money 3) Repetitive action b) Property interest or protective right at stake. E.g. s/o interfering with k, property Modern view there is a protective right in every tort (this prong really irrelevant) c) Injunction is enforceable The more complex the conduct the harder to enforce Negative 28 | P a g e

d)

Defenses against injunction (i.)

injunction in NY where court has PJ more likely The balance of hardship must tip in the favor The benefit to the must outweigh the from being enjoined

Unclean hand. If did something unkosher E.g. trade secret owner moves to enjoin employee. Employee can counter owner was not careful protecting the secret (ii.) Laches, prejudicial delay. has not sued promptly and has changed position in reliance, no injunction E.g. neighbor starts to dig on your land, sees this, then watches him dig whole, then fill up foundation,then builds house. should have sued early or said something early (iii.) First amendment limitations E.g. moves for injunction against newspaper from a liable case. Preliminary injunction 2 part showing a) Likelihood of success on the merits b) Demonstrate irreparable injury if injunction is not granted E.g. trade secret case, if no injunction secret out and cant go back. CPLR will go through extra requirement

A. DEFENSES TO NEGLIGENCE
Common law 1)assumption of risk 29 | P a g e NY: Primary

2)contributory negligence Over whelming states have abolished this including NY.

assumption of risk. This should not be confused with assumption of risk. This is a special assumption of risk in special cases such as sports contests. In sports there reasonable prudent person is different, the duty of care merely refrain from reckless conduct. There isnt no duty rather lower duty, primary assumption of risk. No recover if injury in normal play of the game Seatbelt Failure to where a seatbelt is an affirmative

30 | P a g e

defense but Trier of fact may consider nonuse in mitigating the damages. May not use as evidence on the issue of liability. Ny recognizes comparativ e negligence: o Plaintiff failure to exercise proper care for his/her own safety. Proper care means: Reaso nable prude nce for your own safety Failur e to observ ea Selfprotec tive statut e (jay 31 | P a g e

walkin g) o When established failed to exercise proper care.the jury will assign the respective degree of fault. o There are no rule that determine number, its simply left to the jury to assign o Once the percentage of fault is assigned the damages are reduced based on the amount is assigned fault. Comparative negligence Pure comparite negligence, a will get something . 90% at fault he still get 10% Modified comparative negligence, if is 50% or more negligent then get nothing only talk about modified if bar brings it up and only on the 32 | P a g e

multistate

III.

HARM TO ECONOMIC AND DIGNITY OF OTHERS

A. DEFAMATION
A. Private defamation 1. Private person B. Public official or public concern

IV.

STRICT LIABILITY
Strict liability

Prem a facia case:

Elements: (1) the nature of the s duty impose and absolute duty to make safe (2) the dangerous aspect was the actual and proximate cause of s injury (3) damages 3 kinds: 1) Animals 2) Abnormally dangerous activity

33 | P a g e

3) Product liability Note: in most cases of strict liability the s safety measures have no influence on downgrading to normal negligence 1) Liability for Animals a. Domesticated animal General rule: there is no strict liability for domesticated animals Distinction MBE: liable for negligence for animal related injury NY no negligence liability for domesticated animals. Exception: animal with vicious propensities and you have knowledge then strictly liable Knowledge of vicious propensities? Previous similar actions. After one dog bite you are on notice NY case with horses Never strictly liable to a trespasser on your land. Even if you have a known vicious dog. a. Wild animal Simple rule you own a wild animal youre strictly liable safety precaution dont help to down ground to regular negligence So how do they test? Try to put you off with safety precautions.safety precautions should be ignored. Always strictly liable. Story asking prof about elephants and bees.. Moral is, law school it becomes second nature to look for ambiguity, which is great for being a lawyer. For the bar exam is very debilitating hurtful practice. The bar will only ask about lions, tigers and bears they are not interested in fighting you in Albany with a zoology book.

anim als

Abnor 2) Abnormally dangerous activity mal dange Rule: Rilans v Fletcher, the definition is 2 part rous 1)activity is one which cannot be made safe, even when reasonable care activit is exercised. y 2)the activity is not a matter of common usage in the community. Examples: blasting, using explosives. Using highly toxic or biological material. Study on anthrax. Nuclear energy, radiation Safety precautions will not save . This is where they test you.

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Produ ct liabili ty

3) PRODUCT LIABILTY 4 elements: 1. Merchant 2. Defect 3. Product didnt change 4. Foreseeable plaintiffs (dont need privity) a. Merchant Testable:

Or no privity required

i. Selling on e-bay is a casual seller and cannot be strictly liable. ii. Service provider, often make products available incidental to the service. Not merchant no strict liability. E.g. doctor office, sit on chair and breaks no strict liability. iii. Lessor can be held strictly liable. E.g Hertz can be help strictly liable iv. every entity in the distribution chain can be held strictly liable, 1. 1)retailer, 2. 2)wholesaler, 3. 3) manufacture

b. Product must be defective 3 kinds of defects: 1. Manufacturing defect. When it differs from all other product that came off the assembly line, that would make it more dangerous than consumers would expect. Or restatement: departs from intended design. Abortion, anomaly, irregular, one-in-a-million. 2. Design defect: if it could have been built another way. 3 part test for hypothetical alternative design i. Safer than current version ii. Cost effective (not significantly more expense iii. Practical. If shows there is a design defect that could have been safer, cost effective and practical then strict liability Government standards: o If product does not meet federal standards = 35 | P a g e

defective design o If does meets gov reg prove not defective only evidence If product has residual risks that cannot be designed away and consumers are unaware. The product is defective unless there are adequate warning Adequate warning does not help against design defect if meets 3 part test (could have made a safer, cost effective, practical alternative.

b. Product did not materially change c. was making a foreseeable use of the product. i. Foreseeable use does not have to be a proper use. E.g. use a chair for standing on. No Grandmother argument

V.

NUISANCE
Testable: when you have to land owners with competing land use Defendant can be liable for acting deliberately, carelessly, even without fault o E.g. shining light into his property The theory is that one should be to enjoy their own property without unreasonable interference Hard to test.

rule: nuisance is the interference with the use of land to an unusual degree.

VI.

VICARIOUS LIABILITY
Vicarious liability Vicarious liability is suing a purely passive party for the action of an active tortfeasor. Sole reason that a relationship exists

Rule

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Responde at Superior

Common cases o a) Respondeat Superior (Employeeemployer) o Must be scope of employment (see agency) o Generally employer not liable for intentional torts. o Exceptions: Job requires use of force. Misuse of force still use vicarious liability (e.g. club bouncer for punching patron for disrespecting him Job that generated friction or animosity. E.g. repo man o Hiring party-independent contract no vicarious liability Exception: liable to invitee on your property that gets injured from an independent k E.g. hires IC to paint site. Gets in accident on the way to VL. IC is painting in store and paint falls on customer then VL b) Automobile owner-driver. o General rule: no VL. lend driver car, driver gets in an accident no VL Exception: lend you my car to an erroned for me.

No punitive unless: (i) Employer was grossly negligent in hiring (ii) Employee was entrusted with general management (iii) Employer authorized or ratified

Permissive Use statute No VL for intentional torts Registration is PF evidence of ownership. Proof of ownership raises a rebuttable presumption of permission and consent Person granted permission need not operate mere presence is enough Federal statue

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c) Parents-children. o General rule: parents are NOT VL for tort of their child o Note: many cases parent will liable for own conduct no need for VL. E.g. parent leaves 9mm loaded gun on kitchen table. 9 year old child takes it and causes damage. Parent is directly liable no need for VL. d) Dram Shop

preempting NY for car rentals. Considered owners for VL but only if negligence or criminal.. Parents liable up to 5k for willful and intentional property tort of minor children over 10 Duty to protect against infants foreseeable imporvenant use of dangerous equipment Vendor who unlawfully supplied and intoxicated vendee with alcohol liable to 3rd parties Unlawfully includes visibly intoxicated an minors

e) Common carrier Has a highlen non delegatable duty of care

VII.

CODEFENDANTS

Some questions will state that there is a judgment from one or more s. there may be a case where one fully collected from one . Maj: (MBE) jury assigns percentage and we go based on the percentages. o E.g. jury finds T 90% liable and B 10% liable. collects all from T. T can collect 10% from B. o Exceptions: o Indemnification: vicarious liability can shift the loss to the active tortfeasor E.g. employee hits o Indemnification: a non-manufacturer, typically retailer, gets indemnification from manufacturer.

38 | P a g e

VIII.

LOSS OF CONSORTIUM
covers 3 type of o 1)loss of household services o 2) loss of society o 3)loss of sex (in theory should use the recovery on substitute services) Must prove loss.

in any case where the is a married, the uninjured spouse can collect in his own name

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Some key take aways

Negligent emotional distress Physical symptoms Exceptions

Intentional emotional distress

Need physical symptoms (exceptions) Dont need physical symptoms There are other torts involved E.g. see Q#10783 Doc very negligently misdiagnoses patient and tells him an itchy rash is deathly cancer. Can recover ED since there is the physical harm of continued rash

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CONTRACTS
Approach I. II. Applicable Law Formation a. SOF b. Terms Excuse for non-performance Remedies Third-party issues

III. IV. V.

CONTRACTS
Applicable Law Issue Article 2 SOG, Only applies to sale of goods Goods= movable personal property Merchant definition: Common law Applies to all other ks e.g. services, real estate, NY distinction and Article 2A A2A: sale of leased Goods Does NOT include lease real property NY adopted A2A, MBE does not

I.

FORMATION FORMATION

General

K = legally enforceable agreement Types of k: 1) Express k, created by words of parties 2) Implied-in-fact k created by conduct of parties

41 | P a g e

Characteristics: (1) Bilateral k: performance andy reasonable way (2) Unilateral: where an offer can only be accepted by performing A. Offer says acceptance only by perfoming B. Reward, prizes, contest Not a k but should be noted Restitution/ Quasi in Fact k: not a k but protects against unjust enrichment where k law would yield unfair result. o Remedy of last reort o E.g. party partially performed under invalid k b/c of SOF, party will get quantum merit work done but remedies of breach of k. Elements: (i) conferred a benefit to (ii) With reasonable expectations of being compensated (iii) knew or had reason to know of the expectation and (iv) will be unjustly enriched A. Was there an Offer? Article 2 Definition Advertiseme nts Indefinitenes s Offer = Manifestation to be bound Advertisements are not offers If a term is to indefinite the k cannot be enforced. 1) Open Price court will read in a reasonable price 2) Requirements k enforceable despite uncertain quantity Defined: Common law NY distinction and Article 2A

General rule: Need to specify: Price Quantity

Exception

B. Terminating an Offer 1. Lapse 2. Revocation 42 | P a g e

3. Rejection 4. Death 1. Laps 2. Revocation General Rule: offer can be revoked at any time before acceptance. Terminated when offeror revokes 2 types: (A) Direct revocation (B) Indirect revocation: through an act of offeror but requires: i. Offeror engages in conduct of revocation and ii. Offerree knows of the conduct. (1)Option k, consideration in exchange for promise not to revoke offer

Exception to revocation:

On MBE need consideration

Normally need consideration unless signed, writing

Exception promise w/o consideration

Pro (2)Firm offer: Always need Only under A2 consideration to enforceable w/o hold offer open consideration. Defined: Sale of goods By a merchant Signed writing Promise to keep offer open Only open for a reasonable time max 3 months (3)Foreseeable reliance before acceptance

Do not always need consideration Cant revoke if offeror: a. Signed b. Writing c. Promise not to revoke

43 | P a g e

e.g. sub k gives offer to contractor who places a bid, sub k knows c is reliance (4)start performance in A unilateral k Mere preparation is not start performance Offer can be revoked until performance is complete

Timing of revocation

When received Distinguish from acceptance that is effective when placed in mailbox

3.Rejection

General rejection by: Rejecting offer Counter offer Conditional acceptance Counter offer is rejection Mere bargaining or inquiring is not Conditional acceptance is rejection But the offeror may accept

notable distinctions:

SOG No Mirror image rule Battle Forms Adding changes will not prevent acceptance under A2 but term will not necessary be

Mirror Image Rule The acceptance must mirror the offer. Very strict any variation is a

44 | P a g e

included: When offerees term will be included: 1) Both parties are Merchants 2) No material change 3) No objection within reasonable time Material change Hardship Surprise Customary will not be material Note: Substantial effects on economics, benefits or remedies = material 4.Death Death terminates contract

rejection

C. Has there been an Acceptance? Conditions Language of the offeror controls e.g acceptance by reporting to work on Monday (1)bilateral = acceptance (2)unilateral acceptance Need completion for acceptance Note: Offeror still cant revoke offer Simultaneous Simultaneous acceptance and breach acceptance and Acceptance upon completion and offeror may revoke

Start performance

Improper performance 45 | P a g e

Exception Accommodation is not acceptance e.g. Offeror order a coffee offeree says I dont have coffee but heres tea as an accommodation no acceptance and no breach Silence ? so what the result Offeror cant unilaterally turn offerees silence as acceptance It may be if the circumstance permits such as prior dealing etc. but not random silnce General rule: Mail box rule when acceptance is placed in the mailbox even before offeree receives it. So mail rejection on Sunday, Call to accept in Monday Offeror receives rejection in Tuesday The offer is rejected. remember Rejection = when received Acceptance = mail box rule Does buyer need to receive the letter? Exceptions to mailbox rule:

breach

Unsolicited merchandise from a merchant is considered a gift

Timing of acceptance Mailbox Rule

exceptions

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a. Offer states otherwise b. Irrevocable offer c. Rejection sent first then whichever arrives first binds because rejections is binding only when recieved

II.

DEFENSES AGAINST FORMATION

Defenses against formation 1. 2. 3. 4. 5. 6. Capacity Duress Misunderstanding No consideration Public policy Unconscionable

1. Capacity

must be 18 mentally competent not intoxicated general rule only (minor) can disaffirm k can only raise defense until 18, wants majority then implied affirmation

NY

Minors

Limitations where minors cant void: 1. Life insurance if 14 or older 2. Education loand 16+ 3. All k by 18 4. Real estate relating to martial home 5. Ks involving artistic or athletic services

47 | P a g e

Mentally Incapacity

Exception: An incapacited party is liable for necessities but on reasonable value, not k price

Adjudicated incompetent =void Unadjudicated k not voidable unless incompetent can restore other party to previous condition

2.Duress

Physical of economic General economic duress Misrepresentation of a material fact. Even an honest or innocent misrepresentation of material fact is fatal No k e.g. Peerless A thinks may, B thinks December no k If one party knows/ reason to know: k but innocent partys intent prevails Mutual Mistake No k Must be mutual and material/ central to k But Mistake as to value not considered material Effected party may void if: i. mistake is on basic assumption which k is made

3.Misrepresentation

4.Ambiguity / misunderstanding

5.Mistake

48 | P a g e

material effect no assumption of risk Unilateral mistake Not fatal flaw unless the other party knew or had reason to know of other parties mistake

ii. iii.

Consideration

Need bargain Need not make economic sense Type: - Promise - Performance - Forbearance

Past consideration

Past consideration is NOT consideration

Past consideration is binding if: 1. Promise is in writing 2. Expressly stated 3. Past consideration can be proven and 4. Writing signed

Illusory promise Modification General rule

Not binding on party is unenforceable Do NOT need new consideration but must be in Good Faith Need new consideration to modify Not enforceable Do not need new consideration if signed and in writing Not enforceable unless

Partial payment of 49 | P a g e

debt Disputed debt

Written promise even without consideration Types of disputed debt:

in writing

Promissory reliance

SOF
Statute of Frauds (defense against formation) Rule Need to have a writing for k to be enforceable by certain ks MY LEGS Marriage Year Land Executor Goods over 5k Surety Also within statue: 1. Pro mis e to pay disc har ged deb t 2. Ass ign me nt of ins ura nce poli cy or pro mis e to na me a

50 | P a g e

(n/a only SOG) Real prop erty

(1)Real property Always in writing

ben efic iary 3. C om mis sio n or find ers fee, but not cov ere d by sta ute if atto rne y, auc tio ner, lice nce d real est ate bro ker Equal dignities rule: In a principal/a gent relationshi p the agent must be authorized

51 | P a g e

in writing. Exce ptio n Exceptions: Lease of one year or less Part performance exception need 2/3 of: - Buyer in possession - Buyer made part payment - Buyer made part improvements down payment is not enough w/i year (2)performance cant be performed within a year Note key is impossible by any means of imagination in one year Clock starts at k formation Lifetime contract: NOT within SOF b/c can die Exce Exception ptio Full performance n Note: part performance can recover restitution but not as breach of k Goo (3)Property sale 5,000 or more (over 4,999) ds over 5k Exce Exceptions: ptio n a. goods accepted of paid for Lifetime contracts ARE in SOF bc by its terms not performe d w/i a year.

Lease of goods 1,000 or more Part performa nce of lease agreemen t is not in SOF

Note: if you can identify then exceptions applies only to that item: E.g. paid for 200 bats of an order of 500 bats, only the 200 will be excused from SOF E.g. down payment on a boat will excuse SOF b/c b. custom-made goods Sure 52 | P a g e (4) Surety ship

ty

key is being back up If primary liable then not a surety Exception Primary benefit

Mod ifica tion Gen eral exce ptio ns: Mer cha nt conf irm atio n me mo

K modification Must be in writing only id k as modified in over 5k limit Judicial admission

One party can use its own memo if:

i. B o t h p a r t i e s a r e m e r c h a n t s

Note: tested in february

53 | P a g e

ii. W r i t t e n a g r e e m e n t h a s q u a n t i t y iii. N o w r i t t e n r e j e 54 | P a g e

c t i o n w / I 1 0 d a y s Wha t is a writ ing? Quantity of terms Signed by party to be charged All mate rial term s Signe d by Lease: Q u a n t i t y D u r a t i o n R e n t a l p a y m 55 | P a g e

Highest bar

e n t s S i g n e d b y

III.

CONTRACT TERMS
A) B) C) D) E) F) G) Contract Terms Words of the Parties Conduct of the parties Sellers warranties Lessors Warranties in leased goods Limitation of warranties in goods Risk of loss ROL in leased goods General Rule: when parties make a final doc, integration, then no extrinsic evidence for: Prior (or contemporaneous) agreements that Contradicts the later writing Does NOT include if its for: a) Not the final document b) Correct clerical error c) Establish defense against formation - Argue formation defect - Not valid for lack of condition precedent d) Interpret vague/ambiguous terms e) Supplement or add

Parol Evidence Rule

56 | P a g e

Parties conduct

f) Explain a usage of trade term g) Subsequent developments h) Show that consideration was paid Following order (1) Course of Performance under this k, (best evidence) (2) Course of dealings (prior k) (3) Usage of Trade, (what others do) Of kids Express Implied Express Warranties: Statements of facts, promises, descriptions samples Not opinions only if basis of bargain Implied Warranties: (1) ..of Merchantability --The goods fit for their ordinary purpose --only Merchants and -deal with goods of this kind

Sellers Warranties SOG

Lessors warranties in leases

(2).for particular purpose --for buyers particular purpose need not be a merchant -relay on seller statement

Limitations on warranties: A)Disclaimers: may only disclaim implied warranties may not disclaim express warranties a. disclaiming implied warranties: i. conspicuous writing.. as is, with 57 | P a g e

Same warranties as 2 Exception does not apply if a financial institution is involved

Faults plain language ii. inspection or failure to respect waives implied warranties that would have reasonably revealed.. iii. course of dealing, trade usage B)limitation of remedies May limit on remedies on either express or implied but not if unconscionable Risk of Loss no limit on personal injury -based on k -breaching party bears ROL Common carrier: (1)Shipment kROL shifts to buyer after seller (i)brings goods to common carrier and (ii)makes delivery arraignments and (iii) notifies the buyer presumed to be shipment k unless agree otherwise (2)destination k: Seller bears ROL until goods reach a specific destination Non-carrier cases: If Merchant seller: Seller bears ROL until buyer takes possession Non-merchant on buyer once seller tendersmakes it available to buyer Leases of SOG On lessor Exception finacing lease

IV.

PERFORMANCE
Performance Article 2 Common Law Substantial Performance does not have to be perfect on NY distinctions

General

Perfect Tender Rule

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breach if material

Below For Sale of Goods under Article 2 only Perfect tender rule Right to cure If the goods are not perfect buyer has right to reject If rejects seller has right to cure Only if time has not expired Exception: May cure even if time has expired if based on prior dealings buyer was flexible defined: k that requires or authorizes delivery in separate installements perfect tender rule does not apply you substantial impairement (SI) Cant even reject the instalment w/o SI If buyer accepts the goods after having opportunity to inspect cant bitch about perfect tender -dont need actual inspection but reasonable time to inspect Cant reject but may sue for damages Once buyer accepts he cant reject:

Installments k exception

Buyer accepts imperfect goods

Exception: If the non-conforming goods: i) Substantially impairs the value of the goods and ii) Difficult to discover (latent defect)

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Consequence of rejection/ revocation of acceptance Paying with check

Return goods at sellers expense Refund Damages, sue for damages Seller may refuse to take checks If seller refuses check and k will expire, buyer has reasonable time to get cash w/o breach

V.

EXCUSE BASED ON LATER EVENTS

Excuse Based on Later Events A. B. C. D. Other Parties Breach Anticipatory Repudiation Failure to give Adequate Assurance Later Agreement a. Recession b. Modification Accord/satisfaction c. NOVATION E. Impossibility F. Frustration of Buyers Primary Purpose G. FAILURE of an EXPRESS Condition a. Strict compliance b. Satisfaction clause c. Excusing conditions Article 2 A. Other Parties Breach Based Perfect Tender Rule if Sellers performance is not perfect buyer is excused from performance 3 options when not perfect: a. Reject b. Accept all c. Accept part reject part in additional may always sue for damages Exception to perfect tender

Common Law Damages: may recover damages for any breach, even immaterial But Excuse: only material breach

NY

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rule: when buyer sends seller offer to buy goods for current of prompt shipments. Seller can sends buyer an accommodation notice Treated as counter offer not breach Buyers remedy either accept and NO DAMAGES or reject and return but no damages. Divisible k: Breaching party can still collect on the part that he performed B. Anticipatory Repudiation Defined: intention to breach before the time performance is due -non-breaching party need not perform breaching party may retract the anticipatory breach as long as no reliance A party with reasonable grounds for being insecure may request .writing of adequate assurance treated like anticipatory breach assurance to the current k-cant use this to request specific type of payment or rewrite k. D. Later Agreement Types: 1) Rescission 2) Modification 3) Accord/Satifaction 4) Novation Rescission: Agreement by both parties to

C. Failure to give adequate assurance

Article 2 only

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cancel the k each party must have some performance remaining Modification -agreement by both parties that a new agreement should replace the current one now, takes effect immediately Accord An agreement to accept performance in the future to satisfy an existing duty then, only takes effect when the accord is satisfied Novation An agreement to substitute a new party for an existing party Novation both parties agree to the substitute original party is excused Distinguish from delegation where there is no assent from both parties. Called impracticality Same as common law adding: 1)ROL: seller who beared ROL is excused by impracticality 2)unidentified goods seller is excused if the goods that were damaged had been identified to the k Death essential person If special talents and only him excused Excuse for nonperformance

E. Impossibility Destruction of s/t necessary for performance:

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If not, not excused Performance of paying money is not excused Superveneing gov regulation Increase in cost to seller Almost never excuse Almost never excuse May be excused must look at price and percentage

F. Frustration of buyers primary purpose G. Failure of an Express Condition

Excuse only if seller knew of buyers primary purpose Condition limits obligations based on language in the k Strict compliance required excused and cant sue for breach Satisfaction claue: objective standard -unless on matters of art or matters of personal taste Types of conditions: Condition precedent: triggers obligation to perform Condition subsequent: cuts of obligation only person protected by condition can raise it

Waiver

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VI.

REMEDIES

Remedies A. Equitable B. Liquidated Damages C. Expectation Damages Sale of goods: d. Cover damages e. Market damages f. Loss in value g. Resale damages h. Lost profit to a volume dealer i. K price for special items D. Incidental damages E. Consequential F. Avoidable damages (duty to mitigate) Article 2 A. Equitable Specific performance Only if the gooothds are unique or other proper cercumstances

Common law Specific performance Only where $ is inadequate Available by: Real Property Never by service k, is like indentured servitude, may get injunctive relief though

NY

Unpaid sellers rights to reclaim goods: seller is screwed if seller delivers goods, buyer doesnt pay, buyer keep goods, laugh at seller, seller can just sue for breach. (unless seller had security in it) Exception: i)buyer was insolvent when received ii)seller makes demand w/I 10 days or buyer made misrepresentation w/I 3 months about his solvency -Liquidated damages -expectational

B. Monetary remedies 64 | P a g e

(1)Liquidated damages Damages listed in k before only enforceable if difficult to estimate and reasonable forecast damages -cant be a penalty Also general rule Buyers Damages: (1)cover Damages: When: if buyer covers (good faith) Cover price k price = damages (2)market damages When: buyer doesnt cover at all or doesnt cover in good faith Market price k price =damages (3)loss in value When: if buyer keeps nonconforming goods Value as promised value delivered = damages

Expectation Damages

General form of damages put party in as good position as if the k had been performed.

Sellers Damages (1)Resale Damages: When: seller resells in good faith K price resale price = D (2)Market damages When: doesnt resell or bad faith K price- market price = D (3)lost profit to a volume seller special rule for dealers Even if resells same good for same price, volume dealer still gets lost profit damages. 65 | P a g e

(4)K price When: by special of custom goods that cant be resold. Full k price = damages Incidental Damages Consequential Damages Cost to the injured party of transporting caring for goods after breach Never available to the seller Think of the Mill and shipper case damages special to this that were reasonable foreseeable to the breaching party at the time of the k Duty to mitigate damages

Avoidable damages

No duty to mitigate

VII.

THIRD PARTY
Third Party A. Entrustment (give g to merchant who sells) B. Third-Party Beneficiary (only intended,) b. Rescission before vests c. Liability (none to done only creditor) C. Delegation (w/o consent, still obligated, contrast w/ novation) D. Assignment (w/o consent/consideration, no sub change) Article 2 Common law

NY

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Entrustment -Owner who entrust goods to a -Merchant who deal in goods of the kind -No rights against the BFP Third Party Beneficiary Defined: 2 people enter into a k intending to benefit TP Promisor: party promises to perform to TPB Promisee: one who secures the promise Intended beneficiary: the person whom performance is to be given Incidental B: just happens to benefit, no intention (no rights) Promisor can rescind or modify until the promise vested Vests when: relies, assents or sues Liability But k language always controls Promisor is liable to TPB Promisee is only liable to creditor beneficiaries Promisor is still liable to promisee General Rule: may duties may be delegated w/o consent of the person to whom performance is owed -contract language controls no assignment clause then cant delegate either

Recession and modification

Delegation

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Special skills no delegation Rights of the oblige: Delegating party remains liable unlike novation who is not liable May sue the delegate if there is consideration Definition: there is a k. later, one assignor transfers his rights to a third party-assignee. Party who owes the duty is the obligor Note: TPB: TP known at time of k Assignment: TP comes later must have language of a current transfer Restrictions consideration is not required -K languge controls: a)not assignable assignment is valid but constitutes a breach b)void assignment is invalidated cannot substantially change duties of the obligor Gratuitous assignments are revocable

Assignment of rights

Gift assignment is irrevocable if in writing

For consideration: -first assignee prevails Except: If second doesnt know and gets payment first

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SOME IMPORTANT POINT UNDER ARTICLE 2

(a) Cases that only apply to merchants: 2) Implied warranty of merchantability 3) Entrustment

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REAL PROPERTY
I. ESTATES IN LAND

A. 4 PRESENT INTERESTS:
1) 2) 3) 4) Fee simple Absolute Fee tail Life estate Defeasible fee a. Fee simple determinable (automatic) (in grantor) b. Fee simple subject to condition subsequent (option)(in grantor) c. Fee simple subject to executory limitation (not in grantor)

B. _FUTURE INTERESTS:
A. Future interest in Grantor: 1) The possibility of reverter (only after FS determinable) 2) Right of rentry a/k/a Power of terminatin (only after FS STCS) 3) Reversion B. Future interest in transferees 1) Vested remainder a. Infeasible vested remainder b. Vested remainder subject to complete defeasance c. Vested remainder subject to open i. Open = possibility to join ii. Rule of convenience closes when any member can demand possession 2) Contingent remainder 3) Executory interest a. Springing = b. Shifting = always follows defeasible fee, cuts s/o short other than grantor

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Present interest FSA Life estate

The future interest that may fallow none Vested remainder Reversion (in grantor) Reversion

Characteristics

Holder

Duration

Ultimate to a to A and his hiers Life

Fee tail Defeasible fee 3 types FS Possibility determinable in of reverter FS subject to condition Subsequent FS Subject to an executory interest

automatically reverts back if condition triggered to a so long as reserves the right to terminate (not automatic) provided that.. If triggered event happens then to TP To A so long as.then B

Right of reentry (in grantor) Executory interest (not in TP)

Future interest The present Future interest interest that can precede the future interest Life estate, term of years only (never defeasible fee) A. Remainder

Characteristics

Holder of the interest

Duration

Cannot cut short or divest 2 types with many subparts 3 types

Only grantee (never grantor)

1. Vested 71 | P a g e

remainder 1(a) Indefeasible vested remainder 1(b) vested remainder subject to complete divestment 1 vested remainder subject to open 2. Contingent remainder

Vested = 1)ascertainable and 2)nonconditional Will 100% get the property May lose property subject a condition subsequent but will 100% Unascertained or unborn children Or Subject to a condition perquisite Special rules: 1)rules of destructibility 2)rule in Shellys case 3)worthier title rule Cuts off a prior interest

B. Executory interest Always follows a defeasible fee 1. Shifting 2. Springing C. In Grantor: 1. Reversion 2. Right of reenter 3. Possibility of reverter

Not in the grantee (not a remainder)

C. SPECIAL RULES
A. Rule is Shellys Case B. Doctrine of Worthier Tile (rule against remainders in Os heirs) a. O to A for life then to the heirs of O, normally is life estate + remainder. The doctrine changes it from remainder to reversion in O. This saves__ 72 | P a g e

b. Rule of construction c. Only applies if the words heirs are use

D. RULES AGAINST PERPETUITIES RAP

A. The Rule: void is any possibility interest will vest more than 21 years from a measuring life B. Four step technique: (1) Determine which future interest i. Does NOT APPLY: 1. In grantor 2. Indefeasible vested remainder 3. Vested remainder subject to complete defeasance ii. MAY APPLY: 1. Contingent remainder 2. Vested remainder subject to open 3. FS subject to condition subsequent (2) Identify the conditions precedent (3) Find the measuring life (4) Will we know for certainty, no matter how remote that the interest will vest in 21 years after ML?

E. NY RULES AGAINST S

II.

CONCURRENT ESTATES
A. Joint tenants a. Accompanies right of survivorship b. Only created with the 4 unities: 1. Time 2. Interest 3. Instrument (same title, documents) 4. Right to poses the whole c. Termination: SPAM i. Severance ii. Partition and iii. Mortgage B. Tenancy By ints Intirety a. Only with married people b. Right of survivorship c. Protected from creditors, unless of both

73 | P a g e

d. Termination: i. Divorce /death ii. need agreement by both spouses to sell, mortgage, . C. Tenancy in common a. No right of survivorship b. Interest is alienable, desendable, devisable c. Presumed interest
RIGHTS OF CO-TENANTS

The rights: 1) 2) 3) 4) 5) 6) 7) 8) 9) Possession Right of co- rent if exclusively in possession Rent from TP Carrying cost Repairs No adverse possession No improvements costs No waste Partition action

III.

LAND LORD AND TENANT

A. Tenancy 1. Tenancy for years: fixed amount of time i. SOF applies of more than a year ii. Creation: k iii. Termination: (1)automatically at end of term (2) breach covenant 2. Periodic Tenancy: continues for successive periods until proper notice i. Creation: express, implied, or by operation of law ii. Termination: continues forever until proper notice is given a) The amount of time is the full period earlier or for year periodic then 6 months 3. Tenancy at will right to terminate by either the L or T 4. Tenancy at suffrage: wrongful remains in possession after expiration of tenancy (hold-over) i. Creation: T wrongfully remains ii. Termination: L takes action, no notice required 5. Hold-Over doctrine. Ls options: i. Evict ii. L may hold the holdover T to a new k

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a) Residential: generally month to month a. If L notifies the residential T, that rent will increase then T is held to the new k. b) Commercial: year-to-year if lease was a year or more. If less then based on the payment cycle. B. T duties and Ls remadies C. L duties D. Assignments and Subleases 1. Rule: absent and agreement T may assign/sub 2. Assignment (whole term) i. T2 is in privity with L ii. All covenants that touch and concern the land run with the land iii. T1 is still on the hook 3. Sublease (part of lease) i. T2 has no privity to L, and can tell L to ef off, only privivyt with T1 ii. T1 is only liable. iii. T1-T2-T3, when T2 leaves he is only liable for rent while he was there not for T3.

IV.

RIGHT IN THE PROPERTY OF OTHERS

A. Easements 1. Types i. Appurtenant ii. Gross 2. Creation: Note: presumes to last forever i. Express ii. Implication 1. Necessity a. If necessity the purchaser gets to choose the easement 3. Termination i. Abandonment: need physical act mere nonuse is not enough (easements are presumes perpetual) B. Real Covenants C. Equitable servitude D. Profits

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E. Licenses Defined Easement Real Covenants A grant of an interest Promise to do or not in land that allows do s/t on the land someone to use anothers land 1. Express 2. Implied a)prior use Common owner Necessary Apparent and continuous intention b)Necessity c) subdivision Characteristics 3. Prescription A)appurtenant = involves the land B)gross = rights (billboards) Special notes Running with the land A. Burden B. Benefit Appurtenant Automatic because its a real property interest Burden (1) Intent (2) Notice (3) Horizontal privity (4) Vertical privity (5) Touch and concerns the land (1) Intent (2) Vertical privity Burden (1) Intention (2) Notice (3) Touch and concern Dont need privity Promise/ covenant Only in writing SOF Equitable servitude Promise to do or not do s/t on the land

Example Creation

Promise/covenant In writing or s/t ny implication (common scheme of development) Related to affirmative or negatively doing s/t in land

Related to affirmative or negatively doing s/t in land

Benefit (1) Intention (2) Touch and

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Remedy Termination Merger Release Abandonment Estoppel Prescription Necessity (ends) Condemnation or destruction

(3) Touch and concern Damages Release Merger condemnation

concern Equity Injunction Release Merger condemnation

V.
1) 2) 3) 4)

ADVERSE POSSESSION
Actual entry giving Exclusive possession Open and notorious Adverse Continuous for statuory period

Elements:

a. Actual and exclusive Color of title then deemed to poses the whole thing b. Open and notorious Key is sufficiently apparent to put the owner on notice c. Hostile Satisfied if w/o owners permission the adverse possessors state of mind is irrelevant, meaning AP even if the possessors thinks the land is her own Permission/consent from owner stops AP d. Statutory period Rule of tolling if minor or incompetent at the begging then toll. May tack from another if there is privity Note it only effects possessory interest, AP has not effect on future interests who are not in possession yet

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VI.
A.

CONVEYANCES
LAND SALE K

1. SOF applies 2. Doctrine of equitable conversion a. Application after signing before closing b. Buyer owns equitable tile and the seller is considered to have personal property . the seller is holding the title for the buyer in trust c. risk of loss is on the buyer unless the uniform vendor purchaser risk ask under state statute places burden on seller i. Seller must credit buyer if receives and insurance on loss etc. ii. Passage of title at death 3. Marketable title a. Implied covenant to provide marketable title in the chain of title, land description in deeds and no litigation. b. Covenant applies at closing c. If unmarketable then seller cant sue for specific performance 4. Delivery a.

B. DEEDS C.
Rule
RECORDING

Notice Subsequent BFP (for value, without notice) wins

Race-notice Subsequent BFP who records first prevails

Race Grantee who records first wins (even if not BFP) (dont care about notice)

Example of statute Do you need BFP Record first What if prior BFP recorded before you even purchased 78 | P a g e

No (Punish the first BFP who failed to record ) Then there is constructive notice and hes not a BFP then

D.

FORECLOSURE

A. Before foreclosure 1. title theory: mortgagee has legal title and entitled to possession upon demand at any time 2. lien theory: holder only has a security interest (lien), mortgagor owns the land, mortgagee is not entitled to possession before foreclosure 3. intermediate theory: once default then legal title passes to the mortgagee 4. mortgagee can take possession with concent or abandonment

B. foreclosure 1. 2. 3. 4. judicial sale power o sale (nonjudicial sale) redemption: anytime before foreclosre sale or under statutory redemption after. Priorities a. Foreclosure doesnt affect senior mortgages but destroys junior ones b. Notice requirement failure to notify junior in foreclosure sale preserves the interest c. Note modification of senior mortgage after a subsequent mortgage wil down grade it

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CONSTITUTIONAL LAW
Overview: I. II. III. IV. V. VI. VII. Federal Judicial Power Federal Legislative Power Federal Executive Power Federalism Individual Liberties Equal Protection First Amendment Weaker areas: Eleventh

I.

FEDERAL JUDICIAL BOWER

A. JUSTICIABLE, CASES AND CONTROVERSY
Defined by Article 3 of the constitution with a requirement for: Cases and controversy Case must be justiciable No advisory opinion

Requirements are: 1) 2) 3) 4) Standing Ripeness Mootness [no]Political question doctrine

1. Standing (most important justiciable) Standing: whether the is the proper party to bring the case to court The must meet 4 requirements:(a) injury, (b) causation, (c) no third party standing and (d)no general grievances 81 | P a g e

b. Injury : Injury: the must alledge and prove that he or she has been injured of imminently will be injured i. injury is not established with mere ideological objections ii. must assert only injuries that the personally suffered iii. If injunction must assert the likelihood of future harm c. Causation and redressability o The must show that the caused them harm so that a court decision is likely to remedy the harm if not it is an advisory opinion o If not harm then simply an advisory opinion which is not allowed d. No third party standing o May not present cases on beholf of pthers who are not before the court, only who personally suffered injury: Exceptions: i. Exception 1: close relationship and can adequaltly represent the interest. Doctor-patient Parent- child. But NOT NON-CUSTODIAL parent. The under G-d challenge in public schools dismissed because brought by non-custodial parent who had no custody ii. Exception 2: is TP is unlikely to assert ownd right E.g. juror improper removed iii. Exception 3orginization if: a. The mebeers whould have standing to sue b. Interest is germane to the organization c. Neither claim or relief requires participation of individuals e. No general grievances o may not assert a cliam simply as a citizen or taxpayer having the government follow the law i. Exception 1: may challenge on the establishment clause, which is ii. Exception 2: standing to challenge action in violation of the 10th amendment by interfering with powers reserved for the states 82 | P a g e

2. Ripeness Ripeness is the question of whether a federal court may grant pre enforcement review of a statute or regulation Factors: a. The hardship tat will be suffered without pre-enforcement review b. Fitness of the issue on the record 3. Mootness Mootness is that there must be a live controversy that will lead to a nonfrivolous money damage and claim. If the events after filing the suit will end the s injury the case must be dismissed as moot. a. Exception 1: wrong capable of repetition but evades review because of limited time b. Exception 2: voluntary cessation but can start up again anytime c. Exception 3: class action, as long as one member in class still has injury 4. Political question Doctrine Federal courts will not adjudicate political questions. The following 4 cases were dismissed as polital questions a. Republic form of government b. challenges to president conduct of forign affairs c. Challenges to the impeachment and removal of president d. Challenges to the partisan gerrymandering

B. SUPREME COURT REVIEW

For SC to hear the case all the justiciable requirement must be met 1. Writ of certiorari Virtually all come to SC via writ of cer a. All cases from State court from writ b. US court of appeal via writ c. 3 judge decision strait to SC d. Orginal and exclusive jurisdictioin for suits between states 2. Final judgment rule Only hear the case after there has been a final decision, no interlocutory appeals 3. Federal issue only o No independent state and adequate state law of decision 83 | P a g e

o If there is possible a state issue that can be appealed then must appeal that issue, only will hear of only a federal issue

C. LOWER FEDERAL COURT REVIEW

1. Sovereign Immunity No state government cases, under the principle of sovereign immunity the federal courts may not hear cases against state governments Exception i. Waiver but only expressed ii. Section 5 of 14th amendment, states may be sued under that federal law which __. Congress can also authorize any other iii. The federal government can sue a state government in federal court iv. Bankruptcy proceeding Suits against state officers permitted in federal courts as long as no money damages from state money

2. Abstention The may not enjoin pending state court

II.

THE FEDERAL LEGISLATIVE POWER

A. Congresss Authority 1. Expressed of Implied -congress only has powers if given to them either expressed or implied a. Generally no police powers Exceptions (MILD i. M: Military ii. I: Indian reservation iii. Lands, federal lands iv. D: district of Columbia 2. Necessary and Proper Article I, Sec 8, congress can adopt all laws that are necessary and proper to exercise its authority

3. Taxing/Spending Power and Commerce Power a. Tax and spend for Ugeneral wealfair b. Commerce power to regulate commerce i. Regulate channels commerce, including highway and internet 84 | P a g e

ii. Regulate the instrumentalities of interstate commerce and persons and things of interstate commerce iii. May regulate activities that have substantial effect on interestae commerce a. If non-economice then substantial effect may NOT be on cumulative effect 4. Tenth Amendment The Tenth Amendment gives all power to the state not granted to the fed or prohibited from states. a. Congress cannot compel state regultaroy of legislative action But in reality this is BS because they can control how states act when they give them federal money E.g. cant make a federal driving age limit but can say you only get federal highway money if the driving age limit is b. Congress may prohibit harmful commercial activity B. Delegation of Power 1. Unlimited delegable powers 2. Acts: Legislative Vetoes and line item vetoes are unconstitutional For congress to act there must be byecann__ both house and senate And presentment to president President must sign or veto in its entirety, no line-item vetoes 3. Congress may not delegate executive powers

III.

FEDERAL EXECUTIVE POWER

1. Treaties defined: agreements between US and foreign country that are negotiated by POTUS and effective when ratified by senate need senate ratification Conflict rules a. State conflicts are invalid b. Last in time rule if conflicts with federal statute (meaning it will override it and vv) c. US Constitution overrides all treaties if conflict

A. FOREIGN POLICY

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2. Executive Agreements a. Definition: an agreement between the US and a foreign country that is effective when sign by POTUS and head of foreign nation no need for senate approval b. Can be used for any purpose c. Conflicts: override all state law but never override conflicting federal law of const. 3. Commander-in-chief Broad power to use American troops in foreign countries

B. DOMESTIC AFFAIRS
1. Appointment and removal a. Appointment power i. The president appoints: ambassadors, federal judges, officers of US, with senate approval need approval of congress ii. Congress may vest appointment of inferior officers, : lower federal court, heads of department b. Removal Power: President has broad power to remove any executive official, unless prohibited by statute. Congress may limit removal power only if: i. For congress to limit pres removal power must show independence from president is desirable ii. Congress cannot prohibit removal, may limit removal to where there is good cause shown 2. Impeachment and removal Grounds for impeachment only: o Treason o Bribery o High crimes o Misdemeanor a. Impeachment does not remove president from office b. Impeachment by house requires majority and 2/3 of senate vote 3. Absolute immunity Absolute immunity to civil suits for money damages while in office No absolute immunity for actions occurring before taking office 86 | P a g e

4. Executive privileges Executive privileges for papers and conversations, but only if important government interest Criminal investigation overrides the privilege 5. Pardon power Pardon federal crimes No pardon power on state crimes No pardon power on civil liability No pardon power on the underlying crime that led to impeachment

IV.

FEDERALISM
Supremacy clause tells that federal law preempts and state law that is inconsistent with it. Federal law is the supreme law of the land. 1. Express Preemption When law states that federal law is exclusive 2. Implied Preemption Even if fed law is silent preemption when: a. Impossible to simultaneous comply to both b. State law impedes the federal law objective c. Cleat intent federal law is to preempt 3. No state tax on feds

A. SUPREMACY CLAUSE, PREEMPTION

B. DORMANT COMMERCE CLAUSE AND PRIVILEGE AND IMMUNITY CLAUSE

1. Definitions a. Dormant commerce clause: state and local government laws are unconstitutional if they place an undue burden on interstate commerce b. Privilege and immunity clause of Article IV: no state may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states, prohibits discrimination of states to nonresidents on fundamental rights. only to citizens (not corps/aliens) only if discrimination

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c. Privilege and immunity clause of the Fourteenth Amendment = travel. used to preserve a person right to travel from one state to another Approach: Discriminating against out-of-state? 2. If does not discriminate against out-of-state: a. Then Priv and immunity of IV does not apply only applies if discriminates b. If burdens interstate commerce violates dormant commerce clause if show burden on interstate commerce outweighs the benefits of the law o E.g. IL Truck Bumper case 3. Analysis if does discriminate against out-of-state a. Violates dormant clause unless necessary to achieve an important government purpose and gov must show that no less discriminatory alternatives can achieve the goal b. Exceptions: i. Exceptions 1: congress approved it (then not dormant commerce clause) ii. Exception 2: market participation exception: state may prefer its own citizens c. Is discrimination related to earning livelihood o If related to livelihood violates priv/immunity of IV unless necessary to achieve an important government purpose E.g. fishing = livelihood cant have cheaper in-state fishing licenses E.g. hunting = hobby can have cheaper in-state hunting licenses d. Corporations and aliens

C. STATE TAXATION OF INTERSTATE COMMERCE

1. State may not use its tax system to help in-state business 2. State may only tax if there is a substantial nexus with product/activity and state 3. State taxation of interstate business must be fairly apportioned

D. FULL FAITH AND CREDIT

State courts must afford full faith and credit decisions of another states court 88 | P a g e

Requirement: 1. The court must have had personal subject matter urisdiction 2. Judgment on merits 3. Final judgment Primary Statute Dormant States cant place commerce clause burden on interstate commerce Privilege and Discriminate out-of- Privileges of immunities clause staters National of the Fourteenth A Citizens Privilege and Travel Privileges of Immunity Clause of state citizens Article IV Protect fundamental rights 1)commercial activity and 2) civil liberties Exclusions Scrutiny

Corporations

Strict

Corporations, Valid is Aliens substantial justification

V.
A.

THE STRUCTURE OF CON PROTECTIONS OF INDIVIDUAL LIBERTIES

GOVERNMENT ACTION

1. Constitution only applies to government. No protection on private conduct 2. Congress by statute may apply const. to private conduct a. Thirteenth Amendment: private acts discrimination i.e. slavery b. Commerce clause.civil rights act of 1964 c. Cannot use section 5 of 14th .only applies to states 3. Exceptions when private conduct is unconstitutional a. Public functions exceptions b. The entanglement exceptions: when gov facilitates, encourages of authorizes Key examples i. Court enforcement of racially discriminatory covenants =state action ii. State action when gov leases premises to restaurant that racially discriminates

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iii. State action when provides free books to private schools that racially discriminate iv. No state action when a private school that is 99% funded by the government fires a teacher because of her speech v. No state action when NCAA acts vi. Is state action when private entities regulate interscholastic sports vii. No state action when a private club with state liquor license discriminates B. Application of the Bill of Rights Bill of rights applied to state and local government through its incorporation into DP of 14th Excpetions to incorporation: o Third Amend right no to have soldiers quarted in house o 5th amend right to grand jury indictment o Seventh amendment right to jury trial in civil cases o 8th amendment right against exercise fines

LEVELS OF SCRUTINY:
(1) Rational Basis test: a law will be upheld if it is rationally related to a legitimate government purpose. Burned on contestant Burden to show either no conceivable government purpose of the law is not rationally related to it Government usually wins (2) Intermediate Scrutiny: a law will be upheld substantially related to an important government purpose Burden on government Narrowly tailored (3) Strict scrutiny: a law will be upheld only if the law is necessary to achieve a compelling government purpose Government has the burden Contestant usually wins Test Rational basis Rationally related to a legitimate Burden Likely winner Contestant gov Class included

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Intermediate

Strict

gov purpose Narrowly Gov tailored to achieve a substantial gov interest Necessary Gov to achieve a compelling government interest

Contestant Gender

Contestant Race

VI.

INDIVIDUAL LIBERTIES
A. PROCEDURAL DP
Depravation of life, liberty, property Broken down into 2 questions: 1. Deprivation of life, liberty or property: a. Definition i. A deprivation of liberty occurs if there is the loss of significant freedom provided for by the Constitution of the statute ii. A depravation of property if a person has an entitlement (a reasonable expectation ) and that entitlement is not fulfilled b. Intentional government action Need intentional or reckless gov action. Negligence is nt enough i. Emergency situation on liable if shocks the conscience c. Failure to protect people from private harms is not deny of DP 2. If depravation then 3 procedures required a. 3 part balancing test i. Importance to the individuals interest ii. Ability of additional procedures iii. Governments interest b. Examples i. Welfare benefit terminations requires notice and hearing ii. Termination of parent custody: notice and hearing iii. Social security: post termination hearing iv. Harm to reputation is NOT loss to liberty v. Prisoners rarely have rights

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vi. vii. viii. ix.

Punitive damages only if Non-citizen ability to challenge the continued detention Citizen: havious corpus DP recues recusal of actual biased judge

B. SUBSTANTIVE DP
2 analysis: 1) economic liberties and 2) safe guard property 1. Definition: ask whether the gove has adequate reason 2. Only minimal protection for economic liberties a. Only rational basis analysis b. Taking clause of Fifth Amendment..Just compensation different level of scrutiny: i. Is there a taking? a. Possessory taking b. Regulatory takingregulatory taking only is leaved NO REASONABLE ECONOMIC viable use c. Conditions on development bust be justified by burden proportionate d. Temporary denying owners use is NOT a taking ii. Public use iii. Just compensation paid c. Contracts Clause o Article I, section 1: no state shall impair the obligatins of the contracts: o Provisions i. State of local government already existing ks ii. Intermediate scrutiny then can interfere a. Substantially impair a partys right? b. Law narrowly tailored means of promoting an important legitimate public interest? iii. If government k strict iv. No expos facto law punishment on past act not illegal when performed 3. Privacy Privacy is fundamental right and strict scrutiny List of fundamental rights: a. Right to marry b. Right to procreate c. Right custofy of children 92 | P a g e

d. e. f. g.

h. i.

j. k. l.

m. n.

Right to keep family together Right of parents to control upbringing of children Purchase controceptives Right to abortion i. Test: ii. Prior to viability: states cannot place an undue burden iii. After viability may prohibit abortion iv. No gov duty to subsidize abortion v. Spousal consent or notice laws unconstitutional vi. May require consent/notice for minors but may have some alternative to get itjudicial permission Private same-sex The right to refuse life saving medicine i. Family no right ii. Need clear and convincing evidence sick wanted to terminate in that condition No righ to physician assisted suicide Second Amendment right to have weapons for self-defense Right to travel i. Moving state to state- strict scrutiny ii. Residential requirements- strict scrutiny iii. No fundamental right to international travel Right to vote fundamental No fundamental right to education

VII.

EQUAL PROTECTION

Equal protection challenge when government distinguishes among person A. Equal protection, approach, 3 steps 1. Classification 2. Level of scrutiny 3. Does law meet scrutiny B. Constitutional provisions concerning equal protection: 1. EP/14th = only state and local govt. 2. EP/5th = Feds also

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A. CLASSIFICATION BASED ON RACE OR ANCESTOR ORIGIN

3. Strict scrutiny if gov discriminates based on race or ancestor origin 4. Proving discrimination: a. On its face or b. Law is race neutral but demonstrates: a. Discriminatory Intent and b. Discriminatory Impact discriminatory IMPACT IS NOT ENOUGH e.g. D.C police test that impact based on test that kept black out only rational basis 4. Racial classification benefiting minorities: a. strict scrutiny even if helping b. only ok if helping past discriminatory action c. numerical set-aside require clear and convincing evidence d. educational may take race as one factor C. Gender Classification 1. Intermediate scrutiny and exceedingly persuasive justification 2. Proven: a. Face of law b. Impact and intent to discriminate 3. Benefiting gender intermediate a. No gender stereo typical laws, e.g. only women get spousal support b. Benefitting woman past discriminatory action ok D. Alienage a. Generally strict scrutiny b. May discriminate for: i. Vote ii. Jury iii. Police iv. Teacher v. Probation officer c. Congress discrimination = rational bases d. Undocumented aliens only intermediate scrutiny E. Non-marital children 94 | P a g e

Intermediate scrutiny Unconstitutional to deny benefits to unmarried children given to married children o Sucks for Schwartenagers kids

F. Rational basis used for all other types of discrimination List of rational basis: i. Age ii. Disability iii. Wealth iv. Government economic regulation v. Sexual orientation

VIII.

FIRST AMENDMENT
1. Content more protected than conduct More likely to uphold conduct based than content based Distinctions between content and conduct

A. GENERAL RULES PERTAINING TO FREE SPEECH

a. Content based = strict scrutiny e.g. Cant prohibit violent video games i. Subject matter restrictions = content based ii. View point based = strict scrutiny b. Content neutral = intermediate scrutiny 2. Prior restraints a. Suppressing speech = SS i. Court orders must be complied with ii. Violation of court order cant challenge it iii. Gag orders on press = never allowed 3. Vagueness and overbreadth a. Vagueness= uncon. if you cant tell what prohibited b. Overbreadth = uncon. c. Fighting words are NOT PROTECTED but may be above 2 4. Symbolic speech 95 | P a g e

May regulate if important interest unrelated to suppression of message.impact no greater than necessary Specifically not protected: o Flag burning o Nude dancing o Burning a cross to intimidate or threat o Burning draft cards No limit on total anount to contribute to 5. Anonymous speech protected 6. Gov speech and funding ok as long as rational basis to legitimate government interest

B. UNPROTECTED AND LESS PROTECTED

1. Incitement of illegal activity 2. Obscenity (3 part test) a. test i. Prurient: The material is shameful interest in sex ii. Patently offensive iii. Taken as a whole not scientific, artistic.national standard b. Zoning ordinances ok c. Child pornography illegal even if not obscene d. Cant punish private stash of obscenity, but can punish child porn e. Gov. may seize business assets of obscene vender f. Profane speech ok just not on public air or public school 4. Commercial speech a. Less protected than private speech b. Up held it: i. Substantial government interest and ii. Directly advances that interest iii. Narrowly tailored but need not be least restrictive way False advertising or unlawful not protected True but misleading not protected May ban lawyers from advertising within 30 days of accident Complete ban rarely upheld Other = inter s

5. Defamation 96 | P a g e

a. Public official i. Clear and convincing ii. False and iii. Malice or iv. reckless disregard b. Public figure i. Falsity ii. Malice c. Private figure matter concerning public i. Compensatory damages for ii. Falsity iii. Or not careful like a reasonable speaker iv. Punitive only actual malice d. Private figute not public concern i. Actual malice 6. Privacy and First a. Press legally obtained gov docs no liability b. Illegally obtained ok if not guilty party c. Government may restrict its own dissemination d. No protection for gov employee on the job e. Other gov restrictions = SS

C. PLACES AVAILABLE FOR SPEECH

1. Public Forums e.g sidewalks and parks a. Regulations must be neutral b. Regulations only on time/place/manner c. Permit fee ok,set by local gov d. ?intermediate scrutiny: Narrowly tailored to server an important government interest 2. Designated public forum a. Same rules 3. Limited public forums a. Limitation must be reasonable and neutral 4. Non-public forums a. May regulate as long as reasonable/viewpoint-neutral 97 | P a g e

b. E.g. i. ii. iii. iv. v. vi. Military base Areas outside prison Schools Signs on public property Sidewalks in front of post office Airports

5. No first amendment first to access private property a. Note shopping center = private 6. Private-forums a. Need a state actor. No protection for private advertising forums (no protection if billboard company refuses to advertise certain type of content.) b. Exceptions above (i) functions as public(ii) state action.. C. Freedom association 1. Strict scrutiny a. Prove in order to punish membership i. Actual affiliation ii. Knowledge of group illegal activity iii. Intent to further illegal 2. Requiring disclosure = SS 3. Freedom of association does not permit discrimination unless a. Intimate association b. Where discrimination is an integral part

D. FREEDOM OF RELIGION
1. Free exercise clause a. Cant use it to challenge a neutral law b. Cant deny benefits because quit job b/c og religions 2. Establishment clause a. 3 part test (SEX) i. S:Must be a Secular purpose ii. E: Primary Effect must be neither to advance or inhibit religion iii. X: no excessive government entanglement b. Application i. no symbolic endorsement ii. Can have many symbols e.g. menorah, Christmas tree and atheistic bs in one place 98 | P a g e

c. d. e. f.

No discrimination based on religion No government sponsored religious activity No school prayer Parochial school: i. Assistance to nonreligious parts ii. Can provide vouchers iii. Cant pay salaries directly

Criminal Law

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SUBSTANTIVE CRIMINAL LAW

I. INTRO/OVERVIEW
A. Sources of law: 5) Common law 6) Majority of statutory Law 7) Model Penal Code B. NY: NY Penal Law C. Overview: (a) Essential elements of crimes: 1) Act Requirements (Actus Reus) 2) Mental Requirement (Mens Reu) 3) Causation 4) Concurrence Principle (b) Specific Crimes a. Against the person b. Property crimes (c) Liability for the conduct of others o Accomplice liability (d) Incohate (incomplete) Offenses 1) Solicitation 2) Conspiracy 3) Attempt (e) Defenses 1) Insanity 2) Voluntary intoxication (only be___) 3) Infancy 4) mistake 5) Self defense 6) Necessity 7) Duress 8) Entrapment Jurisdiction A crime may be prosecuted: 1) Where the act took place or 2) The result took place 100 | P a g e

Burden of proof Prosecution must prove every element of the crime beyond a reasonable doubt Defenses in NY: 2 types 1) Defenses: prosecution must prove beyond a reasonable doubt 2) Affirmative defenses the defendant must prove by preponderance of the evidence.

Classification; Felony: a crime that may be punished by death or imprisonment for more than one year Misdemeanor: fine or prison less than a year

II.

ESSENTIAL ELEMENTS OF A CRIME

i. Act Requirement MBE a)all bodily movements are physical acts provided they ae voluntary involuntary acts such as d. Not own volition (e.g. pushed) e. Sleep walking/ unconscious f. Reflex or convolusion Rarely culpable Only basis for liability if all 3 (1) Duty to act, with (2) knowledge of the facts that gave rise to the duty and (3) ability to help. 5 ways to get duty to help: a. Statute b. Contract (baby sitter) c. Status relationship i. Parent NY

1) Physical acts/ Commissions

2) Omissions

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ii. Spouse-spouse d. Voluntary assumption of care e. Creation of the peril

ii. Mental State General 4 mental states 1) Specific intent 2) Malice 3) General intent 4) Strict liability 5 mental states (adopts Model Penal Code) 1) Intentionally (MPC: Purposely) 2) Knowingly 3) Recklessly 4) Negligently 5) Strict liability (similar to CL) 1) Intentionally ;s conscious desire to achieve a particular result ( does what he wants to do) 2) Knowingly - is aware of what he is doing. With respect to a result, when is aware that it is practically certain that his conduct will cause a result.

1) specific intent: Defined: the crime requires a desire to the act and a desire to achieve a specific result. List of the 11 specific intent crimes: (Crimes against the person) 1. Assault 2. 1st degree premeditated murder (property crimes) 3. Larceny 4. Embezzlement 5. False pretenses 6. Robbery 7. Forgery 8. Burglary (inchoate crimes) 9. Solicitation 10. conspiracy 11. Attempt Defenses: 2 defenses only available for specific intent: a. Voluntary intoxication b. Unreasonable mistake of fact 2) Malice 102 | P a g e

3) Recklessly When is aware of a substantial risk and consciously disregards that risk

4) Negligently when should have been

Definition: intentionally or reckless disregard of an obvious of known risk Common law cases: Murder Arson 3) General intent Definition: need only be generally aware of factors constituting the crime. Does not need to intend a specific result (usually infer from actions) Cases: Battery Forcible rape False imprisonment Kidnapping (note: all against the person) 4) Strict liability Defined: simply doing the act is culpable no mental state required. 2 types: a. Public welfare e.g. transferring unregistered firearms. (you dont need any intent that they are unregistered, but you probably need intent that you are at least transferring them) e.g. selling contaminated food b. statutory rape: having sex with someone who is under the age of consent

aware of a substantial risk and unjustifiable risk

5) Strict liability Same as common law

iii. Causation General Need 2 kids: 1) First start with actual, but for causation

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Actual cause

2) Proximate legal cause Actual but for Exception: Accelerating cause is an actual cause (even though not but for cause) Rule: the proximate cause id the bad result is a natural and probable consequence of s conduct Applications: 1) Intervenening cause: not liable if unforeseeable 2) Eggshell victim: proximate cause even if victim has a preexisting weakness

Proximate cause

iv. Concurrence principal Rule: the defendant must have the requires mental state at the SAME TIME as the culpable act Most frequelty arises by Larceny Burglary

III.

CRIMES AGAINST THE PERSON:

A. ASSAULT BATTERY
Strategies on NY degrees system: To complicated to memorize every degree. Learn the middle and make an educated guess for the rest Factors: (1) Weapons: add a degree (2) Injury : (i) Physical injury: substantial pain (ii) Serious physical injury: permenant or life threatening injury (3) Quantity: by money or drugs

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Battery (assault in NY)

Common Law Elements of battery: (a) The unlawful (b) Application of force to another (c) Resulting in either 1) Bodily injury 2) Offensive touching (d) Mental state: general intent

NY Penal Law There is no battery in NY, only assault: Elements: (a) Intentionally (b) Causing physical injury (c) to another person

Assault

Elements of assault: (1) Attempted battery Or (2) _ (a) Intentional creation (b) Other than by mere words of (c) Reasonable fear in the mind of the victim (d) Of imminent bodily harm Mental state: specific intent No degrees system

note: no criminal liability for mere offensive touching, you need physical injury reasonable apprehension is not assault its menacing see below

Degrees

Degrees of assault (remember start with 2nd degree) Second degree assault (1) Intentionally causing (2) Serious physical injury (note: figure out first probably has weapon, third probably not serious) First degree (1) Second degree assault plus (2) A weapon Third degree (1) Intentionally causing (2) Non-serious physical injury

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Year and a day rule o NY death may accur any time o CL: year and a day from homicide act

B. COMMON LAW HOMICIDE CRIMES:

1. Murder (common law murder) 1) Definition: i. Causing a death ii. Of another person iii. With malice aforethought 4 ways to achieve malice afterthought: 1) 2) 3) 4) Intention to kill Intent to cause serious bodily harm Depraved heart/ indifference extreme reckless Felony murder

Note at common law no degrees 2) Mental state 4 metal states (1) Intent to kill (2) Intent to inflict serious bodily harm (3) Extreme reckless (depraved heart) (4) Intentional commission of an inherently dangerous activity 3) Intent to kill special rules: i. Deadly weapon rule: inference of intent to kill ii. Transferred intent Exception: transferred intent does not apply to attempts, only to crimes with complete harms

2. Manslaughter 3 types 1) Heat of passion 2) Recklessly causing death a/k/a involuntary manslaughter 3) Misdemeanor manslaughter (very rare on MBE) 106 | P a g e

D. FELONY MURDER:
Defined: any killing caused during the commission of or attempt to commit a felony (i) Most common limitations: (1) must be guilty of the underlying felony (2) The felony must be inherently dangerous NY considers the following list exclusively under felony murder Think of BRAKES o B: Burglary o R: Robbery o A: Arson o K: Kidnapping o E: Escape (ii) Felony murder merger rule: felony most be independent of the murder o E.g. aggravated assault cant be the felony to the murder-its the same act o E.g. mob shooting in the leg to scare but victim dies as a result of the shot. (iii) Killing must take place during the felony or immediate flight (iv) Death must be foreseeable (v) Not to co-felons e. Vicarious liability i. Proximate cause theory: maj rule: if one felon is guilty of murder all are. Even if by a third party ii. Agency theory: min: only if co-felon does the killing not third party f. The non-slayer defense Ny only affirmative defense if proves all 4: (1) did not kill victim (2) did not have a deadly weapon (3) No reason to believe co-felon had deadly weapon (4) No reason to believe co-felon would kill g. Statutory variations Most states have degrees: (1) First degree Murder if: 107 | P a g e

1) Premeditation and 2) Deliberation (2) Second degree if: o All other intentional murders, included depraved heart (3) Voluntary Manslaughter Definition: I. Intentional killing II. Heat of passion III. Upon adequate provocation Requirements: i. Objection heat of passion o Examples: Serious assault of battery Witnesses adultery Words alone not enough ii. Subjective, actually provoked iii. No time to cool off iv. Didnt actually cool off

(4) Involuntary Manslaughter Criminal negligence During commission of a crime where felony murder doesnt apply

C. NY MURDER
Murder in NY:

First degree: (a) Intent to kill and (b) was 18 or older (c) With aggravated factors: (i) Victim was police (ii) Hit man (iii) Felony murder with intention (iv) Witness intimidation 108 | P a g e

(v) More than one victim in same criminal transaction

Second degree: (a) Intentional killing that not first degree (b) Highly reckless that demonstrates depraved indifference to human lifeusually more than one victim (c) Felony murder unintentional (and victim not co-felon)

Extreme Emotional disturbance (a) Intentional killing committed under the influence of reasonable and extreme emotional disturbance EED is an affirmative defence. By perpondarance of the evidence Manslaughter (1) First degree b. EED manslaughter c. Intent to cause serious physical injury D. Second degree a. mental state: recklessness b. aware of and disregards a substantial and unjustified risk

Criminal Negligence mental state: criminal negligence should have been aware of a substantial and unjustified risk of death

Notes on aggravation : Chart on page 20 insert here

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D. CONFINEMENT OFFENSES
False imprisonment Common l Elements: 1) unlawful 2) confinment 3) without consent mental state: general NY Called unlawful imprisonment: Second degree: 1) unlawful restraint 2) without consent 3) with knowledge unlawful first degree add with risk of serious injury Second degree abducting someone first degree second degree plus ransom or restraint for more than 12 hours or death of victem if victim dies: accidentally = 2nd degree intentionally = first degree felony murder

Kidnapping

Elements 1) false imprisonment 2) involving moving or consealing in secret place mental state: general intent

E. SEX OFFENSES

Forcible rape

Elements: 1) sexual intercourse 2) without consent

Degrees of rape 1) sexual intercourse and 2) forcible compulsion

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Statutory rape

3) accomplished by: force threat of force or unconscious mental state: general intent Maj: strict liability - meaning no defense if you think shes 18 min/MPC: reasonable mistake of age is defense

age of consent is 17 -21 and victim is 16 or younger

Do not corroboration of facts in forcible rape, criminal sexual acts, or sexual abuse.

IV.

PROPERTY CRIMES:
A. THEFT OFFENSES
Theft Offenses: A. B. C. D. E. F. Larceny Embezzlement False Imprisonment False Pretenses Larceny by trick Robbery MBE Definition: 1) Tresspassorywrongful//unlawful 2) Taking and carrying away property must move 3) The personal property of another- who had lawful custody 4) Intent to permanently retain property intent to

A. Larceny

larceny in NY includes larceny, Embezzlement, FP and L by trick Larceny degrees: (1) Over million (2) Over 50k (3) Over 3k (4) Over 1k (5) Called petty larceny

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return not larceny Taking under claim of right is never arceny, even if erroneous Conduct can be larceny (exception to concurance principal) nonlarcenous taking but conduct show later to have intent to steal B. Embezzlement Conversion of personal property already in lawful possession Mental state: specific intent to defraud Embez v larceny Embezz= original taking lawful Must have possession =discretion Mere custody not enough (bank security guard) Def: Obtaining title intentional false statement to defraud

Called larceny See above

C. False Pretenses

Called larceny See above Issuing band check: (note also called larceny) Elements: 1) Drawer puts a bad check into circulation 2) Knowing there are insufficient funds 3) With belief payment will be refused 4) Payment in fact is refused Mental state: Specific intent Called larceny See above (Start in middle) Second degree Forcible stealing and Aided by another who is actually present Victim is injured A car is slolen

(also NY crime of Issuing bad issuing a knowingly bad check checks) FP v Larceny Larceny only custody FP gets title/ownership False statement= past/present . future promise is not FP

D. Larceny by trick E. Robbery

Obtained only custody by false statement Elements 1) Larceny + 2) From another person or presence 3) Force or Threat of immediate injury Mental state: specific intent to

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steal Force: Sufficient resistance Pickpocketing not enough force

Third degree Forcible stealing First degree Plus Victim is seriously injured Weapon Robbery and homicide Accidentally = Intentional =

F. Forgery

Elements: 1) Making or altering 2) a writing 3) So that it is false Mental state: specific intent to defraud

G. NY issuing bad check

See false pretenses above

G. HABITATION OFFENSES

A. Burglary

Elements: (1) Breaking (2) Entering (3) Dwelling (4) At night (5) Mental state: Intent to commit felony inside Note: most states eliminated

Third degree (1) Entering or remaining (2) In a building (3) Unlawfully (4) Intent to commit crime inside No requirement of breaking, dwelling , night

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the technical requirements such as at night, breaking

Second degree (1) Dwelling or (2) Non-participant is injured or (3) Weapon First degree Knows its a dwelling + (1) Non-participant is injured (2) Weapon Note: knowledge kicks it up to first Degrees Fouth: reckless Thrir: intentional Second: third plus knows s/o was inside First Plus uses explosives

B. Arson

Malicious burning a building Burning: At least charing Actual burns structure, carpets not enough

C. POSSESSORY OFFENSES
A. Possesion of Contraband Weapon: Possession long Must be loaded and enough to terminate operable Dominion control In vehicle: enough Metal state: knowledge of presumption to all possession occupants Act Really be stolen Possision/ control Recovered or used Of stolen personal wither permission property not stolen Mental state Know criminaly obtained Intent to permanently deprive the owner his interest

B. Stolen goods

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V.

LIABILITY OF THE CONDUCT OF OTHERS:

A. ACCOMPLICE LIABILITY

Defined: Scope Not accomplice All crimes actually aids or encourages Foreseeable crimes 1) Mere presence 2) Mere knowledge 3) Victims cannot be accomplice Can withdrawal: Encourages repudiation before crime Aides nuetralise or prevent Elements Help With knowledge of crime Intent to help p avoid cops

Mere knowledge enough if facilitates Called renunciation (mpc) Substantial effort to prevent crime Affirmative defense NY called certain new statutory crimes Obstruction of justice Hindering prosecution

Withdrawl

Accecory after the fact

VI.

INCHOATE CRIMES

A. Solicitation

Elements: Asking someone to commit a crime Mental state

asking is the crime, completion is not necessary

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B. Conspiracy

Definition: Agreement between 2+ Overt act in furtherance

Overt act= any act, even prepatory

Mental state: 1) Enter agreement- consent or action to common goal 2) Specific intent to accomplish objective

Completion is not necessary, crime = agreement

Can have unilateral conspiracy. E.g. undercover cop

How many participants? No unilateral conspiracy

Bilateral- need at least 2

Wharton Rule: Crimes that involve 2 people necessary for crime no conspiracy until you have 3 e.g. 2 agree to duel, dueing needs 2 no conspiracy Vicarious liability 116 | P a g e No vicarious liability for mere conspirators if not

All members will be liable for coconspirators other crimes if: 1) Committed in furtherance and 2) Foreseeable

involved

Impossibility : Never a defense C. Attempt The Act: Overt act beyond mere preparation Proximate test = dangerously close to actually commiting the crim MPC: substantial step .strongly cooberates the criminals purpose Proximate test

Mental state Specific intent to comit the crime No attempt on unintentional crimes E.g. reckless, negligence, felony murder Impossibility never a defense

Impossibility 2 types: 1) Factual Def. physical of factual condition unkown to prevents him e.g. attempt to pick pocket but no wallet

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rule: never a defense

2) Legal impossibility Def: legal circumstance or status prevents e.g.: attempts to steal but unkown, belongs to

Rule: defense Incohate Doctrines: Withdrawl/Renunciation/Abandonment Not a defense Conspiracy: only that he will not be vicarious liable after he left. But still liable for conspiracy Renunciation: Defense to all 3 only if: (1) Prior to commission Sincere Successful Preventing the commission (2) complete and voluntary Solicitation does NOT MERGE Conspiracy does NOT MERGE

Merger

Solicitation: merges Attempt: merges Consiracy: dos NOT merege (liable for both)

VII.

DEFENSES

A. CAPACITY DEFENSES
(1) Insanity Mental disease or defect Most common tests: o MNaghten Test (Maj-purely cognitive) the must prove either 118 | P a g e

 a. didnt know his conduct was wrong or understand the nature of his conduct o 2) irresistible impulse Unable to control his actions or Unable to conform conduct with law o 3)MPC a. wasnt able to appreciate criminality of actions b. conform actions to law NY Insanity o Lacked substantial capacity to: 1)understand nature and consequence of his actions, pr 2)appreciate wrongfulness (2) Incompetency Insanity is at time of crime =not guilty by reason of insanity Incompetent time of trial = postpone trial Incompetent if: o i. cant understand nature of proceeding or o ii. Cant assist attorney (3) voluntary intoxication only a defense to specific intent crimes all others super high level intoxication of severe prosation of faculties NY o Defense against intent and knowledge crimes. o No defense against reckless, negligence, strict liability (4) Infancy Common law: rule of seven Under 7- no prosecution Under 14 rebuttable presumption against prosecution Above 14 prosecution is allowed NY Under 13 only juvinial delequent in family court 13- prosecuted as adult only for 2nd degree murder 14 or 15- adult for serious crimes 16 can be tried as an adult

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B.

OTHER DEFENSES

(5) Mistake of fact Common law Defense for: 1) Specific intent: any mistake of fact even unreasonable 2) Malice or general intent: only reasonable mistake of fact 3) Strict liability: never a defense NY Defense if negates the required mental state: a. Crimes req intent, purpose, knowledge: any mistake of fact b. Negligence: only reasonable mistake c. Strict liability: never (6) Mistake of law Not a defense Exception: knowledge of law an element to the crime

C.

SELF-DEFENSE (JUSTIFICATION)

(1) Deadly v non-deadly force Nondeadly: i. Reasonable necessary ii. Protect against immediate iii. Unlawful force Deadly force i. Facing imminent death or serious bodily injury Exception to using deadly force o Initial aggressot o Duty to retreat Maj: no duty to retreat Never duty to retreat from castle NY: D must retreat Unless cannot retreat to complete safety or is at home = c. Force to prevent a crime o Non-deadly force for breach of peace 120 | P a g e

o Deadly fore: prevent felony risking human life d. Defense of others o Same rules as himself e. Property defenses Deadly force general rule never Dewellings, occupants may use deadly force if: o Intruder gained entry in tumultuous manner and o Necessary to prevent against a personal attack f. Reisting arrest Unlawful arrest- only non-deadly force NY: only if officer is using exceesive force g. Law enforecement Deadly force only if reasonable

D. NECESSITY AND DURESS

(1) Necessity Choice of 2 evils Rule: reasonable believes conduct necessary to prevent a greater harm Limitations 1) Deadly force to protect property 2) Defendant is at fault in creating the situation (2) Duress Rule: was coerced to comit crime becaue of threat of immediate death or serious bodily injjry Exceptions o No defense to homicide NY: defense to Homicide

E. ENTRAPMENT
Government unfairly tempted to commit the crime. Narrow defense only if: i. Criminal design originated with the government ii. was not predisposed to commit the crime

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CRIMINAL PROCEDURE
Overview: key issue if 14th search and seizure. 2nd most important confessions, specifically 5th amendment-Miranda doctrine

I.

SEARCH AND SEIZURE, 14TH AMENDMENT

Search and Seizure 4 global issues: 1. Whether the S&S is governed by the 14th? 2. If warrant did it satisfy 14th 3. Even if no warrant did it satisy 14th 4. Evidence obtained illegally to what extent is it admissible

A. ISSUE ONE: IS THE SEARCH GOVERNED BY THE 14TH?

The determination under 14th requires 4 questions: (1) Was the search a government agent? (2) Was the area protected? (3) Did the government agent physically intrude or (b) violate and individuals reasonable expectation of privacy (4) Standing to challenge the gov?

A. Government Agent? 2 kinds: 1) Public paid police 2) Private citizens at govs direction of police 3) Private security guards only if deputized w/ power to arrest 4) Public school administrators

B. Area protected by 14th? 14th expressly protects individuals from unreasonable searches of theier: 1) Persons 2) Houses 3) Papers 4) Effects The protects includes curtilage for domestic use 123 | P a g e

Unprotected areas Patty Achieved a Glorious Victory Over Her Opponents 1) Paint scrapings on car 2) Account records held by bank 3) Air Sapce if can be seen in public air space 4) Garbage 5) Voice 6) Odors 7) Handwriting 8) Open fields key is where you expose to thirs parties less expectation of privacy

C. Was there an intrusion? 2 ways to have an intrusion 1) Physical intrusion on a constitutionally protected area to obtain information or 2) Violated a reasonable expectation of privacy i. An actual and subjective expectation of privacy and ii. Society realizes as reasonable Device is presumed unreasonable if not public use (thermo) Blood and chemical tests: Alcohol test: NY penal law that anyone driving a motor vehicle is deemed to have been given consent to blood or chemical test

D. Standing Key is persons privacy was invaded not of a third party Standing: 1) Own premises always 2) Reside: always 3) Overnight guest: liekely 4) Solely for business: no standing 5) Own the personal property: only the area 6) Passengers in cars no reasonable expectation of privacy NY can challenge if passengers and attribute possession to them

B. ISSUE TWO: WARRANT

4 key questions are: (1) Neutral and detached magistrate? 124 | P a g e

(2) Supported by probable cause and practicality? (3) If not was the a good faith reliance (only MBE) (4) Properly executed? A. Neutral and detached Magistrate? Ceases to be neutral is biased if unduly favor of prosecution

B. Probable cause and particularity? 1) Probable cause Proof of a fair probability that contraband or evidence of a crime will be found o Hearsay is admissible o Informants tip: may rely even if annonamous..majistrate: need common sense practical determination in totality of the circumstances NY Anguilar-Spinelli test: 1) The informants basis of knowledge 2) Reliability or veracity 2)Practicality The search warrant must state: a. The place to be searched and b. The items to be seized no fishing expedition

C. Does good faith save the warrant? Good faith overcomes defected warrant except 4 below NY good faith does NOT save warrant 1) Egregious: no reasonable police believes there is probable cause 2) Defected in practicality not reasonable 3) Falsehoods: from recklessness 4) Biased magistrate D. Properly executed 2 parts 1) comply 2) knock and announce 1) Police are only permitted to search the area and limitation in the warrant: o E.g. warrant living room and all bed rooms for a stolen tv: o Cannot check kitchen 125 | P a g e

o Cannot check a backpack because to small hide a tv there 2) Knock and announce Unless: a. Futile b. Dangerous c. inhibit investigation

C.

ISSUE THREE WARRANT EXCEPTIONS

Mnemonic ESCAPEST 1) Exigent circumstances Evidence will disappear Hot pursuit of felon Emergency aid 2) Search incident to arrest Arrest Justification: safety and preserve evidence Contemporaneous to arrest, time/place Geographic scope: wing span and immediate control o NY containers: only if believed to be armed Automobiles searched incident to custodial arrest o Interior cabin but not trunk o Secured v unsecured Once secured can only search vehicle if believes evidence for the crime committed. E.g. arrested and secured for driving w/o license cant search car b/c no evidence will be found NY: once outside car cant search inside of car. 3) Consent a. Voluntary and intelligent (need not tell he could refuse) b. Scope what reasonable believed consent c. Apparent authority: if cop reasonable believed TP had authority to consent d. Shared premises: co-tenant can consent, discrpency goes to 4) Automobile Probable cause to believe contraband or evidence Justification: vehicle travels Where: entire where believe evidence would be found 5) Plain view 3 requirements a. Lawful access to the place 126 | P a g e

b. To the item c. Criminality of the item must be immediate apparent 6) Inventory 7) Special needs Random drung checkin o Railroad employees o Custom agents o Public school children involved in extra curricular May not search for the sole purpose of finding evidence, must be for special need. E.g. drunk driving check point ok-for safety Drug check point at crime areas: not ok b/c for purpose of evidence 8) Terry stop and frisk point is for officer safety Defined: bried seizure for purpose of investigating a crime (a) seized o Reasonable person would not feel free to leave or not answer a question o Factors: Did cop have weapon? Tone and demeanor of cop Told had consent to leave Pursuit and seizure: o MBE: pursuit is not seizure until submits to police o NY: pursuit = seizure Traffic stops o Driver and passenger are seized.. o May order out of car o Dog sniffs only if prolong unreasonably o (b) Terry Frisk Frisk of outer clothing is cop believes to be armed What can be seized? o Weapon o Contraband= only without any manipulation NY only weapon (c) Car frisk Only passenger cabin or where weapon can be found (d) Protective sweeps 127 | P a g e

(e) Evidentiary standard: Reasonable suspicion o Must articulate criminal activity o Must be objective o Must suggest that armed and dangerous Warrant exceptions Not an unreasonable search and seizures ESCAPIST Exception 1. Exigent circumstance 2. SILA Justification Search for weapons and Searchable area Wing span of the defendant Inside of car but not trunk 3. Consent 4. Automobile Because of the fleeting nature Where probable cause evidence of contraband will be found Only if lawful access to place, to item and the criminality is readily apparent Protection of officers safety to search for weapons Cant manipulate only touch Only whats sen during the emergency of chase Search for weapons of evidence of the underlying crime arrested for One defendant is secure then cant check the automobile Must be voluntary

5. Plain view 6. Inventory 7. Special needs 8. Terry stop and frisk

D. ISSUE FOUR: EXTENT OF INADMISSIBILITY?

A. Federal Exclusionary rule: violation of federal statutory..inadmissible B. 4th amendment limits on the exclusionary rule: 1) Only for case-in-chief may be used in cross to impeach 2) Knock and announce violation does not cause suppression 3) Police error: only if reckless, deliberate or grossly negligent 4) Officers reasonable mistake 128 | P a g e

5) Fruit of poisonous tree a. Direct evidence b. Derivative evidence c. Need causal link . therefore: i. Independent source, then breaks causal link ii. Inevitable discovery (Iowa murdered girl case) iii. Attenuation

II.
Need: 1) 2) 3) 4)

WIRETAPPING
Suspected person Time Crime Conversation

no protection on friend wearing a tap

III.

LAW OF ARREST

A. arrest without a warrant 1. Under NY penal law an officer may make an arrest without a warrant if he has probable cause to believe that a misdemeanor or felony has been committed by the defendant

IV.

CONFESSIONS
1. 2. 3. 4. 5. 5th Amendment: protects against compelling self-incrimination Fourth: Sixth: Right to counsel Fourteenth: DP- only Voluntariness NY:

Constitutional protections:

A. FOURTEENTH AMENDMENT VOLUTARINESS

1. Rule only voluntary confessions 2. Test for voluntariness a.

B. MIRANDA
B. Rule: 5th protects against compelled self-incrimination 129 | P a g e

C. When required: 1. in custody and there is 2. interrogation

C. SIXTH AMENDMENT RIGHT TO COUNSEL

A. MBE 1) Judicial proceeding begin B. NY indelible rights 1) Starts when: (1) The defendant is custody, and police engange in activity overwhelimg to a layperson and The defendant requests counsel (2) Arraignment (3) Filing accusatory instraments (4) Any significant judicial activity 2) No right to counsel: (1) Investigatory lineups e (2) Exception: (i) police know is represented by counsel on another charge or (ii) asks for counsel

D. NY RULES
1) Cant be convicted on confession alone need additional prof that the crime was committed

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EVIDENCE

3 key areas: 1) Character evidence 2) Impeachment 3) Hearsay Approach 4 steps: 1) 2) 3) 4) What court, criminal or civil? Which stage in the proceeding? What purpose, substantive or impeachment? Is it relevant (usually is)

I.

RELEVANCY

1. Only relevant evidence is admissible 2. Relevant = any tendency to make a material fact more probable or less probable that would be the case without the evidence A. prejudicial if relevant evidence is prejudicial it will be inadmissible polygraph tests are considered unduly prejudicial

PUBLIC POLICY EXCLUSIONS

A. Subsequent remedial measures 1. MBE: never allowed 2. NY allowed in limited case: product liability cases for the sole purpose of showing feasibility B.

A. CHARACTER EVIDENCE
Defined: refers to a persons general propensity or disposition Potential purposes: 1) essential element of a case (only in civil never in criminal, 2) prove conformity with character, 3) impeach credibility

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A. Criminal cases 1. Criminal defendant has a special privilege to open the door and bring character evidence to prove innocents of the alleged crime a. Only about opinion and reputation not specific acts NY only reputation not opinion 2. Prosecution Once opens the door the prosecution has 2 options: i. Option 1: On cross they can ask the character witness about specific [bad] acts of the defendant (but they must except his answer and no extrinsic evidence ii. Option 2: they can also bring their own character witness testifying with reputation and opinion about the bad reputation of the criminal iii. In NY option 3: prosecution also may rebut that defendant was convicted of any crime that reflects the trait at issue 3. Victim a. Defendant may introduce vs bad character NY cant bring charchter evidence of violence to prove v was first agresson b. Once defendant opens the door the prosecution has 2 options i. Bring good character witness about victim ii. Bring bad character witness that possesses the same bad character triat c. Rape-sexual misconduct: rape shield law only with specific acts and only for 2 purposes: a. MBE i. To show consent ii. To show the semen was s/o elses iii. Would violate DP a. NY: i. May introduce evidence of prostitution convictions w/i 3 years ii. d. Homicide victim: defense to prove self-defense iv. Prosecution can bring good character evidence B. Civil cases General rule no character evidence If character evidence is in then all 3 methods 1)specific acts, 2) reputation, 3) opinion 6 exceptions: 1) Civil fraud: to prove 133 | P a g e

2) 3) 4) 5) 6)

Defamation because character is an essential element of the Negligent hiring: because character is an essential element of the Child custody: because character is an essential element of the loss of consortium

B.

DEFENDANTS OTHER CRIMES OF BAD ACTS FOR NOT-CHARACTER PURPOSES

General rule: not admissible for chase-in-chief admissible as substantive evidence for the MIMIC purpose Exception MIMIC 1) Motive 2) Intent 3) Lake of Mistake or Accident 4) Identity NY you need clear and convincing evidence to prove identity 5) Common plan or scheme

court still weighs the probative value Prove MIMIC WITH: 1) Conviction or 2) Evidence that proves the crime occurred

II.

WITNESSES
A. Competency 1) Qualifications: (i)perceptions, (ii)memory, (iii)communication, (iv) appreciation of Oath obligation 2) FRE: personal knowledge, 3) NY 4) Dead Man Act. General rule: cant testify with personal knowledge about a transaction or communication with a deceased offered against deceased. Civil cases only. a. NY adopts Dead Man act

A. TESTIMONIAL

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B. IMPEACHMENT
A. 1) 2) 3) 4) 5) Methods prior inconstant statement bias sensory deficiencies bad reputation or opinion regarding truthfulness criminal convictions a. MBE i. Any crime where false statement is element ii. Convicted felony iii. w/i 10 years b. NY i. ANY TYPE OF CRIME no balancing test ii. Criminal defendant then use balancing test 6) bad acts that reflect truthfulness 7) contradictions Methods of Impeachment Method 1) prior inconstant statement Even use hearsay Foundation Cross ask Extent of Admissibility Only for impeachment not for substantive evidence

extrinsic evidence but must give the witness opportunity to explain MBE Substantive evidence = under oath in a prior procedure with opportunity to NY only impeachment Substantive evidence

2) bias 3) sensory deficiencies 4) bad reputation or opinion 135 | P a g e Dont need to confront

Cross or extrinsic Cross or extrinsic

regarding truthfulness 5) criminal convictions

6) bad acts that reflect truthfulness 7) contradiction

Types of crimes: Felony convictions Any crime relating to truthfulness Only w/i 10 years Cross No extrinsic evidence Cross No extrinsic evidence

Not necessary

NY all bad acts ony on cross Extrinsic evidence only to show bias

NY all bad acts even no coonvictions if reflect on truthfulness no collateral contradictions

B. Impeaching own Witness: 1. MBE: always impeach own witness 2. NY i. Cant impeach own witness ii. Exception if prior inconstant statement was 1) mad in writing and signed or 2) made in oral testimony under oath iii. Criminal: need 3) the states is affirmatively damaging

WRITING RECOLLECTION

A. if witness doesnt remember you can give her a writing with the foundation of: 1) foundation: i. the witness does not remember on the stand ii. witness had personal knowledge of the events in the writing iii. writing was made by the witness or by her direction iv. made while events fresh in her mind v. the writing in accurate 2) counsel may read the notes to the jury but cant admit it 3) if admissible opposing party can admit it into evidence

B. DOCUMENTARY EVIDENCE
Authentication o Pictures: authenticated by a person who recognizes the event you do not need the photographer

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III.

PRIVILEGES
A. attorney-client B. physician-patient privilege C. Spousal privilege (2 types) 1. spousal privilege a. rule: may not compel spouse to testify about anything against defendant spouse b. only during while still married c. privilege only held by testifying spouse NY does not recognize spousal privilege 2. confidential communication between spouses a. can be raised by either spouse b. applies even after divorce c. communication must be confidential -

IV.

HEARSAY

Definition of Hearsay: (A) out of court statement, (B) offered for the truth of matter asserted.

HEARSAY EXCLUSION
Hearsay exclusion (meaning not part of definition of hearsay) A. out of court statement B. Not offered for the truth of matter asserted 4. Verbal act / legally operative words 5. The show effect on the listener 6. Circumstantial evidence to showing speakiers state of mind C. Prior Statements of Trial Witness 1. Witnesses prior statement of identification 2. Prior inconsistent statement 137 | P a g e

3. Prior consistent statement in rebuttal D. Party admission

HEARSAY EXCEPTIONS:
List: (1) Forfeiture by wrongdoing (2) Former Testimony If non-party and offered for substantive evidence you need: i. Under oath ii. Opportunity to develop statement (cross, direct, ..) (not a grand jury iii. The party offered against was a party at the prior proceeding iv. Same subject matter v. Declarant is unavailable (3) Statement against interest Party admission (hearsay exclusion in MBE) (4) Dying declaration (5) Exciting utterance (6) Presence sense impression (7) Presence state of mind (8) Declaration of intent to do s/t in future (9) Present physical condition (even statement to layperson) (10) Statement made for purposes of medical treatment (11) Business records (12) Public records Grounds for unavailability (a) Privilege (b) Absence jurisdiction (c) Illness/death (d) Lack of memory (e) Refuses to testify NY Located 100+ Miles from court house Declarant is a physician Hearsay exclusions

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Hearsay Exceptions Exception Forfeiture by wrong doing Do you need unavailability? Unavailable Elements s conduct designed to avoid testimony Notes Burden: MBE: perpond. NY: clear & c Former Testimony Unavailable (a)Former proceeding, Deposition (not grand jury) (b)opportunity to cross/develop (c)was a party previously (d)issue in both are same (2)statement against interest Unavailable Party or a/o Statements against relates to Pecuniary, property, Penal - Time when statement made - Personal knowledge req. - Only unavailable (1)Belief of impeding death Criminal case: Need corroboration Exceptions exceptions

Dying declaration

Unavailable

NY: homicide only

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(because dead) (2)Concerning the reason of death Criminal homicide only Excited utterance Present sense impression Present state of mind unavailability immaterial unavailability immaterial unavailability immaterial Civil all cases While declarant still under stress of excitement.. While event is occurring or immediately after Contemporaneous Statement of State of mind, Feeling, Emptions To do s/t in future

NY need corroborating facts

Declaration of intent

MBE: unavailability immaterial NY Unavailable unavailability immaterial NY unavailable if layperson

NY Need corroboration of relationship

Present physical condition

About current physical condition

Statement for medical treatment

Statement made to a/o Concerning: Present symptoms Past symptoms General cause of condition Purpose to get medical treatment

NY Not available to doc for purposes of litigation

Does not include the identification or nature of allegation (unless domestic/child abuse where identification is part of treatment) does not include statement of doc

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to patient Business records 1)a/ type records for bus 2)regular course 3)regularly keeps theses records 4) made time of 5)info from employees or Info from statement part of another hearsay exception Note: admissibility hearing even in presence of jury Fact findings resulting from investigation authorized by law Pursuant to duty Activities of agency dont need the regular requirement On direct if expert is present For impeaching expert testimony in cross. Then admitted as substantive evidence Foundation: (i)personal

Public records

NY: Not well developed so use business records rule

Excludes police docs prepared for prosecution

Learned Treatises

n/a

Past recollection recorded 141 | P a g e

unavailability immaterial

knowledge (ii)fresh in mind (iii)accurate (iv)written by w (v)w doesnt remember

V.

SIXTH AMENDMENT

Sixth Amendment gives a criminal defendant right to cross examine witness Rule: may not use hearsay if: (3) Testimonial (4) Declarant is unavailable (5) No opportunity to cross a. Are testimonial i. Grand jury ii. Statements in response to police investigation to prove past events of crime b. Non-testimonial i i. Police assisting in ongoing emergency c. Documents: i. Forensic lab if not targeting an specific individual ii. Blind DNA test iii. Independent analysis and only generally states others findings iv. Police reports prepared for investigation d. Documents not testimonial i. Business records

VI.

JUDICIAL NOTICE
A. Criminal 1. Subject matte i. Something available in the genral community 2. Not Conclusive evidence: If judge takes judicial notice jury may still chose not to follow it

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END of MBE

Start NY only

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NY Specific Table 1. NY Practice 2. Wills 3. Domestic Relations 4. Corporations 5. Trusts 6. PR 7. Partnerships 8. Federal jurisdiction 9. Conflicts of law 10. Agency 11. Commercial Paper 12. Secured Transaction 13. No fault insurance 14. Workers compensation

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NY1 PRACTICE CPLR

CPLR=Civil Practice Law and Rules Most common tested areas 1) SOL 2) Service of Process 3) Personal jurisdiction 4) Matrimonial jurisdiction 5) Motion to Dismiss and Summary Judgment 6) Contribution and third parties 7) Provisional remedies 8) ADR See on your own o Verification of pleadings o Bill of particulars o Default judgment o Neglect to prosecute o Discovery o Appeals o Judgments

I.

SUBJECT MATTER JURISDICTION

A. Supreme Court Need jurisdiction over the subject matter or original subject matter jurisdiction NY Supreme court has general jurisdiction o Supreme became most important o Unlimited jurisdiction over 1) Monetary claims 2) Equitable claims 3) Residency of parties 4) Place where cause of action arose Forum non convenience o There still will be subject matter jurisdiction but court has discretion, upon motion, to dismiss on ground of FNC

B. Exception to Supreme Courts general jurisdiction 1. Federal courts have exclusive jurisdiction (e.g. bankruptcy) 2. Claims against the State of New York 147 | P a g e

o Note: state sued in NY Court of Claims o Only when is the state. May sue the county in Supreme Court C. Supreme Courts Exclusive subject matter jurisdiction: 1. Matrimonial action (e.g. annulment divorce.. note: family cort does not have jurisdiction on this 2. CPLR Article 78 proceedings 3. Declatory judgment D. All other courts County Courts: max 25k NY Civil Courts Justice Courts: max 3k E. Appeals Suprme court Appellate division Court of Appeals

II.

STATUTE OF LIMITATIONS (SOL)

A. General Affirmative defense raised by SOL begins to run when COA accrues ( usually when injury first occurs) COA must be commenced no later than the last day prescribed o Commencement = filing process Filing process = summons and complaint, or summons with notice o Note: exclude the date wich event occurred. E.g. event happened Jan 1, 2011 with 3 year sol, day is Jan 1, 2014 not December 31, 2013 o If last day is Sat, Sun, public holiday then next day B. Medical Malpractice SOL: 2 years Accrual: date of the malpractice o generally we dont care when discovered the injury. Exceptions A) continuous treatment by the physician Must be treating the same medical condition that gave rise to the malpractice B) Forign object rule: if doc forgot a foreign object in then: 2 years fro opporation or 1 year from date of discovery, or should have discovered

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Whichever is longer Foreign object = s/t doc not intent on leaving there Foreign object is not chemical, prosthetic, fixation device

C. Other Professional Malpractice Other Professionals = learned profession e.g. Lawyers, accountants, engineers, architects. Meaning you need school SOL: exclusive 3 years Accrual: service is complete o Regardless of discovery or when actual harm happened o Architect: completion of the building o Bodily injury 3 years from injury 3 years is both tort or breach of k (which is normally 4 years) Special rules for building against architects and engineers: If bodily injury then 3 years from injury If action is brought more than 10 years after building eas complete then: 1) must serve a notice of claim on the architect or engineer at least 90 days before the suit 2) may obtain a pre-action discovery from potential s during the period 3) After suit is commenced, if moves for summary judgment burden will shift to the to make an immediate evidentiary showing that there is a substantial basis

D. Municipal Tort liability a. SOL: 1 year 90 days b. Accrual: date of accident c. Notice of Claim, a separate prerequisite you must serve a notice of claim on the municipality within 90 days i. No notice = dismissal on grounds failure to state a cause fof action ii. after service must wait an additional 30 days to commence the action iii. may ask court for additional time for notice of claim of the 1 year 90 day did not expire E. Product Liability a. Negligence: 3 years from injury b. Strict liability: 3 years from injury 149 | P a g e

c. Breach of warranty: 4 years from delivery (b/c SOG) d. Indemnity and contribution: 6 years from actual payment of the judgment e. Toxic substance: i. Toxic substance = inherently harmful e.g. asbestos ii. 3 years from discovery of injury or should have discovered iii. Does not apply to medical malpractice same 2 years

F. General Toll and Extensions 1) If is no in NY when COA accrues, SOL begins to run only when returns to NYU a. Exception if had basis of jurisdiction so that process could have been served on outside of NY b. Note: Rarely entitled to toll 2) Infancy or Insanity a. may sue through a legal representative b. When disability ends longer of either: i. Usual SOL or ii. 3 years from the end of the disability 1. E.g. in breach of k may rather take the 4 years than 3 c. Outside limit of 10 years for commencement of action when: 1. Infancy: Medical practice no later than 10 years 2. Insanity always has a 10 year limit d.

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NY2 AGENCY AND 3 PARTNERSHIP

I. AGENCY
A. Liability of Principal to Third Parties for Torts of an Agent B. Liability of P to T for ks entered into by A C. Duties A has to P 3 Main Issues dealing with Agency

AGENCY
A. Ps Tort liability for actions of A Respondnant Superior or Vicarious liability Rule 2 part test (1) a principal-agency relationship exists (2) committed within scope of the relationship Relationship A,B,C test test P-A relationship requires a. Assent b. Benefit, As conduct benefits P c. Control, P has the right to control A by power to supervise manor/method The same test of ABC goes on: i. Subagent and ii. Borrowed agent Independent k Independent contractors: General rule: no P-A relationship Reason is P usually has no control on IC General Rule not vicarious liable for ICs Tort Exceptions: a. Hired for Ultra hazardous activity b. Estoppel, if Ps holds out IC as an agent and third party relies to his detriment Scope of Principal Agent relationship: 1) Kind (was it part of job description?) 2) On the job (did the tort occur on the job?) a. Detour= minor departure considered inside scope 151 | P a g e

Scope of P-A

b. Frolic = major departure and independent journey, outside scope 3) Intend to benefit P (was As actions intended to benefit P?) Intentional General rule: intentional tort outside scope of employment tort Exceptions: 1) P authorized the intentional tort 2) Natural incident to carrying out Ps directive 3) Motivated by desire to serve the P Common example: club bouncer or repo man B. Liability of Contracts entered into by A Rule Key is authorization Principal is liable for contracts entered into by its agent if the P authorized the agent to enter into the k. (ii) Actual Express authority (iii) Actual implied authority (iv) Apparent (v) Ratification 1) Actual express Can be oral and private but narrowly construed o Exception: interest in land that last more than 1 year must be written (SOF) Revocation: Act of either P or A Death of P Incapacity terminated o Exception durable power of attorney will not terminate upon incapacity but will terminate on death 2) Actual implied Includes acts that are: a. Necessity to accomplish express authority b. Custom c. Prior dealings between P and A where P acquiesces to A;s Below no real authority but created with subsequent action 3) Apparent Authority 2 part test (i) P cloaked agent with appearance of authority and (ii) Third party relied to detriment

Authority

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4) Ratification Grant authority after k entered into only if (i) P has knowledge of all material facts and (ii) P accepts benefits (iii) But P cannot alter the terms C. Duties Agent owes P Duties (1) care (2) Obedience (3) Loyalty, which includes a. Self-dealing b. Usurping Ps opportunity c. Secret profits Remedies for (1) Any losses breach of duty (2) Disgorging profits

II.

PARTNERSHIP
Partnership

1. General Partnership Formation a. Formalities No formalities or filing just act like partners Key is profit sharing Definition: a general partnership is an association of 2 or more persons carrying a business as co-owners for a business for profit Profit sharing is prima facia evidence a partnership exists Agent principals apply, each p considered agent to partnership 1) Liable for tort of copartner (personally fully) 2) Liable for contracts of copartner(personally fully) 3) Personally liable for all debts of the partnership and for: (i) Incoming partners liability for pre-existing debts but o Limited to partnership property (not personally) (ii) Dissociating partners liability for subsequent debts (iii) Until (a)death (but estate liable until Ps get notice of death) or (b) notice of withdrawal given to all known or potential creditors Estoppel: 2. Partners will be liable if represent to third party that a GP exist and 153 | P a g e

Liabilities

Rights between partners

T relies to detriment GPs are fiduciaries to one another and therefore: Duty of 1) Loyalty a. Self-dealing b. Usurp c. Secret profits

Remedies only in equity 2) Action for accounting Partnership a. Specific partnership assets = owned by GP, illiquid property b. Share of profits and surplus = personal property liquid and liquidity (transfer to others) c. Share in management = GP illiquid (may not transfer management rights Ask whose money was used to purchase the property Management Absent an agreement each partner has equal vote Regardless of how much capital and Salary Absent and agreement partners get no salary Exception: 3. Winding up Dividing profits and losses 1) Absent and agreement partners share equally 2) absent and agreement losses shared like profits testable: one partners gives millions a second manages third does nothing, still share equal absent and agreement first look at agreement, no agreement, default rules equal a. dissolution = beginning of end, created when any partners withdraws b. real end is called termination c. winding up, period between dissolution and termination Partners liability 1. old business 2. new business, until notice to creditors Priority of distribution 1. outside creditor 2. inside creditors 3. capital contributions by partners 4. profits surplus if any Real termination is after dissolution Grounds for dissolution:

Dissolution

Termination

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1. Acts of Partners: (i) per agreement, (ii) partnership at will, (iii) mutual assent, (iv) expulsion of partner 2. Operation of Law: (i) death, (ii) unlawful, (iii) bankruptcy, (iv) 3. Decree of court in equity: (i) unprofitable, (ii) incompetence, (iii) incapadabilty, (iv) breach of agreement. Other partnerships Formation GP Limited partner Act as partners Profit sharing File LP cer with state and names of GP Register with state as RLLP State profession Liability and Others: control Equal liability Equal control of all partners GP liability and control for LP;s LP: has not control and only liable for contributions All members have For professionals only limited liability Only liable for contributions Note: can sue individually Control: by Must also have limited life and members Limited liquidity Limited liability

RLLP

LLC

Register with state Articles of organization Publication requirement

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NY4 CORPORATIONS
The governing NY statutory law is the Business Corporate Law, BCL 6 Issues to look out for: I. II. III. IV. V. VI. Organization of Corporation Issuance of Stock Directors and Officers Shareholders Fundamental corporate changes Controlling Shareholders

I.

ORGANIZATION OF NEW YORK CORPORATION

(2) Pre-incorporation ks (3) Consequences of incorporation

Most important issues:

A. FORMATION REQUIREMENTS
Key is People: incorporator Papers: certificate of incorporation Acts:

1) People: incorporators Incorporators do 3 things: 1. Execute the certificate 2. Deliver the certificate to the department of state 3. Hold the organization meeting o You only need one incorporator o Only natural persons can incorporate not other corporations 2) Paper: certificate of Incorporation 1. Note other state call in the articles of incorporation, NY calls it Certificate 2. s/t the NY bar exam even screws up a. purpose of certificate: 156 | P a g e

i. contract between the corporation and SH ii. contract between the corporation and New York State b. Info included in the Certificate Corporate name Must include either corporation, incorporated or limited in the name Address Agent for service of process Service Corporate designated agent for process is the new York secretary of state. You may also designate an agent name and address of the incorporator duration: no need, status qua is unlimited duration (unlike LLCs) corporate purpose statement is required. Ultra vires act is when BOD acts out side purpose Rules today: (i) ultra vires k are valid not void (ii) SH can seek an injunction (iii) the responsible directors are liable for ultra vires losses Capital structure o Types of stock see glossary about: authorized, issued, outstanding Must state in the certificate: a) Authorizes stock b) Number of shares per class c) Information on par value, rights, preferences, and limitation of each class d) Information on any series (series = sub class) of preferred shares

1. 2. 3.

4. 5. 6.

7.

3) Acts 1. Process o Incorporator signs o Acknowledges before notary o Delivery to NY secretary of state o Pay fee o the department files the certificate De Jure Corporation: When the secretary files the certificate there is conclusive evidence of valid formation 157 | P a g e

2. Organization meeting Incorporators hold an organization meeting What happens: 1) Adopt bylaws 2) Elect the initial director 3) Then the board takes over

B. EFFECTS OF FORMATION
1. Governing law Once a corporation is formed in NY, New York law govern the internal affairs. Even if the corp does no business in New York 2. Own entity Once a corporation is formed it is considered its own entity separate from the shareholders, directors, officers 3. Contributions a. Political: only up to 5k per candidate or organization Note: not a BCL rule, campaign contribution rule under ___ b. Charity: no statutory ceiling 4. Limited liability Only corporation is liable Limited liability to SH, BOD, Officers

C. DE FACTO CORPORATION / CORP BY ESTOPPEL

1. De facto If promoters failed to create a de jure corporation, the next option is de facto corporation Must show: (1) there is a relevant incorporation statute (BCL) (2) good faith and colorable attempt to comply with it, and (3) the business is currently running as a corporation if applicable wil treat entitly as a corp except for action against the state most BSL statutes abolished it only time case law implies it will apply is the NY Secretary screwed up and failed to file the certificate

2. Corporation by estoppel 158 | P a g e

o Abolished in NY o The theory was, act as a corp then estopped from denying

C. BYLAWS
1. General Technically you dont need by laws Conflict with certificate: o The certificate wins over the bylaws b/c certificate is k with the state By laws are not filed with the state Out siders are not bound by the bylaws internal only By laws adopted by the incorporators at the organization meeting SH can amend or repeal or adopt new bylaws BOD: can only do the same if granted power: o Power granted in the certificate o SH grant permission o Even if BOD amend SH have last say and can over power

D. PRE-INCORPORATION CONTRACTS
MOST TESTED in this issue 1) Promoter: ( see glossary for definition) will be liable Unless novation (novation in k law: where parties sign off for third party to take up the k, see above) If no novation possibly both corporation and the promoter are liable Or unless k states no liability after incorporation If no incorporation then P will be liable 2) Corporation If corporation adopts the k it will automatically be liable Novation then only corporation is liable Adopts: o 1) express adoption by BOD o 2) implied adoption: if the corporation knowingly accepts benefit of the k

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E. SECRET PROFITS DEALING WITH CO. ITSELF

Note we are dealing with the promoters dealing with the actual corporation Key is there must be both (1) secret and(2) profit if secret profit then liable for an accounting for profit i.e. give it to corp:

a. rules on profit 1) sale to corporation on property acquired before becoming propter: o test is: profits = price paid by the corp FMV (not the amount the promoter paid 2) sales to corporation on property acquired after becoming the promoter: o test profits = price corp paid price promoter actually paid (not FMV b. secret only liable if secret if corporation is aware of the profits no liability

D. FOREIGN CORPORATION
RULE: foreign corporations doing business in NY must qualify. a. Foreign i. Foreign corp. is simply a corporation incorporation out-side of NY (even New Jersey) ii. Domestic corp: is corp incorporated in NY b. doing business i. Regular course of INTRAstate business c. qualify corp must: i. File with NY department of State ii. Info from its out-of-state incorporation iii. Proof of standing with home state iv. Pay fees privilege of doing business in NY v. Designate NY secretary of state as agent for service of process d. Effects of not qualifying foreign corporation may not sue in NY until it qualifies and pays fees, taxes, penalties and interest

II.

ISSUANCE OF STOCK
Most tested areas in this section (1) pre-emptive rights (2) form- of consideration

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(3) treasury stock Issuance of stock = corporation sells its own stock o Issuance raises capital, buyer are equity holders Debenture: a loan, the payment of which is not secured by corporate assets o Bonds: hold debt security, creditor All issues in this section only apply to issuance

A. SUBSCRIPTION
Defined: a subscription is a written, signed offer to buy stock from a corporation. Revoking a pre-incorporation subscription: a. Generally irrevocable for 3 months b. Can only revoke if subscription provides or all subscribers agree. Cant revoke because corporation relies on the money to form Post-incorporation subscription o Revocable until accepted o Must treat all members of class equally corp accepts the subscription and subscriber defaults: 1) if paid less than half but failed to pay rest w/i 30 days corp keeps money and cancels shares 2) if paid more than half corp must try to sell and return any access minus corps expenses

B. CONSIDERATION FOR STOCKS

testable 1. Form of consideration Five permitted forms: (1) Money (2) Service already performed (3) (4) Binding obligation to pay money or property in the future (5) Binding obligation to perform future services for an agreed value Applies even if the corporation has not been formed yet water any issuance of stock for anything but above 5 is treated as water

2. Amount of Consideration a. Par 161 | P a g e

Par means a minimum issuance price (cant sell for less than the par value) No par: no minimum can sell for any amount Treasury stock = stock previously issued and required by the corporation Acquiring property with par value stock: valid only if the property is worth the par value o BOD decision is conclusive on value o As long as no fraud Watered stock o Defined: When stock is traded for less than par value o Consequences: BOD is liable Purchaser with knowledge is also liable, considered to have constructive notice Third party only liable with knowledge (BOD and purchaser are still on the hook)

C. PRE-EMPTED RIGHTS
very tested 1. Pre-empted rights = rights of SH to maintain percentage of ownership a. Only available where there is i. New issuance and ii. For money does not apply if new issuance is in exchange for services/property iii. Only applies for issuance of new stock within 2 years of formation iv. -only exist if the certificate says so

III.

DIRECTORS AND OFFICERS

1. Statutory requirements a. Number of directors one or more (yes can even be one) b. How are they set: i. In the bylaws ii. By SH act (see later) iii. By BOD if SH allow c. Election i. First at incorporators then ii. SH at annual meeting

d. Types:

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Classified: (a/k/a staggered board) different classes of Board members with different terms. Elect different classes each year. Standard: vote each member at SH meeting for one year term

e. Removal i. SH remove with cause ii. BOD only if granted the power in bylaws or certificate iii. Without cause only SH and only if certificate /bylaws allow o If without cause then may be a breach of claim outside of BCL against corporation f. Filling vacancy Cause; Filled by BOD Without cause: SH g. How the BOD acts: Individual The individual directors are not agents of the corporation Only agents when acting as a group 2 ways to make a valid act i. Unanimous written consent ii. Meeting o Individual acts are void unless ratified Meeting can take place anywhere

Notice i. Regular meeting: not notice requirement if time and place of meetings are set in bylaws ii. Special meeting: must state time and place but need not state purpose Effect of lack of waiver makes special meeting void unless: o Waives notice defect in 1)writing or o 2)attending the meeting without objection h. Proxy BOD have a non-delegable fiduciary duty BOD may not vote by proxy or by agreement SH can vote by proxy/agreement 163 | P a g e

i. Quorum of meeting 1. Need majority of entire board 2. Passing resolution= majority of members present o E.g. certificate requires 9 members so you need 5 members for a valid meeting, and 3 votes for a passing resolution. (a) Increasing quorum requirement i. only in certificate NOT IN BYLAWS (b) Supermajority i. only in certificate NOT IN BYLAWS (c) Decreasing quorum i. Certificate of bylaws but never less than half (d) Decreasing requirement of majority for passing resolution i. may never be changed, ALWAYS need majority of members present to pas Board member manage Committee: Committed may not do: (1) Cant Set directors compensation (2) Cant fill board vacancy (3) Cant Submit fundamental change to SH (4) Cant Amend by lays May submit recommendation abaout above

E. DUTY OF CARE
Duty of care standard: A director must discharge his duties in good faith and with the degree of diligence, care, and skill that an ordinary prudent person would exercise under similar circumstances Nonfeasance (fail to act) Usually difficult for liability because no causation

Misfeasance Apply business judgment rule (BJL)

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BJL: means court will not second guess the business decision of the directors if it was made in good faith, was reasonable informed and had rational basis A director is not a guarantor of success only required to act with prudence

F. DUTY OF LOYALTY
Duty of loyalty standard: a director must act in good faith with conscientiousness, fairness, morality and honesty that the law requires of fiduciaries. BJR does not apply to duty of loyalty when there is a conflict of interest

A. Interest Director Transaction Defined: any deal between director and corporation Interested director transaction will be set aside unless: 1) The deal was fair and reasonable or 2) Material facts were disclosed and approved by i. SH action ii. BOD w/o counting vote of interested director iii. Unanimous vote of disinterested BOD in cases where there is not enough disinterested BOD to act. (Note: interested directors can count toward quorum but cannot vote) B. Compensation determined by the BOD themselves No waste, must be reasonable and good faith C. competing ventures no competing with corporation liability: constructive trust which means make director account for profits D. corporate opportunity duty of loyalty prohibits usurp a corporate opportunity usurp: may not take an opportunity unless tells the board and waits for the board to reject it corporate opportunity = s/t the corporation needs or has an interest or tangible exectation in or that is logicaly related to its business

G. OTHER BASIS FOR DIRECTORS LIABILITY

A. improper loans of corporate funds B. improper distributions (see later) C. liability a. on all directors even if not present or dissents 165 | P a g e

b. avoid liability dissenting BOD must i. in writing dissent in corporate records ii. dissent in writing by: 1. in the minutes 2. in writing to corp secretary at the meeting 3. registered letter to corp secretary promptly iii. no oral dissent c. Good faith reliance: may rely on (1) a fellow BOD, officers, employees who believes to be reliable or (2) accountant .(3) committee

H.

OFFICERS

Officers have same duty as directors Officers are agents of corp o only have powers the are authorized o Cross reference with agency law o Implied power of president to sue on behalf corporation BOD selects the officers

I. REIMBURSEMENT (INDEMNIFICATION) OF DIRECTORS AND OFFICERS

A. Prohibited: If BOD will be held liable then reimbursement of court cost or indemnification is prohibited There must be an actual holding of liability to prohibit reinburcment B. Of-right Of right if wins BOD or officer has a right to o Attoneys fees o Court cost o Fines o Judgment If she wins the case and corporation refuses to pay her, BOD can sue but does NOT get reimbursed for collection C. Permissive Court discretion and must show: o Good faith o Courts determines best interest or corporation o But limited to: Settlement amount Expenses Attorney fees 166 | P a g e

 NOT attorney fees to sue the corporation for reimbursement Corp can advance litigation cost but if not entitled to reimbursement must return D. Certificate or bylaws can provide indemnification for board liability Exception: no indemnification for BAD FAITH, dileberate, dishonest, wrogfull profits

IV.

SHAREHOLDERS

Most important section Most importation in this section: 1) 2) 3) 4) 5) PCV Derivative suit Liabilities of distribution Inspection rights SH/BOD voting agreement

A. SHAREHOLDER MANAGEMENT
A. SH do not manage the board does B. Closed held Defined: 1) few shareholders, 2) not publicly traded note most exam q are about close corporation You can have shareholder management in closed corp. if: 1) Unanimous approval of all incorporators of SH 2) Conspicuously noted on the front and back of all shares 3) All subsequent SH have notice 4) Shares are not listed on an exchange or regular quoted over-the-counter C. Fiduciary duties IN CLOSE CORP TO sh Controlling SH have an utmost duty of care not to oppress and use personal powers at the expense of the minority shareholders, o Give the minority a remedy for behavior that defeats their reasonable expectation for investing D. Professional Corporation P.C. Similar to business corp. but need to form as PC Only licensed professionals as SH (but may hire nonprofessional employyes) Malpractice: only for their own not partners K: only corp is liable, no personal liability

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Certification: with state and added requirement: list each SH, director, and officer is licencec to practice the profession

B. SH LIABILITY
No personal liability, corp. is liable

A. PCV a. Can only pierce in close corp. b. Requirements for piercing 1. SH must abuse the privilege of incorporation 2. Fairness dictates to hold them liable i. To prevent fraud ii. Use of corp. funds for illegality note its a very high stand for PCV c. Alter ego i. Alter ego alone is not enough for pcv ii. Need to show abuse and unfairness. Which generally: 1. Complete dominion and control 2. To perpetrate a fraud or injustice on 3. iii. (same standard as regular) fairness requires PCV d. PCV parent corporation i. If parent creates a subsidiary for purposes of shielding liability, will be liable if showing of totally dominating subsidiary (alter ego standard) ii. General fact pattern is undercapitalization Note: undercapitalization alone is not enough to PCV need showing of (1)complete domination and (2) fraud or injustice Note: PCV more common in tort e. Wages i. in a close corporation the ten largest SH are personally liable for wages and benefits for the corp. employees note: special NY rule

C. SH DERIVATIVE SUITS
a. Derivative suit the SH sues on behalf of the corporation, for the corp.s claim. b. Usurp: SH can sue board members on behalf of corp as a derivative suit for BOD usurping corp opportunities. 168 | P a g e

c. But note: suing the corp for unpaid dividends is NOT a derivative suit. Its a direct suit for SH own profits d. When SH wins the CORPORATION GETS THE RECOVERY i. If SH wins/loses may possibly be entitled to recover cost of litigation but come from judgment ii. Also possibly liable to corp if loses Exception: if corp is dominated by wrong doeers and they would benefit the SH can petition to court to direct recovery to SH e. Once SH sues and loses no other SH can bring the same suit f. Requirements for bringing a derivative suit 1) Stock ownership when claim arose 2) Adequate represent the interest of the corporation and shareholders 3) Bond (ny crazy rule) it some cases required to post bond for damages in case she loses a. Bond is waived if SH owns 5%+ or b. Stock is worth over 50k 4) Demand on directors that corporation sue a. Demand is waived if would be futile: i. Futile if majority of board is interested or under control of interested ii. Board unreasonable failed to inform itself iii. Egregious conduct on its face 5) Pleading with particularity need to give all the detailes more than a regular complaint 6) Must join the corporation as defendant (as even though corp. gets recovery) g. Motion to dismiss derivative i. Motion to dismiss is based on finding of independent directors or special committee that the suit is not in the corporations best interest ii. Court will look at 1) independence of investigation and 2) sufficiency of investigation iii. Settlement only can settle on court approval h. BOD derivative suit i. Only in NY a BOD CAN sue ANOTHER BOD to compel: 1) Accounting for violation of duty 2) Misappropriation of corp assets 169 | P a g e

ii. Does NOT need to meet the 6 derivative suit recquirments but sues in BOD own name and recovery to corp.

D. SH VOTING
A. Who votes: a. General rule: the record owner as of record date has the right to vote i. Record owner = the person shown as the owner in the corporate records. ii. Record date = is a voter eligibility cut-off, set no fewer than 10 and no more than 60 days before the meeting Note: need not own the stock at the time to vote if you were record owner at record date and sold it. b. Exceptions: i. Treasury stock does not have a vote. The corporation may not vote. ii. Death of SH, the executor can vote even though not. c. PROXY i. SH may vote proxy, BOD may not. ii. Defined: 1. Writing 2. Signed by record SH or agent 3. Directed to secretary of corporation 4. Authorizing another to vote shares 5. Only valid for 11 months iii. Revoking proxy: a) by writing before meeting, b) attending the meeting and voting, c) death but only if notice of death is received before vote iv. Irrevocable proxy: a. General is revocable even if says irrevocable on its face b. Exception: proxy is irrevocable if: i. in writing stating irrevocable on proxy and ii. Holder has an some kind of interest in the share (e.g. stock option interest) d. VOTING TRUST i. Requirements: 1. Written trust agreement controlling how shares are voted 2. Copy sent to corporation 3. Transfer legal title of shares to voting trust 4. Original shareholders receive voting trust certification and retain all sh rights 170 | P a g e

5. 10 year maximum (but can extend at the end) e. Voting agreement 1. Writing and signed 2. But not specifically enforceable 3. Irrevocable if states so 4. No trust, shares satay with SH distinguish: BOD not voting agreements Note: no agreement can have in it a requirement to vote or act a certain way if becoming directors, b/c no voting agreements for director B. Where do SH vote? a. Only 2 ways SH may make a valid act 1. Written consent from ALL holders of voting rights or 2. Meeting (special, annual) b. Types of SH meeting 1. Annual: i. elect directors ii. plurality: the highest vote getter for each seat of the board wins even w/o a maj. iii. Can get court order if fail to hold annual meeting 2. Special a. Called only by 1)board of 2) a/o mentioning by certificate/bylaws b. Notice requirement i. Must give notice to every SH entitled to vote written notice 10-60 days before ii. Contents: time/place iii. Must state the purpose of meeting may only act on issues of purpose nothing else and meeting Note: can call a special meeting to remove a BOD not an officer iv. Fail to give note action taken at meeting is void unlessed waived C. Method of Voting a. Quorum general need majority of outstanding shares. focus is on shares not shareholders Quorum can be altered in bylaws but never less than 1/3 can never reduce quorum to less than majority voting 171 | P a g e

Supermajority or 2/3: can change the requirement to require supermajority (90%) but only in the certificate not the bylaws actual voting: you need a majority of shares actually voting not enough to have majority of those voting meaning absentees can kill the vote (unike BOD vote) quorum is never lost if people leave (unlike BOD vote)

Voting on BOD a. 2 types: 1) Regular/ Non-cumulative (forgot name) : each SH votes his share and vote on each BOD individuals. 2) Cumulative: each shareholder has a certain amount of votes based on his shares to vote for all canditates. (gives minority representation e.g. Compare strait and cumulative voting As candidates X,Y,Z Bs candidates: LMN Voting on 3 X Y Z L M N Winner (determined with plurality Top vote getters X-101 y-101 z-101 0 0 0 X, Y,Z All A, 0 0 0 100 100 100 B loses No representation A= 101 shares B= 100 shares

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Cumulative Votes X Y Z L M N XY A = 303 X-101 y-101 Z-101 L-300 M-0 Z-0 L Guarantees some minority representation B = 300

b. If certificate is silent than regular not cumulative voting c. Formula 100/x+1

E. TRANSFER OF STOCK BY A SH
A. Consideration: May sell for less than par values that only a restriction on the corporation B. Stock transfer restrictions i. May restrict if stated in certificate, bylaws or agreement ii. But only valid if there are not an undo restriction on alienability iii. Right of first refusal: valid if reasonable iv. Closed corporation may require to sell shares back to corporation after death v. Restriction enforceable against TP if: 1. Conspicuously written on face of share and 2. The TP had actual knowledge

F. SH INSPECTION RIGHTS
1) List of Minutes and records of SH: 173 | P a g e

a. Any SH can demand on 5 days notice, written demand for minutes and b. Affidavit Demand But: Corp can demand sh to show in affidavit that its interest are only in the corporation and it did not try to sell SH list in the past 5 years i. Failure to give affidavit is grounds for denial 2) List of current directors, officers, a. Any shareholder can demand, 2 day notice, corp may not ask for affidavit 3) List of business info: (i) annual balance sheet, (ii) profits and losses, (iii) interim statement of a. Easy to get, demand written request, may provide by mail 4) Common law right a. CL right: All SH have the right to inspect records at a reasonable time/place. But only for proper purpose b. Note: not clear proper purpose or which documents Note: BOD ALWAYS HAS A RIGHT TO ALL DOCS unfettered

G. DISTRIBUTION
3 types: Dividends Payment to repurchase shares Redeem

BOD declares when distribution are given. A. Dividends a. Common stock: regular stock entitled to get dividends b. Preferred: paid first, pay preferred if anyleft over common get c. Preferred cumulative: preferred plus entitled to dividends for all the years BOD didnt distribute d. Preferred participating: get twice, first as preferred, they collect a second time equal share to common stock B. Funds used for distribution 1) Surplus: collect from surplus Surplus = assets liability stated capital Stated capital never be used for distribution Stated capital = par value of stock issued the rest is surplus e.g. issues 10,000 shares @ $2 par stock for $50,000. $20,000 is stated capital $30,000 is surpluss -if no par BOD can allocate any but not all to surpluss 174 | P a g e

C. Improper distribution Corp may not make distribution if it is insolvent or will become insolvent because of it. Insolvent = corp unable to to pay its debts on ordinary course of business Director are personally liable for unlawful distributions SH if knew o Recovery: goes to the corporation in a derivative suit o Note: BOD, BJR, a good faith reliance rules apply to relieve BOD liability

D. Redemption Set in certificate and must be done properly with in each class

V.

FUNDAMENTAL CORP CHANGES

A. CHARACTERISTICS
Where fundamental you need: BOD and SH approval Filing with state

A. SH rights of appraisal Defined: right for SH to force corporation to buy back its shares for fair value Triggered by: 1) Some amendments to the certification 2) Consolidation 3) Corporate mergers into another corporation 4) Corporations transfers substantial assets 5) Shares acquired in share exchange Exceptions: o No rights of appraisal in publicly traded corp on NASDAQ b/c not need just sell them publicly o ROA is Specifically need for close corporations where only the corp can purchase it Required actions: 3 steps 1) Before SH vote written objections and intent to demand payment 2) Vote against or abstain from the change 175 | P a g e

3) After vote make a written demand Payment: fair value if cant agree go to court o Court does not make a minority discount

B. AMENDMENTS TO CERTIFICATE OF INCORPORATION

Minor change can be made by board Approval o Board o Majority of SH entitled to vote Entitled to vote means Approval of supermajority o Then you need 2/3 entitled to vote Once approved must deliver certificate of amendment to Department of State NOTE dissenting SH still have the right of appraisal.

C. MERGERS OR CONSOLIDATION
steps o Each corp adopts a merger plan o SH approve in each o But not SH required if parent owns 90%... Rights of appraisal o Deliver certificate of merger to state o dissenting SH have right of appraisal o But dissenting SH of surviving corporation generally do NOT have right of appraisal o Short-form mergers have right of appraisal Effect of merger, consolidation Successor liability: The surviving company succeeds to all rights and liablies of the constituent

D. TRANSFER OF ALL OF SUBSTANTIAL ASSETS

Key is transfer of assets not in ordinary course of business (e.g. real estate developing corp of course sells of its assets) Approval o Selling: Need approval of majority of shares entitled to vote o Buying corp: does not need any approval, no fundamental change to buy assets

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Rights of appraisal o SH of selling compay o Buying corp no rights Filing o No filing requirement Liability o Generally no liability b/c both corps remain

E. DISSOLUTION
Voluntary: Need majority of shareholders entitled to vote. Do not need BOD

Involuntary dissolution May be requested by: 1) BOD resolution or maj SH entitled to vote, stating corp has insufficient assets to discharge liability or dissolution is beneficial to SH 2) One-half of SH entitled to vote may petition is management can get along with each other and manage corp 3) Any SH if SH cant elect BOD for 2 annual meeting 4) 20% or more of voting shares (close corp.) whose shares on not traded on a securities market on 2 grounds a. Management illegal oppressive or fraudulent acts toward b. Management is wasteful, diverting or looting assets i. Management can be BOD or majority SH ii. Note: court will deny dissolution if there is an alternative such as corp buy out Avoid dissolution: o Within 90 days of petition by the pertitioners stock at fair value. Effects of dissolution o Wind up Gather assets Convert to cash Pay creditors Distribute remaining to SH, pro rata

VI.

CONTROLLING SH
RULE: outside closed corp SH have no fiduciary duties to each other

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A. CONTROLLING SHAREHOLDERS
Owes a duty to minority sh, may not dominate corp for individual advantage at the expense of minority Sale of controlling share o Controlling sh may keep profits from selling the controlling position at a premium o Liability if o 1) sells to looters o 2)de facto sells corporate assets o 3) sells seat on the board

B. FREEZOUTS
Freezeout = merger soley to sqeeze out minority SH Court will look at Fair price Fair course of dealing Ligitmate corporate purpose Factors i. Tainted by self dealing ii. Minority SH dealt fairly iii. Ligitmate business purpose

C. INSIDE TRADING
a. Market trading on inside information: i. Damage: corp can sue to recover profits b. Nondisclosure of special facts i. Test: those a reasonable investor would find important in making an investment decision ii. Who can sue: SH whom director/officer deals with. Duty owed to SH iii. Damages = value of stock reasonable time after public disclosure - price paid

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VII.

CORPORATIONS GLOSSARY
b. Authorized stock: mak number of shares the corp can sell c. Issued stock: the number of shares the corp actually sells d. Outstanding stock: is the stock the corporation has already sold and not reaquired e. Promoter = person who actin gon behalf of the corporation not yet formed

ESSAY TIPS
Buzz Words

Issue Rule Analysis 1. the general rules is.. 2. An exception to the rule 3. in the instant facts 4. because

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NY5 SECURED TRANSACTION /NY6 COMMERCIAL PAPER

I. II. SECURED TRANSACTION COMMERCIAL PAPER

Article 3 of the UCC The Rule: negotiable instrument is dully negotiated to HIDC, takes free all personal defenses subject only to real defenses I. Types of Negotiable Instruments A) Promissory note: 1. Parties: i. Maker ii. payee B) Draft (check) 1. Parties i. Drawer: makes the order ii. Drawee (bank) iii. Payee: beneficiary of the order C) Elements of negotiability: 1. Writing and signed 2. Unconditional 3. Promise or order 4. Pay a certain sum 5. Payable on demand or a certain time 6. Payable to bearer to order II. Theories of liability III. Dully executed IV. HIDC D) Holder is E) HIDC 1. Takes instrument for value 2. Good faith 3. Without notice of any real defenses

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V.

VI.

What defenses does HIDC take free of? a. Free of all personal defenses b. Subject to real defenses: i. Infancy ii. Incapacity to k iii. Illegality iv. Duress v. Fraud in the factum vi. Discharge in insolvency proceeding vii. Discharge known to HIDC viii. Surtetyship ix. Material alteration x. Forgery Duties and liabilities of parties

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NY7 PROFESSIONAL RESPONSIBILITY

dfdf

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NY8 CONFLICTS OF LAW

I. RECOGNIZING FOREIGN JUDGMENTS
FULL FAITH AND CREDITS
A. FFC requirements 1. Judgment on the merits 2. Proper jurisdiction in the rendering court 3. Final judgment B. Real Defenses 1. Penal judgment (offense against the public) 2. Extrinsic fraud. Equitable defense, judgment obtained by fraud, (this is s/t that could not have been raised at first trial. E.g. bribed the judge) C. Bad defenses 1. Tax judgment 2. Contrary to public policy (should have raised at trial) 3. Extrinsic Rendering court made a mistake of law (should have raised at trial) D. Effects of recognition of rendering court 1. Res judicata 2. Mutuality E. Enforcement of the judgment: if FFC effect then must be enforced Foreign Countries 1. Comity: voluntary discretion. Test (1) jurisdiction at foreign forum, (2) fair procedures 2. Uniform Foreign Money-judgments recognition act: must recognize money judgment. Does not include: penal, tax, alimony/child support.

DOMICILE
A. Domicile operation of law 1. Child based on Father 2. Incompetant: last domicile of father 3. Married persons not based on any gender B. Domicile of choice. 2 requirements: 1. Physical presenace and 2. Intent to be domiciled. 3. If Multiple homes principal home 184 | P a g e

4. Notes: i. Even very short time with requisite permanent intetn ii. Even with intent must actualy physicaly reach there.. iii. May only have ONE domicile

II.

CHOICE OF LAW
NY APPROACH
A. The Rule: interest analysis: start with presumption apply own law considerations 1. False of real conflict. 2. True conflict (both states have a legitimate interest) then own state law if has legitimate interest 3. Disinterested forum: (no interest in applying its own law) and forum non convenience is not available then i. Make its own judgment or ii. Apply law that most resembles its own law

SPECIFIC APPLICATIONS
A. Torts 1. Start with Interest analysis 2. Liability: general NY law 3. Rules governing conduct: where tort occurred 4. Loss distributes: 5. B. Contracts 1. Express Choice of law: given full recognitions. exceptions: i. Contrary to public policy ii. No reasonable basis iii. No true consent 2. UCC: if reasonable basis to 2 states then the express provisions governs. 3. NY obligation law: 250,000 + reasonable relation then NY law 4. Insurance k related: place the insurance policy was entered into C. Property 1. Real property: situs 2. Personal property: situs of property 3. Impact of UCC: D. Inheritance E. Family Law

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NY9 NO FAULT INSURANCE

(mini subject) NY only Look for it in essay No fault is only for personal injury no property damage

A. Who is entitled to collect No fault? Example Joe is driving 1)Owner of policy 2)Any passenger of the car 3)Any pedestrian hit by the car This essentially means that each passenger of the car collects from the cars insurance Makes no difference if there was negligence, hence no fault

B. Who is bared from no fault? (i.) (ii.) (iii.) C. what can you collect? medical Lost wages o Caped at 2k month (24,000/year) o Only continues for 3 years. o Only up to 80% of wages (if earn less than 2k/m) Miscellaneous $25 a day (very little) No pain and suffering Cant collect more than the policy limit NY no fault policy is portable. NY no fault insurance can collect if accident out of state drunk drivers drag racers fleeing felons (car thieves)

D. When can you go to court despite collecting no fault? a. if you have damages more than the coverage b. more than basic economic harm 187 | P a g e

i. Mathematics determining if the injuries exceed 50k. so calculate 3. medical 4. 80% earning (if he makes more than 5. Add 25/day for misc. If its over 50k in a year then he is entitled to bring a negligence suit c. serious injury list: i. death ii. dismemberment (losing a limb) iii. significant disfigurement iv. loss of fetus v. permanent loss of organ (kidney) vi. permanent consequential limitation of a limb or an organ vii. 90 day disability even if he brings a suit he can still claim from the no fault insurance he may also want to bring it for pain and suffering You can only sue if you have a party to sue. If there is injury but hit a tree, or hit a party that was not negligent, meet the threshold but no one to sue.

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NY10 WORKERS COMPENSATION

Very small area. Only NY Prof. Story, had never learned workers comp, ever. Got a q, so just made up rules and applied it. You get credit for applyin fake rules.

The rule: Statutory insurance exclusive remedy for covered employee who sustains a job related area o Key aspects, employer is liable to employee through insurance, for a fixed amount of time, regardless of fault to employer. o It is exclusive as employee cannot bring a negligence claim against employer. This will bar pain and suffering and punitive. o Employee precluded from suing coworker. Coworker negligently injures you, employee gets insurance but cant sue coworker or employee Exception: if coworker worked outside scope of employment

Who is covered? Only employees. Not independent contractors o Employee v independent gets into agency law see then 3 specific exclusions o 1)teachers o 2)part time household employees o 3)clergy o So their remedy is traditional litigation not the insurance (purpose so that the institutions purchase insurance)

What is covered? Only covered injury which is generally is scope of employment on premises Exclusions o 1)employee causes his own injury, e.g. employee drunk o 2)employee intentional tried to injure himself or others o 3) if injured during a voluntary off duty athletic activity o Exclusions does not include (still in scope of employment)

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Illegal activity E.g. employee tried to still from client but on the job stil included Horse play. Still gets workers comp

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NY11 NY TRUSTS
Topics: I. Requirements for Trusts II Types of Trusts III Modification and Termination IV Trust Administration V Liability of Trustee VI RAP and Suspension Rule

I.

REQUIREMENTS FOR TRUSTS

A) Express Trusts a. 8 requirements 1) Settlor: creator makes the trust 2) Delivery of legal title 3) Property (res, corpus, principal to a 4) Trustee who holds legal tile for the benefit of a 5) Beneficiary with 6) Intent to create a trust 7) Lawful purpose 8) In a validly executed document

Note no consideration required 1) Settlor = over 18 and capacity to make k 2) Delivery if titled asset then must be formally transferred to trustee 3) Property /res, settlor must actually own not expectancy Must be identified property, not subject to future determination 4) Trustee: a) Inter vivos anyone b) Testamentary then not 1) under 18, 2) judicially incompetent, 3) convicted felons and 4) incapable because of drunkenness or dishonesty c) Non-resident alien cant be trustee unless (1) related to decedent or (2) resident of NY 5) Beneficiaries 191 | P a g e

a) b) c)

Must be defined and ascertainable If ambiguous then becomes a resulting trust Exceptions: family or next of kin okay

6) Intent to: a) Create and enforceable obligation (not mere precatory language) b) Trustee must be given duties, if not duties then called passive which is not a trust 7) Lawful purpose: not for (1) commission of crime, (2) destruction of property, (3) against public policy a) Restriction on marriage is against public policy. But limiting marriage to particular religion or race valid. 8) Trust execution a) Writing b) Signed by settlor AND c) Notarized or signed by 2 witnesses

II.

TYPES OF TRUSTS
A. Revocable inter-vivos trust a. Only requirement: settlor cant be the sole trustee and sole beneficiary. b. Settlor may be a trustee c. Settlor may be an income beneficiary for life d. Settlors Estate can be beneficiary but there needs to be at least another beneficiary e. Settlor can retain power to amend or terminate

B. Pour-Over Gift 1. Pour over is where you have a testamentary gift to an existing trust a) Avoids wills formalities. Trust can be changed during lifetime of settlor b) Key requirementtrust must be in existence or concurrent when the will is executed c) Pour over can go to a trust that the settlor did not make d) Pour-gift valid even if the trust is unfunded 2. Life insurance proceeds a) You can have insurance proceeds payable to a trust. You can create an unfunded revocable insurance trust. Name trustee as beneficiary. 192 | P a g e

b) If testamentary then in the k must state the trustee named in my will as the life insurance beneficiary c) Can do the same with saving and pension plans C. Totten Trust (ripe for testing) 1. Called bank trust or poor means trust. Its in the depositors name as trust for a named beneficiary. It is not a real trust. No special words are necessary just deposit. 2. Depositor makes deposits during life time, beneficiary has no interest until depositors death. 3. Revocation: a) Withdraw all money b) Express revocation during lifetime during life time by making a writing naming the beneficiary and the financial institution and having revocation notarized and delivered to the bank c) Revocation by will but must comply with the above rule d) Death of the beneficiary 4. The depositor may change the beneficiary but it must be made in the same way as revocation 5. Creditors to the depositor always reach the Totten Trust balance. D. Joint Bank Accounts Not a trust and not a Totten Trust A. The surviving joint tenant takes the whole account without probate. E.g. to John and Jane with right of survivorship B. Challenges: challenger must prove with clear and convincing evidence that a survivorship was never intended and the account was merely opened as convenience to the depositor, then survivorship language can be set aside. C. Each joint tenant holds one half of the joint account regardless of who deposited. If one joint tenant deposits more than the other it is treated as a gift to the other joint tenant. a) Note: joint tenant can mess up his share if he takes more than half of the account during the co-tenants lifetime, where at death he takes all. E. Uniform Transfers to minors Act UTMA 1. 3 benefits of UTMA a. Avoids guardian proceeding b. Avoids trust c. It qualifies for the 13k per done annual exception 2. Gist under the UTMA made to a custodian and must specify make under the NY UTMA 3. Can be made by will 193 | P a g e

4. Duties of the custodian a. Hold, manage and invest the property (prudent investor standard) b. Pay to the minor for his needs c. Pay left over to him at 19 (21 before 1997) 5. Legal title is with the minor 6. Donor appointed as custodian then money stays in his gross tax estate F. Charitable trust Not a real trust 1. Characteristics: a. must be indefinite beneficiaries and they must be a reasonably large group (the opposite of a trust that requires ascertainable group) b. exception: a trust for the masses is OK 2. for charitable purposes only (health, education, religion) 3. may be perpetual and NOT subject to RAP (like other trusts) 4. Cy Pres (near as possible) doctrine applies. If stated purpose cannot be fulfilled then court will order as near as possible 5. Attorney General represents the trusts indispensable party and has standing G. Other not Trusts: 1. Honorary trust no human being is beneficiary. Gift generally falls into the residuary estate a. Exceptions: i. Pet trust: last for duration of pets life. Enforced by s/o designated in will or by court order ii. Cemetery trust: classified as charitable trust (no RAP issue) 2. Constructive trusts: equitable remedy to prevent unjust enrichment from a wrongdoer 3. Resulting trust not a trust but equitable remedy a. Purchase Money Resulting Trusts not recognized in NY (unless done promises and clear and convincing evidence. i. Defined: someone puts property in TP name and TP doesnt want to gift it back. NY does not recognize it. H. Statutory Spendthrift Rule NY automatically included in all trusts as to income need expressly state not spend thrift As to principal not included unless expressly stated 1. Spendthrift provision protects from voluntary and involuntary transfers of trust, specifically to creditors 2. Spendthrift protection to remainder beneficiaries you need express state it 3. 5 exceptions 194 | P a g e

Creditor providing necessities Child support and alimony Federal tax lien Access income beyond support and education (very hard to get to b/c its based on Bs lifestyle) v. 10% levy under CPLR 5205 to all creditors 4. does not protect the settlor 5. no protection to a revocable trust

i. ii. iii. iv.

III.

MODIFICATION AND TERMINATION

A. Trust Modification 1. Appropriate when_____ 2. Claftin doctrine = primary purpose of the trust comes before the specific direction in the trust 3. 2 part Test: (1) intent of the settlor, (2) if the specific directions frustrates the primary purpose. Then changed by the court 4. court may also authorize an invasion if not enough from the income.. B. Termination 1. Trust cant terminate or amend unless power expressly reserved in the trust 2. Exceptions to Termination of irrevocable trust: a. ALL Beneficiaries consent b. But NO ONE CAN CONSENT FOR MINORS (gestation not minor) c. Unborn children and next of kin or heirs dont need to consent

IV.

TRUST ADMINISTRATION
A. Trustee Powers: 1) NY Fiduciary Powers Act a. Power to exercise without court order or express authorization b. Very broad powers to don almost anything e.g. sell, mortgage, lease, repairs, contest, settle 2) Trustee cannot: a. Engage in self-dealings b. Borrow money on behalf of the trust c. Continue a business under the trust (if he does liable for losses unless court approval) 3) Self-dealing a. 5 prohibitions: absolute rule i. Cant buy/sell to himself ii. Cant borrow trusts funds (even if fair interest rate and secure)

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iii. Cant lend money to the corporation (must return interest and security) iv. Cant profit from self-dealing v. Corporate trustee cant buy its own stock Absolute rule = no defense of reasonableness or good faith b. Affirmative duty: segregate trusts funds and title in trusts name i. Remedy: return profit and swallow all losses. B. Remedies for Breach of fiduciary 4. Sue to remove trustee 5. May ratify and waive (if very beneficial to trust) 6. Surcharge action sue for any loss 7. May always demand an accounting C. Third parties a. Cant go after a TP BFP unless actual notice of self-dealing b. May go after TP if related to trustee D. Exculpatory clause a. May be used in an inter vivos trust b. Cannot be used in testamentary ..

V.

LIABILITIES OF TRUSTEE
A. k 1) Depends how trustee signed his name. must sign on behalf of trust. S a. signing in his own name mentioning the trust will still create personal liability in the trustee. Needs to be signed by trust 2) Even if personal liable may indemnify to trust if (1) k was w/i powers of the trustee and (2) acting in proper course of administration B. Tort 1) Trustee liable personal and for trustees employees a. He can get liability insurance and bill the trust 2) Trustee can get reimbursement if (1) acting in trustee powers and (2) trustee was no personally liable C. Trustee investment powers (1) Trustee may manage and invest (2) Uniform Prudent investment Act look at the whole (3) UPIA: Modern portfolio key is maximum total return and entire big picture custom tailored investment strategy look at (1) overall trust portfolio and (2)expected total return. (protects against isolated shitty investments) trustee doesnt have to justify every single investment rather the whole. Dont look at hindsight.

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(4) Trustee has adjustment powers

VI.

RULES AGAINST PERPETUITIES

RAP = no interest valid if it can vest after LIB + 21 years RAP ratified statute automatically reduces all age contingencies to 21 years RAP applies to trusts Rules against suspension act Rule: void is it suspends the power to alienate for a period longer than lives in being + 21 years But only when there are NO persons who can TOGETHER transfer title Specific problems: a) Spend thrift b) Life estate in an unborn person or in an open class that may possible include an unborn person

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NY12 WILLS
I. INTESTACY
EPTL: Estates and Trusts Law SCPA: Surrogates Court Proceeding Act A. Intestacy Glossary Intestate Decedent: person dies w/o a will Distributee: person who inherits Issue: all lineal descendants Administration Administration proceeding Intestate property Operation of law Residuary B. Order or priority i. Spouse ii. Children iii. Grandchildren iv. Parents v. Siblings vi. Any other distribute C. Distribution A. Surviving spouse 1. No children = 100% 2. Children = first 50k + 50% D. Children 1. Per capa at each generation (by representation at each generation) a. Scheme: go to first line thats alive and divide in equal shares. Then the nect generation of dead children split the whole pot equally. b. applies both by intestate and by will i. Chart on fractions: 2. Note by will: default rule is per capa at each generation unless specifies per stirpes. a. NY adopts modified per stirpes: which means you go to the first line alive and divide equal shares there. 198 | P a g e

E. Adopted children 1. General rule: Adopt from adopted family, and adopted family adopts from adopted child 2. New family (unrelated prior): no intestate inheritance rights from birth parents or family, birth family dont inherit from adopted child 3. Child adopted by spouse of birth parent: then inherits from both adopting parent and birth parent 4. Adopted by relative, special rule a. Child inherits from birth relationship b. Unless the decedent was the adopting parent then child inherits under the adoptive relationship F. Nonmarital children a. Full inheritance rights b. Proving it i. Father marries mother ii. Paternity suit iii. Files and acknowledges iv. DNA v. Open and notoriously acknowledges G. Disqualifications: DISMAL a. Divorce b. Invalid divorce in NY but in other state c. Separation decree: by spouse that wants to inherit d. Marriage void e. Abandonment or lack of support by spouse that wants to inherit H. Advancements: a. No advancement unless i. Contemporaneous writing made at the time of the gift and ii. Signed by donor or done I. Disclaimer a. a/o can disclaim b. considered as if predeceased the decedent and passes c. cant screw over other takers by disclaiming (e.g. disclaimer has children and would screw over a predecsed siblings child) d. requirements: i. writing ii. affidavit that no consideration in return iii. irrevocable iv. files with surrogate court w/I 9 months 199 | P a g e

e. cant disclaim to get Medicaid or medicare

II.

WILLS
WILLS FORMATION
A. 7 point test (1) 18 years old (2) Signed by the T or by Ts direction If by Ts direction then signor cant be witness and must sign own name also and give address (3) Ts signature at the end (4) T must sign or acknoldge in the present of each withness (5) Publication, tell the witnesses that this is his will (6) At least 2 attesting witneses witnesses need not sign in each others ot Ts presence T must acknowledge or sign first (7) Execution ceremony must be completed in 30 days Starts to run from first Ws signature

Codicil requires same formalities B. Burden of proof a. Proponent has the burden 1. Attestation clause a. Defined: appears below the signature line and recites the elements of due execution b. Probative value: perma facia evidence of facts presented. You can use it to remind witness of for a hostile witness c. Not a substitute for live testimony 2. Self-proving affidavit a. Defined: witneses sign a sworn statement in the presence of an attorney reciting all the statements they would state at trial b. This is a substitute for live testimony C. Interested witness statute a. Rule: will is valid but interested witness is void b. Not void unless would have taken under intestate law i. In that case take the lesser of intestate share and will D. Foreign Wills Act 1. Admitted in NY if validly executed under a. Law of state where executed b. NY law regardless where 200 | P a g e

c. Law of the state the T was domiciled E. Holographic will are not recognized in NY a. Exception armed forces until one year of discharge Lawyer Malpractice No privity to beneficiaries so they cant sue There is privity to the personal representative (permitted suing lawyer for bad tax estate planning)

III.

REVOCATION OF WILLS
A. Valid revocation: 1) Rule i. Subsequent testamentary act ii. Physical act a. Must touch the letters of the will B. Express revocation: I hereby revoke my old will C. Revocation by implication 1) Convey over the same property in a subsequent will (note: to the extent possible you treat the secnd as a codicil) 2) If wholy inconsistent then revokes original will D. Revocation by act of another only if: i. Ts request ii. T present iii. T other witnesses present (need 4 people there) E. Presumptions: will not found presumed revoked F. Changes after execution only with 1) Only 2 ways i. Codicil ii. New properly executed document 2) Words added after executed are disregarded i. partial revocation by physical act in NOT recognized in NY

A. PHYSICAL ACT AND WRITING

B. REVIVAL
A. No Revival of revoked wills 1) You must properly re-execute the revoked will to revive merely revoking a second will does not revive a previous will 201 | P a g e

i. By codicil and incorporate be reference the original revoked will 2) DRR 3) Lost will statute

C. REVOCATION BY OPERATION OF LAW

A. Marriage does not affect the validity of a will B. Divorce has no effect on the validity of a will (it only affects the disposition to the spouse) C. Divorce, annulments and Separation decree 1) Rule: final decree after the execution of the will has the effect or revoking all provisions favoring the spouse (gifts and fiduciary appointments) are revoked by operation of law 2) The divorce does not affect the disposition to the children of the divorced spouse 3) If the spouses get remarried then all provisions in favor of the former spouse are restored. 4) annulment, divorce, separation decree also voids other non-testamentary gift. It will void: i. Voids life insurance ii. Voids Totten Trusts

D. PRETERMITTED CHILDREN (CHILD NOT IN WILL)

A. Rule: a parent is not required to leave his children anything. B. Applicable state: EPTL: protects an after born child that are not provided for anyway in settlement or by will C. Rule if the T had after born child after execution rule 1) T had other children at execution: i. If others got nothing, after born child also gets nothing ii. The other children got the after born child gets same as siblings and gift is treated as if a class gift was made. 2) If other children received different amounts step 1: add the amounts together then divide by all the children (including the after-born). Step 2: take that share and take from the others pro rata not equally. i. E.g. A-1M, B, 250k, C after born divide 1.25M/3 and 3) No other children when execute unborn child will take his intestacy share 4) other childrens shares are reduced prorate D. Does not apply if the child received under another settlement 1) Settlement includes: life insurance, Totton Trust E. Wife (other) must be pregnant at the time of death no sperm bank crap

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Words of disinheritance are given full effect in partial intestacy

IV.

CHANGES IN BENEFICIARY AND PROPERTY DURING TS LIFE

A. Anti-lapse state 1) General rule: predease T gift lapses 2) Anti-lapse statute saves legacy if i. Predeceased legatee is Ts issue or sibling AND ii. Predeceased legatee leaves issue 3) Conditional bequest e.g. to A if he survives me then no anti-lapse 4) Adopted out child named in a will will be covered by anti-lapse B. Lapse in Residuary 1) If estate is (a) devised to 2 +, (b) the gift lapses, (c) the anti-lapse does not apply then other residuary beneficiaries take 2) If part covered by the statue then anti-lapse applies also.

A. ANTI-LAPSE STATUTE

SIMULTANEOUS DEATH ACT

A. Rule (Under Revised Uniform Simultaneous Death Act) 1) Clear and convincing evidence that the decedent survived by 120 hours 2) Each is deemed to predeceased the other i. E.g. A husband and wife, A dies and B dies 20 hours later, both intestate. Bs takers want to take As claiming, As property passed to B, now they take. According to the URSDA B is deemed to predecease A and Bs taker dont take from A. Same for As takers claiming Bs share. B. Rule for Joint tenants and tenancy in its entirety: 1) One half-pass to each party (b/c normally the whole thing passes and onehalf would normally be impossible, so it makes sense to split it and each partys heirs get half) C. Only applies for this purpose only, of distributing property. During the 120 hours until he dies he can do whatever he wants.

ABATEMENT AND ADEMPTION

A. Types of gifts 1) Specific gifts 2) Demonstrative legacy 3) General legacy 4) Residuary disposition 203 | P a g e

5) Intestacy: no residuary and no anti-lapse applicable B. Abatement 1) Rule: more gifts/claims against the estate than there are assets to cover then gifts abates 2) Creditors get paid first 3) Order of abatement: 1. Residuary and intestate 2. General: I give 50k to A 3. Demonstrative (pro rata): 4. Specific 5. Items that qualify for estate tax marital reduction C. Ademption (failure of gift) 1) Rule: only by specific gifts, if not in the estate at death the would-be-taker loses. i. Even if there are notes relating to the sale of the specific gift ii. 3 statutory exceptions: 1. Insurance proceeds for lost damaged or destroyed property that are paid after death 2. Proceeds received under an executory k that are paid after death 3. Proceeds from a guardian or conservator sale of specifically bequeathed property the B takes to the extent that the money can be traced. 2) Rule by demonstrative: if no funds in source then turns into a general legacy. 3) Stock split: closely held = specific gift. Public traded = general legacy i. For ademption purposes like general; but takes the stock split like a specific. ii. Does not get stock received from dividends.

V.

COMPONENTS OF THE WILL

Do not recognize incorporation by reference Everything must be dully executed 1. Exception pour over wills Therefore a codicil cannot

A. INCORPORATION BY REFERENCE

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B. ACTS OF INDEPENDENT SIGNIFICANT

Rule: a will may Example: To A the contents of my yacht Exception titled documents e.g. stocks, bonds need mandated by law

VI.

WILL CONTESTS
A. Rule: absent evidence presumption T read and understood the will. So no extrinsic evidence overriding plain meaning.

A. MISTAKE

B. AMBIGUITY
1. Latent: mistake not evident from looking at the will i. Rule: extrinsic evidence admissible. Can introduce: (1)facts and circumstance, (2) statements to third parties, (3) statements to attorney who prepared the will ii. If extrinsic evidence does not cure the ambiguity then gift lapses 2. Patent: mistake in the four corners of the will i. Rule: extrinsic evidence same as latent just NO Statements to third parties admissible

C. CONTRACt TO MAKE

A WILL

1. Joint will: a will with 2 parties 2. Rule: k to make a will can on be established with express provision of intent to make the wills promises are intended as a k. 3. Procedure if surviving T breaches contract and devises a different will: i. Probate the breaching Ts new will (even though written as k) (reason being there may be other provisions that are not part of the original will k) ii. Next, impose a constructive trust in favor of the intended beneficiaries

D. CONDITIONAL WILLS
1. Conditional will: only valid if x condition is met 2. Only time on bar you argue both sides: if conditions only reflects motive valid even if condition triggers if real intent based on condition void

E. TESTAMENTARY CAPACITY
A. Rule T must have capacity to: 205 | P a g e

Understand the nature of the act Know the nature and approximate value of his property natural objects of his bounty (who his family is.) Understand the disposition a) Note: less capacity than any other area of law B. Insane delusion C. Undue influence 1. Burden on contestant to prove: a) Influence: The existence of exertion of influence b) Effect: the effect of the influence was to overpower the mind and will of the T c) Causation: the product of the influence in a will would not have happened but for the influence 2. Following no sufficient alone to prove: a) Opportunity (alone not enough) b) Susceptibility of T, e.g. age, illness (alone not enough) c) Unequal disposition (alone not enough) 3. Inference of UI: (rebuttable inference) a) Gift to one in confidential relationship AND b) Person was active in preparing the will 4. Bequeath to drafting attorney: automatic inquiry by surrogate court with a challenge (Putman scrutiny) 5. Appointment by drafting attorney a) Only entitled to half the statutory commission unless: b) (Will get full commission if) Written consent signed by T that (1) a/o can be made executor, (2) executor gets statutory commission, (3) attorney will also get legal fees, (4) presence of 2 witnesses, (5) signed by t.

1. 2. 3. 4.

F. NO CONTEST CLAUSE IN TERROREM

1. NY Rule: given full effect even if contested with probable cause and in good faith 2. Exceptions: i. Claims of forgery or revoked by later will, (but still no contest that previos will was revoked by physical act) ii. Infant will not lose if his guardian filled on his behalf iii. Construction proceedings ok iv. Objections to jurisdiction 3. Safe harbor provisions available in discovery only: a. Person who prepared the will b. Request for attesting witnesses c. The will proponents 206 | P a g e

d. The named executors 4. Note: T can provide any terms for no contest has he wishes so long as expressed (e.g. no contest not even safe harbors)

G. ADMITTING DESTROYED WILL TO PROBATE

1. A destroyed will may be admitted to probate if: a. Established that will has not been revoked b. Prove due execution c. All provision proved with either witnesses or copy

VII.

ELECTIVE SHARE
A. Rule 1. Calculation (greater of 50k or 1/3 net estate) any testamentary or testamentary substitute dispositions = elective share B. Payment 1. The calculation in theory is only applied to the net probate estate 2. If elective share is not satisfied from the probate estate then the SS takes from other taker pro rata. Takes from beneficiaries under the will and fro testamentary substitutes 3. Note intestate share is always greater (50k +1/2 v only 1/3) C. Net Estate: includes Testamentary substitutes 1. Rule: the elective share includes the probate estate and testamentary substitutes (Tsub) called augmented estate aka elective share estate 2. Types of substitutes i. Totten Trusts ii. Survivorship accounts (joint tenancies) iii. Life transfers with strings attached a. Revocable trusts, life estate iv. Employee pension plan v. Gifts made within 1 year of death a. Excess of 13k and b. Gifts causa mortis (fear of death) vi. US Bonds vii. Power of appointments 3. Tip: if T had some interest probably in the estate 4. Non-Tsubs NOT INCLUDED IN THE NET ESTATE: i. Life insurance

Purpose to protect the surviving spouse from getting screwed

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ii. One pension iii. Gifts less than 13k or made over 1 year iv. Pre-marriage irrevocable transfers v. Irrevocable transfers made over a year of death D. Calculation of T-subs 1. Rule: full value of the T-sub is included in the elective share estate 2. Exceptions i. Survivorship estates involving third party AFTER marriage a) Consideration furnished test: SS has the burden of proving how much the decedent contributed and that amount goes into the net probate estate ii. Survivorship accounts between T and SS AFTER marriage a) NY fictional test1/2 of the account is in the estate. No consideration furnished test. (its fictional because SS gets title to all as joint T with survivorship rights, but NY takes half into the probate estate for calculated the share) iii. Survivorship accounts CREATED BEFORE marriage with SS a) now apply the consideration furnished test BUT ONLY up to the account E. Intestate 1. Rule a SS may take intestate (Children 50k + , no children 100% or probate estate) or elective share (includes T-subs) 2. Note: she will only want elective share if there are substantial assets in T-subs, i.e. if 1/3 of the augmented estate is greater than the probate estate (which does not including T-subs).

VIII.

POWER OF APPOINTMENT
A. Definitions: (1) Donor: creator of the appointment (2) Donee: person whos given the power to use (3) Power of appointment: an authority created in (or reserved) by a donee enabling the donee to designate, within limits prescribed by the donor, the persons who shall take the donors property and the manner in which they take (4) Takers in default: persons who take if the donee fails to correctly exercise the power

Characteristic: (1) General Power of appointment: donee can appoint to almost a/o, herself, creditors, or her estate. Just like owning the property herself 208 | P a g e

(2) Special Power of appointment: (limited power of appointment) donee cant appoint to herself (3) Presently exercisable Power of Appointment: donee can exercise during lifetime (4) Testamentary Power of Appointment: only by will B. Rules 1. General Power of Appointment i. Donees creditors can reach the property ii. Failure to exercise the power then passes to donees heirs or residuary legatees 2. Special Power of Appointment i. Donees creditors cannot reach the property ii. Exclusive: if it may be exercised in favor of some and not others. Presumed exclusive iii. Nonexclusive: in favor of all the appointees.

RAP, SUSPENSION AND POWER OF APPOINTMENT

WTF!!!!!! Rap and Suspension Rule Checklist (4/6/10) 1) identify the interest 2) Determine whether the measuring from date of creation or date of exercise 3) Determine the Second Look Doctrine applies 4) give the RAP rule 5) find the LIB and run with it 6) most likely, apply the NY reform statute 7) give the suspension rule 8) Look to see if there is an income interest in an unborn beneficiary and state the income interest is void or 9) Go further by giving the statutory spend thrift rule and the income interest will be void (might be saved with NY reform statute) 10)Dont forget the remainder interest A. RAP, Suspension rule and Statutory Spendthrift rule apply to Powers of Appointment B. Approach: 1. Identify the type of POAp 2. Is the power itself valid? 3. Is the interest created by the power valid? C. Some rules: 209 | P a g e

1. Powers to appoint: remainders interest. Approach: i. Identify the type of power (e.g. special testamentary POAp) ii. Step 2: is the power itself valid? 1. Rule: a special or general POAp must be certain to be exercised within LIB + 21yrs. iii. Step 3: are the interest themselves valid? 1. Rule to be valid..are measured from the date the instrument was created for (1) special POAp and (2) general testamentary POAp 2. Special NY rule fill in the blanks rule: we treat donee as donors agent 3. second look/ Wait and see doctrine: wait to see and we fill in the blanks looking at the facts in existence at the time the donee exercises the future 4. Also apply the NY reform statute that lowers the age to 21 2. Powers to Appoint: Income interest approach: i. Step 1: identify the type of power: (e.g. general presently power) note: general presently exercisable POAp are different than special ii. step 2: id the power valid: 1. rule: the geral presently exercisable POAp must be certain to be acquired within LIB + 21 iii. step 3: are the interest created by the power valid? 1. Rule: measured from date of the instrument excersising the power NOT the creation 2. Does it violate suspension rule? a. Spendthrift rule violated the suspension? b. Rule of thumb: income interest built on prior income interest2nd usually invalid 3. does it violate RAP? a. Rule of thumb: (1) income interest built on prior income interest 2nd usually void b. ..if 2nd built on a condition of reaching a certain age usually void but saved by reform statute 4. Even if invalid can it be saved? a. by reform statute? b. second look doctrine 3. If cant be saved then part that is bad is terminated and accelerate to the remainders. 210 | P a g e

NY13 DOMESTIC RELATIONS

Before Marriage

A. PRE-MARRIAGE
A. Contract between Co-habitats 1. NY now recognizes ks between cohabitants 2. Exception: consideration for sex. There must be consideration for s/t others than sex. (e.g. valid: in consideration for effort and labors of taking care of house will pay 100k for 3 years) 3. NY will not create a presumed k between cohabitants. Must be expressed. B. Premarital agreement. 1. Formation i. Terminology: a/f/a prenuptial agreements, afa antnuptial agreement now: premarital agreement ii. Creation: (remember this is a k) 1. SOF (writing, signed) 2. Freely made. (real k defenses: Any form of duress is grounds for non-enforcement ) 3. Fair and reasonable 4. Not unconscionable at time of divorce (e.g. concealment of assets) iii. Testable area: create prenuptial, leave C. Children 1. Nonmarital child i. What is the status of unborn children and children born out-of wedlock. (term went from bastard to illegitimate child now, Nonmarital marriage) ii. Rights: today almost every right as child born of marriage,(constitutional) : sue for wrongful death of parent, inheritance, . 2. Determining parenthood. 1. Filiation proceeding (other states: parental proceeding) a. In ___ court b. Standing: (1)mother, (2)child, (3) state of NY c. Filing a/t before 21 birthday 211 | P a g e

d. Evidentiary points: i. Clear and convincing evidence ii. Mothers acts of sexual acts need not be corroborated iii. Defendants claim of mothers acts of sexual acts with other men must be corroborated iv. DNA (ordered on request of any party) if excludes the defendant conclusive evidence. If 95% chance that hes the father the burden falls on father. 3. Paternity by estoppel a man who has erroneously acted as child father and child relied to his detriment the father can be estopped if child relied to his detriment.

B. MARRIAGE: UNDERGOING AND ALTERING

A. Marriage 1. State certifies, reason is child is a contract need to be 2. Requirement a) Ceremony: 3 requirements: 1) officiant (member of clergy, civil officer administered to admission oath, ship captain); 2) witness (other than the officiant) (stupid fact: the best man and maid of honor stem from the old custom requiring witnesses from each family); 3)exchange promises. Solemn declaration that you are taking on status of husband and wife. No special words required. b) Does not recognize common law marriage. exception: if married as a common law in a common law marriage state then recognized in NY c) NY now recognizes same-sex marriages B. Specific Types of Matrimonial Actions Jurisdiction: Supreme Court Void v voidable a) Void = marriage never existed. Dont need any court approval and anyone can move for the declaration 1. Grounds: (i) bigamy, (ii) incest b) Voidable = marriage exist until judge grants annulment 1. Grounds: 1) age, 2) incapacity, 3) duress, 5) fraud, 6) imprisonment 4 Proceeding: 1) Declaration of nullity, 2) annulment, 3) separation, 4) divorce. 212 | P a g e

1. Declaration of nullity: for void marriages. when one party in the marriage lacked capacity to marriage and the lack of capacity rendered the marriage void. Since void = no marriage so only need it, its only a declaration). Dont need the proceeding but will do it for (1) notation in the record, (2) may need collateral issues resolved by the judge (property distribution) 2. Grounds to void: a. Bigamy (you must be single to marry) b. Incest: ancestors, descendants, siblings(whole or half), lineal relatives one up/down (uncle-niece, auntnephew). Only blood: Doesnt apply if adopted/step. Note: also a crime 2. Annulment: voidable marriage needs judge to grant termination of marriage. Discretion of the court. i. Waivable: if continue to live as spouse and cohabit. ii. Grounds for annulment: 1. nonage, one party too young. Ages: 18: alone. 16: with consent by both parents. 14-16: consent and judge. Under 14: never 2. Mental incapacity at time of the marriage. (i) Developmental disability (ii) mental incapacity. Procedure by guardian. a. Waivable: if cohabitation after becoming lucid/recovering from mental incapacity. 3. Duress: forced to marry. Waivable by cohabitating. 4. Fraud: involve a failure to disclose of misrepresentation of something vital to the marital marriage. (Waivable) a. Must be brought within 3 years from s discovery b. Lying about religion =material c. Lying about procreation or sex = material. Unable to have children and keep that a secret. d. Concealment of money, property social status is NOT vital to marriage and NOT grounds for annulment. e. Incurring physical condition that prevents from safe and normal intercourse. i. Sol: 5 years, No jury trial 5. 5 years of incurable mental illness a. Procedure: 3 appointed court appointed physicians b. No sol 3. Legal separation 213 | P a g e

i. Court Leaves the marriage intact but permits separation with abandonment. Why do it? Tax, health insurance, religious reasons. ii. Procedure: judge only, no jury. Facts specific. Can be permenant of term. iii. 5 Grounds: 1. Cruel and inhuman treatment. (both physical and mental) must endanger the spouse and render cohabitation unsafe or improper. Physical is domestic violence (one event is enough). Mental is practice over period of time, one event probably not enough, degrading, silent treatment. (Mental is broad, one case no hygiene) 2. Abandonment: elements: (i) voluntary leaves marriage, (ii) without consent of other spouse, (iii) unjustified, (iv)no intent to return(circumstantial evidence). Abandons the marriage, not necessary the structure. You can have a constructive abandonment, e.g. stops being physically intimate or refusal to be financially responsible. 3. Adultery: act of sex or deviant sex voluntary performed who is not spouse during the marriage. i. defenses: (i) condonation: voluntary cohabit with knowledge of the offense, (ii) recrimination: also had misconduct, (iii) SOL: 5 years from discovery, (iv) connivance: similar to entrapment, spouse lures the spouse to enter in the offense. ii. Proof must come from a third party witness, not just the spouse. 4. 3 years of consecutive imprisonment during marriage 5. Failure to support 4. Divorce i. NY just adopted no fault divorce ii. Grounds (6): 1. Cruelty (same as separation) 2. Abandonment: a. Must last at least a full year 3. Adultery (same as separation) 4. 3 years of imprisonment (same as separation) 5. Conversion divorce: 2 step process, the couple first separates and then convert the separation into a divorce. The underlying separation can either be (i) 214 | P a g e

litigated separation lawsuit or (ii) mutual agreement of the parties called separation agreement and live separately for a year. i. Separation agreements: freely made, in writing, signed and acknowledged (notarized), then must file with court. If you rescind the agreement then ends, such as cohabitation with intent to reconcile or rescind in writing. 6. Irretrievable breakdown a. Must take an oath, not clear if you need a trial or if you can contest. b. Will not be entered until all collateral issues have been resolved or agreement. Other action 1. Dissolution for Absence i. Claim that spouse has vanished. Claim requires that spouse has been missing without tiding for at least 5 years ii. Requirements: i. Diligent search ii. Publish request that spouse return in English language iii. Must live in NY for one year or NY was matrimonial domicile Procedural Note: 1. Automatic Orders i. As soon as the complaint is filed an order is automatically filed that (i) dispose or encumber property, (ii) disclose financials, (iii) incur unreasonable

C. ECONOMIC ISSUES
A. Maintenance (other states alimony) 1. Temporary maintenance: maintenance for the spouse during the proceedings. a) Calculation: there is a calculation and yields a presumptive award. 2. Post-Judgment Maintenance a) Showing a need of the applicant. b) Calculation: There are 19 factors that the court relies on court may use any other factors that it determines to be just and proper. (you cant really get them wrong since you can add others) c) Modification, termination, and 215 | P a g e

d) Arrears: past due, may request a modification or annulment for good cause before judgment. But once the past payments become due they cannot be modified, they become debts. e) Termination: terminates by (1) k in separation agreement, (2) terminates at death (unless by k), (3) recipient remarries or cohabits f) Enforcement: ii. Wage reduction order: require employer to send wages directly iii. Take away drivers license iv. Contempt of court A. Distribution 2. NY uses Equitable distribution 3. Steps: 1) classify, 2) divide. 4. Categories (one of 3) (separate, marital, ) a) Separate property (5 things) 1. Any asset owned my spouse prior to the marriage 2. Bequeath, gift, inheritance after marriage in Ss sole name (from nonspouse) 3. Compensation from personal injuries 4. Agreement that spouses agreement to treat as separate 5. Appreciation in value or in exchange of separate property a. Unless the appreciation is due from active participation during the marriage b. staying at home = active participation c. assume most appreciation are from participation if any work is involved. Stocks will be separate appreciation b) Marital property 1. assets presumed marital 2. Anything acquired during the marriage 3. Vested intangibles: e.g. stock rights acquired during marriage, pensions. 4. Value of professional license or degree a. Valuation: the amount earned over the life of the degree discounted to present value (when it comes to divide, the judge will give other assets and let the JD keep the degree) b. Avoid double counting, you cant take the appreciation of the degree and take as maintenance 5. Division 216 | P a g e

a) b)

Separate property is kept separate Marital property is divided by discretion of court equitably a. Not supposed to take marital fault as part of distribution. Exception: the fault is (i) egregious, (ii) shocks the court, (iii) b. Considerations: i. loss of health insurance ii. loss of inheritance rights iii. marital home: need of parent to stay in home to take care of children c. after equitable distribution court can appoint a percentage, split up assets or distributive award d. distributive award: e.g. all assets are titled in one spouses name court can order one spouse to simply right a lump sum check.

D. PROVISIONS FOR CHILDREN

A. Custody 1. Procedures: a) Can sever a tie to parents 2. Termination of parental rights. a) Judicial termination Grounds: i. Abandonment: 6 months ii. Permanent neglect: child already removed from the home, and parent has failed to maintain sufficient contact or planning. iii. Abuse iv. Mental or developmental impairment v. Killing a sibling 3. Adoption a) Who may adopt i. Almost any adult: single, unmarried cohabitants, b) Anyone may be adopted: c) Consenting persons: 1. Marital child: consent from both parents 2. Non-married child, father may not block adoption he may first be willing to take custody before his consent is needed 3. Consent is NOT necessary if: lost custody.. d) Take consideration of religious beliefs for placements e) Will place in family first 1. Child support 217 | P a g e

1.1. Parent have obligation to support through 21, 1.2. No duty to send to college but If child has the ability to go to the college then obligation to support through college if imposed by court looking at financial ability and standard of living. 1.3. Court will probably only get involved if there is a noncustodial parent 1.3.1. Cases: after divorce or Nonmarital child after a filiation proceeding 1.4. Child support orders: 1.4.1. Last continuously until court granted modification 1.4.1.1. Entitled to ask for modification of (a) last order over 3 years ago, (b) parents income changed up/down. 1.5. Enforcements: 1.5.1. Same as maintenance 1.5.2. Civil contempt proceeding: holding not necessarily DP constitutionally entitled to counsel if there are substantive safeguards in place for indingent pro se parent, . Such as: 1) process of contacting indigent parent, 2) 2. Child Custody 2.1. Best interest of the child standard (BIC) 2.1.1. Factors: 2.1.1.1. Look at health of all parties considered. (physical and mental) 2.1.1.2. Educational and financial status of both parents. Not necessarily in the richer parent, but a consideration to support 2.1.1.3. History of domestic violence 2.1.1.4. Any criminal activity 2.1.1.5. Parent have new companion, look at the new companions character 2.1.1.6. Keeping siblings together 2.1.1.7. If joint custody do they have a cooperative relationship and live near each other. 2.2. Visitation: entitled to a natural right of regular visitation 2.2.1. Non-contingent on payment of child support 2.2.2. Interference is grounds for contempt of court 2.2.3. Grandparents: 2.2.3.1. may petition for visitation. Must balance: parents have right a DP to raise their children as they see fit but judge cant bar grandparents. Grandparents must show substantial .but parents wishes will probably will 2.3. Relocation: after custodial parent gets custody 2.3.1. Must receive court permission before relocation 2.3.2. Must show BIC 218 | P a g e

E. FULL FAITH AND CREDITS

1) Marriage a) Other state marriage i) NY will recognize unless bigamous b) Foreign 2) Divorce a) NY will recognize out-of state divorce i) Has res judicata effect ii) Ex parte If only one spouse petitioned and granted divorce, NY will only recognize if really domiciliary of that state b) Comity: foreign country divorce will be recognized in divorce i) Ex parte foreign divorces are invalid 3) Child support order a) Uniform Interstate Family Support Act: Once a support order was granted in a state, that state has exclusive and continuous jurisdiction so long as parent and one child remains in that in that state. This applies 4) Child custody a) Home state, (home state= live there at least 6 months) once the home state enters an order that court has exclusive jurisdiction b) Felony to remove a child from the state of NY in violation of a court order.

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FEDERAL JURISDICTION
Overview: Will almost always be tested with a another area

I.

JURISDICTION
A. PJ = power of the parties B. How is it determined? Same as as PJ in NY state court

A. PERSONAL JURISDICTION

B. SUBJECT MATTER JURISDICTION

Power of over the case A. Fed courts may only hear 2 cases: 1. Diversity 2. Federal question B. Diversity and Alienage: requirements: 1. Requirements i. Diversity Between a. citizens of different states or b. citizen of a state and alien (non-US citizen) ii. Amount in controversy 75k 2. For Natural Persons: i. Rule: Need diversity off and ALL S , if one of multiple is cocitizen and ii. Must have at least one citizen a. Two foreign aliens may not sue in federal court under b. alienage/diversity, need at least one US citizen c. US citizen domiciled out of country may NOT iii. Domicile = 1) physical presence and 2) intent to remain 3. Corporations i. Can have 2 citizenships, both: a. The state or country where incorporated AND b. The state or country of its principle place of business (PPB) c. Note: distinguish PJ which the minimum contacts test. For SubJ only 2 places for diversity purposes 4. Unincorporated i. All places of ALL THE MEBERS are citizens 220 | P a g e

5. Minors i. The minors place of citizenship, not the place of guardian of executor. C. Amount in controversy 1. Only the claim not the cost of litigation 2. Must be at least $75,000.01 meaning 75k is not enough you need over 75k. 3. Aggregation i. Rule: one v one : you can join separate and unrelated claims to reach the 75,000.01. ii. Multiple defendant: no aggregation iii. Joint tortfeasors: then aggregation 4. Equitable case i. If it D. Federal Question 1. Rule: the claim must arise under federal law. The Complaint must show an interest founded substantially on federal law i. Citizen of parties irrelevant ii. Immaterial the amount in controversy 2. Determining federal question: i. Well-pleaded rule: does complaint well-pleaded, just stating Ps claim, w/o extraneous material, would it be federal. is the P enforcing a federal right a. If the federal law ii.

C. SUPPLEMENTAL JURISDICTION
Important rule: every claim must have Subject Matter Jurisdiction, ONCE THE CLAIM IS IN FEDERAL COURT CAN YOU ASSERT ADDITIONAL CLAIMS? A. Rule: 1. Once the claim is already in federal court then can move for supplemental jurisdiction to add other claims that do not have subject matter Ju. 2. Test: i. must be share common nucleus of operative facts with the claim that has SubMJu ii. Will always be met if same transaction or occurrence B. Limitations 1. Cant be used by in a diversity case to overcome lack of diversity i. E.g. P(NY) v D1 (CA) an D2 (NY), same transaction. P cant sue D1, get case in fed court on diversity, then add D2 as supplemental.

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ii. (cant use supplemental jurisdiction to get into fed court thrugh back door) iii. may use supplemental to get around amount in controversy 2. Summary of the rule: a non-federal, non-diversity claim can be hears in federal court if it meets the STAO test UNLESS: a. ASSERTED BY PLAINTIFF b. And in a diviersity case c. And is against a CITIZEN OF the SAME STATE AS

D. REMOVAL
A. Only one way from state to federal 1. Timing: 30 days after service of the first paper that make the case removable i. From service NOT from filing 2. Who can remove: i. Only . can NEVER remove ii. ALL defendants served with process must join iii. If the now adds another 2, the time resets and now 3o days from serving 2. B. Grounds for removal 1. A case that could have been brought originally in FC under (diversity or FQ) 2. 2 Exception: ONLY IN DIVERSITY CASES: i. NO removal if any is citizen of the state court that the case was filed a. E.g. P(NY) sues D1 (CO) and D2 (FL) in Florida state court cant remove to federal court since the case filed in D2 state of FL ii. No removal after one year of filing C. Place of removal 1. The federal court which embraces the state court D. Procedures

E. ERIE DOCTRINE
A. Rule: 1. Federal court in diversity case the federal court must apply state substantive law B. Easy approach 1. Step one: (easy Erie) if there a federal law on point that that directly contradicts state law, then use the federal rule, as long as valid. i. Why use fed law: supremacy claue of constitution ii. Fed law on point: FRCP orFRE

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iii. Federal rule valid? If arguable procedural (presumption all FRCP are valid) 2. Step two: (easy Erie) if no Federal Law on point: is it an easy one? i. List of easy ones: a. Elements of a claim of defense b. SOL c. Tolling ruls of SOL d. Conflicts of law 3. Step three (hard as bitch Erie) 3 part test: i. Note: never tested hard Erie ii. Outcome determinative? iii. Balance of interest iv. Avoid forum shopping

II.

VENUE
Venue is once in federal court which district is proper A. Rule venue is proper: 1. A district where ALL defendants reside or 2. Where substantial part of the claim arose. B. Residents of 1. Corporations same as PJ 2. Person- domicile C. Transfer of Venue 1. Place where there is PJ over the 2. If transfer you apply the state law of original court that filed 3. May also transfer for convienance of the parties i. Weigh public and privare factors ii. Interest of justice

III.

SERVICE OF PROCESS
A. General rule: 1. Process: refers to summons and complaint. 2. Timing: within 120 days of filing B. Mechanics: 1. Servers: Any person over 18 that is not the party 2. Methods of service: i. Permitted by FRCP ii. Method under the State court which it sits iii. The law of the state which the service is effective. 3. Methods under the FRCP

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i. Personal= anywhere the is located ii. Substitute service= may serve on the place the usually abodes AND to a person who lives there iii. Authorized agent 4. Waive: may send in waiver of service docs. If waiver filed. If does not waive then may be liable for cost of process.

IV.

JOINDER OF PARTIES
A. Parties 1. Proper parties: who may be joined: determined by a. Same transaction or occurrence AND b. Raise at least one common question 2. Subject matter jurisdiction: you need either submj of supj to get int 3. Who must be joined? Necessary parties i. If necessary court may order joinder if: a. w/o absentee, cannot accord complete relief b. absentees interest will harmed if doesnt join c. Absentee claims an interest which subjects a party to possibility of multiple obligations ii. Joint tortfeasors are never necessary 4. Next step: can necessary parties be joined: you need PJ and cant mess up diversity 5. Third step: wither join or dismiss i. Balancing test ii. If court dismisses then absentee is called an indispensable party

Claims by Defendant A. Counter claim (made by against in answer) 1. Compulsory (if you dont use it you lose it) i. Rule: if has a claim against that arises out of the same transaction or occurrence must raise the claim in his answer if does not he can NEVER bring the claim again ii. NOTE: this is the ONLY compulsory 2. Permissive: a separate claim that does not arise out same transaction or occurrence 3. still need subMJ and SupJ i. Note: if got in with diversity and 75.01k can counter claim in FC even if counter claim less the 75k. B. Cross claim (made against a co-party) 1. Same transaction of occurrence T/O test 224 | P a g e

2. Cross claims are NEVER compulsory 3. Note almost always supJ, since cross claim usually , the exclusions dont apply to . C. Impleader (third part practice) 1. Defendants can join a Third-Party defendant 2. Requirements: i. If the may indemnify to a TP ii. Timing: 14 days of serving answer D. Intervention 1. Absentee may move to join in. 2. Absentee of Right: i. Absentee will be harmed if does not intervene 3. Permissive intervention i. A claim or defense that has at least one common question 4. Note supplemental jurisdiction must be

F. MULTIPLE JOINDER SITUATIONS

E. Interpleader 1. Applies: when one is holding property wants to force all potential claiments into a single case to avoid multiple litigations with different results 2. 2 ways to do invoke the same thing: (rule and statute) i. Rule interpleader: (treated like a regular diversity case) a. must be diverse from every claimant b. at least over 75k c. service of process: ii. Statute interpleader: a. May be diverse from one other claimant b. Over $500 c. Service of process: nation wide d. Venue: any district where any claimant reside.

G. CLASS ACTIONS
A. Requirements 1. Numirality: too numerous to join 2. Commonality: common q to class 3. Typicality: representative claim is typical to the class, and 4. Adequacy: the representative will fairly represent the class B. Types of class action (3 types) 1. Prejudice class action (never been tested on any bar exam)

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C. D.

E.

F.

G.

2. Injunction or declaratory judgment (not money) sought because the class members were treated alike. E.g. employment discrimination 3. Damages class action (most testable) must show: e.g. Mass Torts i. Requirements: a. There are common questions over individual questions b. And that a class action Court approval: court must certify the class Notice requirement for Damages Class (3 only) a. They can opt out b. They will be bound by the judgment if they do not opt out c. They can enter a separate agreement ii. Rep sends out the notice Bound by judgment 1. In 1 and 2 always bound 2. In class 3 those that did not opt out after notice Subject matter jurisdiction 1. Federal question in 2. Diversity i. only diversity between the class representative and all ii. The rep must have a claim that exceeds 75k Class Action Fairness Act

V.

TRIAL, JUDGMENTS, AND POST TRIAL

A. Jury trial 1. Entitled to juries at law NOT 2. If both law and equity: i. The jury facts underlying the law claim but not the equity claim. Try that issue first 3. Must demand a jury trial i. Note: no Seventh Amendment right in STATE court, only in federal court 4. Voir dire process i. Strike for cause: Entitled to unlimited stikes ii. Peremptory : 3 strikes for no reason: a. But constitutionally may not be based on race or gender 5. Motion for Judgment as a matter of Law (fka directed verdict) i. Standard: no reasonable person can disagree ii. Timing: end of all evidence B. Renewed Judgment as a Matter of Law 1. Standard: same as JMOL,

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2. Timing: after jury returns verdict, court enteres verdict. Must move no later that 28 days from judgment 3. Must have already moved for a JMOL before the verdict C. Motion for New Trial 1. Jury reached verdict, 2. Granting a new trial is less drastic then granting 3. Grounds: 4. Note: less than 28 days from entering

VI.

PLEADINGS
A. Defendant timing to respond FRCP RULE 12 1. Answer (a pleading) i. Respond to allegation of the ii. Raise affirmative defenses 2. Motion (are not pleadings): asking court to make i. 7 FRCP 12(b) motions 1. Lack of subject matter J 2. Lack of PJ 3. Improper venue 4. Insufficient process 5. Service of process 6. Failure to state a claim which relief can be granted 7. Failure to join an indispensable party 3. If defendant does not plead 2,3,4, will waive it 4. 6,7 can be raised throughout trial 5. 1 (subject matter) never raised, ever B. Notice Pleadings 1. Complaint contains i. Statement of subject matter ii. Short and plain statement of claim, showing ent iii. Demand for judgment 2. Must at least put other side on notice. 3. Recent SC: plead facts supporting a plausible claim 4. Fraud, mistake, special damage: require plead facts with specificity

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GENERAL BAR INFO

Crimes: o Memories the middle degree o It Majority law not common law Last 2 weeks o Study your notes, try to remember area on the page Passing grade o 70% on the MBE almost guaranteed to pass (you can get as low as 90) o No set o 212-935-0069 home phone number

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