Glossary of New York Distinctions
Other Decks By This User
- In NY, can an irrevocable option be granted without consideration?
By statute, if offer is in writing, signed by the offeror and states that offer is irrevocable, then the offer is not revocable during the time stated or for a reasonable time EVEN IF THE OFFER IS NOT SUPPORTED BY CONSIDERATION.
- In NY, at what point may an offeror of a unilateral contract no longer revoke the offer?
- Offer can be revoked until performance is COMPLETED.
- In NY, can past consideration ever serve as consideration for a current promise?
- Yes. Past consideration is binding if (1) the promise is in writing, (2) the past consideration is expressly stated, (3) the consideration can be proven, and (4) the writing is signed by the promisor.
- Define "consideration" in NY terms.
- Consideration is either a detriment to the promisee or a benefit to the promisor.
- In NY, what is the result if a court makes a finding of mutual mistake?
- Contract is void.
- In NY, there are certain situations in addition to those present in other states in which infants cannot void contracts due to disability. What are they?
- By statute, infants cannot void contracts in the following situations:
(1) 14.5 y/o or older who contracts for life insurance;
(2) educational loans by those 16 or older;
(3) all contracts by 18 y/o;
(4) realty contracts related to marital home; and
(5) contracts involving artistic and athletic services.
- There are four types of contracts included in NY's Statute of Frauds that are not always included elsewhere. Name them.
- (1) Promise to pay a discharged debt;
(2) assignment of insurance policy or promise to name beneficiary of such policy;
(3) contracts to pay commission or finder's fee, unless attorney, auctioneer or licensed real estate broker is involved;
(4) equal dignities rule - in agent/principal relationship, if dealing with "interest in land," agent must be authorized in writing or principal must ratify.
- In NY, can a party to a contract make an irrevocable gratuitous assignment?
A gratuitous assignment is irrevocable if in writing and signed by the assignor.
- In NY, must a partial discharge by modification of contract be accompanied by consideration?
- No. Consideration is not needed if the modification is in writing and signed by the party to be charged, or his agent.
- In NY, what are the elements of the affirmative defense of withdrawal to accomplice liability?
- The accomplice must:
(1) voluntarily and completely renounce his criminal purpose;
(2) withdraw prior to commission of the offense; AND
(3) make a substantial effort to prevent the crime.
NOTE that withdrawal does not serve as an affirmative defense to attempt.
- In NY, may a person be convicted solely on the uncorroborated testimony of an accomplice?
- No. A person may not be convicted solely upon the uncorroborated testimony of an accomplice, except in police disciplinary hearings.
- In NY, what must a criminal defendant do to make out the affirmative defense of withdrawal to charges of solicitation and conspiracy?
- Defendant must:
(1) voluntarily and completely renounce; and
(2) prevent commission of the object crime.
If the object crime does not occur, the defendant has a defense to the anticipatory crimes if and only if (IFF) his efforts prevented the commission of the object crime.
- In NY, may a single defendant be convicted of conspiracy?
- Yes. NY follows the "unilateral theory" of conspiracy, allowing a single defendant to be convicted of conspiracy.
NOTE: there is no defense to a conspiracy charge based on co-conspirator's irresponsbility, incapacity, or failure to have requisite culpability for a crime.
- In NY, can you conspire with a police officer?
- Yes. Stinks, doesn't it?
- In NY, what are the degrees of the crime of conspiracy?
- Six degrees of criminal conspiracy in NY, degrees determined by the seriousness of the contemplated conduct and age of the co-conspirators.
6th Degree conspiracy = 5th degree solicitation.
5th Degree conspiracy = 4th degree solicitation
2nd degree conspiracy = second degree solicitation.
- In NY, what is the distinction between "defenses" and "affirmative defenses"?
- Different standards of proof, burden of which is on different sides. (See next cards)
- In NY, how is a defense defeated?
- Defense must be disproved by the prosecution beyond a reasonable doubt.
- In NY, how is an affirmative defense raised and proven?
- Affirmative defense must be raised and proved by the defendant by a preponderance of the evidence.
- State the standard for NY's affirmative defense of INSANITY.
- A person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate either the nature and consequence of such conduct or that such conduct was wrong.
NOTE: if you get stuck, remember that NY's affirmative defense is more lenient than the M'Naghten rule but harsher than the MPC.
- In NY, when may a person use non-deadly force in self-defense?
- A person may use physical force on another to the extent he reasonably believes such force is necessary to defend himself or another from the use or imminent use of unlawful force.
There are three exceptions which preclude the use of force in self-defense.
- In NY, when may a person NOT use non-deadly force in self defense?
- (1) With intent to cause physical injury to another, the person provoked the use or imminent use of such force;
(2) the person was the initial aggressor;
(3) the use or imminent use of force is pursuant to an unlawful combat agreement (e.g., Fight Club)
- In regard to use of deadly force in self defense, NY is a "retreat" jurisdiction. What does that mean?
- A person may not use deadly force if he can safely retreat.
- There are four exceptions to the retreat requirement. What are they?
- Retreat is not required if:
(1) the person is in his dwelling and is not the initial aggressor (the "castle" exception)
(2) is a peace officer or is acting under a peace officer's direction;
(3) believes the other person is committing or attempting kidnapping, forcible rape, forcible sodomy or robbery; or
(4) believes the other person is committing burglary or arson.
- Define the elements of the NY crime of "battery."
- Trick question - there is NO crime of "battery" in NY. The crime of assault in NY encompasses common law battery. Assault requires victim to suffer physical injury, defined as impairment of physical condition or substantial pain.
- Is attempted assault possible in NY?
- Yes. It is equivalent to common-law assault.
- Is NY's death penalty statute constitutional?
- No, according to the Court of Appeals.
- Describe in phrase the conditions under which NY's first-degree murder statute will apply.
- "intentional murder with special circumstances"
- There are nine possible "special circumstances" that lead to application of NY's first-degree murder statute. What are the three most important? (see next two cards)
- (1) intended victim was a police officer, court officer, parole officer, probation officer, employee of the division of youth, or corrections employee, engaged in official duties at the time of the killing AND defendant knew or reasonably should have known that the victim was such;
- There are nine possible "special circumstances" that lead to application of NY's first-degree murder statute. What are the three most important? (card two of three)
- (2) defendant committed murder for hire;
- There are nine possible "special circumstances" that lead to application of NY's first-degree murder statute. What are the three most important? (card three of three)
- (3) victim (a non-participant in the crime) was intentionally killed by the defendant during the course of one of the following felonies or immediate flight therefrom:
(a) robbery (any degree)
(b) burglary (first or second degree)
(g) sexual abuse
(i) attempted murder in the second degree
- In NY, what are the forms of second degree murder?
- Three forms exist:
(1) intentional murder (other than first degree murder);
(2) highly reckless murder;
(3) felony murder
- Define "intentional murder" in NY.
- When a person, with intent to cuase the death of another, causes the death of such person or of a third party.
- In NY, what are the two affirmative defenses to a charge of intentional murder?
- (1) Extreme emotional disturbance ("heat of passion")
(2) aiding a suicide.
These defenses mitigate the crime so that defendant may still be prosecuted for manslaughter.
- In NY, what are the enumerated felonies during the commission of which a killing is a second degree murder?
- Burglary, robbery, arson, kidnapping, first degree rape or sodomy, sexual abuse or aggravated sexual abuse, first and second degree escape.
NOTE: all participants in an enumerated felony can be convicted of second degree murder if a killing happens in -process.
- In NY, can a defendant be convicted of felony murder despite not being convicted of the underlying felony?
Felony murder conviction is possible even if the underlying felony is dismissed, defendant is acquitted or charge is not submitted to the jury, where there is sufficient evidence to support the conclusion that defendant committed the crime.
- NY affords defendants who were accomplices to a felony murder a special affirmative defense. What are its elements?
- An accomplice has an affirmative defense to a felony murder charge if:
(1) he did not commit or aid in the commission of the homicidal act;
(2) he was not armed with a deadly weapon or substance;
(3) he had no reasonable grounds to believe others were armed with deadly weapons or substances; AND
(4) he had no reason to believe any participant intended to engage in conduct likely to result in death.
Defendant is still responsible for the underlying felony.
- What are the elements of first degree manslaughter in NY?
- (1) Serious bodily harm resulting in death
(2) extreme emotional disturbance (defendant must raise and prove the affirmative defense of emotional disturbance;
(3) unjustifiable abortional act
- In NY, what are the three types of second-degree manslaughter?
- (1) Reckless: Conscious disregard of a substantial risk, which causes the death of another person.
((2) Abortional act and (3) aiding in suicide are not asterisked.)
- Define first-degree kidnapping in NY.
- When a person abducts another:
(1) with the intent to compel a third person to pay ransom or to act or refrain from acting.
((2) restraining the victim for more than twelve hours with intent to inflict physical injury and (3) the victim dies are not asterisked.)
- Define second-degree kidnapping in NY.
- Abducting someone.
- Define first-degree rape in NY.
- Committed when any person engages in sexual intercourse or deviate sexual intercourse with any other person:
(1) by forcible compulsion.
NOTE: there is no defense of mistake as to victim's age.
((2) victim is less than 11 years old and (3) victim is physically helpless are not asterisked.)
- In NY, may a defendant charged with a sex crime be convicted solely on the testimony of the victim where lack of consent is an element and it results from mental defect or incapacity?
Defendant may not be convicted solely on the testimony of the victim for any sex crime or attempt where lack of consent is an element and such lack of consent is an element and such lack of consent results from mental defect or incapacity.
- In NY, are there any sex crimes for which corroboration of the victim's testimony is unnecessary to convict?
- Yes. By staute, NY no longer requires corroboration in cases of forcible rape, sodomy or sexual abuse.
- NY law incorporates four common-law crimes against property, one more often tested and three less often tested. What are they?
- More often tested: larceny by trespassory taking.
Less often tested: larceny by trick; false pretenses; embezzlement
- In NY, by statute, the following acts are larceny. What are they, most commonly tested first?
- * issuing a bad check
acquiring lost or mislaid property; false promise; extortion; embezzlement; appropriating leased or rented items.
- What are the most commonly-tested degrees of larceny in NY?
- 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 phyiscal injury, damage to property, or defendant's abuse of his powers as a public servant.
Class B felony: grand larceny, first degree; property worth more than $1,000,000.
- How is larceny graded in NY?
- Larceny is graded by the value of the property taken and in some instances by the manner in which acquired.
- In NY, what are the elements of first-degree robbery?
- (1) defendant causes a nonparticipant serious physical injury; or
(2) defendant is armed or threatens use of a dangerous instrument or displays what appears to be a firearm. Victim must reasonably perceive from defendant's actions that a gun is present; words alone are not enough.
- In NY, is there an affirmative defense to a charge of first degree robbery?
- Yes; however, it is only available where the alleged firarm displayed is not loaded.
This defense only reduces the crime to second-degree robbery.
- What are the elements of second-degree robbery in NY?
- (1) defendant is aided by another who is actually present; or
(2) defendant or another participant physically injures a non-participant; or
(3) there is a threat, whatever its nature, of immediate use of physical force.
- Define third-degree robbery in NY.
- Forcibly stealing property.
- What are the differences between burglary in NY and common-law burglary?
- NY burglary:
(1) includes remaining unlawfully, as well as entry;
(2) incorporates the element of breaking into entering;
(3) does not limit the intent to the commission of a felony, but embraces an intent to commit any crime;
(4) except as an element for grading purposes, does not require a building to be a dwelling;
(5) does not require the act to be committed at night.
- What are the elements of third-degree burglary in NY?
- (1) knowingly entering or remaining unlawfully;
(2) in a building; and
(3) with the intent to commit a crime therein.
- What are the elements of second-degree burglary in NY?
- Third-degree burglary aggravated by any of:
(1) the building is a dwelling;
(2) defendant injures a non-participant;
(3) defendant is armed
- Define first-degree burglary in NY.
- Burglary of a dwelling (including motor vehicles) with any of the aggravating factors of second-degree burglary.
NOTE: if display of a firearm is part of the charge, defendant has an affirmative defense if he can show that the instrument was not a weapon or the weapon was not loaded.
- What are elements of third-degree arson in NY?
- (1) Intentionally damaging a building or motor vehicle,
(2) by intentionally starting a fire or causing an explosion.
- What are the elements of the affirmative defense to third-degree arson?
- (1) all persons with possessory or proprietary interest in the property consented; and
(2) the defendant's intent was to cause damage for a lawful purpose; and
(3 the defendant had no reasonable ground to fear for the safety of another person or to fear damage to another building or motor vehicle.
- What are the elements of second-degree arson in NY?
- (1) intentionally damaging a building or motor vehicle,
(2) by intentionally starting a fire,
(3) with knowledge that a nonparticipant is present in the building or motor vehicle or circumstances are such that a person's presence is a reasonable possibility. The nonparticipant need not be injured.
- Define first-degree arson in NY.
(NOTE: not asterisked but was tested on one of the practice tests)
- Same circumstances as second-degree arson except that the defendant causes an explosion or a fire by incendiary or explosive device.
- Define the good faith reliance exception to the exclusionary rule. When you're done with that, state whether NY recognizes that exception as to defective search warrants.
- No, it doesn't.
- In NY, is police pursuit a seizure?
- What are the five steps on the sliding scale of police authority to detain in NY, from least to greatest intrusion?
- (1) Minimal intrusion: request for information.
(2) Common law right to inquire
(3) Forcible stop and detention and frisk
(4) Police pursuit
- In NY, what is a "request for information" (when performed by police)?
- Police can approach and request information except on "whim or caprice". Individual's right not to respond, and even to run away, does not give police probable cause to arrest.
- In NY, what is the "common law right to inquire"?
- Police have "founded suspicion that criminal activity is afoot." Police can ask questions, but detention must be short of seizure. If individual gives explanations, police must release.
- In NY, what is a "forcible stop and detention and frisk"?
- Police have "reasonable suspicion" that individual has committed or is committing a crime. Under the limited "plain feel" doctrine, if police reasonably believe they are in danger, they can frisk in order to see if the suspect is armed.
NOTE: Police may make a warrantless seizure of anything reasonably believed to be a weapon that is found during such frisk.
- In NY, what is required to justify police pursuit?
- Must be based on a reasonable suspicion that a crime has been, is being, or is about to be committed.
- In NY, what is required to justify arrest?
- Police must have probable cause to believe individual has committed a crime.
- What is the "Aguilar-Spinelli" test in NY for the requirements of a search warrant application based on information provided by an informer?
- A search warrant must demonstrate:
(1) veracity or reliability of the source of information; and
(2) the basis of the informant's knowledge.
If the informer has not revealed the basis for his knowledge, probable cause for verification can arise only where the observation confirms sufficient details suggestive of or directly to the criminal activiy informed about.
- What is the geographic scope of a search incident to a lawful arrest in NY?
- The officer must suspect that the arrested person may be armed to search containers in the wingspan. Once an occupant has been removed from the car, police may not remove closed containers or bags to look for weapons or other evidence.
- When does NY's Sixth Amendment "indelible right to counsel" attach?
- The indelible rightto counsel attaches when any of the following occur:
(1) when the defendant is in custody, the police are engaging in "activity overwhelming to the layperson" AND the defendant requests counsel; or
(2) at arraignment; or
(3) upon the filing of an accusatory instrument; or
(4) when there has been any significant judicial activity.
If you get stuck: remember that NY affords greater protection to the defendant than does the US Constitution.
- In NY, under what circumstances may waiver of the right to counsel be obtained from a defendant?
- Waiver may be obtained from a criminal defendant who is actually and is known to be represented by an attorney and only in the presence of counsel.
- In NY, when does a right to counsel exist at an investigatory lineup held prior to formal prosecutorial action?
- (1) police are aware that the defendant is represented by counsel on another charge; AND
(2) defendant explicitly requests his attorney.
In this case, police must notify counsel and provide counsel an opportunity to appear before they proceed with the lineup. If defense counsel contacts police to inform them of his intent to appear, counsel must be given reasonable opportunity to attend.
- In NY, what is the "Arthur Hobson Rule" regarding voluntariness of confessions?
- In NY, the lengths of interrogation and custody are factors in determining voluntariness of confessions.
- In NY, can waiver of right to counsel be made by a defendant outside the presence of counsel who represented the defendant on a prior unrelated charge?
If defendant is released and later arrested on unrelated charges, waiver can be made without presence of counsel from prior charges.
- In NY, are "spontaneous statements" by defendants admissible?
A spontaneous statement made by a defendant without any inducement, provocation or encouragement by the authorities may be properly admitted, even if the statement was made in the absence of counsel. Statement must be "forced" on the officer.
NOTE: if the statement is not blurted out and therefore not admissible as a confession, it is still admissible for impeachment.
- In NY, what evidence must be present for a grand jury to indict?
- A grand jury may indict in NY when:
(1) the evidence establishes all of the elements of the crime;
(2) the evidence before it is legally sufficient to establish that the accused committed the offense;
(3) the evidence establishes reasonable cause to believe that the accused committed the crime.
- What are NY's rules regarding immunity conferred upon a witness in return for testifying?
- Any witness in a legal proceeding other than a grand jury proceeding may refuse to give evidence requested of him on the ground that it may incriminated him and may not be compelled to give such evidence if granted immunity.
- Define "transactional immunity" and "use immunity". Which does NY have?
- Transactional immunity means that the witness cannot be tried for any crime disclosed. Use means that the witness may be tried for crime to which answered question relates, but none of the evidence disclosed or leads obtained from the testimony may ultimately be used in the subsequent prosecution.
NY has transactional immunity.
- When is the deadline by which a defendant raising the insanity defense must notify the prosecutor?
- The defendant must notify the prosecutor within 30 days from a not guilty plea.
- When is the deadline by which a prosecutor may serve defendant with demand for the alibi defense, and how quickly must the defendant reply?
- Prosecutor must serve demand for alibi defense within 20 days after arraignment, and the defendant must reply within 8 days.
- In NY, what is the standard for determining whether a defendant may be charged multiple times for offenses arising from the same transaction?
- NY uses the transaction test: defendant must be charged wtih all offenses arising from any single transaction.
- What are the exceptions to NY's "transaction test" for determining whether a person may be charged multiple times for offenses arising from the same transaction?
- (1) the offenses have substantially different elements;
(2) each contains an element not in the other and is designed to prevent very different harms;
(3) one is criminal possession, the other is criminal use;
(4) each involved death, injury, loss, etc., to different victims
(5) violation of another jurisdiction's statute, terminated by court order in the other jurisdiction for lack of evidence as to an element not in NY crime;
(6) one offense is NY RICO and the other is federal RICO.
- In NY, when is evidence of subsequent remedial measures admissible?
- Such evidence is admissible in manufacturing defect cases to establish defectiveness of the product when made.
CONTRAST: in a design defect or failure to warn case, post-manufacture modifications are admissible only to defeat the manufacturer's claim that at the time of manufacture such modifications were not feasible.
- In NY, can a withdrawn guilty plea be used as an admission in a subsequent civil proceeding?
- Yes, if the subsequent civil proceeding arises from the same facts.
- In NY, to what may a character witness testify in a criminal case?
- Character witness may testify in a criminal case about the defendant's reputation (no opinions) in the community and only to those traits that are relevant to the crime involved.
- In NY, when may defendant's prior convictions be introduced when rebutting defendant's character evidence?
- Only when the prior convictions adversely affect the character trait in issue.
- In NY rape cases, what evidence relating to the victim's sexual conduct is admissible and under what conditions?
- (1) victim's conviction for prostitution within three years prior to the sex offense that is the subject of the prosecution; may be admitted only if it has a proper bearing on the defendant's guilt or innocence.
((2), not asterisked, is rebuttal evidence of the victim's failure to engage in sexual intercourse, deviate sexual intercourse, or sexual conduct during a given period of time.)
- In NY, is the unsworn testimony of a child admissible in a civil case?
- In NY, may a child under age 9 or a person who cannot understand the nature of the oath due to mental defect testify without being sworn?
- Yes, provided that the child or mental incompetent has sufficient intelligence to justify reception of the evidence.
- In NY, may conviction be based solely on the unsworn testimony of a child under age 9 or a person who cannot understand the nature of the oath due to mental defect?
- What is a Dead Man Act, and does NY have one?
- Dead Man Act precludes a party or person interested in the event from testifying to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
NY has a Dead Man Act and extends coverage to incompetents.
- What is the Automobile Accident Exception to NY's Dead Man Act?
- A survivor is competent to testify as to facts of negligence or contributory negligence involved in an accident that arose out of the operation or ownership of a motor vehicle, aircraft, or vessel. This is so even though one or more of the parties is the representative of a deceased or mentally ill person.
- In NY, does admission by the witness on cross-examination that he has been convicted preclude further questioning to ascertain the criminal act that was the basis of the conviction?
- No. The cross examiner may question the witness further to ascertain the criminal act that was the basis of the conviction.
- In NY, may cross-examiners inquire into specific instances of misconduct that affect credibility?
- Yes. NY allows inquiry into immoral, vicious or criminal acts that affect credibility.
- Under what circumstances may prior inconsistent statements be admitted in NY?
- Prior inconsistent statements made in writing and signed or under oath are admissible in both civil and criminal cases to impeach a witness's testimony.
Prior inconsistent statements are NOT admissible as substantive evidence in criminal cases.
NOTE: limited authority indicates that in civil cases prior inconsistent statements are admissible as substantive evidence in establishing a party's case-in-chief.
- In NY, are admissions by a party-opponent hearsay?
- Yes. They are admissible under an exception to the hearsay rule. Cf. FRE, under which they are exclusions from the hearsay rule (i.e., not hearsay).
- In NY, are dying declarations admissible?
- Yes, but only in a homicide case and only if it relates to the declarant's death.
- In NY, may present sense impressions be admitted without corroboration?
- No. Corroboration is required.
- In NY, are accident reports included under the hearsay exception for business records?
- Yes. Accident reports prepared in the regular course of business operations or practice are admissible in NY, even if made in anticipation of future litigation.
- What statutory modifications has NY made to the common law Rule Against Perpetuities?
- NY does apply the common law Rule Against Perpetuities, rejecting the "wait and see" approach.
Of the seven key statutory modifications, two are most likely to be tested:
(1) where an estate would be invalid because it depends on a person attaining or failing to attain an age in excess of 21 years, the age contingency is reduced to 21 years (rather than being eliminated entirely)
(2) where the duration or vesting of an estate is contingent upon the occurrence of a specified event, it is presumed that the creator of the estate intended the contingency to occur, if at all, within 21 years from the effective date of the instrument creating the estate.
- What is the NY Rule Against Suspension on Alienation?
- The suspension rule restricts duration of NY trusts to lives in being plus 21 years unless income beneficiaries are given power to transfer their interests.
REASONING: The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee or estate in possession can be conveyed or transferred. To be valid under the suspension rule, all pieces of the fee simple title must be held by ascertainable persons in being within lives in being plus 21 years.
- Can an interest be valid under the suspension rule and invalid under the rule against perpetuities, and vice versa?
- What is the NY Statutory Spendthrift Exception?
- 1973 statute allows creator of a trust to give an income beneficiary the power to transfer his interest. If the income beneficiaries are given the power to transfer their beneficial interests, the trust can last beyond the lives in being plus 21 years provded all interests vest within that period.
- May a life estate be held in trust for an unborn person?
- Trust income interest in unborn person is subject to the Statutory Spendthrift rule and thus is subject to restriction on transfer. Suspension Rule is violated whenever there is a life estate in trust in an unborn person (or in a class that may possibly include unborn persons).
- In NY, when is a tenancy by the entirety created?
- A grant by anyone to husband and wife necessarily results in a tenancy by the entirety unless the grantor expressly provides otherwise.
- In NY, how may a tenancy by the entirety be severed?
- Termination may only be by voluntary partition, conveyance signed by both parties, or divorce.
Dissolution of marriage based on five-year absence does not terminate a tenancy by the entirety.
There is no severance if one spouse mortgages his interest.
The purchaser takes as tenant in common, subject to the remaining tenant's right of surivorship, and obtains only the right to use or possess the premises.
Property can be reached only by joint creditors.
Either spouse may sue for waste.
- In NY, if a building is destroyed without fault by either landlord or tenant, what result?
- Where building is destroyed or becomes untenable and no express agreement to the contrary has been made in writing, the tenant may without fault quit and surrender possession of the leasehold without any further duty to pay rent. Rent paid in advance shall be adjusted to the date of such surrender.
- In NY, may a tenant renting a residence assign his lease without written consent of the owner?
- Are there any restrictions on a NY landlord's refusal to consent to assignment of a residential tenant's lease?
- No. Landlord may unconditionally withhold consent without cause.
- If a NY landlord withholds consent to an assignment of a residential lease by a tenant, what remedy may the tenant seek?
- The tenant's sole remedy is to seek release from the lease. If the landlord's consent is reasonably withheld, there can be no assignment or release.
- May a NY tenant in a residential building with four or more units sublease?
- Yes. Such a tenant has the right to sublease subject to written consent of the landlord.
- Can a NY landlord of a residential building with four or more units withhold consent to sublease?
- Yes, but the consent cannot be unreasonably withheld. If consent is unreasonably withheld, and if it is the court will deem it a consent. (Failure to respond to lessee's notice will also constitute consent.)
- In NY, how long must an adverse posssessor (or user of another's property) use or possess the other's property to establish adverse possession or easement by prescription?
- 10 years.
- In NY, may tenants in common establish adverse possession against one another, and if so what is the time period required?
- A tenant in common with 20 years of continuous sole and undisturbed possession of the common property establishes sole title to the land.
- In NY, how does the true owner's disability at the inception of adverse possession affect the statutory period for it?
- Statute of limitations will not run against a true owner who is afflicted by a disability (e.g., insanity, infancy, imprisonment) at the inception of the adverse possession.
- In NY, who bears the risk of loss in a real property transaction?
- The Uniform Vendor and Purchase Risk Act places the risk on the seller unless the buyer has either legal title or possession at the time of the loss.
- What kind of recording act does NY have?
- NY is a race-notice jurisdiction, i.e., recording is ineffective as against a bona-fide purchaser who first records.
- What are the elements of the NY prima facie tort of intentional infliction of pecuniary harm without justification?
- (1) intent to do harm (as distinguished from the requisite intent for other intentional torts, i.e., the intent to do the act that causes the harm);
(2) necessary to allege and prove special damages; pecuniary loss is an essential element.
- May a plaintiff bring both an action on a traditional tort and on a prima facie tort?
- No. Where a traditional tort has been established, an action for prima facie tort will not lie.
Note also that action for prima facie tort will not lie if a traditional tort action could have been brought except for the running of the statute of limitations.
- In NY, can self-defense serve as a defense to a claim of intentional tort?
- Yes, but retreat is required before using deadly force.
- What are the exceptions to NY's retreat requirement (when used as a defense to intentional tort)?
- Actor may use deadly force without retreating if:
(1) the actor cannot retreat safely;
(2) the actor is in his own dwelling;
(3) the actor is a police officer; or
(4) the actor is assisting a police officer.
- In NY, if a statement is defamatory on its face and in one of the slander per se categories, are special damages required?
- No - neither for libel nor for slander.
- In NY, if a statement is defamatory on its face and not in one of the slander per se categories, are special damages required?
- No for libel, yes for slander.
- In NY, if a statement is defamatory only by extrinsic fact and in one of the slander per se categories, are special damages required?
- No for libel, yes for slander.
- In NY, if a statement is defamatory only by extrinsic fact and not in one of the slander per se categories, are special damages required?
- Yes for both libel and slander.
- In NY, does a plaintiff's legal status determine the duty owed him by a possessor when the plaintiff is on the premises?
- No. The single standard of reasonable care under the circumstances governs all injuries on the land.
Plaintiff's status remains relevant in connection with the foreseeability of his presence and the amount and nature of precautions required to meet reasonable care under the circumstances.
- In NY, is there any tort liability for on-the-job accidents?
- No. Workers' compensation replaces any tort liability arising out of on-the-job accidents.
- In NY, who may recover for negligent infliction of emotional distress?
- Recovery is limited to immediate family members exposed to immediate harm.
Note that in NY a woman has the right to seek damages for emotional distress when she miscarries or delivers a stillborn baby because of medical negligence.
- State NY's collateral source rule.
- In ALL actions for personal injury, property damage, or wrongful death, courts are required to reduce a successful plaintiff's damage award by the amount of any benefits that the plaintiff has received or will receive from collateral sources (including proceeds from plaintiff's own insurance policy).
NOTE: all damages in excess of the first $250,000 allocated for compensation for future pain and suffering must be reduced to present day value by the court and paid out over the shorter of 10 years or the length determined by the jury.
- May a NY plaintiff recover in tort even if his comparative fault exceeds that of the defendant?
- Plaintiff may recover even if plaintiff's culpable conduct exceeds defendant's.
However, one injured as a direct result of his own illegal conduct involving risk of physical harm may not recover for his injuries, notwithstanding the comparative fault statute.
- Under NY's "permissive use" statute, is a NY automobile owner vicariously liable for intentionally tortious operation by the driver?
- Under NY's "permissive use" statute, what function does the registration of the automobile serve?
- Registration is prima facie evidence of ownership, and gives rise to a rebuttable presumption that driver used and operated the vehicle with the owner's consent and permission.
- Under NY's "permissive use" statute, must the person to whom the owner of the automobile granted permission to use it actually operate it to give rise to vicarious liability?
- No, mere presence is sufficient.
- Recently NY's "permissive use" statute was partially preempted by federal statute with respect to rental and leasing companies. What is the new rule?
- Old rule: rental and leasing companies were considered owners for the purposes of the "permissive use" statute (and were thus susceptible to vicarious liability).
New rule: rental and leasing companies can only be held liable if there was negligence or criminal wrongdoing on the part of the company.
- How are damages for a successful survival claim distributed when an injury causes death?
- When a cause of action owned by decedent in his lifetime survives and the injury causes death, the damages recovered in the action are part of his estate and will be distributed according to his will or by intestacy.
Damages are limited to those accruing before death (damages for the death itself are recovered in a wrongful death action).
Damages are reachable by decedent's creditors.
- What is the statute of limitations on a wrongful death action?
- Action must be brought within two years from time of death.
NOTE: wrongful death action is usually consolidated with survival action for pre-death injuries. Plaintiff has burden of proof except as to decedent's culpable conduct.
- In NY, is there intra-family tort immunity?
- There is no intra-family immunity of any kind in NY.
However, a parent does not owe a duty to his child to exercise due care in supervising the child's day to day activities; therefore a child cannot sue his parents for negligent supervision.
- Parents in NY have a special duty to protect third parties from their infant child's actions in certain cases. State the duty.
- There is a duty by a parent to protect third parties from foreseeable harm resulting from an infant child's improvident use of a dangerous instrument where such use is found to be subject to the parent's control. A parent in such a case may be found liable to the third party on a theory of negligent entrustment.
This rule may apply even when the operator of the dangerous instrument (the infant) is unrelated to the defendant.
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