Below, you will find an issue and subject analysis of TEN administrations of the New York Bar Exam

(Feb 08 July 98). As you will notice, there is quite a difference between pre 2005 exams and post. I wouldnt worry about it too much, and chalk it up to the introduction of laptop computers to the exam process. February 2008 administration: 32 issues (Contracts, Corporations, Evidence, Criminal Law, Wills, Family Law, Torts, No Fault Insurance, Rules of Professional Conduct) July 2007 administration: 24 issues (Contracts, Corporations, Criminal Law, Family Law, Wills, New York Practice, Torts, Trusts, Rules of Professional Conduct, Commercial Paper) February 2007 administration: 21 issues (Conflicts, Corporations, Criminal Procedure, Domestic Relations, Federal Jurisdiction, New York Practice, Property, Secured Transactions, Wills, Torts) July 2006 administration: 30 issues (Agency, Contracts, Corporations, Criminal Law, Evidence, Family Law, New York Practice, Property, Secured transactions, Wills, Rules of Professional Conduct, Torts, Trusts) Feb 2006 administration: 31 issues: (Contracts, Corporations, Criminal Law, Criminal Procedure, Domestic Relations, Federal Jurisdiction, New York Practice, New York Practice, Property, Wills, Torts) July 2005 administration: 23 issues: (Contracts, Corporations, Criminal Law, Evidence, Domestic Relations, Wills, Torts, Rules of Professional Conduct). Feb 2005 administration: 26 issues: (Contracts, Corporations, Criminal Law, Criminal Procedure, Evidence, Domestic Relations, New York Practice, Property, Wills Torts). July 2004 administration: 23 issues (Conflicts, Corporations, Criminal Procedure, New York Practice, No Fault Insurance, Property, Wills) February 2004 administration: 21 issues (Contracts, Corporations, Criminal Law, Criminal Procedure, Domestic Relations, New York Practice, Property, Wills, Torts) July 2003 administration: 23 issues (Agency, Constitutional Law, Contracts, Criminal Law, Criminal Procedure, Domestic Relations, Wills, Torts, Workers Compensation) Below you will find the subject and number of times I found each issue to be raised in the prior TWENTY administrations of the Bar Exam (July 2008 July 1998). There are some issues from other exams (Pre-July 98), which I have included due to their seeming importance. Agency Liability for the acts of agents (July 08) (July 06) (Feb 03) (Feb 00) Liability for the acts of employees (July 06) (July 03) (July 01) (Feb 00) Definition of (Feb 00) Commercial Paper Elements of a Negotiable instrument (July 07) (Feb 03) Liability of a bank (July 07) (Feb 03) Personal defenses (July 07) Real defenses (July 07) Conflicts of Laws Government-interest analysis (Feb 07) (July 04) (Feb 02) (July 00) (July 99) Center of Gravity test (July 04) Constitutional Law Racially-discriminatory peremptory strikes (July 03)

Freedom of Speech (Feb 01) Fighting Words (Feb 01) Contracts Elements of a contract (July 08) (Feb 06) (July 02) (July 01) (Feb 01) (Feb 00) (July 99) Modifications of contracts (July 08) (Feb 08) (July 02) Risk of loss (Feb 08) (July 03) (July 01) (July 00) (July 97) Perfect Tender Rule (Feb 08) (July 03) (July 01) (July 00) (Feb 00) Non-conforming Goods (Feb 08) (July 01) (July 00) Parol Evidence Rule (Feb 08) (July 05) (Feb 03) Anticipatory Repudiation (July 07) (July 05) (July 04) Statute of Frauds (July 07) (Feb 06) (July 05) (Feb 04) (Feb 03) (July 02) (July 01) (Feb 01) (July 00) (Feb 00) (July 99) Non-compete Agreements (Feb 07) Novation* (July 06) Damages (July 06) (July 01) Confirmatory Memorandum (Feb 06) Battle of the Forms (Feb 06) Warranty of Merchantibility (Feb 06) (Feb 05) (July 00) (July 99) (Feb 99) Quasi-Contract (July 05) (July 98) Implied Warranty of Title (Feb 05) Implied Warranty of Fitness for a Particular Purpose (Feb 05) (Feb 01) (July 00) Damages in the even of Anticipatory Repudiation (July 04) Missing terms (July 03) (July 01) Consideration (July 03) Breach where time is of the essence (July 03) Preexisting Duty Rule July 02) (Feb 99) (Feb 98) Third-Party Beneficiary (Feb 02) Acceptance under the UCC (July 01) Unconscionability (Feb 01) (Feb 00) Unilateral mistake (Feb 01) Rescission (Feb 01) Expectancy damages (July 00) Non-compete Agreements (July 00) Express Warranty (July 00) Permanent Injunction for Non-Compete Agreement (July 00) Installment Contract (July 08) (Feb 00) Impracticability (July 98) Defective Performance in Building Contracts (July 98) Doctrine of Substantial performance (July 98) Unilateral Contract (July 98) Damages in Building contracts (98) Replevin (96) Breach (July 08) (July 96) (July 97) (July 03) (July 04) Corporations Interested director transactions (Feb 08) (Feb 07) (July 05) (July 04) (July 00) (July 99) Duty of Care (Feb 08) (July 05) (Feb 05) (July 04 (July 00) (July 99) (Feb 99) (July 98)

Business Judgment Rule (Feb 08) (Feb 05) (Feb 99) Duty of loyalty (Feb 08) (July 05) (Feb 05) (July 04) (July 00) (Feb 00) (July 99) (July 98) Sales of shares of shock (July 07) Involuntary Dissolution in close corporations (July 07) (Feb 05) (Feb 03) (Feb 01) (July 99) Removal of a director (Feb 07) Liability of promoter (July 06) (Feb 04) Piercing the Corporate Veil (Feb 06) (July 05) (July 99) Shareholder Derivative Suits (Feb 05) (July 98) Management of a corporation (Feb 04) Special Meetings (Feb 01) Rights of First Refusal (Feb 01) Liability of Shareholders (July 00) (July 99) Loans to directors (July 00) Supermajority voting (Feb 00) (Feb 98) Preemptive Rights (Feb 00) (July 99) Passing a resolution (Feb 00) Rescission (July 99) Fundamental Changes (Feb 99) Rights of Appraisal (Feb 99) Notice of a Meeting (Feb 99) Criminal law Justification defense (Feb 08) (Feb 05) (Feb 01) Assault (Feb 08) (Feb 06) (Feb 01) Attempt (Feb 08) (July 05) (Feb 00) Felony murder (July 06) (July 01) Conspiracy (Feb 08) (July 06) Solicitation (Feb 08) (July 05) Infancy defense (Feb 08) Withdrawal defense (Feb 08) (Feb 00) Sufficiency of the Evidence (July 07) Accomplice liability (July 06) (July 05) (July 02) (July 98) Arson (July 06) (July 02) Non-slayer defense (July 06) Criminal Possession (Feb 06) Burglary (July 05) (July 01) (July 99) Entrapment (Feb 04) Knowingly in a criminal statute (Feb 04) Insanity defense (July 03) Issuing a Bad Check (Feb 03) Larceny (Feb 03) (July 00) Forgery (Feb 03) Embezzlement (Feb 03) Doctrine of transferred intent (Feb 00) Manslaughter (Feb 00) Extreme Emotional Disturbance (Feb 00) Burden of Proof (July 99)

Criminally Negligence Homicide (Feb 99) Robbery (July 98) Duress (July 98) Kidnapping (Feb 98) Criminal Facilitation (Feb 97) Extortion (Feb 97) Criminal Procedure Sixth Amendment Right to Confrontation (July 08) Indelible Right to Counsel (July 08) (Feb 07) (Feb 05) (Feb 02) (July 98) Fourth Amendment (July 08) (Feb 07) (Feb 06) (July 04) (July 03) (Feb 01) (July 00) (Feb 00) (July 99) (Feb 99) Standing (Feb 07) (Feb 06) (July 99) Exceptions to the Warrant (July 08) (Feb 07) (July 03) (Feb 01) (July 00) Waiver of the Right to Counsel (Feb 07) (July 05) (Feb 99) (July 98) Grand Jury Proceedings (Feb 06) (July 00) Timely notice of Criminal statements by defendant (Feb 06) (July 00) (July 98) Line-ups (Feb 05) (Feb 02) In-court identifications (Feb 05) Validity of the search warrant (July 04) Wiretaps (July 04) Exclusionary Rule (July 04) Good Faith Exception to the Exclusionary Rule (July 04) Defective Warrant (July 04) Wingspan searches(July 08) (Feb 04) (July 00) (Feb 00) Constitutionally ineffective assistance of counsel (July 03) Reasonable Suspicion (Feb 02) (Feb 00) Arthur Hobson Rule (Feb 02) Fruits of the Poisonous Tree Doctrine (Feb 01) Fifth Amendment privilege against selfincrimination (July 99) Evidence Hearsay (July 08) (July 05) (Feb 03) (July 02) (July 01) (July 99) Best evidence Rule (Feb 08) Admissibility of prior conviction (July 06) (Feb 04) (Feb 03) (July 98) Effect on the hearer non-hearsay (July 05) Admissions exception (July 05) Excited Utterance Exception (July 08) Present sense impression exception (July 08) Opinion testimony by lay persons (Feb 05) Specific Acts (July 02) (July 00) Liability Insurance (July 02) Intra-spousal Immunity (July 00) Subsequent Remedial Measures (Feb 99) Domestic Relations Divorce (July 08) Abandonment as grounds for Divorce (July 08) (Feb 03) (July 99) Doctrine of Equitable estoppel (Feb 08) (July 00)

Presumption of paternity (Feb 08) (July 00) Child Support (Feb 08) (July 07) (July 03) (July 01) (July 99) (Feb 99) (July 98) Suspension of child support (Feb 08) Modification of child support (Feb 08) (Feb 04) (July 01) (July 98) Doctrine of Equitable Distribution (July 07) (July 06) (Feb 05) (July 03) (Feb 02) (July 01) (July 99) (July 98) Best interests of the child (July 07) (Feb 04) (July 03) (July 00) (July 99) Revocability of consent to adoption (Feb 06) Waiver of consent to an adoption (Feb 06) Ex parte divorce (July 05) An award of maintenance (July 05) (July 02) (July 99) Adultery (Feb 05) (July 03) (Feb 01) (July 99) Condonation (Feb 05) (July 99) Change of custody (Feb 04) Doctrine of Conversion (July 03) (Feb 01) (July 00) Cruel and Inhuman Treatment as grounds for Divorce (Feb 03) (July 99) Subject Matter Jurisdiction (Feb 01) (July 98) Residency Requirement (Feb 01) (July 98) Annulment (Feb 00) Prenuptial Agreements (Feb 00) Service of Process (July 98) Personal Jurisdiction (Feb 01) (July 98) Separation Agreements* (July 98) Answer (Feb 98) Unmarried Cohabitant Agreements (July 95) Federal Jurisdiction Subject Matter Jurisdiction (Feb 07) (Feb 00) New York Practice Motion to Dismiss (July 07) (Feb 06) (Feb 05) (July 02) (Feb 02) (Feb 01) (Feb 00) (July 99) (Feb 99) (July 98) Motion for Summary Judgment (July 08) (July 07) (July 06) (Feb 06) (July 04) (Feb 04) (July 02) (Feb 02) (July 01) (Feb 00) (July 99) (Feb 99) Preliminary Injunction (Feb 07) (Feb 03) (July 00) (July 99) Issue Preclusion (Feb 06) Statute of Limitations to file against a town (Feb 06) Personal Jurisdiction (Feb 05) (July 02) Motion for Judgment Notwithstanding the Verdict (July 01) Granting a mistrial (July 01) Subject matter jurisdiction (July 01) Removal (Feb 00) Review of Arbitrators decisions (July 99) Provisional Remedies (Feb 99) Attachment (Feb 99) Notice of Pendency (Feb 99) Motion to Strike (Feb 99) Depositions (Feb 99)

Forum Non Convens (Feb 98) Res Judicata/Collateral Estoppel (Feb 98) (July 96) Counterclaims (July 97) Joinder (July 97) Long-arm Jurisdiction (Feb 96) Article 78 (July 96) No fault insurance Coverage (Feb 08) (July 04) (Feb 03) (July 99) Partnership Action to compel accounting (July 08) Liability of partners (July 08) (July 00) (Feb 00) (July 99) Termination of partnership (July 02) (July 99) Professional Corporations (July 02) Transfers by limited partners (July 99) Property Easement (July 08) (Feb 98) (July 95) Easement by Necessity (July 08) (Feb 98) Landowner duty of care (July 08) (Feb 04) (Feb 01) Tenancy by the Entirety (July 08) (Feb 07) (Feb 05) (July 04) (July 98) Joint Tenancy (Feb 07) (July 04) (Feb 02) (July 98) Tenancy in Common (Feb 07) Takings (Feb 07) Doctrine of Equitable Conversion (Feb 07) Holdover Tenant (July 06) Adverse Possession (Feb 06) (July 04) (Feb 01) (Feb 00) Doctrine of Acquiescence (July 04) Race-Notice statute (Feb 06) (July 02) Restrictive covenants (Feb 04) Mortgages (Feb 03) (July 02) (Feb 02) Acceleration Clauses (Feb 03) Rule Against Perpetuities (July 01) Quitclaim deed (Feb 01) Acceleration Clauses (Feb 00) Property (Feb 00) Tenants Duty to Repair (July 08) (July 99) Constructive Trust (Feb 99) Tenant who abandons (Feb 99) Easement by Prescription (Feb 98) Easement abandonment (Feb 98) Equitable Servitude (July 95) Secured Transactions Perfected interests (July 08) (Feb 07) Attachment of interests (July 08) Self-help (July 06) Wills

Elements of a will (July 08) (Feb 08) (July 07) (Feb 05) (July 03) (Feb 01) (Feb 00) (July 98) Class gifts (to children) (July 08) Undue influence (Feb 08) (Feb 06) (Feb 01) Testamentary gifts (Feb 08) Doctrine of Ademption (July 08) (Feb 08) (Feb 03) (July 01) (July 99) Attorney as executor (Feb 08) (Feb 02) No contest clauses (July 07) (July 05) Pretermitted child statute (July 08) (Feb 07) (Feb 03) Constructive trust (Feb 07) Divorce (July 06) (July 02) Anti-Lapse statute (July 08) (July 06) (Feb 04) (Feb 01) (July 99) (Feb 99) Beneficiary as executor (July 06) Rules of intestacy (July 06) (July 02) (July 00) (Feb 99) Per Stirpes Distribution (July 06) (Feb 01) Right of Survivorship (Feb 06) Incapacity (Feb 06) Right to Elective Share (Feb 06) (July 04) (Feb 02) (July 00) (July 99) (July 98) Presumption of destruction by physical act (July 05) Pour over devise (July 05) (Feb 99) Charitable Trusts and Cy Pres (July 05) (Feb 01) Insane Delusion (Feb 05) Demand for an accounting (Feb 05) Agreements to execute wills (July 04) Renunciation (Feb 04) (July 00) (Feb 99) Simultaneous gifts (Feb 04) Partial intestacy (Feb 04) Parol evidence (July 03) Codicils (Feb 03) (July 01) (Feb 01) Stock Splits (Feb 03) Letters of Administration (July 02) Testamentary Substitutes (Feb 02) Revocation by Codicil (July 01) Revocation of a will (July 01) Standing (Feb 01) Totten Trusts (July 00) (July 98) Rules of Professional Conduct Contingency Fees (Feb 08) (July 06) (July 03) (Feb 02) (July 01) Conflicts of Interest (July 07) (Feb 06) (July 05) (July 04) (Feb 02) (July 01) (Feb 01) Ethical obligations of attorneys in matrimonial actions (July 06) (July 00) Retainers (July 05) (July 00) Entering into agreements without consent (Feb 03) Compliance with ethical rules as implied in employment contracts (July 02) Suspension (July 02) Referral fees (Feb 02) Torts

Negligence (July 08) (Feb 08) (Feb 07) (July 06) (Feb 06) (July 05) (Feb 05) (Feb 03) (Feb 02) (July 01) (Feb 01) (July 00) (Feb 00) (Feb 99) (July 98) Statute of Limitations (Feb 08) (July 07) (July 06) (July 05) (Feb 03) (July 99) (Feb 99) Continuous treatment rule (Feb 08) (Feb 03) Right of contribution (Feb 08) (Feb 07) (Feb 01) (Feb 00) Tortious Interference with Business Relations (July 07) Special Relationship defense to Tortious Interference (July 07) Defamation (July 07) Qualified privilege to defamation (July 07) Res Ipsa Loquitur (Feb 07) (Feb 03) (July 98) Battery (July 06) (Feb 06) Trespass to Land (July 06) Trespass to Chattels (July 06) Respondeat Superior (July 06) (July 05) (July 98) Vicarious liability involving motor vehicles (July 06) Doctrine of Transferred Intent (Feb 06) Tolling the statute of limitations (July 05) Assumption of Risk (Feb 05) (Feb 01) Negligent Infliction of Emotional Distress (Feb 05) (July 98) Strict Liability (Feb 05) (Feb 02) (July 00) (Feb 99) Manufacturers Design/Defect (Feb 05) (July 00) Negligent Supervision (Feb 04) Joint and Several liability (Feb 04) Negligent entrustment* (Feb 04) Wrongful death (July 03) Suits against Municipalities (July 02) Collateral Source Rule (July 02) Dram Shop Laws (Feb 01) Negligence per se (July 00) Fraudulent Inducement (Feb 00) Superceding Causes (Feb 00) CPLR 13 (Feb 00) Permissive Use Statute (July 98) Indemnification (Feb 08) (Feb 07) (Feb 01) (Feb 00) (July 98) Trusts Duties of the Trustee (July 07) Recourse for breach of duty as Trustee (July 07) Limitations on liability of the Trustee (July 07) Spendthrift statute (July 06) Amendments to trust (July 06) (Feb 99) Presumption of Irrevocability (Feb 99) Workers Compensation Right of contribution (July 03) Right to workers compensation (July 03) (July 01) Agency

Definition of Agency An agency is an express or implied agreement to act on behalf of another. An agency is revoked upon the death of one of the parties automatically, unless the agency is coupled with an interest. Agency An principal-agent relationship can be established when three elements are present. 1) Assent informal agreement between principal & agent 2) Benefit agents conduct must be for principals benefit and 3) Control principal must have the right to control the agent by having the power to supervise the manner of the agents performance. A Principal will be vicariously liable for contracts entered into by agent if: (i) a principalagent relationship exists, and (ii) the principal authorized the agent to enter the contract. Authority may be Actual Express Authority, Actual Implied Authority, Apparent Authority and Ratification. Actual Express Authority is when the principal uses words to express authority to agent - it is a clear expression of authority to act in a certain way on behalf of the principal. Actual Implied Authority is authority which the agent reasonably believes the principal has given, because of Necessity, Custom, or Prior dealings between principal & agent. Apparent Authority occurs when a principal cloaks the agent with the appearance of authority, & (ii) 3rd party reasonably relies on the appearance of authority. Ratification authority can be granted after the contract has been entered into, if the principal has knowledge of all material facts regarding the contract, AND the principal adopts the contract by expressly or impliedly accepting its benefits. Liability for the acts of agents The general rule is that principles will be liable for contracts entered into by their agents if there is actual, inherent, apparent authority or ratification. Actual authority can be express or implied. Implied actual authority results from the principle agent relationship based on necessity, custom, or prior dealings. Apparent authority results when the principle cloaks the agent with the power of representing the principle and a third party reasonably relies on this. Liability for the acts of employees Under New York law, an agency relationship is created when the principal assents to have the agent act for him, benefits from the agents activities, and can exercise control over the agent (i.e., can supervise the agent). While a principle is vicariously liable for the torts of his agent committed within the scope of the agency relationship, a principle is generally not vicariously liable for the intentional torts of his agent. However, a principle will be liable for such intentional torts if the principle specifically authorized such actions, if they naturally stemmed from the nature of the employment or if the principle benefited from such acts. Criminal law Burden of Proof The prosecution must prove every element of a crime beyond a reasonable doubt. They must also prove that defendant was, in deed, the one who committed the crime. Arson In New York, fourth degree arson is the reckless burning of a building by intentionally setting fire to it. There is an affirmative defense to fourth degree arson when the defendant recklessly damages a building by intentionally setting fire to it and the building is owned

by him alone. However, this defense is not available to one who intentionally sets fire to a building. Third degree arson is intentionally damaging a building by intentionally starting a fire. Second degree arson is third degree arson plus knowledge that a non-participant is inside or sets the fire under circumstances indicating that the presence of a third party is a reasonable possibility. First degree arson is second degree arson plus the use of an incendiary or explosive device. The affirmative defense that "it was my own building" is not a defense to any other degree of arson besides fourth degree. Assault Assault under the NY Penal Law is the unlawful application of force against the victim that results in physical injury. Assault in the first degree is when the defendant uses a weapon and the victim is seriously injured. The crime of assault is a specific intent crime, the defendant must have specific intent to commit the assault. Generally, an unreasonable belief would be a valid defense to a specific intent crime. Attempt An attempt occurs when a person, with specific intent to commit a crime, takes a substantial step beyond mere preparation in furtherance of the crime. In New York, the defendant must come very near or dangerously near the commission of the crime. Under NYPL, impossibility of actually committing the crime because the facts were not as the defendant thought them to be is no defense. Attempted assault Thus, to be convicted of attempted assault the defendants must have had the intent to commit assault, which involves the impermissible touching of or offense with another, and complete a significant step towards that goal. Burglary Under New York Penal Law, burglary requires: 1) entry or unlawfully remaining in, 2) a building, 3) with the intent to commit a crime therein. Note that under common law, the building had to be a dwelling, the entry had to be a break-in, after dark, and the entrant had to have intent to commit a felony. New York Statutory Law is therefore considerably broader than the common law definition. Burglary in the second degree (under NYPL) requires one of the three following aggravating elements: 1) the building was a dwelling; 2) the burglar was armed; or 3) someone was injured. Kidnapping Under the NY Penal Law, Kidnapping occurs when a person abducts another person. Abduction is the restraint of a person with intent to deprive his liberation by secreting or holding him in a place where he is not likely to be found. Kidnapping in the 2nd Degree occurs when you abduct someone. Kidnapping in the first degree (under NY Penal Law) also requires (1) Ransom demand; or (2) Restraint for more than 12 hours with the intent to inflict physical injury or (3) The victim dies. Robbery Robbery is the trespassory taking and carrying away of the personal property of another from their person or in their presence with the intent to steal, carried out with violence, threats, or apprehension. First degree robbery is robbery accomplished with a firearm or placing the victim in immediate apprehension of a firearm. 1st Degree Murder

Under the NY Penal Law, first degree murder is intentional murder with special circumstances. Special circumstances include the killing of a police officer, a witness, a judge, serial murder and other circumstances. Pursuant to the New York State penal statute, intentionally causing the death of a person during one of several enumerated felonies constitutes First Degree murder: Robbery (any degree), Burglary (first or second degree), Kidnapping, Arson, Rape, Sodomy, or Sexual Abuse, Escape or Attempted Murder in the second degree. 2nd Degree Murder Under the NY Penal Law, a person is guilty of murder in the second degree when, with the intent to cause the death of another, he causes such death. There are three forms of second degree murder: (1) intentional murder (other than first degree murder); (2) highly reckless murder; and (3) felony murder. Intentional Murder occurs when a person, with intent to cause the death of another, causes the death of such person or of a third party (transferred intent). Two affirmative defenses can exculpate the defendant: (1) extreme emotional disturbance ("heat of passion"); and (2) aiding a suicide. These defenses mitigate the crime so that defendant may still be prosecuted for manslaughter. Highly reckless murder occurs when, demonstrating a depraved indifference to human life, a person recklessly engages in conduct that creates a grave risk of death to another person, and thereby causes the death of another person. Force directed at the victim but not intended to kill may suffice for conviction. No crime of attempt exists for reckless murder because no intent is involved. Felony murder Felony murder is a charge available against all participants to an enumerated felony (of which arson is one) when a death occurs during the commission of that felony or in the immediate flight therefrom. The death must also have been foreseeable. The death need not have been intentional for second degree murder on a theory of felony murder. The intentional nature of the killing only goes to the applicability of first degree murder. Doctrine of Transferred Intent The doctrine of transferred intent provides that if one intends to kill one person, and mistakenly kills another instead, the intent to kill the first person is transferred to the act towards the actual victim. Manslaughter The lesser included crime of first degree manslaughter in this case involves a killing "in the heat of passion" or "under extreme emotional disturbance". This exists when the defendant kills due to 1) circumstances that would provoke a reasonable person, 2) the defendant was in fact provoked, 3) there was little time between the provocation and the killing such that a reasonable person would not be able to cool off, and 4) defendant in fact did not cool off. Extreme Emotional Disturbance Extreme emotional disturbance is an affirmative defense. Therefore, unlike a defense (i.e., justification) required to be proved by the prosecution beyond a reasonable doubt, the defense must prove by a fair preponderance of the evidence that Defendant was suffering from extreme emotional disturbance at the time of the killing. Criminally Negligent Homicide A person is guilty of criminally negligent homicide when the person fails to perceive a substantial and unjustifiable risk and that failure is a gross deviation from the standard of

care that a reasonable, prudent person take in similar circumstances and that conduct causes the death of another. A person who is ``custodially interrogated" must be first given the Miranda warnings in order for any statements to be admissible. The waiver by defendant also must be knowing, voluntary, and unambiguous. The defendant must be in ``custody" -- i.e. a reasonable person would not feel free to leave and the police must be engaging in questioning on conduct that would likely elicit a response. Criminal Facilitations Criminal facilitation is knowingly aided in the commission of a felony, but does not have the requisite intent to be an accomplice. The elements of criminal facilitation are (1) aiding, abetting of a felony, (2) with knowledge of, but not intent, to commit the felony. A facilitator need only believe that it was probable that he was rendering aid. A facilitator may not be convicted on uncorroborated testimony of the person facilitated. Withdrawal is permissible if the defendant (accused of facilitation) both withdraws and makes a substantial effort to stop the crime. Criminal Possession Under the New York Criminal Law, in order for the grand jury to indict a person for a particular charge, the grand jury must have sufficient evidences to make a prima facie case for that charge. Under the NYPL, the elements of criminal possession of stolen property is that the defendant must have taken property of another or be in possession of someone elses property with the intent to deprive the true owner of their property. Conspiracy In NY, under NY Penal Law the crime of conspiracy is committed when parties intend to agree, the actually do agree, and they intend to commit an unlawful act or a lawful act by unlawful means. In addition, in NY, an overt act in furtherance of the conspiracy must be committed. In New York, a defendant may not be convicted of conspiracy solely on the uncorroborated testimony of a co-conspirator. There must be some other evidence, including circumstantial evidence, to corroborate the co-conspirators testimony. Accomplice liability An accomplice can be convicted of the substantive crime of the actively aids or encourages in the commission of the crime. In New York, an accomplice can be convicted even if the principle is acquitted or not prosecuted. A principle cannot be convicted on the accomplices testimony alone. There must be corroboration. Additionally, in New York, an accomplice cannot benefit from a principles defense that negates state of mind. Vicarious liability and conspiracy Under the common law, a co-conspirator is vicariously liable for all other crimes committed by the co-conspirators in furtherance of the conspiracy. In NY, under the Penal Law, however, a co-conspirator is not vicariously liable for the crimes of its coconspirators. Unilateral approach and conspiracy In addition, NY follows the unilateral approach whereby a party can be convicted of conspiracy even if the co-conspirators are not in fact engaged in the conspiracy (i.e.: under cover agents). Under the common law, in order for there to be a conspiracy there must be a meeting of guilty minds. Knowingly in a criminal statute

When the word "knowingly" is used in a penal statute for controlled substances, it is normally construed to mean knowledge only of the possession of the substance, not of the weight. More generally, a court can look to the words of the statute to determine the scope of the word "knowingly" in the statute. Larceny The elements of larceny are the taking and carrying away the property of another with intent to permanently deprive. However, for the crime of larceny, the crucial factor regarding whether larceny has been committed is possession of the property not ownership. An individual guilty of larceny need only take the property from someone else who has possession and the guilty individual must not be entitled to possession himself. NY law incorporates four common law crimes against property: (1) larceny by trespassory taking; (2) larceny by trick (same definition as MS); (3) false pretenses (same definition as MS); and (4) embezzlement (same definition as MS). By statute, the following acts are larceny: (1) acquiring lost or mislaid property; (2) issuing a bad check; (3) false promise; (4) extortion (same definition as MS); (5) embezzlement; and (6) appropriating leased or rented items. Larceny is graded by the value of the property taken and in some instance by the manner in which acquired. Class A misdemeanor, petit larceny: any property (under $1,000). Class E felony, grand larceny, fourth degree: (1) property valued at over $1,000; (2) public record; (3) secret scientific material; (4) property taken from the person of another but not robbery; (5) property taken by extortion; (6) credit cards; (7) firearms; and (8) a motor vehicle with a value greater than $100. Class D felony, grand larceny, third degree: property worth more than $3,000. Class C felony, grand larceny, second degree: property worth more than $50,000 or extortion by fear of: (1) physical injury; (2) damage to property; or (3) defendant's abuse of his powers as public servant. Class B felony, grand larceny, first degree: property worth more than $1,000,000. Extortion Extortion involves the threatening of an individual with future violence or threat of violence to property if the individual does not pay a certain amount of money. Extortion consists of (1) intent to take property from another, and (2) with the threat of future harm. Issuing a Bad Check Under New York criminal law, issuing a bad check consists of knowingly issuing a check when there are insufficient funds to cover it. The requisite intent for issuing a bad check is specific intent. Specific intent indicates that the defendant had the intent to achieve the prohibited behavior, which in this case, is issuing a check which is not covered by sufficient funds. It is enough that Defendant knew there were insufficient funds in the account when he wrote the check to Plaintiff. Merely hoping that he would have enough money to cover it by the time Plaintiff cashed it does not undermine the intent he exhibited by knowingly writing a check on an account that did contain adequate funds. Forgery Forgery occurs when an individual signs someone elses name in order to commit a fraud. Embezzlement In New York, embezzlement, which is the taking of property of another by a person with lawful possession in a position of trust as a fiduciary Solicitation

The crime of solicitation is a specific intent crime. It occurs when a defendant asks or requests that another party commit a crime. The act of solicitation occurs upon the asking whether or not the parties are incompetent or reject the solicitation. Infancy defense In New York, generally people are held liable for their actions, but in some cases they may be judged incompetent. One of these is when they are underage. Generally, New York treats those aged 16 or older as adults in criminal cases, can convict those 14 and 15 of serious crimes, and those 13, 14 and 15 of second degree murder. Those younger than these ages must be dealt with via juvenile proceedings. Withdrawal defense The second possible defense is withdrawal. Under the common law, a party can withdraw from a crime by renouncing the crime making a substantial effort to prevent the crime. The renunciation must be because of a guilty mind. Under the NY Penal Law, a party can only renounce a crime if because of a guilty mind they actually prevent the crime from occurring. Non-slayer defense A defendant has an affirmative defense to murder if 1) he did not commit or aid in the commission of the homicidal act, 2) he was not armed, 3) he had reasonable grounds to believe the other participants were not armed, and 4) he had no reason to believe the other participants intended to engage in conduct likely to result in death. Justification defense Under NY Penal Law, a party is allowed to use the affirmative defense of justification. This means that a party had a reasonable belief that he was in imminent danger. A party is only allowed to use deadly force if he reasonably believes that his life is in imminent danger or he is in danger of serious bodily harm. Under NY Penal Law before a party can use deadly force he has the duty to retreat - except if he is in his house or he cannot do so safely or the party using deadly force is a police officer. A defendant raising justification as an affirmative defense must prove the defense by a preponderance of evidence and the prosecution in a criminal case must prove that the defendant was unjustified beyond a reasonable doubt (in a civil case by preponderance of evidence). Insanity Defense New York's insanity defense is based on a combination of two rules: the M'Naghten rule and the Model Penal Code ("MPC") test. The M'Naghten rule states that a defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either: (i) not know that his act would be wrong, or (ii) not understand the nature and quality of his actions. Under the MPC test, a defendant is insane if he had a mental disease or defect, and, as a result, lacked the substantial capacity to either: (i) appreciate the criminality of his conduct, or (ii) conform his conduct to the requirements of law. In New York, a person is not criminally responsible for conduct if, at the time of the conduct, as a result of his mental illness, he is unable to appreciate the nature and consequences of his conduct, or that his conduct is wrong. Under New York Penal Law, insanity is an affirmative defense. All affirmative defenses must be raised by the defendant and proved by a preponderance of the evidence. Duress

Duress is a defense in New York to any crime. Duress means that the defendant was under such emotional pressure and control that he acted in a way against his will and his crime was justified in these circumstances. Entrapment Entrapment is an affirmative defense that is available to a defendant who would not have committed a crime, were it not for the efforts of police to induce the defendant into commission of that crime. The defendant must show by a preponderance of evidence that he was in fact entrapped. In determining the viability of the defense, courts look to the conduct of the defendant, including prior conduct that reflects on the credibility of his assertion that he was entrapped. Sufficiency of the Evidence In order to prove a criminal violation in New York, the NYCPL requires sufficient evidence to prove that the accused is guilty beyond a reasonable doubt. Beyond a reasonable doubt generally means that if a reasonable, articulable ground exists for believing a defendant has not committed the crime, then the defendant is not guilty. Under the given penal law, there exists a requirement of both actus reus (physical illegal act) and mens rea (mental state) If sufficient evidence exists to establish all the elements, then an indictment survives. If however, evidence used for the indictment is not sufficient in that it does not make something more probable than not, the indictment should be dismissed. This probable cause standard insures that a defendant is not denied his due process rights by being subjected to a trial with no evidence against them. Purely circumstantial evidence may sustain an indictment. Constitutionally ineffective assistance of counsel Under the federal Strickland test, the standard for ineffective assistance of counsel is quite high. The defendant must prove either total deprivation of counsel, or such egregious faults as clear bias or protracted absence at trial. A lawyer may make any decision that can be described as conscious and strategic. Moreover, a defendant must prove that but for the ineffective assistance of counsel, the case might have come out differently. Reasonable Suspicion for a stop A stop of a vehicle may be conducted properly so long as the police have some reasonable and articulable reason for the stop. The reasonable suspicion required for a valid stop does not have to rise to the level of probable cause. Arthur Hobson Rule In New York, the Arthur Hobson rule dictates that once the police know or have reason to know that the defendant is represented in the current case by an attorney, waiver of his right to counsel is only effective if made in the presence of the attorney. Ordinarily, waiver must be knowing, intelligent and voluntary and can be made without counsel present, but in this case, the police had reason to know that Dan was represented by counsel because counsel was appointed by the judge at the arraignment and the police were likely present or could have found out easily that counsel had been appointed. Criminal Procedure Fourth Amendment The Fourth Amendment to the Constitution, made applicable to the state through the Fourteenth Amendment, protects against "unreasonable searches and seizures." In interpreting this command, the Supreme Court has held that when the police seek to arrest a

suspect at his home (thereby constitution a seizure), they must first procure a search warrant. Exclusionary Rule Under the exclusionary rule (a court-created rule to help enforce the 4th Amendment), evidence can be suppressed if it was obtained illegally. For example, if it was obtained without a search warrant. Moreover, any "fruits" of the illegal search can also be suppressed, if it is shown that the police did not have an independent source for the secondary evidence (for example, if the police would have discovered the evidence anyway, the evidence will not be considered "fruit"). Fruit of the Poisonous tree doctrine Under the "fruits of the poisonous tree" doctrine, any illegal substance found during such search will not be admissible against the defendant at trial in the prosecutions case in chief. Good faith exception to the exclusionary rule Many states employ the "good faith" exception to the warrant preference rule, under which illegally seized evidence may nonetheless be admissible if the police had a good faith reason to rely on the warrant. However, New York does not recognize the good faith exception. Therefore, if the warrant is invalid or if evidence was obtained in violation of the warrant, the evidence seized will be inadmissible, unless one of the recognized exceptions to the warrant preference rule applies. Validity of a warrant In order for a search warrant to be valid, there must have been probable cause (reliable information that it is likely that evidence of illegality will be found at a particular location) to issue the warrant, the warrant must state with particularity the place to be searched and the item to be seized, and it must be issued by a neutral and detached magistrate. These requirements stem from the 4th Amendments right to be free from unreasonable searches and seizures. In New York, there is an additional requirement that if the information underlying the affidavit came from an informant, the informant must be shown to be reliable and he must state the basis for his information. If the warrant was defective, the police in New York may not rely in good faith on it, as is allowed by the U.S. Constitution. New Yorks CPL denies police the good faith reliance on a defective warrant and will exclude the evidence (the mandated remedy for 4th Amendment illegal search and seizure). Therefore, if the warrant was invalid, all evidence seized would be excluded. Wiretaps The general rule is that a warrant must be obtained before the government can place a wiretap on ones phone or eavesdrop into ones conversations. The exception to the rule, which is not applicable here, is that every person must be wary of the "unreliable ear" (the possibility that the person to whom is talking is bugged or that the person will consent to the polices eavesdropping). Therefore, the warrant will be valid if it is based on probable cause, is precise, states with particularity the conversations to be listened to, and was issued by a neutral and detached magistrate. Like search warrants, wiretap warrants must be obtained with probably cause and be specific as to the persons and communications which will be tapped. But, in a wiretap warrant, there needs to be particularity as to both the content of the conversations listened

to and the amount of time the police can listen. A wiretap warrant may be issued for 30 days. After its conclusion, a notice must be sent to the suspect. Standing The Fourth Amendment protects against "unreasonable searches," but this right extends only to the extent that the person challenging the search has standing to do so. Standing means that the person had a reasonable expectation of privacy in the thing searched, such that he is a proper party to challenge the search in court. As a general rule, people have an expectation of privacy in property that own or possess. The Supreme Court and the New York courts have extended this doctrine somewhat, and permit for instance, an overnight guest to challenge the results of a warrantless search in the home in which he or she was staying. When several people are pulled over in a vehicle and drugs or weapons are found, every passenger is charged with criminal possession of the drugs or weapons. Automatic standing is given to passengers and drivers of an automobile when drugs or guns are found in the car where possession arises due to presence in the vehicle. Wingspan test Under the Fourth Amendment, a police officer who has probable cause to make an arrest can make a warrantless search incident to a lawful arrest. In this regard, he can search not only the suspects person, but also areas within the suspects "wingspan". If the suspect is arrested in an automobile, the "wingspan" includes the passenger compartment. Also pursuant to a lawful arrest, a police officer can make a warrantless search of an automobile if he has reason to believe it contains contraband. In this regard, the police officer can also search any containers found in the car that might contain the contraband. The rationale for this is that one has a lesser reasonable expectation of privacy in ones automobile. Exceptions to the Warrant requirement There are a number of limited exceptions to this requirement. These exceptions are: (1) search incident to a lawful arrest, (2) automobile exception, (3) plain view and plain feel, (4) hot pursuit, (5) stop and frisk, (6) extraordinary circumstance plus probable cause. Exigency - when an emergency exists at such a level as to justify not procuring a warrant. The Supreme Court and New York courts have justified exigency exceptions to the warrant requirement in cases where public health was imminently threatened, where childrens lives were imminently threatened, and similar life-threatening emergencies. Another exception allows the police to occasionally act without a warrant in order to preserve "evanescent" evidence - evidence that might be destroyed if the police were to wait to obtain a warrant. A police officer may enter an apartment without a warrant upon the consent of an authorized party. A police officer may search a person whom he has lawfully arrested by doing a protective pat down for anything which might be a weapon. In New York, a police officer may not seize something unless it feels like a weapon without probable cause under the warrantless exception of a search incident to a lawful arrest. Indelible Right to Counsel The general rule, and the federal constitutional requirement, is that the Sixth Amendment right to counsel does not ordinarily attach before the imposition of formal charges against the defendant. The New York approach is somewhat broader than the federal requirement.

New York protects the "indelible" right to counsel whenever: 1) the police engage in activity overwhelming to the layperson and the defendant requests counsel; 2) after the imposition of formal judicial process; 3) at arraignment; and 4) anytime there is significant judicial activity in the case. Accordingly, even in New York, the general rule is that before the defendant is formally charged with a crime (thereby bringing with it the protections of the Sixth Amendment right to counsel), he has no right to counsel at a pre-charge lineup. There is an additional narrow exception in New York to this rule: where the police are aware that the defendant is represented by counsel and he makes a request for counsel, the police must provide it. Sixth Amendment Right to Confrontation Defendant has a 6th amendment right to confront his witness. The Supreme Court has held that Defendant only assert the right when the statement is testimonial in nature. The Supreme Court has declined to give a definitive definition of "testimonial." At the very least, statements made in response to a police interrogation are testimonial. 5th Amendment Right against Self-Incrimination The 5th Amendment to the U.S. Constitution grants individuals a privilege against selfincrimination. A defendant is entitled to exercise his 5th Amendment privilege and remain silent whenever there is a chance of making a damaging or incriminating statement. If a defendant does not exercise his 5th Amendment right, it is deemed waived forever as to any statements he makes. In a criminal case, a jury may not draw an adverse inference based on a defendant's exercise of his 5th Amendment privilege. Waiver of the Right to Counsel The issue is whether a defendant who is represented by counsel on one charge and is subsequently released and arrested on another charge can waive his right to counsel without his attorney present. Under the 5th Amendment of the U.S. Constitution, before a confession is admissible, a defendant who is in custody and under interrogation must be read his Miranda rights. The 14th Amendment due process clause requires such waiver to be knowing, voluntary, and intelligent. Similarly, the 6th Amendment provides a right to counsel once formal charges for a serious crime have been filed. The 6th Amendment right to counsel is offense specific. New York protects defendants indelible right to counsel, which attaches when: 1) the defendant is subject to police activity overwhelming to the lay person and requests counsel, 2) upon the filing of an accusatory instrument, 3) upon arraignment, and 4) upon significant judicial activity. Moreover, in New York, a valid waiver of one known to be represented by counsel may not, post-arraignment, be obtained outside the presence of that counsel. However, when the indelible right to counsel attaches for one charge and then the defendant is arrested on an unrelated charge, waiver need not occur in the attorneys presence. Lineups Pre-charge lineups Under the 5th Amendment, a person in custody is entitled to Miranda warnings (right to remain silent and right to counsel) before being interrogated. This right arises from the 5th Amendment protection against self-incrimination. The 5th Amendment right to counsel dictates that a defendant should be able to have counsel present during pre-charge interrogation if he wishes. The right to counsel under the 5th Amendment does not apply to

pre-charge lineups because lineups are not considered interrogatory in nature as they are not likely to elicit a verbal response from the defendant. Under the 6th Amendment, a person has a right to counsel after being charged with a crime. Therefore, the 6th Amendment mandates that a person has a right to counsel at a post-charge lineup. However, a person does not have a 6th Amendment right to counsel at a pre-charge lineup because the 6th Amendment right has not yet attached. In-court identification According to NYCPL, an in-court identification is admissible if the witness identified the defendant in court based on his previous knowledge which is trustworthy and obtained by him in previous transactions, even if the line-up identification is tainted. Such in-court identification is regarded as independent evidence and will not be excluded. Grand Jury Procededings Under the NYPL, the prosecution must put forth sufficient evidence before the grand jury that the grand jury can conclude that the defendants committed all elements of the crime and that there is reasonable cause that the defendants committed the crime. The exclusionary rule does not apply to grand jury proceedings. Therefore, inadmissible evidence that would not be allowed at trial may be submitted to the grand jury. In New York, a grand jury consists of between 16-23 people and 12 people are needed to indict the defendants. Timely Notice Under the NYPL and NYCPL, a prosecutor must serve notice to the defense attorney at arraignment or 15 days after arraignment of any statements made by the defendants to the police. In addition, any statements made after arraignment must be given to the defense as part of Rosario material, which is any material the prosecution intends to use at trial against the defendants, such as grand jury testimony, police reports, medical reports, and criminal history of prosecution witnesses. New York Practice Personal Jurisdiction To exert personal jurisdiction over individuals, a New York court must have some basis for jurisdiction and also provide the individual notice and an opportunity to be heard. Notice must meet the New York statutory provisions for service upon a natural person and also meet constitutional due process standards. It must conform to traditional notions of fair play and substantial justice. In order for a court to have jurisdiction over a foreign corporation, not licensed to do business in the state, procedural due process must be satisfied. There must be minimum contacts of that corporation with the state, an opportunity to be heard and proper service of process (notice). In order to obtain jurisdiction over a defendant, the defendant must either: 1) be domiciled in the state, 2) served in New York state, 3) service of a designated agent in the state, 4) service via long arm jurisdiction, 5) doing business in the state, or 6) consent to personal jurisdiction. Subject Matter Jurisdiction Subject matter jurisdiction is obtained when a federal question is at issue or there is diversity of citizenship and the amount in controversy is over $75,000. Service of Process

Under Article 3 of NYCPLR, service upon a natural person can be accomplished by personally delivering a summons, if this cannot be accomplished with due diligence by affixing the summons (without notice or the complaint) to the door of defendant's dwelling or actual place of business and mailing the same to her last known address within 20 days. According to New York case law, personal delivery is effective when the person making service tenders the summons (without notice or complaint) upon the defendant to be served, and the defendant has actual knowledge that she is being served with a summons. If a defendant closes her door after a process server informs her she has been served, service is complete and the server need only leave the papers at the door. Counterclaims Under the CPLR, the rule is that mandatory counterclaims by a defendant relate back to the date filed by the plaintiffs for statute of limitations purposes. Under CPLR, a negligence claim will be earned after three years from accrual if the statute of limitations is asserted as an affirmative defense. The date that satisfies the statute of limitations is normally the date of filing of process in the Supreme Court of New York. (This assumes that the other requirements such as service of process and filing of proof of service are met.) There are a few statutory exceptions to the date a claim is deemed interposed. One exception occurs within the third-party practice regime and is known as the ``relation back'' doctrine. If a claim that would otherwise be barred is brought against a party when it would have been timely had it been brought when the other party's claim was brought, the counterclaim will be timely as long as it arises out of the same events as the original claim such that the party should have been aware that the claim was likely to be brought Joinder The rule is that parties may join other parties after discovery. If the issues arise out of the same transaction or occurrence, a plaintiff may add another defendant. Because discovery has begun does not dismiss the plaintiff's action. The plaintiff needs to receive permission from the court. The rule is that a court should permit joinder unless there would be undue prejudice. Answer Under NY CPLR, a defendant has 30 days from completed service to respond or 20 days if served personally. This time to answer is suspended by the filing of Motion to Dismiss. Note: Under NY CPLR the filing of any Motion to Dismiss waives jurisdictional objections unless reserved by objecting in the Motion to Dismiss. Forum Non Conveniens When a party seeks dismissal on forum non coveniens grounds, the court must assess whether the jurisdiction's connection to the suit, despite the existence of valid jurisdiction is so tenuous that in the interest of justice, the case should be dismissed. There is no time limit for making a forum non conveniens motion but the movants chances for success on the motion will decrease as pretrial proceedings progress. If the court finds that interests of justice require an action to be stayed or dismissed so that the action may be heard in a more appropriate forum, court may dismiss on any conditions that may be just. Collateral Estoppel/Res Judicata Res Judicata (claim preclusion) bars a party that lost in a case against another party from re-asserting the same claim in a subsequent proceeding against the same party. It is only applicable where the two parties are the same in both actions. Issue preclusion/collateral

estoppel precludes a party from asserting the same issue if it has lost on that issue in a previous case. A non-party to the first action may assert issue preclusion. The doctrine of issue preclusion/collateral estoppel applies to establish liability as a matter of law if (i) the issue was actually litigated; (ii) the defendant was a party to this suit and had a full and fair opportunity to litigate this issue; and (iii) this issue is the same one as lies at the heart of plaintiff's claim against defendant. Long arm jurisdiction In order to adjudicate claims against a party, the court must have personal jurisdiction over the party. Traditional bases for personal jurisdiction include physical presence at the time of service, domicile and doing business. Long-arm jurisdiction under CPLR 302 allows jurisdiction over a nondomiciliary defendant where the cause of action arises from a NY activity. CPLR 302 is a minimum contacts standard of jurisdiction that allows for out-ofstate service conferring personal jurisdiction on the basis of certain acts by the defendant that have a sufficient connection with NY: (a) Transaction of business in NY; (b) Contract made outside NY to supply goods or services in NY the contract must be economically significant; (c) Tortious act within NY; (d) Tortious act outside NY which causes injury in NY (the injury must originate here), PLUS additional link between D & NY ((i) D regularly solicits business in NY; OR (ii) D is deriving substantial revenue from goods used or services rendered in NY; OR (iii) D could reasonably foresees consequences in NY, PLUS D is deriving substantial revenue from interstate commerce (due process requires that the defendant purposely targeted NY in his interstate commerce); OR (e) Ownership, Use or Possession of NY real property. The Long Arm statute covers all types of Ds (individuals, corps, LLPs, etc). The plaintiff can use the same methods of service on D outside NY as would be used for service in NY. Finally, it must be determined whether the assertion of jurisdiction would satisfy constitutional due process, which is satisfied if Ps claim arises out of conduct by D which is so purposefully directed at NY that D reasonably should anticipate being sued in a NY court Service of Process on Corporations The CPLR permits service of a non-domiciliary by looking to the laws of the defendants jurisdiction or by an attorney in that jurisdiction or by an adult non-party. Here, the facts indicate that the defendant was served by an "authorized process server". The CPLR permits corporations to be served by several methods: via secretary of service as agent of a business licensed to do business in the state (not applicable here), or by personal service of a director, officer, cashier (treasurer), assistant cashier, manager, general agent or any authorized agent. There is no indication who exactly was served here so it will be assumed that a proper person was served. Motion to dismiss In deciding a motion to dismiss an indictment, all evidence should be viewed in the light most favorable to the nonmoving party. If there is any basis for liability under the elements of the charge, the motion to dismiss should be denied. Also, under New York law, evidence in grand jury indictments must be legally sufficient, meaning that the evidence must be that which would be admissible in a regular court proceeding. Motion for Summary Judgment To prevail on a motion for summary judgment, a party must show, based on affidavits, documentary evidence, and depositions that considering the evidence favorably to the

nonmoving party, there is no issue of material fact to be decided at trial, and that the case should be resolved as a matter of law. It is a post-answer motion, made after defendant has served the answer, and the court may "search the record", considering the evidence submitted by both parties, and can render judgment either for the moving or nonmoving party. It will consider all the elements of the cause of action in light of the evidence submitted. Motion to Strike A motion to strike is used to literally remove from a pleading an allegation that is scandalous or irrelevant. Judgment Notwithstanding the Verdict (Directed Verdict) A directed Verdict will be entered if there is sufficient reasonable evidence for the jury to only conclude one way and is governed in the light most favorable to the non-moving party. The standard for the court to determine whether to grant a motion to set aside the verdict would be whether the prosecution presented sufficient evidence for a jury to reasonably find that the defendant committed each element of a crime beyond a reasonable doubt. Preliminary injunction Under the CPLR, a party may make a motion on notice for the provisional remedy of a preliminary injunction whenever the ultimate remedy sought is the equitable remedy of a permanent injunction. In addition to a showing that the party is seeking equitable relief, the party must show a likelihood of success on the merits, that damages are not adequate, that irreparable injury will otherwise result, and that there are no equitable defenses such as laches, unclean hands, or estoppel. Provisional Remedies Under the CPLR (New York Practice statute), provisional remedies are designed to protect the plaintiff's interests before trial that are or may be jeopardized by granting plaintiff a security to/in an ultimate enforcement of a potential judgment. Attachment Attachment is a provisional remedy that grants plaintiff security to enforce a money judgment. To obtain an order for attachment under the CPLR, plaintiff must be seeking a money judgment (``damages") and also must satisfy one other requirement from a list of potential factors. One such requirement is if the defendant is threatening to (intending to) remove, conceal, or dispose of plaintiff's assets from the jurisdiction (New York State) to frustrate enforcement of a money judgment or to defraud creditors. Notice of Pendency A plaintiff may file a notice of pendency in any claim the judgment in which will directly affect the title, use or possession of real property. The notice of pendency puts all potential purchasers and lenders on second notice that the plaintiff has a claim to the property. A landlord has three options when a tenant moves out prior to the expiration of the lease. The can do nothing; i.e., not re-rent the lease hold, and can sue the tenant for the balance of the rent. The general rule, in contrast to contract law, is that a landlord has no duty to mitigate damages. Issue Preclusion In New York, issue preclusion may be invoked if: 1) the issue was actually and conclusively decided in the first litigation; 2) the burden of proof in the first action is the same as, or more difficult than, the burden of proof in the second action; and 3) the party

against whom enforcement is sought had a similar motive and opportunity to defend the claim in the first action. Statute of Limitations to file a claim against a town To render a claim against a town in New York, one must file a notice of claim within 90 days of the occurrence. Then, the action must be filed within one year after that 90 day period expired (15 months after the occurrence). Mistrial A trial judge should grant a mistrial if a juror visits the crime scene on his own initiative, does not limit his deliberations to evidence presented at trial, deliberates prior to the close of the evidence and/or deliberates with fellow jurors prior to the closing arguments and instructions. Removal A case may be removed if it could originally have been filed in federal court. Further, if there is diversity jurisdiction, a defendant cannot remove if the case was filed in a state where a defendant is a citizen. Depositions Under the New York CPLR, oral depositions before trial typically occur after an action has been commenced. However, in limited circumstances, the court may allow depositions before an action is commenced if there are particular facts known only to the party being deposed which would aid in letting the plaintiff know if a cause of action is feasible of proper. To conduct such a deposition, the plaintiff must apply to court to obtain an order to compel the deposition. Article 78 Proceedings Pursuant to Article 78 of the CPLR, an aggrieved party may bring a "Mandamus to Compel" against a public agency or officer for failure to discharge their duties. The Article 78 proceeding must be brought in the Supreme Court, by filing a Petition and Notice of Petition with the Court Clerk, and serving the same on the Commissioner. There is a four month statute of limitations for all Article 78 proceedings. For quicker resolution to an Article 78 proceedings, one might consider filing an Order to Show Cause, if the Supreme Court judge signs it, will result in a much shorter return date with the Court Review of Arbitrators decisions As a general rule, New York courts have a strong public policy in favor of arbitration. Under New York law, arbitrators are not bound by the substantive law and unless parties contract otherwise (expressly state arbitration claims will be bound by substantive law). Further, since New York courts strongly favor arbitration, they are reluctant to overturn/vacate arbitration decisions and do not do so based on erroneous applications of law. New York law has provided that arbitration awards may not be reviewed/vacated unless the moving party can prove that the arbitrator was biased, there was fraud on the part of the arbitrator, or if the decision violates public policy. Erroneous decisions of law are not a grounds for review. As stated above, New York has a strong public policy favoring arbitration and courts may only review an arbitration award for misconduct, bias, or exceeding of powers. By statute, New York has prohibited the award of punitive damages by an arbitrator. An award of punitive damages exceeds an arbitrator's powers. Wills Standing

Under the EPTL, all potential beneficiaries under a will, and heirs who would take if the testator died intestate, have standing to either challenge or champion a will. Under the EPTL, the Attorney General is deemed the representative of the beneficiaries of all charitable trusts. New York's EPTL provides that the attorney general is to represent the beneficiaries of dispositions for religious, charitable, educational, or benevolent purposes, and it is the attorney general's duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts. The Attorney General has standing to raise objections in Surrogates Court. The doctrine of cy pres requires that bequests to the state or charities cannot be attacked by will contests. If the inclusion of a bequest raises the possibility of bequests to the state or charities being reduced, the state can intervene. Thus, the Attorney General, as chief law enforcement officer of New York State has standing. Elements of a will Under New York Estates Powers and Trusts Law (EPTL), a proper execution of a Will requires that a Will be signed by the testator over 18 years of age with testamentary capacity at the end of the Will and be attested by two witnesses, that the testator either sign the Will in the presence of both witnesses or acknowledged his signature before them, that the testator publish the Will (declare the Will to the witnesses to be his last Will), and that both witnesses sign within 30 days of each other. The testator's signature must be his own signature or any mark he would make as his signature. If someone else signs on behalf of the testator, this would require additional formalities and would have to be notarized. However, if someone merely helps hold up the testator's hand because the testator is otherwise too weak, the testator's signature is still valid as his own. In that, the attesting witnesses provide sufficient evidence and security that the drafting and execution of the will was proper and that the signature itself was not procured under duress. Under the EPTL, witnesses may affix their signatures as witnesses to a will as long as they do so within 30 days of the other witnesses signature and after they have both witnessed the testator sign or acknowledge her signature in their presence. The affidavit asserting the elements of proper execution signed by the attested witnesses would satisfy the requirements for admission of the Will to probate without the testimony of such witnesses if there is no will contest. If there is will contest, the witnesses must testify (or if one witness is unavailable at least one of the witnesses must testify) or if both witnesses are unavailable other evidence (proof of at least two signatures - that of testator and at least of one witness) must be produced to admit the Will to probate. Agreements to execute wills In general, contracts to execute mutual wills are enforceable in New York. However, such an agreement must be in writing, signed, and acknowledged by the party to be charged (here, the decedent). In addition, the claiming party must not have breached the agreement and have stated in their own will the concurrent obligation for the one person to name the other in their own will. Codicils In order to be valid, a codicil to a will must be executed with all the formalities attending execution of the will. Codicils, like wills, are only valid if they meet the following requirements: 1) signed by testator, 2) at the end, 3)the codicil must be publicized to attesting witnesses, 4) there must be two attesting witnesses, 5) the attesting witnesses must sign after publication and 6) each witness must sign within 30 days of the other.

Revocation of a Will A testator can revoke a will by physical act, such as tearing or burning. He can cross out a will but only if he makes it evident that he is destroying the whole will such as by complete cross-outs. There is no partial physical revocation. In addition, a cross-out with new words added is not valid because New York does not recognize holographic wills (except in the case of mariners at sea or soldiers during war neither of which apply here). Generally, partial revocation by codicil is permissible. Parol Evidence Under the New York EPTL, parole evidence is admissible to determine the intention of a testator who creates a will that is ambiguous on its face (example; leaving a gift to someone that doesnt exist). Such evidence can be obtained from the drafting attorney or third parties with relevant knowledge. Also, when a will is complete on its face, the court may interpret the will in order to arrive at the result most likely intended by the testator. To do this, a constructive trust will be created. Intestacy Rules A residual bequest, under the EPTL, to the testator's issue is distributed by the laws of intestacy. Any issue who have predeceased the testator will not take, but if they died leaving issue, such issue will take by representation. The total assets in residual are distributed as follows. At the first generational level, each surviving issue or deceased issue who died leaving issue take one share. The surviving issue takes this share outright. The shares of deceased issue are added together and distributed at the second generational level, where the issue take by representation. A general legacy to "my issue" is distributed to decedent's descendants as a matter of representation just as if it went by intestate. Partial intestacy The rule in New York, under EPTL, is that when a will fails to properly distribute all property, there is partial intestacy. Any property not accounted for in the will (including residuary estate) will be governed by the intestacy statutes in New York. Intestacy provides for the spouse to get $50,000 and one half of the estate with the other one half of the estate to the children (spouse gets entire estate if no children) OR if no spouse, the children inherit the entire estate OR if none to the parents and issue of parents OR if none to one half maternal grandparents and their issue and one half paternal grandparents and their issue OR if none one half to great-grandchildren of maternal grandparents and one half to great-grandchildren of paternal grandparents OR if none to the state of New York, always distributing per capita at each generation. It should be noted that when a trust fails, there is a resulting trust (not a real trust). Right of Survivorship Under EPTL 5-1.1A Surviving Spouse Right of Election, a surviving spouse who is not disqualified under EPTL 5-1.2 may elect to receive the greater of $50,000 or 1/3 of the decedent-spouses net estate. The right of election may not be defeated by the decedentspouses Will. The right of election is calculated by first reducing the gross estate by the exempt personal property set-asides. Next, expenses, but not taxes, are paid to arrive at the net probate estate. Then, testamentary substitutes are brought back into the estate. EPTL51.1A then instructs that one takes 1/3 of the estate with the testamentary substitutes or $50,000, which ever is greater, and reduce that by the amount of testamentary substitutes received by the surviving spouse.

Testamentary substitutes Testamentary substitutes include: 1) U.S. bonds, 2) retirement plans, 3) shareholder agreements, 4) gifts causa mortis, 5) intervivos trusts exceeding $10,000 given within one year of testators death, 6) totten trusts, 7) jointly held property, 8) powers of appointments the testators has (general). Right to an elective Share New York allows for a spouse who has been insufficiently provided for in a Will. New York provides for a spouse to have the ability to elect to take 1/3 of their spouses estate as an alternative to what they are left in the Will (so long as the 1/3 is above $50,000, otherwise the spouse will get $50,000). In order to do this, they must notify the surrogate court of their intention. The estate for this purpose will include both the items left in the Will and testamentary substitutes. Totten Trusts Testamentary substitutes include a variety of things such as totten trusts and survivorship accounts. A totten trust is a bank account, which the decedent opened in his name, as trustee for the beneficiary. The creator of the account holds exclusive power over the contents of the account during his lifetime (partial revocation each time he withdraws) and at his death, the beneficiary is entitled to any funds remaining in the account. On the other hand, a survivorship account is one in which both people named on the account have full power to withdraw, and at one persons death the survivor receives the remainder. Per stirpes distribution While New Yorks default rule distributes intestate shares per capita at each generation by representation, a testator may elect to use any form of distribution in his will. When a testator elects for a gift to be distributed per stirpes, the probate court will examine the first generation with a living taker and divide the estate by the number of branches (both alive and dead). Each branch will take their share of the interest, which drops down to the next generation if their parent was deceased. So, unlike in New York, there is no recombination of shares at the next generation. Class gifts to Children Under the New York EPTL, an adoptive child inherits the same as a natural when the adoptive child is not the relative of the adopting parent. This applies to inheritance rights not only of the adopting parent, but the adopting parents family. Therefore, if a class gift is made to the issue or children of an adopting parent, the adoptive child will share in that gift as would a natural child of that parent. Beneficiary of will Under the New York Estates Powers and Trusts Law (NYEPTL), a beneficiary may serve as an executor to a will. Attorney as executor Under New York statute, if an attorney who drafts the Will is appointed the executor of the testator's estate, he is required to give to the testator a written statement disclosing that not only attorneys may be appointed as executors. If the attorney is appointed an executor, he would be required to both the statutory commissions and legal fees from the estate. The acknowledgment has to be in writing and signed by the testator and attested by two witnesses. The Surrogate's Court has interpreted this provision

to mean that the disclosure has to be in a document separate from the Will. Failure to comply, results in the attorney receiving only half of statutory commissions. A demand for an accounting Beneficiaries under a will may demand an accounting from the executor, and the executor must show that he distributed the testator's assets according to the will and New York law by showing all assets, debts and expenses. If the executor fails to do so, he must reimburse estate and beneficiaries for any improper distributions. No contest clauses Unlike many other jurisdictions, in New York no contest clauses are given full effect. New York law enables testators to make the dispositions they desire without their intentions and dispositions being questioned after death and without people challenging their mental sanity and free will. Consequently, anyone who contests the will's validity or provisions forfeits rights under the will. Exceptions to New Yorks No-contest rule However, there are a few exceptions. No-contest clauses do not apply when: 1) the contestant is alleging fraud or that the will was revoked by another will, and there is good basis for the claim; 2) the contest is on behalf of a minor or incompetent; 3) the contestant is alleging that the court does not have jurisdiction; and 4) the contestant is merely asking the court to interpret/construe the will's terms. Unless one of those narrow exceptions apply, the no-contest clause will be given its full effect. Renunciation The rule in New York, under EPTL, is that a beneficiary who validly renounces his/her interest in the testators estate will be treated as though he/she predeceased the testator for the purposes of executing the will. The general rule in New York, under EPTL, is that if a beneficiary predeceases the testator, the gift to that beneficiary lapses and falls into the residuary estate. An exception is found in New Yorks anti-lapse statute, which provides that if the beneficiary is a sister, brother, or issue (descendant) of testator and that beneficiary leaves issue, then the gift does not lapse but will be shared by the beneficiarys issue per capita at each generation (people in same relations to the testator take equal shares). Simultaneous deaths New York has adopted the uniform Simultaneous Death Act, which provides that if there is no evidence of who died first, it will be assumed that the beneficiary predeceased the testator (in other words, that the testator survived) for purposes of executing a will. New York does not follow the Uniform Probate Codes 120-hour rule, which requires that the testator survive a beneficiary by 120 hours. The general rule in New York, under EPTL, is that if a beneficiary predeceases the testator, the gift to that beneficiary lapses and falls into the residuary estate. An exception is found in New Yorks anti-lapse statute, which provides that if the beneficiary is a sister, brother or issue (descendant) of the testator and that beneficiary leaves issue, then the gift does not lapse but will be shared by the beneficiarys issue per capita at each generation (people in same relation to the testator take equal shares). Undue Influence Under Estates Powers and Trusts Law and Surrogate's Court Procedure Act, the party challenging the Will based on undue influence must normally show that there was exercise of undue influence (mere opportunity to exercise influence or mere susceptibility to it are

insufficient), that this undue influence overpowered the Will of the testator, and that the disposition would not have been made but for such undue influence. However, there is an inference of undue influence where a person in confidential relationship with the testator, including an attorney, took active part in drafting and execution of the Will. In such cases, the court is required to engage in Putnam Scrutiny even sua sponte. However, the inference of undue influence can be negated by showing that there was an independent basis for the disposition to the person in confidential relationship, such as long friendship. Incapacity In New York, when a person makes a Will they must have capacity to do so. Indeed it is possible for a person to be mentally incompetent for the purposes of having a guardian appointed, or for the purpose of criminal liability, and yet still have the requisite capacity to make a Will. It is a much lower standard. Essentially, a person will have mental capacity, if they understand what they are signing, they understand the value of the object, and they know the object of their bounty. Indeed even if someone is generally incompetent, they would be able to validly sign a Will during a lucid moment. Insane Delusion The standard for lack of mental capacity is whether testator suffered from an insane delusion that caused him to make a will that ignored the objects of his natural bounty (spouse, children, etc.). An insane delusion is not merely irrational behavior, but rather a set of circumstances on false reality that only exists in his "perverted imagination". Testamentary gifts Under the EPTL and Surrogate's Court Procedure Act, a bequest under a Will to one of the attesting witnesses will not invalidate the Will, but the gift to such a witness (called an interested witness) will fail, unless; 1) the other two disinterested witnesses attest the Will, and 2) if the interested witness is also an intestate distributee, he would receive the lesser of his gift under the Will or his intestate share. Stock Splits Where a stock split has resulted in additional shares, the holder of the specific bequest to the shares is entitled to them. This would not be true if the stock shares were a form of dividend payment (in which case, they would go to the residuary). Doctrine of ademption Under the EPTL where a specific gift is made to a beneficiary under a Will and at the time of death, the testator is not the owner of the property in question or the property is not found, the gift is deemed to adeem, or fail. The only exceptions to this rule is when the property is sold under a contract and the proceeds for the property are paid after the testator's death or whether a property is destroyed and insurance proceeds are paid after the death. In such case, the beneficiary of the specific gift is entitled to the proceeds. Pretermitted Child statute Under the EPTL, a child born after the execution of a will who is not provided for in the will or by lifetime settlement may be entitled to a portion of the deceased parents estate. If the testator had children when the will was executed, the afterborn child will (1) take nothing if her siblings were not provided for in the will, (2) share in her siblings gifts pro rata if significant dispositions were made to her siblings in the will, or (3) receive her intestate share of her deceased parents estate if only nominal gifts were made to her siblings in the will. However, if an afterborn child is provided for by a lifetime settlement

by the deceased parent, the afterborn child is not entitled to a share of the deceased parents estate, regardless of bequests to any siblings. Constructive Trust A constructive entrust is imposed to prevent a property from passing to a wrongdoer. Where a one spouse murders the other, a constructive trust will be imposed on all property that would have passed to the murdering spouse under the will of the murdered spouse. This is an equitable remedy intended to prevent a will beneficiary (in this case, a spouse) from profiting by such his or her wrongful conduct. Whereas a resulting trust returns property to the grantor, a constructive trust transfers property from a wrongdoer to the person who should rightfully receive the property. Anti-lapse statute Under the Estates Powers and Trusts Law, a gift made to a sibling or issue, one of which predeceases the testator, will not lapse, but will vest in the children of that sibling or issue. Per stirpes means that the gift should be first divided at the first generation at which there are living takers and distributed to those living takers, but the undistributed shares are not combined, and rather drop down to the issue of the predeceased takers in the first generation. This is in contrast to the default rule of "by representation" where the undistributed shares are combined. It should be noted that this distinction is only applicable if there are two or more predeceased takers, and one or more living taker, in the first generation. Pour-over devise In New York, all provisions of a will must satisfy the six-point formalities for due execution (writing, signed by the granter, in the presence of two witnesses, the witnesses sign within 30 days of each other, and the will is published, i.e., declared to be a will). New York does not recognize incorporation by reference except for pour over wills.The exception to this is a valid pour over devise. A testator can incorporate a trusts provisions into a will if the trust was created contemporaneously with or prior to the will. To create a valid trust, it must be in writing, signed by the settler, and acknowledged. Divorce Under the New York Estates Powers and Trusts Law, any disposition made to a spouse in a will that was executed while the Husband and Wife were married, followed by a divorce, will be void. This section applies to monetary dispositions, and dispositions naming a spouse as executor. It will lapse to the residuary estate, where any named beneficiary will take, pro rata. Presumption of destruction by physical act A will is a revocable instrument intended to provide for the disposition of ones property at death. If the original will was last in the testators (i.e., the creator of the will) possession and cannot be found, there is a rebuttable presumption that the will was subsequently revoked by a physical act. However, such a presumption will not apply if the will was given to someone else to hold. Furthermore, if a will is lost, it can still be admitted to probate if it can be sufficiently proved. This requires: 1) proof of due execution, 2) proof it was not revoked, and 3) proof of the wills contents. Charitable Trusts and Cy Pres In the creation of charitable trusts, courts will apply cy pres, i.e., "as near as possible" to satisfy the settlers (the creator of the trust) intent if the trust is frustrated. To create a charitable trust, the trust must be on behalf of unascertainable beneficiaries, for a charitable

purpose, and satisfy the requirements for a trust (in writing, signed and acknowledged, yet no delivery is necessary in a testamentary trust). Furthermore, if the settler fails to create a valid trust, the court can grant a constructive trust on the assets, which is merely an equitable remedy. Letters of Administration Letters of administration are those court documents that appoint an administrator for a decedent who dies intestate. Ordinarily, granting letters to the spouse is in the best interests of the estate because the spouse is probably the most involved in the now-decedent spouses affairs and is the most likely to protect the interests of the estate. An administrator has significant responsibilities in handling a decedents estate. As such, the surrogates court seeks to appoint someone who, ideally, is not only familiar with the decedent and the decedents estate, but who can adequately and competently perform the requisite responsibilities. Property Takings The Takings Clause of the Fifth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, prohibits the government from taking private land for public use without just compensation. A condemnation of property is a physical, actual taking that must comply with the constitutional requirements contained in the Fifth Amendment of the U.S. Constitution. A municipality may condemn property if it does so for the public good and if it pays just compensation. Joint Tenancy A joint tenancy is always accompanied by a right of survivorship. Each joint tenant has an undivided interest in the whole, but that ownership interest is not descendible, meaning that it does not pass by intestacy to the heirs of a deceased joint tenant. Instead, when one joint tenant dies, the survivor takes a full undivided ownership interest in the whole. In general, joint tenants (or their creditors) have the right to partition jointly owned property. Partition can be involuntary by agreement, in kind, or by sale. When property is undeveloped and unimproved, the preferable method of partition is in kind. This permits the property to simply be divided. It allows any party to sell and it has the least hold on alienation. Tenancy by the Entirety A tenancy by the entirety is a specially protected marital estate with a right of survivorship. The right of survivorship means that if one co-tenant dies, his or her interest in the property is not part of his probate estate, but passes automatically by operation of law to the other co-tenant. The right of survivorship in a tenancy by the entirety can only be severed by the death of one co-tenant (in which case the other co-tenant takes the entire interest), voluntary partition, or divorce. If, however, one co-tenant murders the other, the murdering co-tenant is not permitted to benefit from the right of survivorship. The rule in New York is that one of the spouses may mortgage his interest in property without destroying the tenancy by the entirety. New York follows the rule that the mortgage will affect a lien on half on the interest in the property, by that the property will remain titled in both spouses. Tenancy in Common

A tenant in common may freely transfer his or her ownership interest without the permission of the other tenants in common, but cannot convey the ownership interest of another. There are no survivorship rights with a tenancy in common; upon the death of one tenant, the tenants interest passes through devise or intestacy. Easement An easement is the right to use the land of another for a particular purpose. An easement can be created by any one of four ways: 1) by prescription, 2) by necessity, 3) by implication, and 4) by grant. An easement appurtenant is an easement that creates a dominant and a servient estate. An express easement requires intent and a writing. In order to enforce an easement against subsequent grantors of the servient estate they must be on notice of its existence. There are three ways to provide a grantor with notice of an interest: 1) constructive notice under the recording statutes (since New York is a "race-notice" state; thus, an interest in property is void against a subsequent purchaser for value without notice who first records); 2) if the grantor has actual notice; or 3) inquiry notice. Easement by Prescription A prescriptive easement under New York Property Law is created when the owner of the land fails to bring an action against the users for the period of the Statute of Limitations for real property actions -- 10 years under NY CPLR. Several Conditions must be met to satisfy the requirements for prescriptive easements: (1) the use must be open and notorious, (2) must be continuous use for the statutory period, (3) must be hostile -- without permission from the owner of the land. Under New York property law, a subsequent owner may tack a prescriptive easement period of use if there is privity between them. Easement by Necessity In New York, easement by necessity is created if: (1) the original piece of land owned by one owner is subdivided and if (2) it is strictly necessary to have access to one parcel that an easement or right of way be granted across the other parcel. The access which the easement provides must be essential to the use of the property and no other ingress or egress available. Abandoning an Easement Under New York Property Law abandonment of an easement occurs when the dominant estate which holds the easement ceases to use of the easement and engages in an overt act of abandonment. Mere non-use does not constitute abandonment. Equitable Servitude An equitable servitude is a restriction on the use of land enforceable against successors in a court of equity. It is more than a covenant because it is an interest in the land itself. An equitable servitude can be enforced by a successor to the original parties without consideration of privity, so long as the servitude (1) touches and concerns the land; (2) was intended by the parties to bind the successors; and (3) the party burdened had notice of the servitude. Implied Equitable Servitude An implied equitable servitude (reciprocal negative servitude) does not require a writing. Under the General/common scheme doctrine, if developer subdivides land, and some deed contain negative covenants, while others do not, the negative covenants will be binding on all parcels provided: (i) At time of sale of subdivisions, developer had a general scheme of residential development which included Ds lot (ii) D had notice of the promise contained in the prior deeds 3 forms of notice imputed to D (AIR): (a) Actual notice direct

knowledge of the promises contained in those prior deeds (b) Inquiry notice neighborhood seems to conform to common restrictions (e.g., residential). The lay of the land. (c) Record notice form of notice imputed to buyers on basis of publicly recorded documents. If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without express covenants. An equitable defense to enforcement of an equitable servitude is pervasively changed conditions. Adverse Possession To obtain title to property through adverse possession, the adverse party must meet the following requirements for possession: 1) open and notorious, 2) hostile, 3) exclusive, 4) continuous, and 5) actual. Possession is "hostile" if it is under any claim of right, including under color of title. Possession is "exclusive" and "continuous" even if the possessing party only lives there part-time, and leases the property part-time. In New York, a party must meet the requirements for adverse possession for ten years to obtain ownership rights. However, where the adverse possession will defeat an ownership interest of a tenant in common, the adverse party must meet the statutory requirements for 20 years. Adverse possession may be tacked (added together for purposes of meeting the statutory requirement) on both the true owners side and the possessors side. Only the total time of adverse possession is used to determine whether the statutory requirements have been met. Quitclaim deed Releases the grantor from any claim to the land he had, if any, and makes none of the general warranties of a general warranty title (seisen, conveyance, no encumbrances). Constructive Trust The issue is whether the court will grant a constructive trust of Blackacre for the benefit of Hal. Where a deed is absolute on its face, the court will not impose a constructive trust for the property's reconveyence. An exception lies where 1) a deed is conveyed with the promise to reconvey and the promiser had no intention of reconveyance -- the promiser acted fraudulently or where 2) the parties are in a confidential relationship and the promise to reconvey is proved by clear and convincing evidence. Because constructive trust is an equitable remedy designed to avoid unjust enrichment, a constructive trust will not be formed if the equitable defenses of unclean hands, laches or estoppel are proved. Doctrine of Equitable Conversion Condemnation of a portion of property constitutes "destruction" of that portion of the property, since that portion of the property no longer belongs to the former owner but to the state. At common law, under the doctrine of equitable conversion, once the land sale contract was signed the buyer was the equitable owner of the property and the seller was the equitable owner only of the sale price. Accordingly, the buyer bore the risk of loss when property was destroyed after the land sale contract was signed and before closing, unless the destruction was attributable to the sellers fault or the parties agreed otherwise. In New York, however, under the Uniform Vendors and Purchasers Risk Act (UVPRA), in the absence of an agreement to the contrary, the seller bears the risk of loss unless the buyer has taken either possession or legal title. Doctrine of Acquiescence Failure to object to an artificial boundary line (e.g., a fence placed by a neighbor) may serve to signify her approval of the delineation. Landowners duty of care

New York does not judge the duty owed to a person on land based on that persons status as a trespasser, licensee, or invitee. Rather, the liability of the landowner will be judged under a reasonable person standard in all cases, with the facts of each case informing reasonableness. Tenant who Abandons A landlord has three options when a tenant moves out prior to the expiration of the lease. The can do nothing; i.e., not re-rent the lease hold, and can sue the tenant for the balance of the rent. The general rule, in contrast to contract law, is that a landlord has no duty to mitigate damages. In the alternative, the can rent the property on his own account and thus forgo back-paid rent by releting to another tenant and considering the first tenants executory lease at an end. Or the landlord can rent the leasehold for the benefit of the tenant and simply relet to a 3rd party and sue the tenant for the difference in rent as well as recoup other damages that resulted from the tenant's premature departure. Holdover Tenant A holdover tenant (one who retains possession after the expiration of the lease) gives rise to two options on the part of the landlord: 1) he may evict the tenant, or 2) hold the tenant over. By holding the tenant over, an implied period tenancy is created with terms identical to the original lease terms, unless the tenant was informed that renewal of the lease would incur higher rent, in which case the higher rent would apply. In common law, the duration of the implied periodic tenancy was equal to that of the original tenancy. Due to the potential harshness of this rule, the common law was modified so that for leases greater than one year, the duration of the implied periodic tenancy was equal to one year. This has been further modified for residential leases. However, it remains the common law rule for commercial leases. Tenants Duty to Repair Under New York Landlord-Tenant Law, a tenant has a duty to repair and a duty to third parties. A tenant's duty to repair obligates him to maintain the premises in as good a condition as when he leased it. A tenant's duty to third parties covers injuries incurred on the premises even if due to lack of repair. This is true even if the landlord has contracted to make repairs. An exception to this rule exists if the injury occurs in a "public space" which a landlord has a duty to maintain. Periodic Tenancy and Holdover Tenant Under New York law, when a tenant remains in possession of property after the expiration of a lease for a term of years, the relationship is converted to a periodic tenancy if: 1) the tenant continues to pay rent, and 2) the landlord accepts payment. The period of the tenancy is determined by the frequency of rental payments and the terms of the tenancy, including the rent, remain the same as they were during the expired tenancy of years (unless one party gives the other notice of a change as a condition of renewal, such as an increase in rent before the expiration of the original lease). The terms of the month-to-month lease are the same as the terms of the previous lease because neither party indicated to the other that they required a change in the terms as a condition for continuing the relationship. Therefore, Tenant is obligated to continue to pay the monthly rent he owed under the original lease until the month-to-month lease is terminated upon one months notice by either party. Race-Notice Statute

New York is a race-notice jurisdiction and holds that upon effective conveyance of a deed (legally executed in writing and proper delivery). The first bona fide purchaser to record will hold title as against other claimants. A bona fide purchaser is one who takes for value, in good faith, and without notice of any defects in title (e.g. other owners, bad deed). The Shelter Rule applies in New York to protect one who takes title from a bona fide purchaser and give him the same defenses as the original conveyor bona fide purchaser had. Restrictive Covenant A restrictive covenant that is properly recorded and intended to be a common scheme or plan has to meet the following elements; there must be intent to bind successors in interest, there must be notice of the restrictive covenant, it must touch and concern the land and it must meet the Statute of Frauds requirement. Privity is not required. Mortgage Although a mortgage will survive the death of a party and thus will remain attached to the land when the successor inherits it, it must be acknowledged to be valid. A mortgage must be signed by the party to be charged and acknowledged like a deed (it must also state the land with accuracy). The rule is that a buyer may take property subject to the sellers mortgage, in which case he is not personally liable on the mortgage. However, a duly recorded mortgage remains on the land and the mortgagee may foreclose on the mortgage and sell the burdened property in a foreclosure sale. The buyer may take property and "assume" the sellers mortgage in which case the buyer is primarily liable on the mortgage with the seller remaining secondarily liable. The rule is New York is that, in the absence of an express acceleration clause agreed upon by both parties, the only effect of default is to give the creditor/mortgagee the right to commence an action against the defaulting party to foreclose the mortgage. No acceleration clause is implied. Upon proper proof of the forgery, a buyers will be free of any claim by the mortgagee. Foreclosure A Bank can still foreclose on a mortgage even though it may not hold the devisee personally liable on the mortgage. In a mortgage situation where a default event is defined and foreclosure is not until mortgagor is served with notice, the notice can be validly served by the mortgagee themselves or their agent. This process is not part of the foreclosure proceeding (judicial) itself and as such service can be by a party (or their agent). Acceleration clauses An acceleration clause has the effect of making the entire sum of the debt owed in respect of a mortgage (and debts in general) immediately due and payable upon a mortgagors default in payment. A clause accelerating payment will generally be upheld providing it was not unconscionable at the time the agreement was entered into by the parties. Unconscionability must exist at the time the agreement was entered into by the parties, and cannot result at a later time. In determining whether unconscionability exists, the bargaining power of the parties must be considered. The superior bargaining power of one of the parties may render the agreement void. In addition, New York provides for redemption by the mortgagor until the time of the foreclosure sale (but not after the sale). In the absence of an express acceleration clause agreed upon by both parties, the rule in New York is that the only effect of default is to give the creditor/mortgagee the right to

commence an action against the defaulting party to foreclose the mortgage. No acceleration clause is implied. Rule against Perpetuities The general rule is that a gift must vest, if at all, within 21 years of the death of any life in being at the execution of the instrument. Otherwise, the gift violates the Rule Against Perpetuities. However, New York has modified the common law rule against perpetuities such that the courts will reduce any age contingencies that violate the rule to 21. Domestic Relations Personal Jurisdiction In a matrimonial action involving economic issues, the court must have personal jurisdiction over the defendant spouse. For personal jurisdiction to exist over a defendant spouse in a matrimonial action in New York, the defendant must be personally served in New York, must be a New York domiciliary or must be subject to jurisdiction under the matrimonial long-arm statute. Under the matrimonial long-arm statute, personal jurisdiction over a defendant may be obtained if the defendant spouse abandoned the plaintiff spouse in New York. Subject Matter Jurisdiction DRL and New York CPLR controls. New York CPLR provides that New York Supreme Court has exclusive jurisdiction to dissolve a marriage and concurrent jurisdiction with Family Court and Surrogate Court in all other family matters. The status of a marriage is considered res, "property", and it therefore travels with the spouse. Once the spouse is in New York, the res is in New York and is sufficient to give New York Supreme Court subject matter jurisdiction to dissolve the marriage. Residency Requirement In addition, in an action for divorce, DRL 230 provides a minimum residency requirement that must be pleaded as part of the substantive case. Failure to include it in the complaint is a failure to state a cause of action, which is grounds for dismissal. DRL 230 requires: (1) two years residency by either party in New York; (2) both parties are residents at the time the cause of action arose in New York; (3) one party a resident for one year plus: (a) the marriage occurred in New York, (b) New York was the matrimonial domicile, or (c) the cause of action arose in New York. Service of Process Under New York's Civil Practice Laws and Rules, a party may leave process with someone of suitable age and discretion at the residence or principal place of business of the party to be served. The CPLR further requires that copies of service be mailed within 20 days of the "leaving". Divorce In New York, there are five grounds for divorce: 1) cruel/inhuman treatment, 2) adultery, 3) abandonment, 4) three years of consecutive imprisonment, and 5) a conversion divorce. Annulment An action for annulment can be made in few instances. Infancy of a spouse or incompetency of a spouse are grounds. Infancy can only be brought forth by the infant spouse, and incompetency is only available if the competent spouse was not aware of the other spouse's incompetency before or at any time during the marriage.

Fraud is a viable ground for annulment. It requires a spouse to knowingly induce the other person into marriage and had the person been made aware of the spouse's fraudulent misrepresentations, she would not have gotten married. There is no grounds for fraud if a spouse simply changes his mind after the marriage. He must have knowingly put forth representations with no intention of their truthfulness. Adultery Adultery is a valid ground for divorce in New York. Adultery is engaging in sex or deviant sex with someone other than your spouse. The spouse who is accused of adultery has three defenses: 1) unclean hands, which means the accusing party is also guilty of adultery; 2) entrapment, the accusing spouse set the other up, or 3) the accusing spouse either condoned or forgave the adultery. Condonation Condonation is one of the defenses available in New York, and it occurs when a spouse, who with knowledge of the adultery, continues to cohabit with the spouse after the adultery occurred. Doctrine of Conversion Under the conversion doctrine, a couple can obtain a divorce when they have lived separate and apart for one year pursuant to a court order or a valid separation agreement. The court can then convert the separation agreement into a divorce decree. To be valid, a separation agreement must be in writing, signed and acknowledged. It must be entered into freely and voluntarily. Separation agreement may also provide for support and property division. Cruel & Inhuman Treatment New York Domestic Relations law provides for five grounds for divorce: one of these is the so-called "cruel and inhuman treatment". A divorce will be rendered against a spouse whose behavior towards the other spouse is such as to endanger the physical, emotional or mental well-being of the "abused" spouse. In order to determine the existence of the cruel and inhuman treatment, the court will use a subjective test and consider the effect of the defendants conduct on the particular spouse alleged victim. Thus, the sensibility, weakness of the victim will be taken into account, as well as her possible "unusual resistance". It is only if the abusive behavior does in effect endanger the well-being that the ground will be effective. Abandonment According to New York Domestic Relations law, there is ground for separation on the ground of abandonment if three elements are present: 1) the abandonment must be voluntary; 2) with no intent to return on the part of the abandoning spouse; and 3) the abandonment must be without justification. In New York, there is no minimum requirement for the ground if the action is for separation (not for divorce, where it must be for a year at least). Ex parte divorce A court may grant a divorce if it has subject matter jurisdiction over the marriage. If one of the spouses is domiciled in the state where the divorce action is commenced, that is sufficient to give the court subject matter jurisdiction over the marriage. A state is a persons domicile if the person is present there with the intent to remain there indefinitely. If the spouse not seeking the divorce is duly served, but does not appear in the action, the court may grant a valid ex parte divorce. An ex parte divorce validly granted in another

state is entitled to full faith and credit in New York even if the divorce would not have been valid under New York law. Under a valid bilateral divorce from another state, all issues arising out of the marriage which one party could have raised in the action are res judicata. However, under the doctrine of divisible divorce, if an ex parte divorce is granted in another state and no orders are made with regard to economic issues, the economic issues may be resolved in a separate action in another state. Equitable Distribution of property The DRL provides a statutory framework which courts must follow in performing an equitable distribution. Courts may consider the relative health, education and financial standing of each spouse among various other factors. However, fault in the divorce action generally will not be considered during equitable distribution of the property unless that fault is egregious/ In a divorce, a court will divide all property owned by the two spouses into three categories: 1) the wifes individual property, 2) the husbands individual property, and 3) marital property owned jointly between them. Marital assets include property in which title is held by either party or both parties jointly, subject to the following limitations. First, property held by a party prior to a marriage is considered that party's asset as opposed to joint marital property. Second, any property that is given specifically to one of the parties (by name) is viewed as a gift only to that party. This includes specific bequests in a will, for example. Third, personal injury compensation paid to either party is viewed as that party's individual property. Fourth, any property that the married couple agrees will be viewed as separate marital property will not be considered a marital asset. Finally, any passive appreciation on the value of property in any of these four categories will be considered the individual asset of the party owning that property. But, active appreciation due to the effort of either or both parties will be considered marital assets. In making an equitable division, the court will look at tangible, as well as intangible property. Intangible property, for example, can be a professional license. In short, the court will take into account increased earning potential of a party (that accrued over the marriage) as a marital asset. In addition, the services provided by one spouse who stayed home or put a career "on hold" will be considered in order to reach an equitable division. Prenuptial Agreement Prenuptial agreements are valid contractual agreements that are executed prior to the actual marriage. Courts will uphold premarital or prenuptial agreements if they are freely made, signed and in writing, and do not set a time for divorce or so deprive one spouse of support that they may be in danger of becoming a public charge. If these agreements are made before the marriage, than becoming married serves as a condition to its enforcement. An award of Maintenance In the absence of an agreement on maintenance, the court may award maintenance based on what it deems to be fair and reasonable. The fault of the parties may be considered. The test is a "means" test, based on each partys financial resources. Factors that the court may consider include the education and job skills of the spouses and the standard of living that would have been enjoyed by the plaintiff had the marriage continued. Termination of Maintenance

Absent an alternative agreement, Domestic Relation Law (DRL) indicates that spousal support agreements terminate upon 1) death of either party, 2) marriage of receiving spouse or 3) the receiving spouse lives with another and holds herself out as married to that person. Equitable Estoppel In NY, the doctrine of equitable estoppel is a remedy in equity designed to prevent a party from altering their position on which another party relied, when to do so would cause unreasonable detriment to the other party. Presumption of Paternity & Equitable Estoppel Under New York Domestic Relations Law, in ruling on a petition for a declaration of paternity, the court will consider the best interests of the child paramount. The court may deny a declaration of paternity in the face of a valid presumption of paternity and where the parties have relied on the previous and longstanding manifestations of paternity prior to the action. A child born during marriage is considered a marital child, and the child of a marital woman is presumed, absent other evidence, to be the marital child of her husband. These presumptions may be overcome by evidence to the contrary. However, in any action for a declaration for paternity and other actions involving children, the best interests of the child are paramount and the declaration of paternity may be denied under the doctrine of equitable estoppel. Under this doctrine, parties who have relied on an agreement to treat paternity as that of one party and have continuously done so will be later estopped from denying that paternity. Revocability of consent to adoption Adoption agreements are controlled by contract law and are subject to the same defenses to formation as contracts. Duress or incapacity could provide adequate defenses to the creation of an adoption agreement, but when a mother simply changes her mind she may not revoke consent to the adoption, absent some provision allowing for said change of heart. Waiver of consent to adoption Generally, the consent of both parents is required to effect an adoption. However, where the adopted child is non-marital, the consent of the biological father may not be required in certain circumstances. To protect his legal rights in the child, courts will look to the extent to which the biological father "assumed parental responsibility." The court will include such factors as the extent of his interaction with the mother during pregnancy, whether the father paid for medical expenses incurred during pregnancy, and his willingness and ability to assume custody and care for the child (as opposed to merely protesting an adoption). A biological father waives his legal rights to a child under several circumstances, one of which is abandonment. Best interests of the child New York courts determine custody on the "Best Interests of the Child" theory. The interests of the child are paramount to that of the parents. In evaluating the "Best Interests of the Child," courts will look to the following: 1) the interests of the parents, 2) the interests of the child if the child is over 12, 3) the age, financial well-being, and health of each parent, 4) the existence of new individuals in each parents life and who that person is (e.g.: mistress), 5) the effect a given custody will have on the child's ability to foster relationships with extended family, 6) history of domestic violence by either party, and 7)

anything else the court thinks it will be equitable to evaluate. This is clearly a broad standard that gives a lot of discretion to the court. Presumption of paternity The rule in New York is that a former spouse is estopped from denying paternity when a child born into wedlock is raised as the child of both spouses. Change of Custody claim In a change of custody claim, the court looks to several factors in determining how custody should be awarded. Some of the factors the court will look at to award custody are, who was originally awarded custody in the separation agreement, abuse of parent(s), mistreatment, support, standard of living, education, health, preference, and the best interests of the child. The court will also consider not splitting up siblings. Child support A parent has the duty to financially support his/her children until the age of 21. The parent without full physical custody may therefore be required to pay support to the other parent (for use to support the children). A court will determine what support level is required by using a statutory formula, which accounts for a percentage of the parents income and the total number of children to support. New York courts follow set guidelines in awarding child support based on the number of children in the family. For couples incomes that accumulate to $80,000, 17% of that should be allocated to one child, and in the case of two children, 25% should be allocated. If the parents are far wealthier, the court can adjust such a ruling to take into account the added wealth. The court can also take into account any income disparities between the parties. If, for example, the paying parent makes far more money than the custodial spouse, the amount paid can be increased. If the paying parent is indigent and the custodial spouse is not, this can also be taken into account. Although fault would play a role in determining maintenance for the wife, maintenance and child support are separate issues. Child support revolves around the equitable amount needed to care and support the children. It should be noted that under New York law, parents have an obligation to care and support their children until they are 21. This can be extended into college if the parents are well to do and the child agrees to follow the parents' reasonable demands. It should also be noted that under federal statute, sister states must recognize the forum state as the state with jurisdiction over the child support claim. Hence, the support claim can be enforced regardless of the state in which the paying spouse ends up in. Arrears Under NY Domestic Relations Law, arrears in child support and maintenance may not be cancelled, even if not reduced to a judgment. Furthermore, the right to child support is independent from the right to visitation, such that one parent's interference with the other parent's custody rights does not cut off the liability of the parent whose custody rights are being interfered with for other obligations of child support or maintenance. Suspension of child support With respect to future payments, courts will not suspend child support during periods of misconduct of a spouse in interfering with the other parent's rights to visit the child. The rationale is that this will punish the child and not the culpable party - the misbehaving parent. However, the court may use other methods of compelling the spouse to comply

with a visitation agreement, such as normal enforcement measures like penalties or even contempt. Suspension of child support for violating a separate agreement In NY, married parties are free to enter into valid separation agreements in order to define their rights as to property, maintenance, and child support and child custody. The separation agreement must be valid to be enforceable, that is, it must be signed and acknowledged, and at some point filed with the court. Separation agreements are governed by normal contract principles. If the separation agreement says nothing, it will be incorporated with a divorce order, but will survive the divorce order. In order to change child support in a separation agreement, the moving party must show an unexpected change in circumstances and extreme hardship on the party. In addition, the best interests of the child must be considered. Modification of Child Support Modification of child support where there is a separation agreement The court may modify child support and maintenance provisions to fit the needs of the parties. Parties whose child support obligations have been created under a valid separation agreement that was incorporated and survived a divorce decree must show that failure to modify will work an extreme hardship against that spouse. However, there must also be extreme hardship to the party, and the party should have "clean hands", otherwise the court will not allow a party to escape his obligation to pay child support under NY law. The rule for modifying a separation agreement not merged into the divorce is by a showing of a substantial change in circumstances. Unmarried Cohabitant Agreements New York courts will enforce express agreements between unmarried cohabitants so long as they are not based on consideration of sexual services. An agreement requires an offer, acceptance, and consideration in order to be enforceable as a contract. Consideration is defined as a bargained for legal benefit or detriment in New York. However, New York courts will not enforce implied agreements between unmarried cohabitants. New York will not imply an agreement between persons living together for care and services absent an express intention to enter into a legally enforceable agreement. New York does not recognize common law marriages and to permit an implied contract would violate that policy. Contracts Elements of a Contract A contract requires: 1) offer, 2) acceptance, 3) consideration, and 4) lack of defenses to enforcement. An offer is an unequivocal manifestation of an intent to be bound. Acceptance is communication of an intent to be bound by the terms of the offer. The common law "mirror image" acceptance rule held that an acceptance must exactly mirror the offer. Any additional terms or variation would constitute a counter-offer, which revokes the offer. Under Article 2 of the UCC which governs contracts for sale of goods, mirror image is not the rule. As long as there is substantial agreement on the material terms, additional terms can be added (whether they are included or not is another matter, discussed later). Consideration is a legal benefit rendered to, or detriment suffered by, each party mutuality of promises. This element is met, as Bob is offering payment, and Sell is offering to provide widgets. Unilateral Contract

A unilateral contract is a contract whose offer can only be accepted by performance unlike a bilateral contract in which a promise is the consideration for another promise forming a bargain exchange. Rewards are generally offers for a unilateral contract. In order for a contract to be binding there must be an offer followed by an acceptance (a reasonable acceptance), there must be valid consideration and the offeror must induce the performance. Consideration The general rule is that in order to have a valid contract, there must be consideration, as defined above, on both sides of the contract. Where one party can perform or not perform as it chooses, there is no mutuality of obligation (i.e., that party has not given consideration, and the contract will be invalid as an illusory contract). Breach A breach of contract occurs when one party has an absolute duty to perform (the duty has not been discharged) and fails to tender performance in accordance with the contract terms. A material breach occurs if the non-breaching party does not receive substantial benefit of his bargain. The non-breaching party has the immediate right to all remedies for breach of the entire contract, including total damages; & the non-breaching partys duty of performance is discharged. Upon breach, the non-breaching party can recover his expectancy damages. The expectation interest is intended to put the non-breaching party in as good a position as full performance. In a contract for the sale of goods, Article 2 of the UCC likewise attempts to put the non-breaching party into as good a position as if the contract had been performed without breach. Buyers Breach Under the UCC, if a Buyer wrongfully rejects/revokes acceptance of goods on or before delivery, in respect to the whole undelivered balance, Seller can (1) withhold delivery; (2) stop delivery by a bailee; (3) resell (at a public or private sale) and recover damages (the Seller can recover the difference between the resale price and the contract price plus incidental damages if the resale is in good faith and done in a commercially reasonable manner) less expenses saved; (4) recover damages for nonacceptance (the Seller recovers (a) the difference between the market price at time/place of delivery and the contract price plus incidental damages less expenses saved or if that is not sufficient to make the Seller whole, then (b) sellers provable lost profit (contract price minus costs) plus incidental damages); or (c) cancel. Under the UCC, if the Buyer accepts the goods and breaches, the Seller is entitled to the contract price. Sellers Breach Under the UCC, if a Seller does not deliver or repudiates, or Buyer properly rejects or revokes acceptance: 1. Buyer has the right to recover his deposit whether or not the Buyer cancels the contract. 2. If Seller repudiates, the Buyer can seek the monetary remedy of cover (to purchase substitute goods). Three conditions precedent: (i) Buyer must act in good faith (honestly in fact) and because he is a merchant observes reasonable commercial standards of fair dealing; (ii) Must cover without unreasonable delay; (iii) Must not make an unreasonable contract. 3. Sue the breaching Seller for the difference between the contract price and the market price at the time the buyer learned of the Sellers breach plus consequential damages (lost profits) and incidental damages.

4. The Buyer has the equitable remedy of specific performance to compel the seller to deliver the goods so long as (i) Buyer must not be guilty of laches (unreasonable delay); (ii) buyer must allege that there is no adequate legal remedy available; and (iii) money damages would not be adequate here (under the UCC, if the goods are unique or in other proper circumstances). 5. Buyer has the Legal remedy to replevy the goods provided that (i) the buyer is unable to cover despite making diligent effort to do so; and (ii) the goods must be identified to the contract Breach where time is of the essence The general rule is that where a real estate contract contains a clause that "time is of the essence", the buyer must perform on the closing date (if no such clause, within a reasonable time of closing). Should the buyer fail to perform, the seller can forfeit the down payment. Statute of Frauds The Statute of Frauds requires that certain contracts be recorded in writing and signed by the party against whom they are asserted in order to be enforceable. These contracts include: 1) contracts made in consideration of marriage; 2) contracts for services which cannot be completed in less than one year; 3) contracts concerning the sale or use of land; 4) contracts in which an estate representative agrees to be personally liable for the estate's debts; 5) contracts for sale of goods for $500 or more; 6) suretyships; and 7) leases of personal property with total payments of $1,000 or more. Subsequent modifications to the contract are enforceable provided that they too are embodied in a signed writing, or if consideration has been furnished for the modification. Missing terms P The general rule is that a contract is formed if there is a "meeting of the minds", consideration (benefit a legal detriment to both parties) and no defenses to the existence of a contract. A merchant is one who deals in goods of the kind at issue or who holds himself as having special knowledge about the goods. Where the contract is for the sale of goods, UCC Article II applies and states that where both parties are merchants, the only term essential in the contract is that of quantity (i.e., the merchants can agree to later agree on price). Should they not come to an agreement later, the court will supply a reasonable price. Employment Contracts The rule for employment contracts is that a duration term must be included. Under New York law, if a contract is indefinite to duration, it is presumed at-will. Installment Contracts An installment contract whereby each year's installment constituted a separate agreement. Under such contracts, the UCC provides that the perfect tender rule does not apply and a buyer may only revoke if the delivery is substantially impaired. Non-Compete Agreements To execute a valid non-compete clause in New York, there must be three things to make the agreement enforceable. 1) Agreement is necessary in purpose. 2) Agreement is reasonable in duration of non-compete and its geographic scope. 3) The employee's services must be unique. If any of these three elements fail, a court will not uphold a noncompete agreement. Acceptance under the UCC Under the UCC, a contract for the sale of goods between merchants does not have to comply with the common law mirror image rule. In other words, the acceptance may

contain additional terms. These terms will become part of the contract if they do not materially alter the terms of the contract, if the contract does not limit acceptance expressly to its terms, or if the other party does not object to their addition in a timely manner (i.e. within ten days of receipt). Confirmatory Memorandum There is an exception to the Statute of Frauds -- a "confirmatory memorandum." In a goods contract between two merchants (for present purpose, this means two people carrying on a business or trade), a writing that confirms an agreement, and includes the necessary details, is sufficient if it is signed by the party enforcing it (not the party against whom it is enforced), as long as the party against whom it is enforced did not object. Third party Beneficiary Generally, a party who is not in privity of contract with another party cannot assert a claim of breach of contract. However, when the party asserting the claim is an intended thirdparty beneficiary, he has the same rights as the party in privity with the breaching party. An intended third-party is one whom while not in privity with two or more other contracting parties, the two contracting parties are aware that their respective performances are intended to benefit an identified third-party. Battle of the Forms The question is whether the additional terms are incorporated into the contract. The issue is known as "battle of the forms." An additional, consistent term will be added to a contract between merchants on three conditions: 1) the term is not material, 2) both parties are merchants, and 3) the offeror does not complain within a reasonable time. A material term is one that significantly changes the nature of the bargain between the parties. It is generally held that a term adding interest to late payment of a contract price, as long as the rate of interest is reasonable, is not a material term. Modifications of Contracts The Parol Evidence Rule allows the admission of evidence of the terms of an agreement that the parties intended to be included in the agreement, but were not reduced to the writing where on its face the obligations of the parties are not clear or the terms are ambiguous. Evidence or writings created after the agreement was signed are not admissible under the Parol Evidence Rule. There are exceptions to the Parol Evidence Rule. Parol evidence may be admitted to clarify ambiguous terms within the "four corners" of the written agreement. Parol evidence may be admitted if the oral understanding at issue arose after the execution of the written contract. Where the parties have reduced their agreement to writing, it is presumed that the writing contains the entire intention of the parties. Any oral modification after the execution of the agreement is therefore not admissible unless the parties can provide evidence that the oral modification was binding in equity. This may be achieved if the parties can show detrimental reliance on the oral modification, past performance, custom or business practice. Novation Risk of Loss When a contract is entered into for the sale of goods between merchants, the buyer bears the risk of loss once the goods leave the control of the seller, unless the contract provides otherwise. Where the contract provides that goods are to be delivered to a specific place, then the seller bears the risk of loss until the goods are delivered to such place.

Risk of Loss (Bailments) If a condition in a contract makes performance conditional upon its completion fails, no breach has occurred. Where a valid contract is never formed, seller bears the risk of loss if he still ships the goods after buyer notifies him that he has duly canceled the contract. Buyer then becomes a bailee of the goods. There are three types of bailment, each dictating the duty owed by the bailee. A bailment for mutual benefit, a bailment for benefit of bailor, and a bailment for benefit of bailee are the three types. Under a bailment for the benefit of the bailor, the bailee has a duty to not act recklessly with regard to bailor goods. Bailee must immediately notify bailor of his receipt of the goods and he has duty to act with reasonable care in protecting the goods. Risk of Loss where goods are non-conforming (UCC) Generally, under Article 2 of the Uniform Commercial Code, a seller of goods must provide goods that perfectly comply with the buyer's expectations - the "perfect tender rule." Once the goods are received by the buyer, the buyer has a reasonable opportunity to inspect the goods to ensure they are conforming to the contract before accepting delivery. Under Article 2, a buyer may reject nonconforming goods by providing notice to the seller of the intention to reject within a reasonable time after delivery. Failure to promptly reject within a reasonable time for inspection after delivery may give rise to an implied acceptance, transferring the loss to the buyer. The seller is then responsible for the risk of loss on the nonconforming goods because there has been no acceptance. Perfect Tender Rule Under the UCC, the "perfect tender rule" applies to sale of goods contracts. This rule provides that a buyer upon receipt of the goods has the right to reject any non-conforming shipment before accepting the goods. After acceptance of the goods, a buyer is no longer allowed to reject a shipment unless grounds for revocation of acceptance apply. Replevin A seller of goods can repossess the goods he/she sent to a buyer upon being informed that the buyer is insolvent so long as the seller acts promptly. If the seller discovers that the buyer was insolvent when seller delivered the goods and, furthermore, that seller, within ten days of delivery demands in writing the return of those goods, the seller will be able to repossess the goods before attachment by another creditor will be good. Minor defective Performance Where a contract contains an express provision for use of specific materials, generally a contractor is obliged to use such materials, or compensate the home-owner for the diminution in value or the cost of replacement. Substantial Performance Doctrine Substantial performance doctrine, which is a defense to non-compliance with a contractual condition precedent, where a party substantially performs his end of the contract. A court will be hesitant, however, to grant such relief where the breach was willful. Anticipatory Repudiation A party breaches a contract anticipatorily when it expresses clearly and explicitly its intent not to perform under the contract before performance is due. An anticipatory breach is a present breach of contract, and the non-breaching party may seek damages immediately. A party that anticipatorily breaches a contract may retract its repudiation and restore the contract provided such retraction is timely. Timely means the non-breaching party has not yet relied on the breach by obtaining substitute goods for example. The non-breaching

party may require assurances of intent to perform from the party that had breached however. UCC Damages As to damages, under the UCC, when a party is in breach of contract, the opposing party is entitled to either cover, which is going out and finding substitute goods, or bring suit without covering. If they choose not to cover, they will not recover any damages that could have been mitigated Article 2 attempts to restore the non-breaching party to the position it would have been had the breach not occurred. When the buyer has accepted and paid for the goods, his measure of damages is the difference between the contract price and the market value of the goods as tendered, plus any consequential damages, minus any expenses saved. A merchant who resells the goods may recover his lost profit as well. Non-compete Agreements Generally, New York courts will not restrict a persons ability to seek the lawful employment of her choice for public policy reasons. However, a limited exception exists for a valid non-compete agreement. A non-compete agreement is enforceable if the persons services are unique such that damages would be inadequate, the agreement is reasonable in geographic scope and time, and is reasonably necessary to the employer. Permanent Injunction for Non-compete Agreement To obtain a permanent injunction to enforce a non-compete contract, an employer must show: 1) that a valid contract existed; 2) that the terms of the agreement were reasonable with respect to the time, purpose and scope of the restriction; 3) that money damages are inadequate to remedy the employer's harm; 4) that a court can enforce the injunction; 5) that there was mutuality of remedies between the parties; and 6) that the injury to the employer outweighs the harm to the employee. Express Warranty Under Article 2, a seller is liable for a breach of an express warranty she makes to a buyer. An express warranty is any statement regarding the quality or nature of the goods. Implied Warranty of Title Under UCC, when the seller is a merchant, there are implied warranties of title, warranty of merchantability, and there may be implied warranty of fitness for a particular purpose, The implied warranty of title warrants the buyer that the seller has valid title and right to convey the goods. The implied warranty of title and express warranties cannot be disclaimed. Implied Warrant of Fitness for a Particular Purpose Implied warranty of merchantability warrants that the goods are fit for the ordinary purposes. Implied warranty of fitness purposes comes into play when the seller knows that the buyer purchases the goods for a particular purpose and the buyer relied on seller's expertise to select the goods. When the seller expressly states facts to the buyer, there may be also express warranties. Warranty of Merchantibility The warranty of merchantability is a promise that the goods are fit for the purposes for which goods of the type are normally used. The rule is that although an express warranty may never be disclaimed, and implied warranty relating to goods (either the general warranty of merchantability or the specific warranty of fitness for purpose) may be specifically excluded from a contract. The disclaimer must be clear and explicit.

The implied warranty of merchantability and implied warranty of fitness for a particular purpose may be expressly disclaimed by conspicuously doing so in the agreement and expressly mention the warranties to disclaim. Words like "as is" and "with all faults" are effective to disclaim the implied warranties of merchantability and fitness for a particular purpose. Quasi-contract Courts will construe an otherwise unenforceable contract as a quasi-contract in order to prevent the unjust enrichment of a party. Such cases arise when there is an unenforceable agreement, one party benefited from the performance of another party, without performance of a mutual obligation of its own. Unconscionability An unconscionable contract is one that is both substantively and procedurally unconscionable. Procedurally unconscionability occurs when one party to the contract, usually the party who wrote the contract, is at a superior bargaining position than the other party and uses that power to their advantage by engaging in unfair pressuring or bargaining practices to force the other party to sign. Substantive unconscionability is where the contract contains terms that are obviously unfair and one-sided in favor of the party with the superior bargaining power. Unilateral Mistake A unilateral mistake is a mistake made by one party that is unknown to the other party. Normally a unilateral mistake will not discharge a party. Parties are expected to responsibly negotiate and bargain from this position. However, where the non-erring party knows or has reason to know that the error was made, it may not profit on the error by "snatching up" the erroneous offer. When the mistake is made in calculating figures on a construction bid, the mistaken party can move to rescind the contract. Damages Expectation Damages A Buyer is entitled to recover his expectation damages, those which would attempt to put him in as good of a position had there been no breach. This includes all damages including lost profit, incidental damages, and foreseeable consequential damages. Rescission To ask for rescission, the mistaken party must show that (1) the error was communicated to the other party, (2) the error was a result of ordinary negligence, (3) prompt notice of the mistake was given and the notice of withdrawal was made, and (4) the party would suffer substantial hardship if the contract was enforced. Damages for Breach of Contract for the sale of goods Under Article 2 of the UCC, a party seeking damages for breach of contract may recover monetary damages in the amount of replacement cost for defective goods (cover of fair market value if cover not possible), plus any incidental and foreseeable consequential damages. Consequential damages are recoverable if foreseeable. Article 2 of the UCC applies to the sale of goods, moveable personal property. Damages in Building Contracts Generally, where a construction contract is breached by the builder, the owner's measure of damages will be "cost to complete". However, where there would be great hardship and inequity in forcing a demolition and reconstruction the courts will allow the measure of

damages to be the difference between the value of what was bargained from the contract and the value of what the owner received. Impractiability Generally, impracticability may serve as a basis for valid consideration in a contract modification. Impracticability exists where an unforeseen and unanticipated event, which both parties at the time of contracting did not expect to occur, occurs. However, an increase in the price of materials will not usually constitute impracticability since one can be expected to anticipate such a possibility in the market. Impossibility The rule is that contract performance may be excused for impossibility, impractibility and frustration of purpose. Impossibility is a recognized defense to a contract that affords a party rescission of the contract, but it is interpreted narrowly by the courts. It occurs when an event occurs after execution of the contract making performance impossible. It is limited to instances of destruction of the subject matter, death of a party in a personal service contract and other instance where the purpose of the contract is frustrated Accord and Satisfaction New York recognizes that when a debt is due and disputed, the taking of less than the amount in full satisfaction of the debt is valid consideration (or if the parties agreed in writing). A party is excused from obligations under a contract where there has been an accord and satisfaction of the accord. An accord is an executory contract between parties to a contract promising to relieve a contracting party of her obligation under the contract in return for a specific act. Upon satisfaction of that act, that person is excused from further performance under the contract. Preexisting Duty Rule At common law a preexisting legal duty cannot serve as consideration to a modified contract. However, the preexisting legal duty rule has numerous exceptions. Courts will try and find consideration where either 1) the parties change their duties and/or rights under the contract or 2) where there are unforeseen circumstances. In New York, a contract that is revised is enforceable without new consideration if it is put in writing and signed by the party to be charged with the breach. Equitable Remedies To obtain an equitable remedy, a plaintiff must demonstrate: (1) that there is no adequate legal remedy available; (2) plaintiff is not guilty of laches; and (3) plaintiff must tender the balance of the purchase price. Equitable remedies consist of: 1. Specific performance; 2. Rescission; 3. An accounting (an accounting of all the material facts related to a transaction); 4. Constructive trust (imposed to prevent unjust enrichment or wrongdoing). 5. Temporary Restraining Order; 6. Preliminary injunction; 7. Appointment of a receiver; 8. Reformation of a contract Corporations Management of a corporation As a general rule, the Board of Directors is responsible for the management of the corporation. The Board must meet and decide, by appropriate voting procedure, actions to be undertaken in the best interest of the corporation. Officers also owe the corporation duties of care and loyalty (virtually identical to those owed by the directors). Absent provisions in the certificate of incorporation or by-laws, the directors decide whether or not to commence actions.

Liability of Promoters Under the New York Business Corporations Law, a corporation may be held liable for a contract entered into by a promoter if the corporation expressly or impliedly adopts the contract. A promoter is one who acts on behalf of the corporation in establishing the corporation. A corporation may expressly adopt a pre-incorporation contract in writing, or it may do so impliedly, by accepting the benefits of the pre-incorporation contract entered into by the promoter. Under the New York Business Corporations Law, a promoter can be held liable on a contract until and unless the corporation for which he acted as a promoter, the promoter, and the third party execute a novation releasing the promoter from liability. Under the common law of contracts, novation is a modification to an existing contract, in which the original parties and a new party agree to release one of the original parties and replace him with the new party. Novation releases that party as to all obligations and liabilities of the contract. A promoter is one who acts as an agent for a corporation in helping to establish the corporation. Piercing the Corporate veil Generally, only the corporation itself will be liable on its debts or obligations and courts will not pierce the corporate veil to attach liability to shareholders of the corporation or a parent corporation. However, if a corporation, or subsidiary of a parent, was merely created to perpetrate fraud, take unfair advantage of the corporate form, and has no independent identity, you may pierce the corporate veil of subsidiary to attach liability to the parent under the BCL. This test is very harshly construed in New York so that only if the subsidiary has no mind of its own and no independent business existence, will it be found to be an alter ego. The sale of shares Under the BCL, shares may be issued in exchange for almost any type of consideration, including money, real property, personal property, past performance of services for the corporation (including services in establishing the corporation), and future promises of service to the corporation, among others. The Board of Directors may determine the value of any non-monetary consideration given, and absent fraud or bad faith, their determination is conclusive on the issue. The value determined is important primarily in the context of a corporation whose certificate of incorporation sets a par value, as shares may not be issued for less than the par value. Shareholder Derivative Suits A shareholder may bring a derivative suit against the directors and officers who have violated their duties on behalf of the corporation. Before filing a derivative suit, the shareholder has to demand the Board of Directors to sue first. A shareholder does not need to actually demand if he or she can show that such demand would be futile, (e.g., when the Board of Director is interested, and the Board of Directors was not reasonably informed when making the decision). The remedy from the derivative suit will be paid to the corporation and the shareholder can recover reasonable cost of litigation. The court might order the remedies to be directly paid to the shareholders if payment to the corporation would benefit the defendants. A shareholder may also sue the director, the officer, or the corporation directly (not a derivative suit), if he or she has been injured by the act of the defendant. Liability of Shareholders

Under the BCL, shareholders of a corporation usually enjoy limited liability, such that they are only liable for the corporation's obligations up to the amount they paid for their shares. However, in a closely held corporation, a corporation whose shares are not publicly traded, the ten largest shareholders are responsible for the employees' wages in proportion to their respective shares. Passing a resolution Under the BCL, a majority of directors is necessary to make a quorum and a majority of those present must vote to take Board action, contrary to any provisions outlined by the articles or bylaws. However, New York allows directors in a close corporation to write agreements affecting action taken by a board of directors and such writing will be enforceable. Supermajority Voting Under the BCL, a provision which dictates a super majority voting restriction is not valid unless it is contained in the corporation's certificate of incorporation. While a supermajority restriction of 75 percent of the share may be adopted, that restriction must be adopted and placed in the certificate of incorporation and may not be placed in the by-laws. In the absence of such a provision, board action may be taken when a quorum of directors is present and a majority of those voting vote in favor of the action. Shareholders may amend by-laws (or take other ordinary resolutions) by a majority vote of the votes cast on a resolution. Fundamental Changes For business corporations incorporated before February 22, 1998, to approve a fundamental change like a merger, two thirds of the shares entitled to vote had to be voted in favor of the change, (a majority of shares for post-February 22, 1998 corporation), unless the certificate of incorporation provided otherwise. Rights of Appraisal For certain fundamental corporate events such as mergers, shareholders may have ``appraisal rights." These rights allow a shareholder to require the corporation to purchase their shares if the shareholder objects to the changes. For corporation incorporated before February 22, 1998, the corporation had appraisal rights unless the certificate of incorporation provided otherwise. To give effect to such rights, Cly must: (a) give notice to the secretary of the corporation before the vote that he intends to exercise his appraisal rights, (b) vote against the measure or abstain from voting, and (c) demand within a short time after the meeting that the corporation repurchase his shares. Preemptive Rights For corporations formed prior to February 22, 1998, shareholders are assumed to have preemptive rights to maintain their proportional share in a corporation, so that they may have a right to buy shares when the corporation issues shares in exchange for cash. The preemptive right only gives the shareholder the right to buy the shares. The shareholder does not have an absolute right to maintain his proportionate share of the corporation. Loans to directors For corporations in existence on February 22, 1998, a loan made to a director must be approved by the board and ratified by 2/3 of the shareholders. Any loans made by the board without such shareholder approval subject the directors to financial liability for the loan, unless the director properly objected to the loan and gave proper notice.

Interested director transactions Interested director transactions are not invalid provided that a number of mechanisms are complied with to ensure the fairness of the transaction. The transaction must be disclosed to the Board of Directors and either all of the disinterested directors must approve the transaction, or the transaction is approved by a majority director when quorum requirements are met. Failure to disclose the transaction before it is voted on renders the contract voidable, however if after the approval the Board of Directors determines the transaction was fair and reasonable and not an improper attempt by the director to abuse their position, then the Board may ratify the transaction. Rescission The appropriate remedy for the corporation is rescission. The corporation can either seek a judicial order of rescission, or wait until it is sued for specific performance and assert in its defense that the transaction was not validly authorized. If it suffers damages, it can recover from the director at law. Interested director transactions and the duty of loyalty Generally, interested director transactions violate the duty of loyalty owed by a director to the corporation. Such transactions do not always violate the duty of loyalty, however. An interested transaction may not violate the duty of loyalty if the directors of the corporation approve the interested transaction by a majority vote of disinterested directors or, if such directors cannot form a majority vote, by a unanimous vote of disinterested directors. Removal of a director Directors may only remove a director if the certificate or a shareholder by-law so provides. In any event, a director may never remove a director without cause. If the certificate and bylaws are silent, only the shareholders may remove a director. Furthermore, shareholders may not remove a director without cause absent a provision in the certificate or shareholder by-laws that allows it. There is cause to remove a director when that director violates any fiduciary duty, including, for example, engaging in self-dealing, usurping a corporate opportunity, or committing waste. Special Meetings Under New York statutory law, formal notice of a special meeting of directors must timely be given to all of the directors, along with a description of the purpose of the meeting. If such notice is not given any decisions/actions at that meeting may be declared void. If a director wishes to assert that the actions are void due to not receiving formal notice, he should refrain from voting at such a meeting, as it will constitute a waiver by him to the notice requirement. Notice of a Meeting Under the BCL, notice of a shareholders' meeting must be given to all record shareholders no less than ten days in advance and no more than 60 days. A record shareholder is a shareholder on the corporations shareholder list as of a record date, selected by the corporation within the same 10-60 day period before the meeting. Duty of Care Under the duty of care, a director (or other fiduciary) must discharge her duties in good faith and with the care, skill and prudence of a reasonably prudent person under the circumstances. Duty of Loyalty

A director or officer of a corporation must act with the conscientiousness, morality, honesty, and fairness that the law requires of fiduciaries. As such, a fiduciary of a corporation may not engage in transactions injurious to the corporations interests, including competing with the corporation or usurping a corporate opportunity. If a director is found to have breached her duty, she is liable to the corporation for its damages and lost profits caused by the directors breach. Usurpation of a corporate opportunity is a breach of the duty of loyalty. A corporate opportunity is usurped when a director or officer profits from any transaction that a reasonable director would anticipate is of interest to the corporation, provided the corporation has not had the opportunity to turn it down. The remedy for breach of a corporate opportunity is to turn over the opportunity to the corporation or to impose a constructive trust on the profits. Business Judgment Rule A director or officer of a corporation may be shielded from personal liability for violations of the duty of care by the Business Judgment Rule (under which courts generally decline to second guess the acts of corporate management), through reliance on professionals or, in her capacity as a director, by an exculpatory clause in the certificate of incorporation. Dissolution Involuntary dissolution in closed corporations In a close corporation whose shares are not traded on an exchange or OTC market, a minority shareholder owning 20% or more of a corporation's stock may petition the court to dissolve the corporation if he can show that the controlling shareholders are engaging in fraudulent activity or committing waste, or are acting in a way that is oppressive to the minority shareholder such that the minority shareholder is blocked from receiving his anticipated return on his investment. Within 90 days of the petition, however, the controlling shareholders may offer to purchase the minority shareholders' shares at a reasonable price to avoid dissolution. If the parties cannot agree on a reasonable price, the court may set one. Generally, although shareholders do not ordinarily owe a duty of care to fellow shareholders, in a close corporation, the controlling shareholders owe a duty of utmost good faith to minority shareholders and must not act to prevent them from getting a return on their investment. Rights of First Refusal Because rights of first refusal are restraints on alienation, courts will only enforce them when they are reasonable, and courts will strictly construe any provision that may create a right of first refusal. Repurchase of Shares Under New York BCL, a corporation is allowed to repurchase its shares and to discriminate in the repurchase by not offering the same terms to others (unless it's a closely held corporation and unless its certificate provides otherwise). A corporation cannot discriminate on redemption rights which are set forth in the certificate. However, the corporation must show that the repurchase served some legitimate corporate purpose. Evidence General Rule of Evidence Evidence is relevant if it tends to prove or disprove a material issue of fact. All relevant evidence is admissible unless it is hearsay or precluded by other considerations such as confusion to the jury, waste of time, or danger of unfair prejudice.

Best Evidence Rule The Best Evidence Rules requires that when there is written evidence, such written evidence is the best evidence and therefore the only evidence that must be admitted. The Best Evidence rule applies only to legally operative documents such as contracts Admissibility of prior convictions By taking the stand, a criminal defendant puts his credibility in issue, and the prosecution can seek to introduce evidence of prior convictions to impeach the defendants credibility. Impeachment is a method of trying to show that the defendant or witness is not credible or not worthy of belief. In New York, a criminal defendant can be impeached with a prior conviction for any crime. In New York, before admitting the prior conviction, the court holds a Sandoval hearing during which it weighs the probative value of the conviction on the issue of veracity against the danger of unfair prejudice. New Yorks liberal policy of allowing impeachment for any conviction for any crime (as compared to the more limited federal rule) is based on the rationale that a person who has committed a crime in the past has demonstrated a willingness to put his interests ahead of society and may do so again by ignoring the oath to tell the truth on the stand. In balancing the convictions probative value against the danger of unfair prejudice, the court will consider such factors as the seriousness of the crime, the inflammatory nature of the crime, and the similarity of the prior crime to the currently charged crime. Prior Acts In general, evidence of specific acts of a defendant that show bad character may not be introduced by the prosecution at trial. Character evidence is only admissible by the prosecution when the defendant has opened the door by bringing in evidence of his good character. However, specific acts may be introduced by the prosecution as evidence of something other than the defendants propensity to commit the crime, or of the defendants guilt. The prosecution may use prior specific bad acts to show motive, intent, identity, absence of mistake of accident, modus operandi, or common plan or scheme. Character evidence of victim Character evidence is generally not admissible to prove an individual acted in conformity on a particular occasion. In NY, character evidence of victim is NOT admissible to prove that victim was the first aggressor. However, under the CPLR, character evidence may be offered by a defendant who raises self-defense in order to prove his own belief. The defendant who raises a defense of justification is entitled to present evidence as to the victim's reputation for violence. The evidence is not hearsay because there is no particular statement and it is offered to prove belief not the fact of the victim's character. The evidence goes to the reasonableness of the defendants belief that deadly force was justified and thus is relevant to establish the defendant's state of mind, a material issue in the defense. In New York reputation evidence is allowed on direct. Testimony as to the specific incident is not admissible on direct testimony, but may be admitted on crossexamination. Note: The defendant must also prove that he knew of this character trait possessed by the victim. Subsequent Remedial measures As an initial matter, evidence of subsequent remedial measures is relevant to the cause of action. However, public policy in favor of encouraging repair of unsafe conditions generally requires exclusion of the evidence.

In a products liability action, such evidence may only be admitted to prove the existence of a manufacturing defect (an error in production such that the product in question did not conform with the other products in its line), not for a design defect case such as that presented here. While this case is a strict liability case rather than a negligence case, the evidence is admissible to show that an alternative design existed. Liability Insurance As a policy matter, liability insurance is not admissible as evidence at trial unless there is a dispute as to ownership or it is used to impeach a witness. Hearsay Hearsay is an out-of-court statement, made by someone other than the declarant who is testifying, to prove the truth of the matter asserted. An admission is an exception to the hearsay rule under New York law. An admission is an incriminating statement made by a party to the case or one of his agents. Under New York law, an agent must be authorized to speak. Effect on the hearer nonhearsay Effect on the hearer is nonhearsay because it is admitted not to show the truth of a declaration, but to show how that statement affected the hearer. Admissions exceptions to the hearsay rule Admissions, although nonhearsay under the federal rules of evidence, are exceptions to hearsay in New York. A vicarious admission is where an employee, within the scope of his employment makes a statement, and is admissible against the principal. However, in New York, in order to use an employees statement against his employer, he must have a role in the company such that he had speaking authority. Present sense impression The present sense impression is a statement made by the declarant while observing the event or immediately thereafter. Excited Utterance An excited utterance is a statement concerning a startling event, made while the declarant is still under the stress of the exciting event. Dying Declaration In order to be admissible under this exception, the declarant must be unavailable because he is dead, it must be offered in a homicide prosecution, and the declarant must have made the statement while under the belief that he was in imminent danger of dying (and the statement must be relevant to the cause of his death). The purpose of the dying declaration exception to the hearsay rule is that statements made in contemplation of death bear sufficient indication or reliability to warrant their admission, despite the fact that the declarant is not on the witness stand for the jury to evaluate his credibility. Dying declarations are believed to be especially reliable because people generally dont want to die with a lie on their lips. That reliability stems from an actual belief on the declarants part that he will die very soon. Lay opinion testimony In New York, a layperson may testify as to her opinion, where the witness has personal knowledge of the underlying facts, and her answer does not require hypothesizing or expert knowledge. Intra-Spousal immunity

New York has abolished interspousal immunity and New York has an interest in allowing husbands and wives to seek remedy against each other for harms Torts Statute of Limitations Under the CPLR, statutes of limitations are timed from the anniversary date of the injury. If the anniversary falls on a public holiday or Sunday, the plaintiff may timely commence her action on the following business day. In order to be timely under the applicable Statute of Limitations, the plaintiffs action must be commenced either on or before the relevant anniversary date. Statute of limitations for intentional torts The claim must commence for intentional torts (filing of summons and complaint to county clerk) no later than one year after the injury is caused. Statute of Limitations for personal injury Under the CPLR, actions for personal injury have a three years statute of limitation which accrues from the date of the injury. Note that NY does not have a discovery rule, so it is immaterial when the plaintiff actually discovered that she was injured, the statute of limitations will always run from the date that she was actually injured. No exception to the rule, such as that which applies a discovery rule for exposure to a toxic substance, applies to this case. Statute of limitations for medical malpractice Under the CPLR, actions based on medical malpractice, whether they are tortuous or contractual in nature, have a statute of limitations of two years and six months. Statute of limitations for breach of warranty Under the CPLR, the statute of limitations for a breach of warranty claim is four years from the date of sale. A warranty of merchantability is on behalf of a merchant who deals in goods of the kind who warrants that the goods will be fit for their ordinary purpose. A warranty of fitness for a particular purpose, however, warrants that the goods will be fit for the specific purpose to which the buyer is putting the goods. Statute of limitations for Strict Products Liability In New York, a strict products liability claim has a three-year statute of limitations, which accrues from the date of injury. Statute of limitations for breach of contract The statute of limitations for a breach of contract claim is six years from the date of breach. Statute of limitations for negligence The Statute of Limitations for a negligence action is three years from the negligent act Tolling the statute of limitations The Statute of Limitations is tolled for a defendant who is 1) a minor or 2) insane and thus unable to commence an action. The tolled time period allows a minor to commence the action within three years (the original Statute of Limitations in this case) from the date of the minors 18th birthday (when his incapacity/disability ends). Continuous treatment rule Also under the CPLR, there is a toll for continuous treatment. If a patient continues to see the same doctor for the same condition, the cause of action will not accrue until the doctor's treatment of the patient for that specific condition has ended. The statute of limitations will run for two years and six months from the end of the treatment.

Battery Under New York tort law, there are three different and independent ways that one can be found liable for battery: 1) intent to cause an offensive and unwanted contact, and such contact results; 2) acting with reckless disregard of the possibility of causing an offensive and unwanted contact, and such contact results; and 3) intending to cause an assault (an immediate apprehension of offensive contact), which results in an offensive and unwanted contact. To be liable for battery, one person does not have to actually touch another person. That is, if a person uses or releases an instrumentality which itself contacts the plaintiff or anything connected to him, that would also give rise to a battery. (For example, throwing a ball at a person with the intent for the ball to contact him and such contact results, would constitute a battery, even though defendant did not himself touch the plaintiff directly.) Doctrine of Transferred Intent The doctrine of transferred intent also applies to battery. That is, if defendant intends to offensively contact person A, but actually contacts person B instead, it is no defense that he did not intend to commit a battery against person B. Thus, in this hypothetical, defendant would indeed be liable to person B in battery under the doctrine of transferred intent. Trespass to land In order to have a claim for trespass to land, the defendant must have intentionally interfered with the plaintiffs possession of land by causing a physical object to unjustifiably enter the land. Trespass to chattels A person is liable for trespass to chattels when they intentionally cause damage to another personal property (including preventing them from using the property). There must be actual damages proven. Negligence To bring an action in negligence, the plaintiff must prove that: (i) defendant has a duty to foreseeable plaintiffs, (ii) breach of that duty, (ii) breach was the actual and proximate cause of plaintiff s injury, and (iv) damages to plaintiffs person or property. It should be noted that in NY there is a reformed Pure Comparative Negligence Statute, such that a tortfeasor who is 50% or less responsible for a defendant's injury cannot be made to pay for 100% of the victim's non-economic loss. This statute does not apply however to operators of motor vehicles (besides police or firemen). Because Driver operated a motor vehicle, this statute does not apply to him. Independent contractors The relevant inquiry on whether a person is an independent contractor centers on who had the control. Factors considered are the type of work, the pay rate (hourly or for the whole job), who supplied the equipment and how much supervision or discretion was given. Although an employee cannot sue its employer under the New York statutory Worker's Compensation Scheme for on the job injuries, an employee is permitted to sue third parties, including landowners. The landowners may owe a duty to an independent contractor's employee under the New York Labor Law Statutory Scheme or via the duty owed to foreseeable plaintiffs by the ordinarily prudent person under the circumstances. In the latter case, the extent of the duty is viewed by determining how the reasonably prudent person would act in the circumstances surrounding the action. Permissive Use Statute

Under New York's Civil Practice Laws and Rules, a party may leave process with someone of suitable age and discretion at the residence or principal place of business of the party to be served. The CPLR further requires that copies of service be mailed within 20 days of the "leaving". Negligence per se The negligence per se requirement is that 1) the risk be of the kind the statute is intended to prevent and 2) the plaintiff be the kind the statute aims to protect. Res Ipsa Loquitur The doctrine of res ipso loquitor protects plaintiffs in cases where proof of a breach may be difficult. In order for the doctrine to apply, Plaintiff must show (1) these types of accidents do not typically happen absent negligence; (2) the instrument at issue was in the exclusive control of the defendant; and (3) the plaintiff is free from contributory negligence. Respondeat Superior Under New Yorks Agency Law, an employer is vicariously liable under respondeat superior for the conduct of its employees performed within the scope of the employment. Generally, however, employers are not liable for the intentional torts of its employees. There are a few exceptions: 1) the conduct is for the direct benefit of the employer, 2) the type of employment usually requires the use of tortuous conduct (i.e., a bouncer at a bar), or 3) the employer specifically requested the tortuous conduct. Disclaimer on Warranties Generally, an employer cannot validly disclaim liability for the negligent acts of its employees. The doctrine of respondiat superior holds an employer liable for the negligent action of its employees committed in the scope of their employment. If a matter of public safety is involved, the state probably has an interest in enforcing the contract without the disclaimer, so as to promote adherence to its duties not to act negligently with a safety operation. Superceding Acts The tortious intentional acts of a third party are generally superseding causes that will serve to cut off liability. However, where the defendant's conduct increases the likelihood that the third party's intentional tort will occur, the third parties conduct is foreseeable and not a superseding cause. Negligent Supervision A cause of action for negligence requires a showing of the following elements: defendants duty owed to a foreseeable plaintiff; breach of that duty; causation, both factual and proximate; and damages. New York has abolished intrafamily immunities in torts action, thus allowing a child to assert a cause of action in tort against a parent. However, in New York, parents owe no duty to their children in supervising them; as a result, a child has no cause of action against a parent for negligent supervision. Vicarious liability in automobile accidents Under New York statutory law, the owner of a motor vehicle is vicariously liable for negligent torts committed by someone who is using the car with the drivers permission. There is a presumption of ownership and permission when the car is registered to the owner, which can be overcome by showing that the driver did not have permission to use the car. Duty of care in a negligence action

A defendant will owe a duty to avoid negligence to a defendant if the defendant was in the zone of danger likely to be created by plaintiffs actions. Absent an applicable special duty of care, the applicable duty is to behave as a reasonable person under the circumstances. Circumstances may include a person's familiarity with streets and traffic patterns. Breach in a negligence action A breach is the actual cause of injury if but for the breach the injury would not have occurred. A breach is the proximate cause of the injury if the resulting injury was a reasonably foreseeable consequence of the breach. Liability in a negligence action A tortfeasor is liable for all harm suffered by the plaintiff which are the normal incidents of or within the increased risk of defendant's negligent act. Another tortfeasor's independent, separate negligence will not supersede defendant's liability if the intervening event is foreseeable. Under New York law, an individual who pays a required fee may not be denied his right to bring a claim against a negligent party who benefits from that fee. Right of contribution NY CPLR allows a tortfeasor to seek contribution from another person whose act contributed or aggravated the damages that the defendant might be required to pay the plaintiff. Under New York law, the amount that can be recovered in contribution is based on pure comparative fault and a defendant cannot recover from another joint tortfeasor more than that tortfeasors share of fault. It is important to note that normally under New Yorks Workers Compensation Law, an employee can not recover from an employer for injury caused on the job, and a third party can recover from the employer only when the employee has suffered grave injury. Indemnification Under New Yorks law, where a party is sued for harms caused solely by a third party, he can be indemnified for whatever moneys he has expended on that law suit. A cause of action on indemnification requires a total shifting of the loss. It should also be noted that a settlement will not bar indemnification but will bar an action in contribution. Indemnification has a six year statute of limitations and accrues from the date of judgment. Negligent infliction of emotional distress Under New York tort law, for a claim based on negligent infliction of emotional distress, the plaintiff must demonstrate that the defendant was negligent and the plaintiff must either: 1) sustain an injury or 2) be an immediate family member of the victim of a physical injury and be in the zone of danger. Wrongful death In a wrongful death action, the plaintiffs may recover pecuniary damages, meaning economic damages including medical and funeral expenses, loss of support and possible diminunition in inheritance. Punitive damages may also be sought. Noneconomic damages, such as pain and suffering, are excluded. A wrongful death claim may be maintained be the decedents statutory distributees Joint and several liability Under the CPLR, joint tortfeasors who have together contributed to the extent of the plaintiffs damages are held jointly and severally liable for the entire amount of plaintiffs economic damages. However, CPLR creates an exception to the rule of joint and several liability. Specifically, if one of the tortfeasors is less than 50% at fault for the plaintiffs

non-economic damages, such tortfeasor can only be held liable for his equitable share of the plaintiffs non-economic damages. CPLR 13 Unless an exclusion applies, a joint tortfeasor in a personal injury action who is found to be 50% or less at fault, may not be required to pay the plaintiff more than their proportional share of the plaintiffs non-economic damages. Exclusions include tortfeasors who release toxic substances, intentional or reckless tortfeasors, and owners/operators of motor vehicles. Assumption of Risk Under New York tort law, assumption of risk is a defense to negligence, but does not necessarily negate that a duty was owed to the plaintiff in question. Assumption of risk is a doctrine, which may deny a claim for negligence where the plaintiff reasonably assumes the known risks of the foreseeable harm. In a contributory negligence jurisdiction, assumption of risk totally bars a plaintiff's claim where the defense of assumption of risk is properly asserted. In a comparative negligence statute, the court will apportion the party's fault based on their relative culpability in causing the harm, which resulted. New York is a pure comparative negligence jurisdiction. Under New York torts law, there is a derivative from common law theory of assumption of risk. While it is an absolute bar to recovery at common law, it is not in New York. In New York, the defendants conduct (where he assumes the risk and causes injury to himself) will limit his claim to the extent that he too contributed to his injuries. Strict Liability Manufacturers design or defect Under New York tort law, strict products liability imposes absolute liability on a manufacturer, or retailer of a defective product, which results in injury to any foreseeable plaintiff. The plaintiff does not have to be a purchaser of the product to assert a claim in strict products liability. A strict products liability claim may be based upon one of three theories of strict products liability: 1) defective product liability, 2) inadequate warning, and 3) manufacturing defect. A claim for strict products liability requires the plaintiff to show: 1) that the product was defective when it left the hands of the manufacturer or seller, 2) that the product was not substantially altered when it reached the plaintiff, 3) that the product caused an injury when it was being used in an intended or unintended foreseeable use. However, a manufacturer may raise an affirmative defense where the product has been altered in such a way as to make it defective after leaving the manufacturer's control. This defense will be available and will prevent liability even in the case where the product's design was defective and there was a hypothetical alternative design that infers negligence where a person violates a statute, the principles of this doctrine may be analogized to the facts here. Tortious Interference with Business Relations For a plaintiff to sustain an action for tortious interference with business relations, she must show; (i) a valid business contract or expectancy between herself and a third party; (ii) that defendant knew about this contract; (iii) that defendant induced the third party to end the contract, and (iv) that plaintiff suffered damages. Special Relationship defense to Tortious Interference Claim

An individual may assert the affirmative defense of qualified privilege to tortious interference with business relations if he establishes the elements of the defense with a preponderance of the evidence. Where it is proved that someone has tortiously interfered, it is an affirmative defense that he has a qualified privilege based on a "special relationship" with the individual who breached the original contract. Such "special relationships" are usually rooted in situations where one party relies on the other for advice or counsel, such as attorney and client, parent and child or clergy and penitent. Slander per se There are five categories in NY which constitute slander per se in which a plaintiff need not prove her damages in order to make out her claim. The five categories are defamation about; (1) Plaintiffs employment or job, (2) that Plaintiff is unchaste, (3) that Plaintiff has a loathsome disease, (4) that Plaintiff has committed a crime, and (5) that Plaintiff is a homosexual. Defamation One party defames another where he makes a defamatory statement (that implicates plaintiff's reputation) of or about plaintiff, and publishes it to a third party. Plaintiff need not show actual damages if the statement is slander per se; one of the categories of slander per se is a statement making negative statements about plaintiff's business activities. First Amendment defamation There is a heightened standard for "First Amendment" defamation - if plaintiff is a public figure (either having injected herself into public controversy or having achieved widespread notoriety), she must prove also that the statement was false, and that the defendant spoke with recklessness as to the truth of the statement or with knowledge of its falsity. If defendant is a private figure speaking about a matter of public concern (regarding plaintiff), plaintiff need only prove that the statement is false and that the speaker was negligent. Qualified Privilege defense to defamation A party can claim qualified privilege as a defense to defamation where their speech serves a socially useful purpose. Often, in cases of qualified privilege, the speech is made by defendant in a situation where defendant is speaking to benefit plaintiff, though this need not be the case. The speaker must be speaking in good faith and not either be reckless as to the truth of his statement or say something affirmatively untrue. Suits against Municipalities Generally, a municipality cannot be sued for its misfeasance of non-feasance under the Municipal Tort Doctrine because "since (they) are responsible for all (they) can be responsible to all". There are several exceptions to this rule. First, when the municipality performs a proprietary function. Second, where there is a special relationship such as when one relies on the municipality because of an affirmative act or when the municipality assumes a duty or promise of an undertaking to a specific person. A special relationship is also created when the municipality knows that their inaction will lead to injury and where there is a specific duty undertaken that the municipality knows a person will rely on or if the municipality created the defective condition. Collateral Source Rule Under CPLR 4545, New York has modified the collateral source rule. Plaintiffs are not permitted to recover money received from insurance companies for reimbursement for the

cost of medical care and lost wages. There is a four-step procedure with regard to personal injury judgments. First is itemization by the jury for amounts awarded for economic and non-economic (pain and suffering) losses. Second, the judge, not the jury, makes the collateral source adjustment by subtracting the amount the plaintiff was reimbursed from the jury award for economic loss. After making the collateral source adjustments, entry is made of two judgments (past loss and first $250,000 of future loss and a second for future loss in an annuity not to exceed ten years). Lastly, interest is entered. The judge also adds the cost of medical insurance for the past two years and the future cost of maintenance of medical insurance. Since these calculations are made by the judge and not the jury, the courts preclusion of the insurance payments was proper. Dram Shop laws Under New York law, commercial drinking establishments who serve alcohol to minors and visibly intoxicated patrons will be held liable for their conduct created by that intoxication. But this law cannot be applied to social hosts, just commercial establishments. Fraudulent Inducement In New York, the elements of fraudulent inducement are: 1) material misrepresentation made by a party and known to be false; 2) with the intent to cause inducement/reliance; and 3) actual inducement causing another party to enter an agreement. Since this action goes to fraudulent execution, the statements, although parole evidence are admissible. Rules of Professional Conduct Fees Under the Code of Professional Responsibility, when the fee is expected to be $3,000 or more, a written retainer agreement must be executed describing the scope of services, billing and fee arrangements, and the option of the client to bring any fee dispute for arbitration. In any case, a contingency fee arrangement (where the lawyer's fee is dependent on success of the action) must be in writing, which should describe how the fees are to be determined, and signed by the client. Otherwise, the attorney will not be allowed to recover the contingency fee and would be limited to reasonable fees for actual services rendered. Under the New York Code of Professional Responsibility, an attorney may not charge an excessive fee, which is determined by location, amount of time devoted to the cause, complexity of the issues and reputation and experience of the attorney. However, contingency fees (dependent upon the outcome) are flatly prohibited in criminal cases. Ethical obligations of attorneys in matrimonial actions Under New York law, lawyers in matrimonial actions have special obligations. They must give clients 1) a written retainer agreement specifying fees and other terms, 2) a statement of client rights, and 3) an accounting of time spent along with the final bill. In addition, New York prohibits a lawyer from taking a mortgage in a clients home in matrimonial action. Conflicts of interest A lawyer faces a conflict of interest if a matter is likely to involve issues in which the client's interests will be opposed to the lawyers' personal interests, his business interests, or the interests of another client or former client. Under the New York Professional Responsibility Code and Regulation, a lawyer cannot represent clients who might have conflicting interests against each other, unless (i) the

lawyer informs the clients of the risk of the potential conflict, (ii) the clients agreed to this representation, and (iii) the agreement is in writing. Although some conflicting representation might be cured by this method, the lawyer cannot represent the clients who have apparent conflicting interest against each other. The standard is that a lawyer with reasonable experience, skill, and morality will think the representation is not conflicting and can take it. If a lawyer has come to know facts material to the dispute through his previous representation of another client, he must get that former client's permission to represent the new client, and he may not use those facts to the former client's detriment in the course of his representation on the matter. New York rules of professional responsibility do not permit one who acts as a mediator to ever represent either of the parties in whose mediation he participated. Non-Refundable Retainers Pursuant to the Ethical Considerations (EC) governing lawyers in New York State, unless an attorney is hired on a retainer basis to be ready to represent and assist their client at all times on instant notice, an attorney may not keep fees for work not performed. Clients are permitted to advance funds to satisfy fees to an attorney. However, the fees must be kept by the attorney in a separate account, and withdrawals may be made only upon completion of work performed. In general, a lawyer may take a non-refundable retainer, except in a domestic relations case. If it is an availability retainer, the lawyer may keep all of it. However, all other retainers may be kept to the extent they reflect services rendered. If a lawyer withdraws or is discharged, they must return the unearned portion. In addition, attorneys must provide clients with an engagement letter indicating the terms of the representation and the method of disbursements for fees and other expenditures. Agreements without Consent As a rule under the New York Code of Professional Responsibility, an attorney has an ethical obligation to keep the client informed regarding important occurrences in any proceedings, such as settlement offers by the opposing party. Further, an attorney has an ethical obligation to seek client approval before settling any matter whether civil or criminal. Suspension In New York, a subordinate lawyer must refuse to follow the order of a supervising lawyer which will result in her violation of a disciplinary rule. It is clearly a violation of a disciplinary rule to practice as a lawyer while under a suspension. Compliance with ethical rules as implied in employment contracts First, compliance with ethical standards should be read as an implied term into the contract. In New York, courts will imply missing terms into contracts where necessary to make the contract complete. In New York, lawyers are bound by disciplinary rules of professional responsibility to which they must adhere. Any employment contract for legal employment should imply the term that lawyers will comply with the disciplinary rules because failure to do so subjects the lawyer to judicial consequences. Referral fees In New York, under professional responsibility statutes/codes, an attorney shall not pay any fees for referral of clients. Moreover, in New York, an attorney shall not solicit business in

person unless a relative, friend, or current or former client and shall not solicit by writings in many situations including a person who might be sensitive. Trusts Amendments to a trust When the trust is silent, New York allows a settlor to retain the right to amend the trust, but this right is limited. A settlor may amend a trust only with the approval of all those with a beneficial interest in the trust. If the trust benefits a child, New York law does not allow a guardian or parent of the child to consent to an amendment on the childs behalf. Therefore, a settlor may only amend the trust if all the beneficiaries are adults and all consent. Under New York law, a designation in a trust to heirs or next of kin, does not create a beneficial interest in the trust, and thus no consent is required from "heirs" or "next of kin." Duties of the Trustee Trustees have broad powers to manage trust assets, but also have duties to the trust beneficiaries and are prohibited from engaging in certain activities. Among those duties are the duties not to commingle funds, not to loan or borrow money from the trust, and the duty of loyalty. If a trustee is charged with breaching his duty of loyalty, his actions are subject to the no further inquiry rule, thus any actions constituting a breach of loyalty will be an automatic breach. Furthermore, under the Uniform Prudential Investment Act (UPIA), the trustee must make reasonable investments, based on maximizing total return and value to the trust. While a trustee's investment decisions must be examined as part of an overall portfolio and no investment should be looked at completely in isolation, there are still certain investments that will raise red flags because an ordinarily prudent investor would not make them, such as making a large unsecured loan to a creditor with a poor credit rating. Recourse for breach of duty as trustee When a trustee breaches his trustee duties, the beneficiaries can choose to ratify the breach (if it actually helped the trust), remove the trustee, and/or sue the trustee for losses to the trust. Limitations on liability for breach of duty by a trustee In New York, the settlor can limit a trustee's personal liability for failure to exercise case and prudence in trust administration. This may be particularly necessary since the settlor can designate almost anyone as trustee, including people that lack investment skills and abilities. However, the settlor cannot completely indemnify the trustee for liability for breaches of duty of loyalty and grossly unreasonable acts. Thus, he cannot give a trustee free reign to mismanage and divert trust assets because this would amount to waste and destruction of property, which is against public policy. Spendthrift statute New York, by statute, has provided spendthrift protection for income beneficiaries in all trusts unless they are self-settle trusts, (i.e., where the settlor is also the income beneficiary). Thus, in New York, the income of a trust is protected from creditors of the income beneficiary, and the income beneficiary may not transfer his income interest to another. However, there are four exceptions to the rule that all income interests are spendthrift: 1) a judgment creditor may obtain 10% of the income interest, 2) an order for the child support

or alimony can reach the income interest in the trust, 3) federal tax liens, and 4) the amount in trust above that which is needed for the beneficiaries health, education, and support. Under the Estates Powers and Trusts Law, a grantor may not create a self-settled spendthrift trust. That is, a grantor may not create a self-settled spendthrift trust in favor of himself solely to evade creditors. A revocable trust is considered a form of ownership, because at any time, the grantor may retain possession of the entire trust corpus. Therefore, the trust is subject to the claims of the grantors creditors. In general, a creditor can reach the trust income and principle to the same extent that the settlor can. While New York provides spendthrift protection to the income of a trust, it affords no protection to the remainder, or principle, of the trust. Moreover, while New York presumes that a trust that is silent as to revocation is irrevocable, a settlor may reserve the power to revoke the trust, and if he so chooses, New York does not protect the settlor from claims of his creditors. Presumption of Irrevocability New York presumes that a trust that is silent as to revocation is irrevocable, Federal Jurisdiction Subject matter Jurisdiction A federal court must have personal jurisdiction and subject matter jurisdiction in order to properly adjudicate a dispute. Subject matter jurisdiction is based on either a federal question arising under federal law or diversity of citizenship when the parties are from different states and the claim exceeds $75,000 exclusive of attorneys fees and court costs. When the federal court is sitting in diversity, the Erie doctrine applies. The Erie doctrine states that the federal court will apply federal procedural laws and the states substantive law of the forum in which it sits. Choice of law rules are considered substantive law, so a federal court sitting in diversity applies the forum states laws. Conflict of Laws Government-interest analysis/Babcock analysis + Neumeier In order for a states law to constitutionally be applied, the state must have some significant relationship with the parties and the transaction. New York used to apply the vested rights approach, which would apply the law of the situs of the tort whenever there was a choice of law question. A choice of law question arises whenever more than one law applies. Since the New York courts found that the vested rights approach was rigid and would sometimes create unfair results, it now applies the government interest analysis. The government interest analysis, when there is a tort dispute, would apply the place of the injury when there are rules regulating conduct, and when there is a loss distribution question applies the Babcock analysis plus considering the Neumier rules. Under Babcock, first identify the contacts that the state has with the parties and the injury; then state the different law and how it differs; then the court would look at the different underlying policy each state would have in applying its law; then the court would apply the different contacts with the policy and determine which state has a greater governmental interest and that state law would apply. Center of Gravity test As further support for this conclusion under a typical contract analysis under a conflict of law is the "center of gravity test". This test analyzes the domicile of the parties, the place where negotiation for the contract took place, the place of execution, and the place of

performance. Further, New York law provides an exception for insurance policies. For insurance policies, New York applies the law of the state where the policy was issued. Commercial paper Elements of a negotiable instrument Article 3 of the UCC, which New York has adopted, concerns statutory law for commercial paper and negotiable instruments. In order for an instrument to be negotiable, it must be payable in money or currency, that payment must be unconditional, the document must be in a writing properly signed by the maker of the check, payable on a certain time, for sum certain, and payable either to the order, bearer or to cash. If these elements are complete, then the document validly qualifies as a negotiable instrument, and the rights arising out of it can be freely negotiated to others. Upon the signing or endorsing of such an instrument, the signer warrants that he has title to the instrument, that the instruments signatures are genuine, and that there are no defenses that the endorser knows of that are good for the instrument. Liability of banks for commercial paper Generally, New York follows the rule that for a bank to be liable for the cashing of a check, there must a forgery. Personal defenses do not exist against a Bank. Furthermore, under recent case law, liability will be imposed fully on the drawer of a check when he relies on another to maintain bookkeeping for a business, and that bookkeeper subsequently misrepresents to the drawer that there are more employees than in reality, and the drawer issues payment to the fictional payees. This is because the drawer is in a better position to reasonably determine if a fraud had occurred, and his negligence is responsible. Defenses On every transfer of a negotiable instrument there exists two types of defenses. The different groupings are important when analyzing whether the possessor of the check is a holder in due course. A holder in due course takes an instrument for value (consideration past or present) in good faith (honesty in fact), without any notice that the instrument had been dishonored, overdue, or that any real or personal defenses exist. A holder in due course takes the instrument subject to only real defenses, and personal defenses are not good against them. Personal Defenses Personal defenses are mistake, unconscionable of the underlying transaction, failure of consideration, failure of condition precedent or subsequent, and fraud in the inducement. Fraud in the inducement arises when the drawer of an instrument signs the instrument through the deceit of another, who with intent to defraud, intentionally misstated the facts in order to induce the signature. Real Defenses Real defenses are duress (must be physical and not economic), material alteration, fraud in the factum (which exists where the signer of a check signs after being fraudulently lied to as to what exactly he is signing), forgery, illegality, intoxication, infancy, and insanity. Secured Transactions Perfecting interest Under the UCC Article 9 which governs secured transactions, a creditor achieves priority by perfecting, which involves 1) giving value, 2) recording or putting other creditors on notice, of 3) over property the debtor has a right to. Therefore, filing is a key element to

perfecting the security interest. The rule is first in time, first in right with regards to priority, which means that the first creditor to perfect by filing has the first priority. Attachment of security interests Under Article 9 of the UCC, both perfected and attached security interests which came before the gift will survive. In order for a security interest to attach, value must be given, a security agreement must be entered into, and the debtor must have rights in the collateral. An attached, unperfected creditor will not prevail against a buyer in the ordinary course, i.e., a bona fide purchaser for value who buys from a dealer in the type of property at issue. An attached, unperfected creditor will, however, prevail against a buyer who buys from an individual who is not a dealer (i.e., not in the ordinary course or stream of commerce). Self-help Under Article 9, the holder of a security interest has the right to engage in self-help repossession upon default of the debtor if doing so would not breach the peace. A breach of the peace occurs when the possessor of the chattel objects in any way to the taking of the chattel. Once this occurs, the holder of the security interest must stop the repossession and seek relief of the court by getting a writ of replevin. Article 9 will not protect the repossessor from any claims that arise from breaching the peace. No fault insurance In New York, every owner of a car must have no-fault insurance up to $50,000 for personal injuries sustained by passengers (and pedestrians) injured by their car. A person injured by the owners car must usually bring an action under no-fault insurance if the physical injury is not serious, and can only bring an additional claim in tort if her medical bills and 80% of her loss of work income ($2,000 per month for no more than three years) is greater than $50,000. However, some claims are not covered by no-fault insurance, such as those arising from drinking and driving and a separate action may proceed in tort. New York has a no-fault insurance policy that states when there is an auto accident, rather than sue, the driver looks to his insurance policy to reimburse him for any personal injuries he suffered as a result of the accident, as long as they are not serious injuries. The fault or negligence of the parties does not matter, as long as the covered driver was not intoxicated or intentionally caused the accident. New York extends the no-fault coverage to passengers of the drivers and pedestrians that may have been injured by the accident. Under No Fault Insurance, the passengers of each car and pedestrians struck by a car are covered by the insurance of the car. A person may not bring a suit against a driver of a car insured by No Fault Insurance for pain and suffering, unless the plaintiff alleges a serious injury or greater than a basic economic loss. A serious injury will be one requiring surgery or resulting in loss of a limb or body function. Constitutional Law Racially-discriminatory Peremptory Strikes Under federal constitutional law, the racial motivation of a prosecutor in making a peremptory challenge is deemed to be state action for the purposes of the Fourteenth Amendments Equal Protection Clause. Therefore, racially motivated use of peremptory strikes is subject to strict scrutiny, and the government must prove that it has acted in a racially motivated fashion for reasons narrowly tailored to a compelling governmental

interest. The government bears the burden of proof once a facial case of discrimination has been made. Freedom of Speech The freedom of speech is protected by the First Amendment to the Constitution, however, speech can be lawfully curtailed if it falls under the following categories: (1) obscene, (2) defamation, (c) commercial speech, (4) "fighting words", and (5) words which provoke imminent lawless action. Fighting Words "Fighting words" are not protected if they are spoken with the intent to incite violence, they actually incite violence, and they objectively are viewed as inciting violence by a reasonable person. Words which provoke imminent lawless action are words which create an immediate threat of unlawful action. Workers Compensation Right of contribution The workers compensation regime replaces tort suits by employees against employers in New York. While an employee may obtain reimbursement without needing to prove fault, he is barred from filing tort claims against the employer. All covered employees are subject to the workers compensation rules. A limited recovery is available for medical expenses, two thirds of the salary and, if the employee dies, funeral expenses and a lump sum death benefit. Nothing may be recovered for pain and suffering and punitive damages are impermissible. Finally, wrongful death actions may not be maintained by the family. The issue presented is whether a third party may seek contribution from an employer when an employee is injured and covered by workers compensation. The general rule, under the CPLR, is that a third party may not seek contribution from an employer in these circumstances. There is an exception to this general rule. A third party may seek contribution from an employer when the employee has suffered a "grave injury". Grave injury is defined to include the death of the employee. Partnership Creation of a Partnership A partnership is formed by the intent of two or more people who intend to enter into a business together, and their sharing of profits and losses, and not be any other written agreement. Liability of Partnership New York follows the UPA which directs that partners are jointly liable for the debts and obligations incurred by the partnership. This is a departure from liability for torts and other causes of action, where multiple wrongdoers are held jointly and severally liable for their wrongs such that any single wrongdoer is responsible to the plaintiff for the full amount of damage. A limited partner's liability for the liabilities and obligations of a partnership is limited to the extent of her interest in the partnership. She cannot be held personally liable for the limited partnership's liabilities Professional Corporations In New York, the P.C. designation, a business corporation law designation exclusively for professional associations provides some limited liability for partners. While partners, for public policy reasons, remain liable on tort claims, they are not liable on contract claims. The P.C. itself is liable for both. If one S/H dies or disqualifies from the practice P.C.

must purchase his/her shares. The law governing P.C.s is basic corporation law, but on the certificate, it must indicate the profession practice, and there must be a certification that each is a licensed professional. Transfers by Partners Under New York Partnership Law, a limited partner may only transfer her interest or share of the profits or surplus of the partnership. All other incidents of partnership, such as partnership property and a share of the management of the partnership belong to the partnership, and cannot be transferred. Action to Compel Accounting In a partnership, a partner may generally not bring actions against other partners, who share all liabilities jointly and severally. The exception is the action to compel an accounting, in which a partner may bring an action against a copartner where the co-partner acts outside the scope of the partnership, wastes the partnership assets, or otherwise acts illegally or in contravention of the partnership agreement. In bringing the accounting, the court may hold co-partners liable to the extent of the partnership assets that they have wasted or lost while acting outside the scope of their authority Termination of a Partnership There are no formalities to create a general partnership. A partnership ends with any material change, including the death of one of its members. A partnership exists when two or more persons operate a business as co-owners for profit. Once the partnership is terminated, each partner receives an equal share of profits, if there are any. Outside creditors are paid first out of the partnerships assets, than inside creditors, and all collateral contributions. Any assets left must then be distributed equally among the partners.