NY Multiple Choice from Seperac

Disclaimer:
I do not claim authorship for this article, nor was it published with authorization from Joe Seperac (http://www.seperac.com) - I posted this for my own "fair and reasonable use" only. (My reviewers can easily be viewed from my mobile device)

 STICK WITH FIRST ANSWER UNLESS YOU ARE SURE IT IS WRONG
 WATCH OUT FOR “ONLY IF” ANSWERS
 WATCH OUT IF THE CRIME IS “ATTEMPTED …”. THEN INTENT IS NEEDED

NEW YORK TOPICS

AGENCY
• If POA says it doesn’t go into effect until holder declares principal incompetent, once POA declares principal incompetent in writing, POA is in effect.
• Only licensed real estate brokers may enforce claims for commissions
• Principal not responsible for an agent who acts as an independent contractor.
• Outside scope of employment if employee asks 3rd person to ride along without express authorization of employer.
• Death of principal or agent terminates the agency relationship at time of death

COMMERCIAL PAPER
• An instrument is negotiable if it is in writing and signed by the maker or drawer, containing an unconditional promise or order to pay a sum certain, and to be payable on demand or at a definite time, to order or bearer.
• Not a holder in due course if (1) purchases the instrument at a judicial sale or takes it under legal process; (2) acquires the instrument in taking over an estate; or (3) purchases the instrument as part of a bulk transaction not in the regular course of business of the transferor.
• A post-obituary note is not negotiable since the time for payment is uncertain.
• One who guarantees collection is not liable until the holder has exhausted all remedies against the debtor or has shown such an effort to be futile.
• Holder in due course if you accept a check for payment in good faith, for value, and without notice of fraud.

CONFLICTS OF LAWS
• State with the Dram Shop Act will not apply its own law because it would be extremely unfair to the D who would not be held liable in the state where it was legal
• Forum state always applies its own procedural rules. Determining which state’s laws to apply is procedural.
• The law is substantive is not a defense to the foreign state’s application

CONSTITUTIONAL LAW
• NYS Constitution requires a judicial proceeding for divorces
• NYS Constitution creates the right of employees to organize their collective bargaining arrangements.
• Batson challenge: (1) Moving party establishes prima facie case that opponent is using preemptories to exclude a certain individual or group from the jury (2) Nonmoving party then has burden to show a race/gender neutral reason for the exclusion. (3) Moving party must then assert that the reason given is merely pretextual (in order to preserve for appeal).

CONTRACTS
• In NY, no consideration needed to modify a contract if the modification is in writing and signed by the party against whom enforcement is being sought.
• Generally, if you modify a contract, consideration is needed. Offering to finish faster is adequate consideration.
• Foreseeable detrimental reliance is a sufficient substitute for consideration.
• In NY, acceptance of an option contract is effective only upon receipt.
• Usually, an infant (under 18) lacks the capacity to enter into a contract. One exception is a contract for necessities (food, furniture)
• For covenant not to compete, the consideration by the employer is continued employment.
• When a contract is entered into under a mutual mistake of fact, the contract is void.
• For the duties of a contract to be transferred to the assignee, the duties must be specifically delegated. You must assign the rights AND the obligations.
• In NY, artists transfer of master recording ownership gives unconditional rights to redistribute in any format, absent an explicit contractual reservation of rights.
• Under UCC, agreement to deliver via carrying vessel to named port keeps risk of loss on S until goods are properly unloaded
• Under NYGOL, SOF applies to contracts to pay a fee for negotiating a business opportunity
• Principal is liable for the acts (even tortuous acts) performed by the agent in the scope of the agency. Agent is also separately liable for his tortuous conduct.
• NY considers a pledge the equivalent of consideration (causes detrimental reliance)
• Under NYGOL, if offer is in writing, signed, and states offer is irrevocable for a fixed period, it is not revocable for the time stated or a reasonable time even without consideration

CORPORATIONS
• Under BCL 714, corp may lend money to a director if the loan is approved by the vote of majority of the shares entitled to vote, not counting the shares owned by the borrower. For corps formed after 2//22/98, loan can also be approved by the board of directors if the board finds that the loan benefits the corp.
• Directors who approve unlawful loans are jointly and severally liable for any loss that results.
• If shareholders expand BOD, the current BOD can elect the new D’s.
• If shareholders remove a D without cause, the D’s cannot elect a new D to take his place
• An Officer’s actual authority comes from the articles, bylaws or a vote of directors
• An Officer’s apparent authority comes from the customs or necessities of the business.
• Can only remove a D without cause if the certificate or bylaws allow it. Otherwise, you must amend the certificate or pass a bylaw first.
• Officer can be removed by a simple majority of the D’s
• Quorum based on number of D’s in attendance. Resolution will pass if majority of D’s present vote for it
• A committee can be made by one or more directors
• Shareholder has right to examine shareholder minutes and record of shareholder so long as S/H furnishes affidavit that his purpose is not adverse to corp and has not attempted to sell list of shareholders in last 5 yrs
• Shareholder has right to inspect corp books at proper place and reasonable time and for a reasonable purpose
• Certificate of incorporation must include designation of secretary of state as agent for service of process
• Certificate of incorporation must state its purpose (but purpose cannot be banking, insurance, railroad since these are created under other statutes)
• Corp can give guarantees but if they are not in furtherance of corp business, they must be approved by 2/3 of all outstanding shares entitled to vote
• In nonjury trial, court has discretion over opening statements. Can permit them or exclude them.

CRIMINAL LAW
• PO can use deadly force if he reasonably believes that the felon will attempt to resist arrest and that his actions will involve death or serious injury to another.
• To convict under an offer for sale theory Criminal assault requires physical injury
• Menacing is intentionally placing or attempting to place another in fear of imminent serious physical injury
• First degree burglary is burglary in a dwelling (including motor vehicles) with one of the following 4 aggravating factors: 1) armed with explosives or deadly weapon 2) injures non-participant 3) threat or use of dangerous instrument or 4) display of firearms
• First degree manslaughter – intent to cause serious physical injury that results in death
• Second degree manslaughter turns on a reckless act, as opposed to an intentional act
• Highly reckless murder – D acts with depraved indifference
• Rape and robbery do not merge
• Criminal facilitation: Knowingly aided in the commission of a crime, but does not have the requisite intent to be an accomplice
• Renunciation: Affirmative defense to conspiracy: 1) Voluntarily renounces the conspiracy AND 2) Prevents commission of the object crime. If object crime occurs, D has absolutely no defense to conspiracy
• If D is solely a conspirator and does not participate in the execution of the crime, he is not liable for the substantive offense committed by the co-conspiritor
• Criminal trespass: Knowingly entering or remaining unlawfully on the premises

CRIMINAL PROCEDURE
• At a pre-charge lineup, if D has counsel, D requests counsel, and Police know he has counsel, it is a violation of D’s right to counsel to initiate the lineup without counsel
• Right to speedy trial: Starts at filing of accusatory instrument: Felonies 6mo, Misdemeanors 90 or 60 ays and violations 30 days. No time period for homicides.
• Under discovery, D is entitled to grand jury minutes of only his and co-D’s testimony
• Parent or guardian can invoke right to counsel for a juvenile
• Grand jury required in NY for capital or infamous crimes
• Grand jury can be waived with prosecutor’s approval for crimes not punishable by death or life imprisonment
• If juror can’t serve prior to verdict, an alternate must fill the spot. If no alternates = mistrial
• If juror can’t serve during deliberations, an alternate can be chosen only with the written consent of D
• Court must inform parties as to the charge it will make to the jury prior to summations.
• Manslaughter can be a lesser included offense of murder in the 2nd degree
• Grand juries may hear cases regarding the conduct of public officers even if acts are not criminal

DOMESTIC RELATIONS
• NY does not recognize proxy marriages
• Unwed father of a newborn must promptly hold himself out as willing to assume custody to veto an adoption
• Biological parent has superior right to child unless he abandoned child or is proven unfit
• To void maintenance under remarriage, just living with a guy is not enough - wife must hold herself out as the man’s wife.
• SOL of 20 years to enforce child support and maintenance arrears, regardless of whether they were reduced to money judgments
• Equitable distribution rules apply for matrimonial actions on or after Jan 19, 1980
• Maintenance can be modified by a showing of extreme hardship
• Counsel fees may be awarded to party trying to compel payment required to be paid by a matrimonial judgment
• Counterclaim for adultery based on adultery during the separation period is improper.
• Even if spouse now makes $100m a year, absent an unforeseen change in circumstances together with a showing of true need, the court may enforce the terms of the separation agreement that survives the divorce decree.
• State must have personal jux over a person to award child support and maintenance to spouse.
• A breach of a separation agreement can be regarded as repudiation, resulting in termination of the agreement and the court will allow for reassertion of statutory rights to determine level of support
• In determining equitable distribution, marital fault is generally not considered unless it is egregious
• Waiving right to distribution of property in a pre-nup is not a waiver of maintenance and support.
• Post-Nup enforceable if in writing, signed, and acknowledged
• Death of either party, remarriage or cohabitation of the wife does not affect arrears. Can prosecute claim against H’s estate.
• You can annul based on nonage but the action is waived if you reach legal age and continue to cohabitate.
• You can annul based on fraud based on a material failure to disclose in a marriage contract.
• For custody, under the best interests of the child test, court looks at circumstances of the case and or the respective parties and the best interests of the child and therefore does not PRESUME anything.
• Under DRL, parents liable for children until 21, even if child becomes a public charge after 21.
• Court ordered substitute service will apply for divorce AND maintenance actions.
• If a marriage is void or annulled, children from the marriage are still legitimate
• If a custodial parent who receives maintenance wrongfully interferes with visitation rights, court may suspend maintenance payments and cancel maintenance payments in arrears that wrongfully accrued. However, this is NEVER a defense to nonpayment of child support.
• Cohabitation is not a defense to cruel and unusual punishment grounds for divorce
• Defense of adultery only available if grounds for divorce were for adultery.


EVIDENCE
• No impeachment of one’s own witness in NY except by use of a prior inconsistent statement, either in writing and signed by the witness, or under oath
• Exception to dead man’s statute: If protected party (i.e. executor) or agent of deceased testify to a transaction with an interested person, the interested person may testify about the same transaction
• Evidence that a victim of a sex crime was convicted of prostitution in the last 3yrs is admissible.
• Prior recorded conviction exception does not include traffic convictions
• If you pled guilty to a traffic ticket, it is admissible against you as an admission
• If you pled not guilty to a traffic ticket and were convicted, it is NOT admissible against you as an admission
• SRM’s admissible for manufacturing defects to establish defectiveness of product when made.
• Missing witness charge to jury valid if attorney does nothing to secure presence of this favorable to D/material/available witness.
• SRM’s NOT admissible for design defects except to defeat manufacturer’s claim that at the time of manufacture, such changes were not feasible.
• Spousal immunity generally not recognized in NY, except to confidential communications and certain adultery situations
• Abusive language and misconduct directed at a spouse is not privileged communication
• Under CPLR, judicial notice of a NYC ordinance is mandatory
• Letter has to be more than 30 years old under NY ancient document rule
• For marital privilege, only confidential communications are privileged. Spouse telling what the other spouse was wearing is not privileged
• Under FRE, admissions are nonhearsay. In NY, admissions simply are an exception to hearsay.
• In New York, evidence of the victim’s character is inadmissible to prove the victim was the first aggressor
• Although New York does not allow the defendant to introduce evidence of the victim’s violence character to prove that the victim started the fight, a defendant can introduce evidence of his knowledge of the victim’s character for violence (because that is not a propensity use).
• A withdrawn guilty plea is admissible in New York in civil cases

NY PRACTICE
• If you just appear and demand a complaint, you still have a personal jux defense.
• Right to jury exists for annulments and nuisance
• Court can compel a former employee of a corp to be deposed
• Court can compel a party to respond to a deposition after the trial has begun.
• If action arises outside of NY, the shorter SOL is used unless you are a resident of NY where NY SOL used
• Moving party must apply to the court for a judgment by default
• Service of out-of-stater must be done according to NY process rules, not out-of-state rules.
• After commencement of a suit, any party can notice another party to produce records
• D can serve a notice of examination (depose a party) on P before D serves his answer
• P cannot serve a notice of examination on D until D serves his answer
• Attachment requires either 1) Nondom, Nonres, or unlicensed foreign corp or 2) Resides in NY but cannot be personally served or 3) D has removed or secreted property out of NY with intent to defraud or frustrate judgment or 4) action based on judgment (Full faith needed if out-of-state judgment)
• Receiverships deal with subject matter that may be removed, lost, damaged or destroyed. Receiverships do not apply to recovery of money damages
• If a tortfeasor settles, he can still seek indemnification from a joint tortfeasor in the amt of the settlement
• For No-Fault insurance, SOL begins to run on the date of the accident, not discovery of the injury
• SOL for malpractice starts when the malpractice was committed, not when the client discovered it
• Malpractice can be tolled by “continuous representation” but only if it on the same specific matter.
• Only D may remove an action from state to fed court
• NY has abolished exercise of jurisdiction predicated solely upon the attachment of D’s NY property (i.e. quasi-in rem jux cannot be established here)
• Replevin action can be in county of either party or county where the property is located
• Bill of particulars must be verified 1) whenever the pleading it verifies is verified and in 2) negligence actions
• Supplemental Bill of particulars can be served without leave of court for showing claims of “continuing special damages and disabilities” but no less than 30 days before trial. Responding party has full discovery in regards to these “continuing special damages and disabilities”
• Cannot assert a new COA in a supplemental bill of particulars
• Dismissal at the close of P’s case is a dismissal on the merits if D moves for dismissal
• Cases tried in order filed: Trial preferences exist for people over 70 and the state or state officers
• Diversity for fed jux if the D is not a U.S. citizen and not a permanent resident of the state
• Owner or lessee of real property subject to long arm jux for lawsuits arising out of such use.
• A preliminary injunction may only be granted upon notice to D and P must give an undertaking in an amount to be fixed by the court.
• Nonresident who is voluntarily in the state to attend a judicial hearing is immune from service provided he leaves right away (no detours in the state)
• Juror may be challenged if he is an (i) employee of one of the parties (ii) shareholder of a corporate party or (iii) in an action for damages, a shareholder/officer/employee of an insurance company that issues liability insurance policies.
• D appears when (i) answer is served (ii) D serves notice of appearance or (iii) D makes a motion that results in extending the time to answer
• Notice of claim must be filed against city, town, etc within 90 days of injury.
• SOL for action against city, town, etc is one year and 90 days
• SOL for action against city, town, etc can be tolled by infancy or insanity
• Venue for a diversity action in fed court is where the D resides, the district where the claim occurred, or where the D is subject to personal jux.

PARTNERSHIPS
• Partnership dissolves based on bankruptcy or incapacity of a partner or if business can only be carried on at a loss
• Incoming partner’s liability for obligations that arose before coming a partner are limited to partnership property (incoming partner is not personally liable)
• If would-be-partner lacks capacity, such as nonage, he is not personally liable for partnership obligations but is bound to the extent of his capital contribution
• No accounting allowed by court if partnership based on illegality
• Partner’s attempt to mortgage his interest in partnership property has no effect on the passing of title to the property. Mortgagee has no rights against the property and only that partner is personally liable for the mortgage
• Partnership ceases when partner receives notice of the other partner’s death
• To gain jurisdiction over a partnership, you merely need to serve one of the general partners.


REAL PROPERTY
• Under EPTL, a grant to a husband and wife is a tenancy in the entirety unless grantor declares it a tenancy in common or a joint tenancy
• Constructive Adverse Possession: 1) Adverse possessor enters property with good faith belief that conveyance was valid 2) Occupies a significant portion of the property and 3) property described in the deed is understood by the community to be a single parcel
• Judgment creditor can sever joint tenancy by levy execution prior to debtor-joint tenants death
• If tenant has lease of indefinite term, gives notice to quit and then fails to surrender premises at specified time, he is liable for double rent for as long as he is in possession
• In NY, prior to conveyance of title, all loss falls on the vendor if purchaser is without fault. (Uniform Vendor and Purchaser Risk Act)
• In NY, a subsequent bona fide purchaser will prevail IF AND ONLY IF he is the first to record
• 20 yr adverse possession period for cotenants
• Judgment lien docketed in a particular county only imposes a lien on property in that county.
• Landlord can unreasonably withhold permission for assignment if not discussed in the lease. Tenant’s on ly remedy is to be released from the lease.
• If Landlord cannot deliver premises, T can rescind lease, get back security and get damages

SALES
• If Seller is a merchant, risk of loss passes to the buyer only when the buyer has taken physical possession of the goods.
• If Buyer rejects nonconforming goods and notifies Seller, risk of loss is on the Seller even though the Buyer has possession of the goods.
• An ambiguous offer for the purchase of goods can be accepted by promise to ship or prompt shipment
• Contract provision limiting damages for breach of express warranty to $50 if a burglar alarm fails is REASONABLE.
• 30 day notice to terminate contract possessed by only ONE side of a requirements contract is valid and not illusory.

TORTS
• Ordinary slander is not actionable without special damages (specific pecuniary loss that resulted from the defamatory statement)
• Libel is a written defamatory statement and general damages will be presumed by law.
• NY provides for special statutory protection of construction workers – 1) strict liability for failure to comply with statutorily mandated safety precautions and 2) Statutory standard for injuries when a scaffold or ladder fails
• For prima facie case of IIED, P need not allege physical impact or physical manifestation of psychological trauma.
• For prima facie case of NIED, P MUST allege physical impact or physical manifestation of psychological trauma.
• For bystander NIED, P MUST be immediate family member, be exposed to immediate harm, and suffer physical injury from the distress. (Unlike common law, no Zone of Danger in NY)
• D must plead failure to wear seatbelt as an affirmative defense before evidence in mitigation of damages may be introduced.
• Post Office does not have governmental immunity because it is ministerial in nature. They are liable for the negligence of their employees.
• For negligence per se, violation of the statute must also be the proximate cause of P’s injury. This is a question for the jury to decide
• Criminals may not recover for another’s negligence if the injury directly results from their illegal activity.
• Contractual obligation alone will generally not give rise to tort liability in favor of a 3rd party plaintiff. Snow removal company generally does not owe a duty of care to people who slip and fall.
• It is a rebuttable presumption that vehicle is being operated with owner’s consent and every owner of a vehicle is liable for injuries resulting from the negligent operation of the vehicle who has owners express or implied permission
• Owner of a domestic animal is strictly liable if he knows the animal has vicious propensities (even if it never bit anyone)
• Absent in independent injury, med mal resulting in miscarriage means doctor breached duty of care to mother and entitles mother to damages for emotional distress.
• Injured employee cannot sue fellow employees or employer for his on-the-job injury under Workers Comp
• Intra-family tort immunity is abolished in NY. Wife can sue husband for battery.
• Parent does not owe a duty to his child to exercise due care in his supervision of the child’s daily activity
• Parent does not owe a duty to 3rd persons to exercise due care in his supervision of the child’s daily activity
• Actual damage not required by kin stemming from mental distress over mishandling of corpse
• Permissive Use Doctrine: Owner vicariously liable even if the driver is not owner’s agent. Anyone driving your cat is presumed to be an authorized driver. However, owner not liable for INTENTIONAL TORTS of the driver.
• Repairs or remedial measures admissible in a products liability case for a MANUFACTURING defect

TRUSTS/WILLS
• In NY, all trusts are irrevocable and unamendable unless the settler specifically retains the power to revoke or amend.
• All trusts in NY have spendthrift protection – income beneficiary cannot sell or transfer trust income nor can beneficiaries creditors reach that interest. However, If settler is beneficiary of trust, creditors can get all trust income.
• Trust can be terminated if all beneficiaries consent and termination does not interfere with a material purpose of the settler. If settler agrees to terminate trust, the purpose is waived.
• New York recognizes joint wills as valid. Can be established by an express statement in the will that the instrument is a joint will and the provisions are intended to be a contract between the parties
• All contracts to make a will must be supported by consideration
• A new will executed in breach of a contract is not denied probate. Beneficiary of contract has to bring suit to enforce the contract
• Will is deemed to have been executed on the date of a validly executed codicil thereto
• Beneficiary can waive his right to a Totten trust so long as the waiver is explicit, voluntary and made in good faith
• Issue or parents can no longer challenge gifts to charity
• Situs rule disposes of a descending property by the law of the jux where the land/property is located
• Disposition of personal property determined by the law of the jux where decedent was domiciled at death