Section 1
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A state statute is constitutional if PIT
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Last updated
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Date created
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Cards (798)
Section 1
(50 cards)
A state statute is constitutional if PIT
police power, rationally related interest, 10th amendment
Presentment warranties given to a drawee by a party who "presents
...
Standing CRI
Causation Redressability Injury
Not Offers - I GRAPE
Invitations to deal, Goods Ks w/out quantity or output, Real estate w/out land/price, ads, preliminary negotiations, real estate offers not identifying land and price, advertisements, employment offers without duration
Sof Frauds - MY LEGS
marriage, year, land, executor, goods >$500, surety
Definite and certain terms - IPSQUD
identified parties, price, subject matter, quantity, description
Obscenity depends on your Point Of View
Subject: Constitutional Law Definition of Miller obscenity: P - appeals to the PRURIENT interest O - OFFENSIVE sexual conduct depicted (as defined by state law) V - VALUELESS in a literary, artistic, political, or scientific way
CAN'T RIP apart the class
Subject: Civil Procedure To file a class action, you need all 4 prerequisites and 1 of the 3 grounds: 4 Prerequisites: C = Commonality - common issues between parties A = Adequacy - reps fairly and adequately protect interests of class N = Numerosity - too many parties requires too many separate trials T = Typicality - reps are typical of class 1 of 3 grounds: R = Risk of adverse effects from separation actions I = Injunctive relief is applicable to the class P = Predominance of common questions
Irrevocable offers - FOUR
firm offer, option contracts, unilater contract coupled with part performance, foreseeable detrimental reliance
Other Standing Issues - NOT ET
Next friend doctrine, organization on behalf of member, 3rd party standing, to enforce government statute, taxpayer or citizen standing
Specific Performance - MC VID
Mutuality of obligation, Definite and certain terms, Feasible, valid contract, Inadequate legal remedies $, defenses
Contract Equitable remedies - 4R SL
Restitution, Rescission, Reliance, Reformation, Specific performance, Liquidated Damages
Executive powers - DRAP VOTER
deploy armies, represent US abroad, appoint all ambassadors, consuls and scotus justices, pardon, veto, executive orders, enter treaties, executive agreements with foreign nations, remove Officers
MRS BAKER
Subject: Criminal Law Felonies that are inherently dangerous felonies for purposes of the common law felony-murder rule: M = Mayhem/Maiming R = Rape S = Sodomy B = Burglary A = Arson K = Kidnapping E = Escape (from official custody) R = Robbery Note: In MD, felony murder applies to statutorily enumerated felonies. The MD statute enumerates the crime that can support a felony murder conviction and includes MRS BAKER felonies PLUS, carjacking and some explosive offensives
CARFAN
Things to look for when reading the assigning memo: C - client: who do you represent? A - Addressee/Audience: to whom are you writing? lawyer v. non-lawyer; sophisticated v. not sophisticated person. Write to, and with, them in mind. R - Role: Objective (umpire)/Persuasive (advocate) writing F - Format: inter-office memo, letter, brief, etc. A - Affirmative Assignments: what specifically are you asked to do? (instructions from a secondary instructional memo may need to be added) N - Negative Assignments: what specifically are you told NOT to do?
Lemon SEX
Subject: Constitutional Law When discussing the Establishment Clause on the MD Bar exam, use the Lemon Test. S = the law must serve a SECULAR purpose E = the primary EFFECT of the law may not advance or inhibit religion (an incidental benefit = OK) E = the law does not cause EXCESSIVE ENTANGLEMENT with religion
Termination - DR DIRT
Time lapse revocation, death or insanity of offeree, intervening illegality, rejection or counteroffer, time lapse (reasonable or specified)
Transfer warranties given to a transferee by a transferor of a negotiable instrument, applicable if value is given for the negotiable instrument:
I ake for STEAK S = All SIGNATURES are genuine T = There are no defenses that can be successful against the TRANSFEROR E = ENTITLED to enforce (transferor is holder or P.E.T.E) A = There are no ALTERATIONS K = Transferor has no KNOWLEDGE of drawer's insolvency
Speech gets intermediate scrutiny -CBS NBC Z
Commercial speech, Broadcast RQs, symbolic neutral - time place manner, ban on nude dancing in public, campaign contributions, zoning
DOPSS
Subject: Civil Procedure Basis for state getting personal jurisdiction over D: D = Domicile O = Organized under laws of the state P = Principal place of business S = Service of process on party or party's agent S = Support obligations (child support, alimony, paternity)
UCC Governs/Goods - GUM
growing crops, unbord animals, moveable tangible property (including removeable fixtures)
Protected Class - RAN (gets strict scrutiny)
Race, alien, national origin
Offer - COD
Communication to offeree, objective intent to be bound, definite and certain terms (IPSQUD)
COIL
Subject: Business Associations Fiduciary duties: C = Care O = Obedience I = Information L = Loyalty
To prove constructive possession of CDS, factors that are considered included evidence of...
MP3 M = Mutual use and enjoyment (e.g., ∆ appears high) P = Proprietary interest (e.g., ∆ owns or rents place where CDS found) P = item found in Plain View or within knowledge (e.g. item found in the open or place where ∆ would know) P = Proximity (how close was ∆ to the CDS?)
Sof F Exceptions - SWAP
Specially manufactured goods, Written confirmation by merchant, Admission in proceeding, Performance by payment or acceptance
Discharge performance - MAC MAN BAR SWIFTI
Condition precedent, accord and satisfaction, mutual recession, modification, account stated,novation, breach, anticipatory repudiation, reasonable request for assurances not given, statute of limitations, waiver, impossibility, frustration of purpose, time lapse, impracticability
Types of liability on a negotiable instrument
Only With Focus Can People Understand liability: O = Obligation on the instrument (anyone who signs the instrument - Maker, Acceptor, Drawer, Indorser, Accommodation Party) W = Warranty liability (Transfer and Presentment) F = Final Payment/payment by mistake C = Conversion P = Properly payable (UCC 4 issue; Bank [Drawee] v. Customer [Drawer] issue) U = Underlying Contract (the agreement that was the reason a check was given in payment)
Rescission - MUMIII
Mutual mistake, Unilateral mistake, Misrepresentation, Illegality, Impossibility, Incapacity
MY LEGS
Subject: Contracts & Sales Statute of Frauds applies to k's that involve: S = SURETYSHIP L = Sale of LAND Y = Performance not possible within one YEAR M = Marriage E = Estate EXECUTOR'S k's G = Goods priced at $500 or more
Other - WAIT DONE (gets rational basis)
wealth, age, illegal aliens, international travel, disability, orientation (sexual?), national origin (for government process only), public employment
FIDO
Subject: Constitutional Law Categories of unprotected speech: F - fighting words (must be face to face) I - incitement to imminent violence - clear and present danger of immediate lawless action D - defamation O - obscenity - Miller obscenity (see POV)
Promissory estoppel - PRIA
promise, reliance, interest of justice, actual reliance
Speech issues - SOUP T
Symbolic acts, overbreadth and vague, unprotected speech (AP SLAP), prior restraints, time place and manner
Federal Preemption/Intent to Occupy - FAHU
Comprehensive Federal scheme, federal agency created to administer, historically federally run, uniformity is needed
K Defenses - U2 MAMI2 CUVD Penalty FUM SOL
Unconscionability, Undue Influence, Mistake, SoF, PER, ambiguity, mutual mistake, illusory, capacity, ultra vires, duress, penalty clause, illegal, fraud, unilateral mistake, SOL
fundamental privacy rights - CAMPER
Contraception, abortion, marriage, medical treatment refusal, procreation, porn, education, related persons living together
PER exceptions - DAM FOIL
duress, ambiguitiy, mistake, fraud, oral condition precedent, illegality, lack of consideration
In order for the 4th Amendment to apply, there must be:
3Ss: S = State action S = Standing S = Search or Seizure
Second Degree Murder - WKBC
Wanton or reckless conduct, Intent to kill, intent to bring about substantial bodily harm, Intent to commit a felony
Venue is not a VERB
Subject: Civil Procedure Place for proper venue (i.e.: proper county for trial): V = Habitually engages in a VOCATION E = Employed R = Resides B = Business regularly conducted Also, where D sleeps or works
Felony Murder Rule - BARRK
Burglary, arson, rape, robbery, kidnapping
Quasi-Suspect Class - LEG (gets intermediate scrutiny)
Legitimacy, education for illegal alien children, gender
Judicial Standing - RAMPS
Ripe, not an Advisory Opinion, not moot, not a political question, standing CRI
Due process balancing test - IRA
interest affected, risk of error, additional cost to government
Unprotected speech - AP SLAP
Prurient interest, portrays sex, LASP V of reasonable person
Until Feb/Fall, Test Pressure, Exhaustion Both Threaten Romance
Subject: Contracts & Sales Contracts and Sales essay test question approach U = UCC or common law k - Which law applies? F = Formation - has the k been formed? T = Terms - What are the terms of the k? P = Performance - Have the parties performed their contractual obligations (the terms just discussed)? E = Excuse - Is there an excuse for non-performance or other defense? B = Breach - If not excused, does the non-performance amount to a breach of K? T = Third party issues - Are there any 3rd party issues, such as 3rd beneficiaries or assignment/delegation? R = Remedy - what are the rights and obligations with respect to any remedies and damages?
BFP's are fundamental to Due Process
Subject: Constitutional Law Fundamental rights for substantive due process purposes break down further into 3 broad categories: B = Bodily integrity matters - right to refuse medical treatment; right to receive medical treatment while incarcerated F = Family matters - marriage, divorce, blood relatives live together, raise & educate children P = Procreation matters - avoid sterilization, access to contraceptives, abortion, but not sexual orientation
Acceptance - POSUM
Performance, only offeree can accept, unless option conrtact, Silence (limited), unauthorized method of acceptance while offer is open, mirror image rule
Drink WHEAT RUM before the Robbery Run
Subject: Criminal Law The Robbery Run may involve the following offenses: W = Weapons offenses H = Handgun violation E = Endangerment of the reckless sort A = Assaults (1st and 2nd) T = Theft (Larceny) R = Robbery (Regular and Armed) U = Use of a handgun in commission of a crime of violence M = Murder most Foul (Felony)
Section 2
(50 cards)
Common law felonies proper for impeachment by prior conviction of crime [MR. & MRS. K. LAMB]
M = Murder R = Rape M = Mayhem (Maiming) R = Robbery S = Sodomy K = Kidnapping L = Larceny A = Arson M = Manslaughter B = Burglary
A person trying to make another pay on a negotiable instrument must be a Person Entitled To Enforce. (Almost all PETEs are Holders.) [PETE]
P = Person E = Entitled T = To E = Enforce
Requirements For A Valid Deed [Deeds Need Simple Words]
D = Description of property N = Name of grantee S = Signature of grantor W = Words of conveyance
In order for the 4th Amendment to apply, there must be... [3 Ss]
S = State action S = Standing (on the part of the defendant) S = Search or Seizure
Obscenity Depends On Your... [Point Of View]
Miller obscenity: P = Prurient interest relative to community standards O = Offensive sexual conduct depicted (as defined by state law) V = Valueless in a literary], artistic], political or scientific way
Elements Of Adverse Possession [OCEANS]
O = Open C = Continuous E = Exclusive A = Adverse N = Notorious and S = Statutory (20-year) period
Warrant Requirement Exceptions [CAN STRIP SEARCH]
C = Community Caretaker Function A = Arrest - warrantless N = National Security/Border Searches S = Special Needs T = Terry Stop and Frisk R = Regulatory/Administrative Searches I = Inventory P = Plain View/Feel S = Search Incident to Lawful Arrest exception E = Evanescent Evidence A = Automobile R = Roadblock/Highway Stops C = Consent H = Hot Pursuit
Fiduciary Duties [COIL]
C = Care O = Obedience I = Information L = Loyalty
Establishment Clause - A Law Will Be Found Constitutional Under The Lemon Test If It Is... [Lemon PEE]
P = Purpose - purpose is secular (non-religious) E = Effect - primary effect not to advance nor inhibit religion E = Entanglement - does not cause excessive entanglement with religion
UCC 3/4 Essay Test Question Approach [Never Heed Legal Drive!]
N = Is this a Negotiable Instrument? H = Is plaintiff a Holder in Due Course? L = What is the Defendant's Basis of Liability? D = Does Defendant], if liable], have a Defense?
When element character evidence is admissible? (rare) [Darn NICE]
D = Defamation N = Negligent hiring], supervision or entrustment I = Immigration C = Child custody E = Entrapment defense
Categories of CHARACTER evidence used to determine which rules apply and then whether the evidence will be admitted - the key is WHY it is being offered [He has ICE in his veins]
I = Impeachment character evidence C = Conformity character evidence E = Element character evidence
Statute Of Frauds Applies To Contracts That Involve... [SLYME Goods]
S = Suretyship L = Sale of Land Y = Performance not possible within ONE Year M = Marriage E = Estate Executor's contracts Goods priced at $500 or more
Unavailability for hearsay exceptions purposes is defined as... [To be unavailable, the declarant must PERISH!]
P = Privilege E = Exhaustion of memory R = Refusal to testify I = Inability to procure witness' attendance despite due diligence S = Sick (physical or mental) H = History (as in dead!)
Contracts And Sales Essay Test Question Approach [Until February, Test Pressure, Exhaustion, Both Threaten Romance]
U = UCC or common law contract - Which law applies? F = Formation - Has a contract been formed? T = Terms - What are the terms of the contract? P = Performance - Have the parties performed their contractual obligations (the terms just discussed)? E = Excuse - Is there an excuse for non-performance or other defense? B = Breach - If not excused does the non-performance amount to a breach of K? T = Third party issues - Are there any 3rd party issues such as 3rd beneficiaries or assignment/delegation? R = Remedy - What are the rights and obligations with respect to any remedies and damages?
Miranda Defenses - K SNIP
Knowing and intelligent waiver, spontaneous statement, not custodial, impeachment, public safety question
Issues Involving Expert Testimony [SPOT expert issues]
S = Proper Subject P = Proper Person O = Proper Opinion (witness has sufficient factual basis to support the opinion) T = Proper Testimony (expert opinion is stated properly - not a legal conclusion)
Requirements For An Easement By Implication [NCCAP]
N = reasonable Necessity C = Common grantor of servient and dominant estates C = Continuous use of the easement from grantor to current owner A = Apparent (visible) use of servient estate by dominant estate P = use of easement of servient estate by dominant estate Prior to grant (a.k.a.], quasi-easement)
Fundamental Rights For Substantive Due Process Purposes [B.F.P.'s and T.V.s are fundamental to Due Process]
B = Bodily Integrity Matters F = Family Matters P = Procreation Matters T = Travel V = Voting
Four Ways To Create An Easement [PINEE]
P = Prescription I = Implied N = Necessity E = Express E = Estoppel
The three methods of proving character are... [Character evidence ROCs]
R = Reputation O = Opinion C = Conduct (Specific Instances of Conduct)
Lawyers owe the following duties to clients ["A lawyer must be 'C...C.O.I.L.E.D."]
C = Confidentiality C = Competence (like duty of Care) O = Objectives (like duty of O bedience) I = Information (really Communication) L = Loyalty E = End of Representation D = Diligence
Requirements For An Easement By Prescription [OCANS]
O = Open C = Continuous A = Adverse N = Notorious and S = Statutory (20-year) period
Fruit of the poisonous tree exceptions - GG AID
Grand jury, good faith reliance by the police (DCS), intervening act of the D, an independent source, inevitable discovery
Six Types Of Non-Hearsay [I C SOM LACE]
I = Impeachment C SOM = Circumstantial State of Mind L = Legally operative facts A = Verbal acts C = Capacity E = Effect on hearer
Defenses - SEMI III D3 C
self defense, entrapment, mistake (specific intent crimes), intoxication (specific intent crimes), insanity, infancy, involuntary, duress, defense of property, defense of others, consent
Grounds For Divorce [Seems Almost Every Divorce Involves Inherently Vicious Conduct]
S = Separation (2 year], no fault no requirement) A = Adultery E = Excessively Vicious Conduct D = Desertion (Actual or constructive) I = Insanity I = Incarceration V = Voluntary Separation (1 year) C = Cruelty
Inherently Dangerous Felonies For Purposes Of The Common Law Felony-Murder Rule [MRS. BAKER]
M = Mayhem/Maiming R = Rape S = Sodomy B = Burglary A = Arson K = Kidnapping E = Escape (from official custody) R = Robbery Note: In Maryland, felony murder applies to statutorily enumerated felonies. The Maryland statute enumerates the crime that can support a felony murder conviction and includes MRS BAKER felonies plus, carjacking and some explosives offenses.
The only hearsay exceptions that REQUIRE UNAVAILABILITY of Declarant are... [She's not available she's DAFFY!]
D = Dying Declarations (civil and homicide related cases) A = Statement Against interest (against proprietary, pecuniary or penal interest) F = Former Testimony F = Forfeiture by wrongdoing Y = Family HistorY
To File A Class Action, You Need All 4 Prerequisites And 1 Of 3 Grounds [CAN'T RIP Apart the Class]
4 Prerequisites C = Commonality - common issues between parties A = Adequacy - reps fairly and adequately protect interests of class N = Numerosity - too many parties requires too many separate trials T = Typicality - reps are typical of class 1 of 3 Grounds R = Risk of adverse effects from separate actions I = Injunctive relief is applicable to the class P = Predominance of common questions
SIX ways to impeach (Attack Believability/Credibility) A Witness [2 Eyes (I) 4 Seeing (C) or I2C4]
I = Interest and bias I = Inconsistent statements and conduct C = Contradiction (by other witness or evidence) C = Conviction of crime C = Character (for truthfulness) C = Capacity (to observe / recall / relate)
When thinking about property issues think about the property right's [CUT]
C = Creation U = Use T = Termination
Exclusionary rule exceptions - NIPBUG
Non-TR criminal proceedings (grand jury), Impeachment, Public Safety, Booking questions, Undercover police, good faith reliance (DCS)
Place For Proper Venue [Venue is not a VERB]
V = Habitually engages in a Vocation E = Employed R = Resides B = Business regularly conducted Also, where Defendant sleeps or works
Warrantless Search - ESCAPES
Exigent, SIA, Consent, Auto, Plain View, Evidence Admin, Stop/Frisk
Exceptions to good faith reliance - LAID
Lied, Abandoned, Insufficient affidavit, Deficient in particularity
Factors considered to prove constructive possession of CDS include evidence of... [MP3]
M = Mutual use and enjoyment (e.g.], Defendant appears high) P = Proprietary interest (e.g. Defendant owns or rents place where CDS found) P = item found in Plain view or within knowledge (a place where defendant would know) P = Proximity (How close was Defendant to the CDS?)
Evidence that looks like "Other Crimes Evidence" but is NOT being offered to prove conforming behavior (propensity) but for some other purpose (special relevancy) may be admissible. Examples of an "other purpose" are if the evidence is offered to prove... [MIMIC Plus]
M = Motive I = Intent M = absence of Mistake I = Identity or signature C = Common scheme or plan PLUS = opportunity / preparation / consciousness of guilt / other non-propensity purpose
Unprotected Speech [FIDO]
F = Fighting Words (must be face-to-face) I = Incitement to Imminent / Immediate Violence D = Defamation O = Obscenity - Miller obscenity
Four Unities Necessary For Valid Joint Tenancy [PITT]
P = Possession - each JT entitled to possess same thing I = Interest - each JT must own same kind of estate T = Time - each JT must receive interest at same time T = Title - each JT must take pursuant to the same deed.
Requirements For An Easement By Necessity [NC]
N = strict Necessity C = Common grantor of servient and dominant estates
Evidence otherwise admissible yet excluded for reasons of public policy [Public Policy PRISM]
P = Pleas and connected statements R = Remedial measures (subsequent) I = Insurance S = Settlement offers and connected statements M = Medical expense offers
The Robbery Run May Involve The Following Offenses... [Drink WHEAT RUM before the Robbery Run]
W = Weapons offenses H = Handgun violation E = Endangerment of the reckless sort A = Assaults (1st and 2nd) T = Theft (Larceny) R = Robbery (Regular and Armed) U = Use of a handgun in commission of a crime of violence M = Murder most Foul (Felony)
Good faith reliance - DCS
defective search warrant, case law, statute or ordinance
An out-of-court statement is NOT being "offered for its truth" when it is offered to... ["If you're saying you can 'C-ELVIS' you aren't offering the truth"]
C = show that the declarant had the CAPACITY to observe, recall or relate information E = show its EFFECT on the hearer to explain some action of the hearer or to show what the hearer knew L = show that the declarant spoke words that, regardless of their truth, have a LEGALLY operative effect V = show a VERBAL act - words that clarify ambiguous conduct I = IMPEACH S = show the declarant's STATE of mind circumstantially
R to Counsel - MAP GO FAP
misdemeanor when imprisonment is imposed, arraignment, preliminary hearings to determine probable cause, guilty pleas, overnight recess at trial, felony trials, appeals as a matter of right, post charge line-ups
Ways An Easement Can Terminate [TAMPERED your easement or it will die]
T = Terms that give rise to end of easement A = Abandonment - actions of owner of dominant estate indicates intention to abandon M = Merger of dominant and servient estates (one person comes to own both properties) P = Prescription - owner of servient estate shows that they prevented use for statutory period (20 years) E = Estoppel - reliance on oral promise R = Release - written termination by holder of dominant estate E = End of the necessity D = Destruction of the servant estate
Arson - ABCD
arson, more than blackening, charring, a dwelling
When can SILENCE be a "statement" for hearsay purposes? When can SILENCE be "inconsistent" for prior inconsistent statement? [HOW can silence be a statement or inconsistent?]
H = Witness Heard and understood what was said by another about witness O = Witness had the Opportunity to respond W = Witness Would have responded if the statement were not true
Basis For State Getting Personal Jurisdiction Over Defendant [DOPSS]
D = Domicile O = Organized under the laws of the state P = Principal place of business S = Service of process on party or party's agent S = Support obligations (child support/alimony/paternity)
Section 3
(50 cards)
Collateral Estoppel Piano
Party in prior lawsuit Identical Issue Actucally litigated and determined Necessarily determined Opportunity to litigate
A will validity can be contested based on a TIE
Testamentary capacity Influence (undue) Execution (improper) Improperly SWEPT
Abnormally Dangerous Activities "HAND"
High risk Act is not safe ever Not common Defenses (contributory negligence, comparative fault, assumption if risk, intoxication)
Attachment makes a security interest enforceable. Attachment occurs when the LAST of these three requirements are met [VCR]
V = Value given by the secured party to the debtor C = Contract agreement that security interest attach R = Debtor has Rights in the collateral
Secured Trans. Creditor Priorities "Bitch In Charge, PACked her Little Car, with No Cold Beverages, then Upped the A/C, to Get us Cold"
Buyer in ordinary course Perfected and attached creditor Lien creditor Non ordinary course buyer Attached unperfected creditor General unsecured creditor
Causation in fact "SAB"
Substantial factor test Alternative causes (multiple defendants) "But-For" test
CAN'T Federal Class Action
Commonality Adequacy Numerosity Typicality + if u want $ Predominance Superiority Notice to Opt out
FTF DAD
Fact publication to a Third party False Defamatory About plaintiff Defenses (absolute, qualified, broadcast)
Under the general rule a forged signature is NOT effective as the signature of the person whose name is forged. However under these four rules a forged signature is F.I.N.E. - it IS effective as the signature of the person whose name is forged. [Four FINE forgeries]
F = Fictitious Payee Rule I = Impostor N = Negligence Substantially Contributing to a Forgery Rule E = Entrusted Employee's Fraudulent Endorsement Rule
Valid Wills must be SWEPT
Signed by an adult testator Writing End - signature must be at the end Published that it is a will Two witnesses who do not have to be adults must sign w/n 30 days of each other
Requirements for Trust creation PARTI
Purpose Ascertainable Beneficiaries Res Trustee Intent
Types Of Liability On A Negotiable Instrument [Only With Focus Can People Understand Liability]
O = Obligation on the instrument (anyone who signs the instrument - Maker / Acceptor / Drawer / Indorser / Accommodation Party) W = Warranty liability (Transfer and Presentment) F = Final payment / payment by mistake C = Conversion P = Properly payable (UCC 4 issue - Bank [Drawee] v. Customer [Drawer] issue) U = Underlying Contract (the agreement that was the reason a check was given in payment)
Illinois Class Action NAACP
Numerosity Adequacy Appropriateness Commonality Predominance
Corporation Formation A PAIN
Authorized Shares Purpose Agent Incorporators Name of Corp
Misrepresentation
Misrepresentation Intent to induce Scienter Reliance Damage
Business Records KRAP
Keep Regular Course At or near the time Personal Knowledge
Intentional TORTS ABC FITT
Assault Battery Conversion False Imprisonment IIED Trespass on Land/Chattel
Warrant-less search exceptions CHEAPS
Consent Hot Pursuit Exigent Auto Plain view Search Incident to Lawful Arrest
No duty owed to another unless there is SCRAP
Statuatory Contract Relationship (special like spousal, parent child...) Assumption of duty Peril (if one causes)
Strict Liability "PAW"
Products Liability Abnormally dangerous activity Wild Animals
Transfer warranties given to a transferee by a transferor of a negotiable instrument applicable if value is given for the negotiable instrument [I ake for STEAK]
S = All Signatures are genuine T = There are no defenses that can be successful against the Transferor E = Entitled to enforce (transferor is Holder or PETE) A = There are no Alterations K = Transferor has no Knowledge of drawer's insolvency
BARF FLEM
Burglary Assault Robbery Forgery False Pretense Larceny Embezzlement Murder (1st degree)
Defense to Intention Torts "Cops Ran MS"
Consent O- Defense of Others p- Defenses of Property Self Defense Recapture Authority of Law Necessity Mistake Shopkeepers Privilege
Presentment warranties given to a drawee by a party who "presents" a negotiable instrument or any transferor of the negotiable instrument [I AKE for steak]
A = no Alterations K = no Knowledge of a forged drawer's signature E = Entitled to Enforce (transferor is holder or PETE)
Adverse Possession OCEAN
Open Continuous Exclusive Actual Notorious
Negligence
A Duty to act Breach of Duty Causation Damages
Hearsay/Exceptions Required Unavailability DAFT
1. Dying Declaration 2. Against interest declarations 3. Family and personal history statements 4. Testimony (former)
Invasion of Privacy FLIPA
False Light Intrusion into private affairs Public disclosure of private facts Appropriation
RAP interest subject to rule CEO, President, Vice President of the Company
Contingent Remainders Executory Interest Option to purchase land not incident to a lease Power of appointment Vested remainder subject to open Power of first refusal Class gift
Big Al Is Forever Trying to Cheat
Battery Assault Intentional Infliction of Emotional Distress False Imprisonment Trespass to Land Trespass to Chattle Conversion
The Following May Incur Liability Based On An Obligation On The Instrument [A MAID has obligations]]
A = Acceptor M = Maker A = Accommodation Party I = Indorser D = Drawer
Congress' Power CREATES DICE
CREATES DICE Civil Rights Elections Admiralty Taxation Eminent Domain Spending/Taxing for the general welfare Defense Intestate Commerce Citizenship External (foreign affairs)
State law preemption PUSH
Pervasiveness of Regulation Uniformity of regulation desired Similarity of regulation History of how the area has been regulated
Vicarious Liability "RAP TIP"
Respondeat Superior Auto owner Partnership liability Tavern owner Independent contractor Parent-child (child muse be agent of the parent)
PJX "Mary Prefers Facial, Frequently Requesting Cum Shots"
Minimum Contacts -Purposeful Availment -Forseeablility Fair Play and Substantial Justice --Relatedness --Convenience --States interest
Real Defenses That Will Be Successful Even Against An HDC [4 I Favor Defenses]
I = Infancy I = Incapacity I = Illegality I = Insolvency F = Fraud in factum D = Duress
Defense of Contract "I Die For My Mom's Sweet & Unconditional Love"
Incapacity Duress Mistake Misrepresentation, Fruad Statute of Fraud Unconscionability L(ill)egality
Invasion of Rights to Privacy CLIP
1. picture of name for Commercial advantage 2. False Light 3. Intrusion upon ppl's affair or seclusion 4. Public exposure of private facts
Crazy Silly Double Dealing Dirty Dog Leave Right Now, Never Return Ever
1.Consent 2.Self Defense 3.Defense of Other 4.Defense of Property 5.Discipline 6.Detention for INvestigation 7.Legal Authority 8.Reenty of Lanf wrongfully withheld 9.Necessity (Public) 10.Necessity(Private) 11.Recaprutre of Chattel Wrongfully Withheld 12.Entry to abate a Nuisance
Family Law Privacy CAMPER
Contraception Abortion Marriage Procreation Education of Children Related parties living together
Self Authentication CONTAC
1. Commercial Paper 2. Official Publications 3. Newspapers and periodicals 4. Trade instruments 5. Acknowledge Documents 6. Certified Public Records
Establishment Clause SEX
Secular Purpose Effect ( must not advance religion) X no excessive entanglement with the government
Fed. Civ. Pro. A WASP
Abode Waiver Agent Service State Methods Personal Service
UCC 9 Essay Test Question Approach [Seven Angry Creditors Persistently Pursue Secured Parties Relentlessly]
S = Is there a Security Agreement? A = Has the security interest Attached? C = What is the classification of the Collateral? P = Is this a Purchase Money Security Interest (PMSI)? P = Is the security interest Perfected? S = What is the Status of the party? P = What Priority rule applies? R = What Remedy is available?
Adverse Possesion U HOAR
Uninterrupted Hostile Open and Notorious Adverse Running of statue of limitations
Slander Per Se PLUM
1. Profession and business adverse remarks 2. Loathsome Disease 3. Unchasity of an unmarried woman 4. Moral Turpitude (crime involving)
CCC II E
Contributory Negligence Comparative Fault Commission of a felony Implied assumption of risk Intoxication Express assumption of the risk
Impeachment Teachniques BICCC
1. Bias 2. Inconsistent Statements 3. Capacity 4. Character 5. Contradiction
Strict scrutiny Applies To Very Educated People
1. Freedom of Association 2. Travel 3. Voting 4. Freedom of expression 5. Privacy
6 covenants of title "Seasoned Convicts Engage in Quiet Whisper For Assistance"
Covenant of Season Covenant of the right to CONvey Covenant against Encumberances Covenant of Quiet Enjoyment Covenant of Warranty Covenant of Further Assistance
Section 4
(50 cards)
25th
25 prez alive -- presidential succession
23rd
Jordan=Wizards ; 23 is Dee-Cee -- DC can vote for prez
Exclusionary Rule Exceptions NIP BUG
Non-trial criminal proceedings Impeachment Public safety Booking questions Undercover police Good faith reliance "DCS"
6th
6x2 = 12 angry men -- speedy, jury confront, compulsory witness process, counsel
2nd
2 Arms -- Bear arms
Warrant Exception "PEACHIS"
Plain view Exigent circumstances Automobile Consent Hop pursuit Incident to arrest Stop and frisk
A is for Arson ABCD
Arson more than Blackening Charring a Dwelling
Unprotected Speech A SLAPP
Appeals to purient sexual interest Scientific value lacking Literary value lacking Artistic value lacking Portrays sex reasonalbe Person standard
Second degree murder WKCB
Wanton or reckless conduct intent to Kill or intent to Bring about substantial bodily harm or intent to Commit a felony
Right to Counsel MAP GO FAP
Misdemeanor when imprisonment is imposed Arraignement Preliminary hearings to determine probable cause Guilty pleas Overnight recess at trial Felony trials Appeals as a matter of right Post - charge line ups
Quasi-Suspect Class LEG
Legitimacy Education of illegal alien children Gender
9th and 10th
9 and 10 tea party win - indiv and state rights
1st
RAPPS Religion, Assembly, Petition, Press, Speech
Other Standing Issues "NOT ET" That's NOT E.T. standing on the moon!
Next Friend Doctrine Organization on behalf of members Third-party standing Enforce Government Statute Taxpayer or citizen standing
Inchoate Crimes SAC
Solicitation Attempt Conspiracy
Felony Murder Rule BARRK
Burglary Arson Robbery Rape Kidnapping
Speech where intermediate scrutiny applies CBS NBC Z
Commercial Speech Broadcast requirements Symbolic speech Neutral - time, place, manner Ban on nude dancing in public Campaign contributions Zoning (porn shops, xxx)
Logical Relevance
...
Limits of State Immunity from federal review AWOL
unconstitutional Acts of state officials Waived by state government Only to prevent equal protection violations Legislatively allowed
Judicial Standing RAMPS
Ripe Advisory opinions Mootness Political questions Standing
13th - 15th
Afr. Amer. -- free, citizen, vote
11th
1 |1 -- 1 citizen sues 1 state - citizen can't sue another state w/o permission
21st
drinking age -- repeal prohibition
Express Enumerated Powers ABC ABCDEF P Remembering the enumerated powers is as easy as ABC....
Admirality Bankruptcy Citizenship Armies Bills (coin money) Copyright and patents DC and territories Enter war Federal property Postal
Good Faith Reliance DCS
Defective Search Warrant Case law Statute or ordinance
A state statute is constitutional if PIT
Police Power Interest rationally related Tenth Amendment
Due Process Balancing test IRA
Interest Affected Risk associated with possibility of error Additional cost to government
24th
north poll busiest day on Dec. 24th -- poll tax
7th
7/11 lose $20 -- civil jury trial for more than $20
Miranda Defense "K SNIP"
Knowing and intelligent waiver Spontaneous statement Not custodial Impeachment Public safety question
8th
ate you! - cruel and unusual punishment
12th
1st and 2nd -- Prez and VP
Speech Issues SOUP T
Symbolic Acts Overbreath and Vague Unprotected Speech A SLAPP Prior Restraints Time, Place, Manner
3rd
3 Quarters -- don't quarter troops
16th - 19th
In(come) senator with wine and women
Federal Preemption/Intent to Occupy "FAHU"
Federal scheme Agency created to administer Historically federally run Uniformity is needed
Fruit of a poisonous tree exception GG AID
Grand Jury Good faith reliance by police intervening Acts of the defendant Independent source inevitable Discovery
5th
take the 5th -- Self incrim, Double jeopardy
20th
January 20 -- 1st day prez in office
4th
Search 4 - Search and seizure
Reason a state statute could be unconstitutional "Spec Spec VB"
Substantive due process Procedural due process Ex post facto Commerce Clause Supremacy clause Privileges and Immunities clause Equal Protection Clause Contract Clause Vague Bill of Attainder
Standing CRI
Causation Redressability Injury
Exceptions to Good Faith Reliance "LAID"
Lied Abandoned Insufficient affidavit Deficient in particulars
First Degree Murder "PIC"
Premeditated Intent to kill Cool and not passionate
Suspect Class - Strict Scrutiny NORA
National Origin Race Alienage
Fundamental Privacy CAMPER
Contraception Abortion Marriage, Medical treatment refusal Procreation, Porn, sex Education Related persons living together
Executive Power DRAP VOTER
Deploy armies Represent U.S. abroad Appoint all ambassadors, consuls, and SCJ Pardon Veto Order (executive) Treaties Executive agreements with foreign heads Remove high ranking, executive officers
Defenses Semi auto matic 4321
Self defense Entrapement Mistake Incapacity Intoxication Insanity Involuntary Duress Defense of Others/property Consent
Rational Basis WAIT-DONE
Wealth Age Illegal Aliens Travel International Disability Orientation National origin (gov't purposes only) Employment (public)
22nd
2 term 2- limit for prez
Section 5
(50 cards)
I had a covenant WITH V
W riting I ntent T ouch and concern H orizontal V ertical
26th
26/2 = 18 -- 18 is voting age
MBE: Battery (tuaoftariebioaot)
The unlawful application of force to another, resulting in either bodily injury or an offensive touching
The 5 requirements to satisfy an Art. 2a - Satisfactory Writing for SoF (S, Q, D, R, S)
1) state its a lease 2) quantity 3) duration 4) rental payments 5) signed by ∆
NY: Murder (wap, witcdoa, ctdosaoa3p)
When a person, with intent to cause death of another, causes the death of such a person or a 3rd party
4 Requirements for Contracts: NO AC
N o defenses O ffer A cceptance C onsideration
Requirements for Economic Duress in a contract: TAN
T hreat to break an existing contract A greed only to get first contract done N o other alternative for π
Types of Monetary Remedies (P, C, A, L, I)
PUNative damages CONsequential EXPEctation AVOIDable LIQUIDated INCIDENTal
PING! You've got an Easement
P rescription by AD I mplication from an existing easement N ecessity G rant
MBE: Murder definition (cdoawma)
causing the death of another with malice aforethought
The relationship is DISMAL if spouse can't take her share
D ivorce I nvalid divorce by surviving spouse S eperation decree (not agreement) M arriage is voild A bandonment by surviving spouse L ack of financial support by surviving spouse
NY: Negligence (∆shbaoasaur)
∆ should have been aware of a substancial and unjustifiable risk
5 NY Mental States (S, K, N, R, I)
STRIct liability KNOWledge Negligence Reckless INTEnt
5 Types of Defenses (I, V, N, D, E)
INSANity VOLuntary intoxication MISTake NECessity DUress ENTRApment
CL - 2 requirements Satisfactory Writing for SoF
1. all material terms 2. signed by ∆
Requirements for Specific Performance (V, C, L, M, N)
VALid contract CONditions of K have been satisfied LEgal remedy is inadequate MUTuality of remedy is present NO defenses available
4 CL Mental States (S, M, G, S)
SPECIFIC intent MALice GENERAL intent STRIct liability
9 Aggravating Factors for Murder in NY (lmfw2ttsi)
1) LO engaged in duties & ∆ should have known 2) Murder for hire 3) Felony murder w/ intentional murder 4) Witness intimidation 5) 2 or more deaths 6) Terrorism 7) Torture 8) Serial Murder (24 mo) 9) In custody or escaped custody
If you have an ENDCRAMP, your easement is over
E stoppel N ecessity ends D estruction of servient land C ondemnation by eminent domain R elease in writing by dominant land A bandonment by physical action M erger of dominent & servient lands P rescription by AD
Defenses Against Contract Formation: MEAN PLUM
Mutual mistake about material fact, Economic duress Ambiguity or Misunderstanding- different wavelengths No Consideration Public Policy Lack of capacity Unconscionability Misrepresentation/Non-Disclosure of Material Fact if Party should've/knows the other doesn't know. Innocent party prevails
MBE: General Intent (gaotfctc, nntitsr)
Generally Aware of the Factors Constituting the Crime, no need to intend the specific result
Req for Withdrawal Defense in NY (PV'd CiCi)
π revented the crime from occurring V oluntary renunciation C hange of heart, not fear C omplete renunciation
When does civil party have a right to trial by jury? [R, C, A, D, M]
R eplevin C laim to real property A nnulment of marraige D ivorce action (other than no-fault), on the grounds of divorce (but not money or child custody) M oney damages only
When can a Judge vacate an Arbitration Award? (BCE)
B ias of an arbitrator chosen to be neutral C orruption, fraud or misconduct in arbitration E xceeded his powers (very rare)
Statute of Frauds in NY: (L, P, F, A)
LEAse of goods over 1k PROmise to pay a discharged debt FINDers fee or broker commission (no atty or real estate agents) ASSignments of insurance policies
Year & a Day Rule
MBE: death must occur w/in 1yr & 1day NY: death may occur anytime
NY: Laws Governing Contracts
Art. 2 = sale of goods Art. 2a = lease of goods CL = everything else
Will is admissible to probate in NY if the will was validly executed according to the laws of the state where... (DWN)
D omicile of T at execution/death W ill was executed N Y
NY: Recklessness (∆iaosaur, acdi)
∆ is aware of a substancial and unjustifiable risk, and consciously disregards it
Non-Compete Restrictive Covenants (L, N, B, P, U)
Limited in distance, extent and time (10 yr) Necessary for protection Bargained for exchange Public policy is not burdened Only if services are unique
27th
$$$ -- Congress sets own salary
Impossibility of a Contract: (S, D, I, D, F, F)
Supervening governmental regulation Death/incapacity of an "essential person" Increase in cost (rarely an excuse) Destruction of something necessary for performance Frustration of buyer's primary purpose (Only if seller knew buyer's purpose when entering k)
T-Subs occur when PEG is a SLUT
P resently exercisable PoA E mployee pension/deferred compensation plans G ifts made w/in 1 yr of death over 13k S urvivorship estates L ifetime transfers with strings attached U S gov't bonds T otten trust
1) What is the general rule of Incapacity Defense? 2) Which groups lack Capacity to enter into a contract (3 ways to describe McCaulay Culkin) 3) What are 3 the exceptions to the rule
Incapacitated defendant may disaffirm the contract 2.a) Intoxicated 2.b) Mentally Incompetent (must be adjudicated in NY) 2.c) Minors 3.a.) Minor's life insurance, educational loans, realty contracts of marital home, athletic or artistic 3.b.) Implied affirmation - retaining the benefit after gaining capacity 3.c.) Incapacitated party is liable for reasonable value of necessary items
NY: Knowledge (∆IAOOPCHCWCaCR)
∆ is aware of or practically certain his conduct will cause a certain risk
2 requirements to satisfy an Art. 2 Satisfactory Writing for SoF
1) contain quantity and is 2) signed by ∆
3 degrees of Assault in NY (icpi)
Assault 2: Intentionally causing physical injury Assault 1: assault 2 + Weapon Assault 3: assault 2, but non-serious injury
Motion to Dismiss - DOWNFFALL
D ocumentary evidence as a basis for defense O ther action pending btwn parties W ant of capacity by π N on-joinder of a necc party F ailure to state a cause of action F orum non Conveniens A dditional affirmative defenses L ack of person jx L ack of subject matter jx
NY: Murder 1 (i,e,a)
1) intent to kill 2) 18+ 3) aggravating factor
Additional reasons to dismiss - SPARERIBS
S tatute of Limitation P ayment A rbitration award R elease E stoppel (Collateral) R es judicata I nfancy of π B ankrupcy discharge S tatute of frauds
NY: Intent (∆dtaasr)
∆ Desire to Achieve a Specific Result
CL: Specific Intent (adtaasr)
a desire to achieve a specific result
T-Subs are not made in LOG PITS (they are made in the oven, duh)
L ife insurance O ne-half of a qualified pension and profit sharing benefits G ifts under 13k made w/in 1 yr of death P re-marrage irrevocable transfers I T S
This Land Contract must be Valid b/c Sarah Weinblatt Doesn't Lie & Cheat
S igned W riting D escribing L and & C onsideration
Brad Raber Kills Unicorns: Requirements for a Quasi-Contract
B enefit to ∆ via goods or services R easonable expectation of compensation by π K new or had reason to know of π's expectation U njust enrichment of ∆
CL: Malice (iowrdakr))
intentionally or with recklessness Disregard a Known Risk
ESCAPIST - Valid Warrantless Search & Seizure
E vanescent evidence S earch Incident to Arrest C onsent A utomobile (need pc, unless car is pulled over P lainview I nventory S pecial need of Gov't Officials (drug testing/searching) T erry Stop-n-Frisk
Two crimes that constitute MBE Assault (AorI)
1) Attempted battery 2) Intentional creation (more than words) of a reasonable fear in the mind of the V
Only a LASS can get a Negative Easement
L and A ir S upport S tream water form an artificial flow
Requirements of a Duly Executed Will: 18 Swine Entered Into Panama 2 Were Executing w/in 30 days
18 is the min age to write a will S igned by testor E nd of will is where the signature must be I n the presence of two witnesses P ublish, tell attesting witnesses "this is my will" 2 W itness is the minimum Executed within 30 days - witness must sign w/in 30 days of each other
Section 6
(50 cards)
Article III pertains to...
the Judiciary
Name of Statute for Wills
EPTL
NY: Testimony corroborating rape must do two things:
1. Establish at least an attempt to have sexual contact 2. Connect ∆ w/ commission or attempt of the crime
Name of Statute for Agency & Partnership
NY Partnership Law
NY: Sexual Misconduct (req. 2)
1) vaginal, oral or analy sex w/ another w/o consent 2) sex w/ dead person or animal
NY: (i) The 2 crimes that qualify as Kidnapping 1 (ii) the crime that is Kidnapping 2
1) abducting someone for (a) ransom, (b) 12+ hours with intent to rape/rob/injure 2) abducting someone
Name of Statute for Crim
NY Penal Law
NY: Aggravated Homicide
LO killed in the line of duty
Name of Statutes for Torts (3)
Art. 16 of CPLR NY VTL (non-resident motorist statute) EPTL (wrongful death)
Name of Statute for Corporation
BCL
Name of Statute for NY Practice
CPLR
MBE: False Imprisonment definition & mens rea (tucoapwhc)
- General Intent - The unlawful confinement of a person w/o her consent
Full Faith & Credit Clause
states recognizing other states judicial decision
Manslaughter 1 in NY: mens rea & the 3 crimes (IIU)
Intent 1) Intentional killing under EED 2) Intent to cause serious bodily injury 3) Unjustifiable abortional act more than 24 weeks and causes death of mother
Name of Statutes for Real Property (3)
- NY RPL - NY GOL (general obligations law) - Uniform Vendor & Purchaser Risk Act
Name of Statute for Domestic Relations
DRL
Mens Rea & 3 crimes that constitute Man 2 in NY i) diaoacdasaurod, ii) aias, iii) r
1) ∆ is aware of and consciously disregards a substantial & unjustifiable risk of death 2) aiding in a suicide if ∆ uses distress or deception to kill 3) Recklessness
NY: 3 crimes qualifying for Aggravated Murder
1) ∆ is 18 + 2) V is -14 3) in an especially cruel and wanton manner
NY: Misdemeanor Custodial Interference
taking a relative -16 from lawful custodian w/ intent to hold for a protracted period
Name of Statute for Secured Transactions
Article 9
Name of Statutes for Mortgages NY (2)
NY GOL NY RPL
NY: Rape 2 (1 req.)
V is -15; ∆ is 18+
Supremacy Clause
Federal over State
Doctrine of Sovereign Immunity
No suits against state government in state courts
3 crimes that constitute homocide in NY (VAC)
V ehicular assault & homicide A ggravated Homicide & Murder C riminally negligent homicide
NY: Vehicular Homicide
DUI above .08 and kills someone
Name of Statute for No Fault Insurance
NY Insurance Law
MBE: Kidnapping (fitctviasp)
False imprisonment that conceals the V in a secret place
MBE: Requirement for Voluntary Manslaughter (NDOA)
N o time to cool-off D idn't cool-off O bjectively adequate provocation A ctually provoked
MBE: definition of Voluntary Manslaughter (ikcithopaap)
Intentional killing committed in the heat of passion after adequate provocation
Privileges & Immunities Clause
Article IV - prevents discrimination against non-residents
Mens Rea of Statutory Rape (i)MBE, (ii)MPC, (iii)
MBE: SL MPC & Minority: mistake is a ∆ NY: SL -17
Privileges of Citizenship
14th Amendment. states must give their citizens the privileges and immunities of national citizenship- life, liberty...
Name of Statute for Secured Commercial Paper
Article 3 of the UCC
Name of Statue for Crim Pro
CPL
NY: Vehicular Assault 1, 2 & Aggr.
1) .08 causing serious injury + one factor 2) .08 causing serious injury 3) Reckless + .08 causing serious injury + one factor
NY: Rape 3 (req. 2)
V is -17; ∆ is 21+ sex w/ person incapable of consent (other than age)
3 crimes that constitute Murder 2 in NY (i, f, h)
1) Intentional killing that doesn't qualify for Murder 1 2) Felony murder, unintentional murder 3) Highly "reckless" killing (usually 2+ victims)
14th Amendment- Substantive Due Process Clause
14th Amendments. requires court to review the substance of the state & local law rather than just the procedure
NY: False Imprisonment 1 & 2 (2=urawhc, bwtkiiu)
1) 2 + risk of serious injury 2) unlawfully restraining another w/o her consent, but w/the knowledge it is unlawful
Name of Statutes for Contracts (3)
Art. II (sales of goods) Common Law (all other) Art II(a) (Leases)
Necessary and Proper Clause
congress can enact all laws necc and proper for executing any power granted to any branch of the federal govt.
NY: 4 crimes that qualify as Rape 1
1) sex by force 2) sex w/ person who is physically helpless 3) V is -11 4) V is -13; ∆ is 18+
NY: Felony Custodial Interference
taking a relative -16 from lawful custodian w/ intent to hold for a protracted period AND intend to permanently remove from state OR Endangers his safety OR materially impairs his health
Interstate Compact Clause
if an agreement between the states increases states powers at the cost of federal power, congress must approve
14th Amendment; Section 5
congress can adopt the appropriate legislation to enforce the 14th amendment.
MBE: definition of Rape siwvcab: (1)f, (2)t, or (3)u
Sexual intercourse w/o V's consent accomplish by: 1. force 2. threat of force 3. unconscious
11th Amendment
Prevents Federal court from hearing private & foreign claims against states
Name of Statute for Worker's Comp
NY Worker's Comp Law
Felon Murder Crimes (BRAKES)
B urglary R obbery A rson K idnapping E scape S exual assault
Section 7
(50 cards)
5 Types of Long-Arm Jx & 1 action that it can't be used
1) Business transaction in NY 2) Economically sign contract ∆ agreed to supply goods/services in NY 3) ∆'s tortious conduct in NY 4) ∆'s ownership/use/possession of real property in NY 5) ∆'s tortious act outside NY that causes injury in NY, PLUS (i) ∆ regularly solicits business/persistent course of conduct in NY; (ii) ∆ derives substantial revenue from goods or services consumed in NY; or (iii) ∆ should expect his act to have consequences in NY & derives substantial revenue from interstate/international commerce Note: no long-arm jx for defamation
How to service process by mail
1) Certified Mail 2 copies of acknowledgment and prepaid return envelope 2) Service is effective only if ∆ sends acknowledgment within 30 days 3) Otherwise π must use another method, but ∆ pays cost
Commerce Clause
congress can prohibit private racial discrimination via interstate commerce
(i) What is the Non-Resident Motorist Statute, and (ii) How is it served
(i) Non-domiciliary's ownership or use of an auto on a NY roadway causes an accident (ii) mail 1 copy to NY sec. of state & 1 copy to ∆'s residence
3 Bases of General Jx & where to serve them
1) Presence in NY (when served) 2) Doing business in NY (can be served anywhere) 3) Domicile in NY (can be served anywhere)
SoL: products liability
Negligence: 3 years from date of injury
Tolled SoL for absent ∆ 1) If ∆ was absent from NY when CoA accrued 2) If ∆ was in NY when CoA accrued, but left for more than 4 months continuously 3) The exception
1) If ∆ was absent from NY when cause of action accrued: tolled until ∆ comes to NY 2) If ∆ was in NY when cause of action accrued but left for more than 4 months continuously --> tolled until ∆ returns to NY 3) Exception: S/L not tolled if π has a basis for personal jx over the absent (e.g. long-arm)
Equal Protection Clause
14th Amendment. prevents states from grossly unreasonable discrimination
How to serve process on an infant
Must serve: Parent Guardian Any person with legal custody A married adult spouse of ∆ AND infant if 14+
Contents of ∆'s Answer (AC DC)
Affirmative Defenses Counterclaims Denials (or else implied admission Cross-claims
3 Bases of Specific Jx
1) Long-arm jx 2) Non-resident motorist statute 3) Consent
Enabling Clause
13th Amendment. Congress can prohibit racially discriminatory action by anyone- government or private citizen.
2 ways to "Amend a Pleading"
1) As of right: Each party gets 1 opportunity to amend w/in 20 days after ∆serves the answer. Can include anything that would have been raised in the complaint/answer 2) Motion to the Ct for "Leave to Amend"
When can you (1) and can't (4) get a 6 month continuance on your SoL
CAN: When action is commenced timely but dismissed before trial, π gets additional 6 months from dismissal to re-file the action CAN'T: (i) dismissal not on the merits, (ii) dismissal b/c lack of PJx, (iii) π's neglect to prosecute, (iv) π's voluntary discontinuance
2 Requirements to commence a case
File process with county clerk Serve process on ∆ within 120 days after filing process
Establishment Clause
Protects freedom of religion
2 Possible responses to "Summons with Notice"
1) Notice of appearance 2) Demand for the complaint (π must serve complaint within 20 days or else ∆ can move to dismiss)
3 Affirmative defenses that are never waived
1. Non-joinder of a necc party 2. Failure to state a CoA 3. Lack of SMJx
In what circumstance don't you need PJx over a matrimonial action?
If π isn't seeking money & π lives in NY Note: Ct has in-rem jx over marriage
Methods of serving process on a Person (Personally, Leah's Nails Experience Age)
PERSONAL delivery LEAve and Mail (within 20 days of each other) NAIL and Mail (within 20 days of each other) EXPEdient service (with court order) AGEnt specifically designated by ∆ to receive process
Due process test for jx
Satisfied if claim arises out of conduct of ∆ that is so purposefully directed towards NY that ∆ reasonably should anticipate being sued on that claim in a NY court
Tolling of SoL for π's infancy
3+ SoL: gets longer of 3yrs or yrs left on SoL -3 SoL: the whole SoL Exception: med mal only can toll 10yrs
Time SoL tolls for ∆'s death
Add 18 months to SoL
Procedural Due Process
8th Amendment. fair hearing is required for a gov't agency to take a person's life liberty or property
SoL: Municipal Tort Liability
1 year and 90 days from date of accident π must serve notice of claim within 90 days of accident
2 Possible responses to "Summons and Complaint"
1) Answer 2) Motion to dismiss
SoL for Professional Malpractice
3 years from termination of services on the matter "Professional" = learned professions (architect, engineer, attorneys, accountants) - Personal injuries S/L still starts on date of injury - Special rule when personal injury injury action against architect or engineer brought > 10 years after building was completed: π must serve notice of claim on ∆ 90 days before suit is brought.
15th Amendment
Fed and state can't prohibit voting on basis of race. Only gov't not private action
What days can process be served
- Any day but Sunday - Cannot serve on Saturday if π knows that ∆ is a Saturday-Sabbath observer
SoL when π is a non-res of NY when the out-of-state action arose
Apply the shorter S/L between NY and the other state
1st Amendment.
protects location & content of private speech, freedom of association & religion, freedom of press,
Settlements involving multiple Tortfeasors Effect of settlement on Settling Tortfeasor for (i) contribution and (ii)indemnity
(i) Party who settles cannot sue or be sued for contribution (ii) Party who settles can sue and be sued for indemnity
Contract Clause Impairment of Contract
prohibits states of enacting any law that retroactively impairs contractual rights
Tolled SoL for π's insanity
Tolled for 10 yrs or insanity ends. 3+ SoL: gets longer of 3yrs or yrs left on SoL -3 SoL: the whole SoL
The 2 forms of process
1) Summons and complaint 2) Summons with notice If neither are used, it's a defect in personal jx and ∆ can move to dismiss
SoL for Wrongful death claim
2 years from date of death
3 ways to choose venue
1) County where real estate in question is located 2) Where either Party resides 3) If no residence, then π chooses
Who can serve process in (i) NY, (ii) Outside NY
(i) NY: Any non-party aged 18+ (ii) Outside NY: Any NY resident 18+, or anyone authorized to serve process in that jx
SoL: indemnity and contribution
6 years from the payment of judgment by the defendant
Methods of serving process on a NY Corp
(1) Personal delivery to: Officer of corp Director of corp Designated agent Managing agent (supervisory responsibility) (2) Serve 2 copies on NY Secretary of State
SoL: exposure to toxic substance
3 years from earlier of discovery of injury, or date injury should have been discovered with reasonable diligence
3 Requirements for motion to dismiss
1) Made before service of answer 2) If denied, must serve answer within 10 days 3) If you make a motion to dismiss and don't raise lack of personal jx, you waive that defense Can also raise affirmative defenses in the answer
SoL for Medical Malpractice
2.5 years from the date of malpractice Exception: continuous treatment for the same condition Exception: foreign object rule (1 year from discovery, if later than 2.5 years)
5th Amendment- Substantive Due Process Clause
requires court to review the substance of the federal law rather than just the procedure
Takings Clause
5th Amendment.
When can you get Long-Arm Jx in a Matrimonial Action
1) π is a resident, AND (a) NY was matrimonial domicile (b) ∆ abandoned π in NY (c) ∆'s monetary obligation was under an agmt executed in NY or accrued under the laws of NY
Bill of Attainder
Can't inflict punishment on people w/o a judicial trial
Time limits for ∆'s Answer dictated by service of process
Personal delivery in NY: 20 days Mail plus acknowledgment: 20 days after ∆ mailed acknowledgment All others: 30 days
Definition & 4 Parts of an 3rd-Party Impleader
When ∆ joins another party alleged to be liable in part/whole. 1) ∆ may file a summons and third-party complaint after serving answer 2) ∆ must serve a copy on both TPD and π within 120 days of filling 3) TPD must serve 3rd-party Answer on ∆, π and all other parties w/in 20/30 days 4) π may amend the complaint to assert a claim against TPD as well
Settlements involving multiple Tortfeasors Effect of settlement on NON-settling tortfeasors
Any judgment against non-settling parties is reduced by the larger of: (1) the amount of the settlement; or (2) the settling tortfeasor's equitable share of the fault
Section 8
(50 cards)
What are the 3 parts of a Motion on Notice? (NAN)
1) Notice of motion 2) Affidavits 3) Memo of law
What are 4 ways to satisfy the SJ burden?
Produce and present contrary evidence showing a triable issue of fact (1) Affidavits by persons with actual knowledge (2) Relevant documents (3) Discovery materials (4) Collateral Estoppel (already had a full & fair hearing) CANNOT rely solely on the pleadings
Provisional Remedies What is a Temporary Receivership?
When the Ct. appoints a 3rd party to manage ∆'s property
Explain the 4 grounds for filing an Art. 78? (C, P, MC, MR)
1) Certiorari- challenges the results of a trial-type hearing by admin agency to see if supported by substantial ev 2) Prohibition- stop a judicial officer from exercising power that is "grossly" beyond his jx 3) Mandamus to Compel- performance of an act required by law (applies to Corps) 4) Mandamus to Review- agency determination made w/o a trial-type hearing (uphold unless arbitrary & capricious) Extras: brought in SC, must serve 20 days b4 return date, can seek declaratory or injunctive relief (or damages, if incidental)
What is an Order to Show Cause?
Type of Motion on Notice that is a preliminary order Signed ex parte Directs the adversary to "Show Cause" why it should not be granted After it is signed, the order & underlying motions papers are served on opponent
Provisional Remedies In what 2 situations will a Preliminary Injunction be given? (PI & H)
1) π seeks permanent injunction; or 2) ∆ threatens to harm π's interest in the subject matter of the suit
What is a Provisional Remedy and what are the 5 types (A,P,T,O,N)
Provides a measure of security to π for the ultimate enforcement of a potential judgment. 1) Attachment 2) Preliminary injunction 3) Temporary receivership 4) Order to seize chattel 5) Notice of pendency
Definition of Collateral Estoppel? What are the 3 requirements? (SI, AL&D, F&FOtLtC)
Prevents re-litigation if of "specific fact issues" 1) 'Same issue' in former and current proceeding; 2) Issue was 'actually litigated and decided' in former proceeding; and 3) Party against whom issue preclusion is asserted 'had a full and fair opportunity' to litigate that issue in the former proceeding.
How long does a π's death toll her claim so her "duly appointed rep" can sue on her behalf
Longer of 1yr from π's death or remaining SoL
Provisional Remedies What is an Order to Seize Chattel
When a Sheriff 'seizes chattel' to ensure enforcement of a judgment awarding possession of the chattel to π
Provisional Remedies What is the process for an Order to Seize Chattel (MoN, FA, UtI)
1) π makes a 'Motion on Notice' or an 'Ex Parte Motion' 2) File affidavits showing probability of success on the merits 3) Show an undertaking to indemnify ∆ for wrongful seizure
SoL if π was a NY resident when the out-of-state action arose
Apply NY S/L
Provisional Remedies What are the 2 things required to file a Notice of Pendency and what isn't required?
IS: (1)filing a notice w/ the county clerk of the county where the real property is located. (2) Service of the suit must be accomplished within 30 days of the filing of the Notice of Pendency or else ∆ can cancel it upon motion. IS NOT: Doesn't require court order or bond. If filed incorrectly a motion can be made to cancel it.
Provisional Remedies What is a TRO and in what circumstances can π get one?
When there is a threat of immediate injury, π can ask the court to grant a TRO ex parte, to maintain the status quo until the motion for preliminary injunction is decided.
Rights protected by Strict Scrutiny
Marriage, procreate, custody of children, live w/ extended family, upbringing of your kids, use contraceptives
Test for whether a Case has Standing in Federal Ct (I C, R, N, N)
1) Injury: "π must alledge & prove that she has been/will imminently be injured 2)Causation- alledge/prove injury was caused by ∆ Redressible- a favorable ct decision will remedy the harm No 3rd Party Standing No general grievances
CPLR Art. 16 (personal injury claims and joint tortfeasors)
In a personal injury claim, when a joint tortfeasor is not more than 50% at fault and π has sustained non-economic damages (pain and suffering, mental anguish), then ∆ can only be required to pay her own share of π's non-economic damages
SoL for Breach of Warranty
4 years from date ∆ delivered the product to the next buyer in the chain (for manufacturer, it's the date manufacturer sold to wholesaler)
SoL for Strict Liability of Products
3 years from date of injury
Provisional Remedies In what 2 circumstances is Attachment used?
π is seeking money damages AND (1) ∆ is an unlicensed foreign corporation or a non-domiciliary residing outside NY; OR (2) ∆ is about to conceal or remove assets from NY w/ intent to defraud creditors or frustrate enforcement of a judgment
Provisional Remedies 1) What is a Notice of Pendency? 2) In what circumstances can it be filed? 3) When is it required?
1) Gives record notice to potential buyers that real property is subject of an equity action 2) An equity action in which the judgment will have a direct effect on title, possession, or use of real property. 3) In a mortgage foreclosure
4 situations where an Order to Show Cause filed (A, S, T, R)
(1) Accelerates return date (2) Grant an immediate stay of proceedings (3) TRO (3) Required by statute
Ex Parte Motion- (i) what is it, (ii) when is it used, (iii) what are the opponents remedies
(i) A motion where no advance notice is given to opponent (ii) When the moving party needs express statutory authorization (iii) There is no appeal directly from an ex parte order. Opponent must make a motion on notice to vacate it. If that motion is denied, then the party can appeal.
How to serve process on a mentally-incapacitated (2)
(1) Parent, guardian, or any person with legal custody (2) Must Serve on ∆ if she has a ct appointed rep
What are the 4 situations in which CPLR Art. 16 doesn't apply (personal injury claims and joint tortfeasors)
1) Tortfeasors who acted with intent 2) Tortfeasors who acted with recklessly 3) Tortfeasors with hazardous substance 4) Drivers and owners of motor vehicles (except police and firefighters)
What is the purpose of a Motions on notice
Purpose: gives adversary an opportunity to be heard in opposition
Provisional Remedies 1) When can π get a Temporary Receivership? 2) How do they get it?
1) π makes a motion on notice 2) π has an Equity Claim in which specific property is the subject matter AND there is danger that ∆ will injury or destroy the value of said property
What is the time limit for making a Motion for SJ?
W/in 120 days of filing of the note of issue (which places the case on the ct's calendar)
Ways π can meet the residency requirements for matrimonial action (0, 1-2, 2+ years)
0 Years: both parties are NY residents when action commenced 1-2 Years: (a) Marriage took place in NY (b) NY was matrimonial domicile at some point (c) Grounds for divorce arose here 2+ Years: Automatic if either party has been a resident of NY for 2 years.
What is the Purpose of a Motion for Summary Judgment?
It allows a party to show, before trial, that although the pleading are facially sufficient there is no genuine issue of material fact for the trial. A party may move for SJ on any claim or defense asserted. If the only remaining issue is $ of damages, the ct can grant SJ on liability can have an immediate trial for $.
4 things needed to file for matrimonial action (P, V, A, P)
1) Person Jx 2) State a valid ground for separation 3) Allege & fulfill the residency requirement. 4) Personal service of process
Provisional Remedies- 5 steps needed to obtain a TRO (EMfPI, DSP, AfT, JS, ERD)
1) Make an Ex Parte Motion for Preliminary Injunction via OTSC 2) Demonstrating "significant prejudice" if NO notice is given to OC 3) Ask for a TRO 4) Judge signs the OTSC including a TRO 5) Get an expedited return date
Indemnity: 1) Definition, 2) Three circumstance it applies to, 3) Two you can't
1) Shifts 100% of the responsibility to 3rd party 2) Contract; Products liability; Vicarious liability 3) Gross negligence & Intentional Torts
Provisional Remedies How long is a Notice of Pendency last?
Notice of pendency is effective for only 3 years (unless mortgage foreclosure action)
Mechanics of Joint-n-Severable Liability
1) π may collect full judgement from any ∆ 2) The ∆ held liable for 100% can seek reimbursement from other tortfeasors MS: can't seek when based on intentional torts NY: Anytime
1) What is Res Judicata? (btaFJoM, aocaootST") 2) What is the 1 exception?
1) When a claim against a particular ∆ has been brought to a "final judgment on the merits," all other claims by the π against that ∆ are barred if the other claims "arise out of the same transaction" or occurrence 2) Exception: personal injury not raised in divorce proceeding
When is a "Motion on Notice" (i) made?, (ii) what is a return date?, (iii) how much advance notice must be given
i) When served or dropped in mailbox ii) The date papers are presented to court iii) 8 days
What is the rule for (i) when a party move for Summary Judgment, and (ii) what are the two exceptions to this rule?:
(i) Cannot move for SJ prior to ∆'s answer (ii) Exceptions: 1) The court convert's ∆'s motion to dismiss into SJ 2) π files motion for SJ in lieu of complaint (allowed in certain circumstances)
5 threshold issues for a court to decide to avoid arbitration (AtA, WtS, VAC, ECP, S)
1) Did the parties 'Agree to Arbitrate' 2) Is the dispute 'within the scope' of the arbitration clause 3) Is the arbitration 'clause valid' (separate from validity of K) 4) Is there an 'express condition precedent' to arbitration 5) 'Statute of limitations'
Define the 3 Standards of Review
Strict Scrutiny: necessary/compelling Intermediate Scrutiny: substantial/important Rational Basis: rational/legit
Provisional Remedies How does π get an Attachment and what 3 things must it allege? (G,P,U)
File an affidavit of support showing- (i) Grounds for application of an attachment (ii) Probability of success on the merits (iii) An undertaking to indemnify ∆ for the damages
4 Requirements for a case to Judiciable in Fed Ct (SRMP)
Standing Ripeness Mootness Political Questions
How to obtain a jury trial
Party filing Note of Issue can make a demand for jury trial or else the right is waived. Other parties can file their own separate Demand for jury trial
What is the process after a Motion on Notice is decided? What is the time limit for appealing the order?
The prevailing party must serve a copy on the losing party 30-day limit to appeal from order
Provisional Remedies How does π get a Preliminary Injunction and what 3 things must it allege? (G,P,U)
File an affidavit of support showing- (i) Grounds for application (ii) Probability of success on the merits (iii) An undertaking to indemnify ∆ for the damages
2 Grounds to oppose a "Motion to Amend a Pleading"
a) The amendment will be a detrimental change of position as a result of the delay (death, disappearance, loss of evidence). b) The proposed amendment has no merit
Provisional Remedies- What is Attachment?
- π obtains an order from the court. Gives it to the sheriff who levies upon ∆ property. A levy gives a lien. Levy on real property is filed w/ county clerk; levy on personal property is given to the holder. - ∆ gets damages if attachment is made by improper procedure, or if ∆ wins on the merits.
How many jurors are in a Civil Jury?
6. 5 out of 6 must agree
2 ways to Serve Process on an Unlicensed Foreign Corp
(1) Personal delivery to: Officer of corp Director of corp Designated agent Managing agent (supervisory responsibility) (2) Serve 1 copy on NY Secretary of State & 1 Cert. Mail to the Corp.
Provisional Remedies What is a Preliminary Injunction?
Type of remedy that maintains status quo while equity action is pending
Section 9
(50 cards)
Buyer's (3) remedies if Seller delivers Imperfect Goods (R, R, D)
1) Return goods at seller's expense. 2) Refund 3) Damages for breach
An acceptance that changes a term in an Art. 2 K (b, m, o)
Acceptance that changes a term is okay New term is included only if: a) between merchants b) not a material change c) no objection within reasonable time
Exception to Statute of Frauds rules for 1) Interest in real property 2) Performance over a year, 3) Sale of goods for $500, 4) Suretyship?:
1) Leases of one year or less 2) When buyer has "part performance" NY includes lifetime contracts goods accepted by buyer, custom-made goods, merchants' confirmatory memo (with no rejection within 10 days) MBE: if purpose was to benefit the surety person
1) What is a Requirements Contract? 2) Under which body of law is it acceptable? 3) What will invalidate a Req. Contract?
1) It is a promise to fulfill all the requirements a party has of a certain item 2) Art. 2 3) Buyer can't surprise by requesting an amount out of line with prior demands
What is Implied acceptance
Buyer keeps goods after having opportunity to inspect. (Look for a long delay between receipt and complaint)
What is the rule for when an acceptance is effective? What are the 3 exceptions
Mailbox rule: acceptance is effective when mailed Exceptions: 1) offer states otherwise 2) irrevocable offer (acceptance effective when received) 3) rejection sent first
When can and can't a Seller cure his Imperfect Tender?
CAN if time to perform hasn't expired & gives notice to buyer of intention to do so. CAN'T if time to perform has expired, unless buyer had previously accepted this imperfect tender.
The MILD police power Congress has is...
M ility I ndian reservation L and (federal) D istrict of Columbia
Accord and satisfaction
Agreement to accept performance in future satisfaction of an existing duty. Existing duty is not extinguished until the accord is satisfied
1) Definition of consideration? 2) What type of things can be consideration? 3) Effect of past consideration in (a) CL? (b) Art. 2, and (c) NY?
1) Bargained-for legal benefit/detriment. 2) Can be a promise, performance, or forbearance 3a) Not consideration 3b) Consideration, but must show good faith 3c) Consideration, if expressly state in a signed writing AND can be proved
What is a Time-Barred Debt?
When collecting the debt is barred by SoL, a written promise to pay by debtor is enforceable even without consideration.
How to Disclaim a Warranty in a Sale of Goods. What can't you disclaim? (C, M, P, I, E):
1) Must be Conspicuous (bold, caps, etc) 2) If 'Merchantability', that word must appear in disclaimer 3) No limitations on Personal Injury from Consumer Goods 4) Can disclaim a Implied Warranty by stating 'as is' 5) Cannot disclaim an Express Warranty
When (1) is not, (2) is an Ad an Offer?:
1) Generally an ad isn't an offer 2) The ad specifies quantity to be bought
3 Seller Warranties in the Sale of Goods (E, I, F)
1) Express Warranties: Seller is liable for breach if the warranty was a "basis of the bargain" (i.e. buyer could have relied on it) (ex: statements of facts, promises, descriptions, use of a sample or model) 2) Implied Warranty of Merchantability: if seller is a dealer of these goods they must be fit for their "ordinary" purpose. 3) Implied Warranty of Fitness for a Particular Purpose: if seller knows the buyer has a special use for the goods
(i) What is the rule for the Revocation of an Offer? (ii) What are the 4 exceptions to that rule? (O, M, F, S)
Rule: Offeror can revoke at any time before acceptance 1) Option contract 2) Merchant's firm offer: signed written promise to keep offer for sale of goods open (3 month max) 3) Starting to perform in a unilateral contract 4) Foreseeable reliance before acceptance (rare)
What is the purpose of the Parol Evidence Rule
Keep out evidence of a prior or contemporaneous agreement that contradicts a later writing.
What Ks does the Statute of Frauds cover?
1) Interest in real property 2) Performance can't be completed in 1 year from when the K was made 3) Sale of goods for $500 of more 4) Suretyshippromise to answer for the debt of another 5) Promise in consideration of marriage
What result does improper performance have?:
Acceptance and breach, unless seller is explicitly sending goods as an accommodation.
An unpaid seller's doesn't have a right to reclaim goods, Unless
1) buyer was insolvent when it received the goods and seller makes a demand within 10 days after buyer received them; or 2) buyer misrepresented its solvency to seller in writing within 3 months before delivery
(1) When is a Rejection of an Offer Effective? (2) What are the two alternatives to Outright Acceptance & what are their ?
1) Rejection effective when received 2) Counteroffer = terminates original offer 3) Conditional acceptance = rejection and counteroffer
1. What is a Novation? 2. What is required? 3. What happens if the requirement isn't met?
1. Agreement to substitute a new party for an existing one 2. Original parties must all agree 3. If the seller delegates his duties without the buyer's consent, the buyer still has a right against the original seller
1. What is Adequate Insurance? 2. How is it obtained? 3. What is done if opp refuses?
1. If a party has "reasonable grounds" for being insecure about the other party's performance 2. He may request in writing adequate assurance that the other party will perform. 3. Requesting party can treat it as an anticipatory repudiation (can stop performance and sue for damages)
What is an Illusory promise
An unenforceable K based on wants
Impossibility excuse
- Common law: destruction of something necessary for performance provides a good excuse - Sale of goods: destruction is an excuse. See who bore ROL. If the goods damaged or destroyed were not specifically identified to the K, the seller is not excused from performance.
What 3 options does a buyer have when seller doesn't give Perfect Tender?
1. Reject all of them + damages 2. Accept all of them + damages 3. Accept some and reject the rest + damages
Definition of Offer
Manifestation of intent to be bound
What constitutes a breech? 1) Less than Substantial Performance? 2) Finishing a job late? 3) Anticipatory Repudiation?
1) Less than Substantial Performance= Yes, breach 2) Finishing a job late= No, unless "time is of the essence" K 3) Anticipatory Repudiation= maybe. If buyer relies= breach; if not = not breech
What is an Option Contract (i) CL, (ii) NY
(i) Paid-for promise to keep offer open (ii) Signed written promise to keep offer open is irrevocable for stated time (no consideration necc)
1) Effect of accepting partial payment of debt, 2) the NY exception
1a) If the debt is due & undisputed new consideration is needed 1b) If debt is disputed there is inherently consideration 2) New consideration is needed unless promise to forgive is in signed writing
What is a Promissory Estoppel
A foreseeable reliance that makes a promise enforceable without consideration
Rescission
A valid agreement to cancel the contract. Each party must have some performance remaining to be completed, or else there's no consideration.
Effect of Unsolicited Goods:
Considered unconditional gifts
6 Ways an Offer can Terminate (L, R, R, D, D, S)
1) Lapse of time (if stated, or else a reasonable time) 2) Revocation by offeror 3) Rejection by offeree 4) Death of either party before acceptance 5) Supervening illegality 6) Destruction of the subject matter of the contract
RoL of Leased Goods in NY and the Exception
RoL always on Lessor Except a lease from a Bank
Expectation damages under common law: Buyer vs. Seller Breach
Seller breaches and buyer must buy from another for higher cost, seller owes buyer the difference. Buyer breaches, buyer must pay seller to put seller in position of expected profit
1. What is Specific performance? 2. In Real Property? 3. In Sale of goods? 4. In Service contracts?
1) Equitable remedy that is available if monetary damages are inadequate 2) Real Property: Usual remedy 3) Sale of goods: only available if goods are unique 4) Service contracts: not available, but might be able to get a negative injunction
What effect does starting performance have in a (i) Bilateral, (ii) Unilateral Contract?
(i) Acceptance- there is an implied promise to finish the job. (ii) Nothing- completing performance = acceptance
When is a contract modification effect
New agreement is effective immediately
1) Name for when an offer is indefinite as to price 2) What does the court do?
1) Open price term 2) Court reads in a "reasonable" price, unless its for real property
What is the general rule for who bears the Risk of Loss in a Sale of Goods? What other factors are considered? (A, C, M, N):
Generally= breaching party bears ROL 1) Agreement btwn the parties = K rules 2) Common Carrier delivery = S until her delivery obligations are met 3) Merchant Seller = S until B takes physical custody 4) Non-Merchant Seller = B as soon as S makes it available to him
Who can & can't invoke the Dormant Commerce Clause
- Citizens can - Aliens and Corp cant
Effect of an Acceptance that Changes a Term have on a (i) Common Law, (ii) Art.2?
1) Mirror Image Rule: changing a term is a rejection 2) Changing a term doesn't prevent acceptance
What are the 4 exceptions to the Parol Evidence Rule (CCE, EaDAF, IaVoAT, SaPIW)
To correct a clerical error To establish a defense against formation To interpret a vague or ambiguous term To supplement a partially-integrated writing
Acceptance by Silence (i) MBE, (ii) NY (t, o, p)
Not acceptance Acceptance if: 1) Takes offered services 2) Has reasonable opportunity to reject 3) Has reason to know payment is expected
What are the 3 types of Express Conditions
1) Condition precedent: must be met for there to be an obligation 2) Condition concurrent: obligation exists as long as condition remains true 3) Condition subsequent: occurrence of an event cuts off the obligation
1. Contracts- What is a Release? 2. Req for MBE 3. Req for NY
1. An agreement not to sue 2. Must be in writing & supported by new consideration OR promissory estoppel 3. In NY no consideration is needed if in writing
What is (i) the rule & (ii) the exception for a buyer's revocation goods he already accepted?
(i) Buyer who accepts goods cannot later reject them, but can still get damages. (ii) If non-conformity substantially impairs the value of the goods AND it was difficult to discover.
2 Requirements for Impeachment
1) Majority of house 2) 2/3 of senate
Interpreting contract terms based on conduct of the parties
(in order of importance) 1) Course of performance between these parties under this contract 2) Course of dealing between the parties 3) Usage of trade
To what contracts DOES and DOESN'T the Perfect Tender Rule apply? (S, I, C)
1) Art. 2 - yes 2) Installments Contracts - nope, a buyer may reject only for "substantial impairment" 3) CL- nope, "substantial performance" is all that is required.
Section 10
(50 cards)
Expectation damages in Sale of Goods: Seller's damages (R, M, L, C)
1) Resale damages = contract price - resale price (if seller resells in good faith) 2) Market damages = contract price - market price (if seller doesn't resell in good faith or doesn't resell) 3) Lost profit (if seller is a "volume dealer") 4) Contract price (if seller can't reasonably resell
1) Requirements for an Insanity Defense, 2) What is the difference between insanity and incompetency
1. must have a mental disease or defect Insanity v. Incompetency Insanity: id ∆'s state of mind at the time of the crime. It's a defence Incompetency: ∆'s state of mind at the time of the trial. Causes delay of trial
Rescission and modification of a 3rd-party beneficiary K: 1) Promisor, 2) Promisee, 3) 3rd Party, 4) Exception
1&2) Promisor and promisee can rescind or modify until the rights of the TPB have "vested" 3) TPB's rights vest once he learns of the K and relies on it 4) Contract language can specify that it can be modified
CL Strict liability Crimes (P, S)
Public Welfare offenses Statutory Rape
CL Impossibility
Factual Impossibility NEVER a defense to conspiracy. Legal Impossibility CL: is a defense
What type of actions are "malice" (I, E, D)
- Intent to inflect serious bodily injury - Extreme recklessness (reckless indifference to human life/malignant heart) - During the intentional commission of a dangerous felony
Expectation damages in Sale of Goods: Buyer's damages (C, M, L)
1) Cover damages = cover price - contract price (if covered in good faith) 2) Market damages = market price - contract price (if B doesn't cover in good faith or at all) 3) Loss in value = value as promised - value delivered (if buyer keeps non-conforming goods)
Delegation of Duties: (1) General Rule, (2) Exception
1) contractual duties may be delegated without the consent of the obligee (to whom performance is owed) 2.a) Contractual language prohibits delegation or assignment 2.b) Special skill or reputation of the delegating party
CL Accomplice Liability 1) Rule (∆ilfachaoeaaofccawtcotc) 2) Mens Rea
∆ is liable for all crimes he aided or encouraged and all other foreseeable crimes committed along with the commission of the crime MS: specific intent to commit a crime
What is (and isn't) an Inchoate Crime
Inchoate = not complete, the crime is in the asking All specific intent ** Thoughts are NEVER a Crime. Actions & Words are crimes.
CL General Intent Crimes (BFFK)
Battery Forcible Rape False Imprisonment Kidnapping
CL & NY Conspiracy 1) rule (aab2omp, waoa, ifoac), 2) mens rea
1: An agreement between 2 or more people, with an overt act, in furtherance of the crime. "Overt Act": any act is sufficient, even if preparatory 2: Specific intent to accomplish the objective of the conspiracy Completion Requirement: No completion necessary
CL Wharton Rule
Rule: A conspiracy only exists where there is 1 additional person than just the people needed to commit the crime
CL Defenses to Specific Intent crimes (V, U)
Voluntary intoxication Unreasonable mistake of fact
CL Larceny: 1) Type of Crime, 2) Definition (tttacattppoawtitpr)
1. Custody crime 2. The trespassory taking & carrying away the tangible personal property of another with the intent to permanently retain Property of another: it is custody, not ownership It is not larceny if D takes property under the claim of right (even if D wrong)
CL Felony Murder Rule (AK, DTCOATC, AIDF)
Rule: Any killing, during the commission or attempt to commit, an inherently dangerous felony. Sexual Assault
When can you use force to protect your property
General Rule: not a defense Burglary Rule: is a defense if defendant is in his home
4 Tests for Insanity & who uses which one.
- Majority: M'Naughten Test - Irresistible Impulse - MPC: Combination Test: - NY "Substantial Capacity" Test: conduct
CL Embezzlement Rule: 1) Type of Crime, 2) Definition (tcotppoa, bapwchlpotp, wtitd)
1. Lawful possession crime 2. the conversion of the personal property of another - by a person who currently has lawful possession of the property - with the intent to defraud. MS: specific intent
MBE/NY Applying the Merger Rule to 1) Solicitation, 2) Conspiracy &3) Attempt
1. Yes, merges/No 2. Yes merges/No 3. Yes, merges/Yes
CL Malice Crimes
Murder Arson
CL Withdrawal Rule: 1) ∆ encourages the crime, 2) ∆ aids the crime:
1. can withdraw by discouraging the crime 2. D can withdraw by If they actually helped they must then neutral the assistance or prevent the crime from happening
Who is liable for Promisor if she breaches in TPB contract?
1. Promisor is liable to an intended TPB. But TPB cannot sue if promisee breaches 2. Promisor is also liable to promisee, even if TPB is a donee beneficiary. 3. Promisee is liable to TPB only if TPB is a creditor beneficiary
MPC: Voluntary Intoxication: 1) When is it a defense, 2) Rule (∆hss"potf" thcftsirtctc)
Only a defense to Specific Intent crimes Req: Such severe "prostration of the faculties" that ∆ can't form the specific intent required to commit the crime.
MPC Initial Aggressor Rule
Defendant can't use deadly force if he was the initial aggressor, UNLESS He withdraws and communicates his withdrawal, OR If the V suddenly escalates the non-deadly fight into a deadly one
When can you use force to resist arrest MPC
allow non-deadly if the arrest is unlawful
CL Possession Rule: 1) Mens Rea, 2) Definition (∆cifapotlethaottp)
1: Knowledge of possession and of what it is 2: ∆ controlled items for a period of time long enough to have an opportunity to terminate possession. Doesn't need to actually have it, just dominion and control over it. Constructively possessed (i.e. in your hotel room)
CL Robbery: 1) Mens Rea, 2) Definition (L, FOAAP,BFOTOII)
1) specific intent to steal 2) Larceny, from or around another person, by force or threat of immediate injury Force: some sort of resistance Around: reasonably close (another room)
What happens if Assignment is "prohibited" by contract, 2) If Assignment is "void" under contract?
1) the assignor is liable to the obligor for breach, but the assignee still has a right to payment. 2) the assignment is ineffective - An obligor with notice is liable to assignee
MBE Accessory After the Fact (∆ hapwcaf, wtktchbc, awhithtpaaoc)
∆ helps a principle who committed a felony with the knowledge the crime has been committed, and with the intent to help the principal avoid arrest or conviction. note: Most JX call it obstruction of justice, harboring a criminal. something avoiding
CL Attempt 1) what is it?, 2) what is the rule?, 3) what crimes are not included?, 4) what is the test?
A fun little thing that is attached to incomplete crimes R: An overt act - beyond mere preparation MS: Specific Intent to commit the underlying crime no felony murder, negligence or recklessness Tests: "Substantial Step" Conduct that constitutes a substantial step towards the commission of a crime
CL Burglary: Definition (tbaetdoaanwtitcafi)
The breaking and entering the dwelling of another at night with the intent to commit a felony inside.
Aside from Self-Defense, when can you use force?
Prevent a Crime Protect Property Resist Arrest: If you are Law Enforcement
Dealing with multiple assignments: (1) Gratuitous assignments, (2) Assignments for consideration, (3) Exception
1. The last gratuitous assignee in time prevails. (NY: gift assignment in writing and signed is irrevocable) 2. The first assignee for consideration prevails over subsequent assignees (and over prior gratuitous assignees) 3. Alater assignee for consideration prevails if he did not know of the earlier assignments and is the first to get payment from or a judgment against he obligor.
Who can an Obligee sue in a 3rd Party K?
Delegating party, or Delegate who gets consideration
MPC: define the 2 types of Self-Defense Defenses (iiirntpaaiuouf)
Non-Deadly: If it is reasonably necessary to protect against an immediate use of unlawful force (a shove) Deadly: Only can use when he is facing an imminent threat of death or serious bodily injury (weapons)
Are you guilty if you mistake the need for Self-Defense?
Reasonable Mistake: Always a complete defense Unreasonable Mistake MPC & NY: not a defense Minority: mitigates the offense
When can you use Non-Deadly force and Deadly force to Prevent a Crime?
Non-Deadly Force: any crime Deadly Force: a felony risking human life
CL Specific Intent: Inchoate Crimes (SCA)
Solicitation Conspiracy Attempt
CL Withdrawal as a Defense
-withdrawal is NOT a defense -However: once a D withdraws from a conspiracy he will not longer be vicariously liable for crimes committed after he left.
CL Solicitation Rule 1) definition, 2) mens rea (astcacwtittcbc)
Asking someone to commit a crime with the intent that the crime be committed. MS: specific intent The crime is in the asking
CL Arson (tmboab)
The malicious burning of a building "Burning" Material wasting Must burn the structure of the building Can be his own building
MPC When is Mistake a Defense
Unreasonable Mistake: Specific Intent Reasonable Mistake: Specific Intent, Malice, General Intent Never: Strict Liability
What is required and was isn't for Assignment of Rights in a K?
IS: Must have language of a present transfer to be effective ISN'T: Consideration
What is Entrustment in Contracts?
An owner who entrusts goods to a merchant who deals in goods of the kind has no rights against a BFP of those goods.
CL Specific Intent- Against Property (L, E, F, R, F) L, E, F, R, F)
Larceny Embezzlement False Pretenses Robbery Forgery Burglary
What is the MPC Infancy defense?
Usually the wrong choice the rule of 7s: Under 7 then no prosecution Under 14 rebuttable prosecution Over 14 prosecution is allowed
What is Restitution?
Quasi-contract Protects against unjust enrichment Remedy of last resort whenever contract law yields an unfair result Promisor can recover the reasonable value of benefit conferred
CL False Pretenses Rule 1) Type of Crime, 2) Definition (ottttppoa, baifs, wtitd), 3) Intentional False Statement:
1) Ownership crime 2) obtaining - the title - to the personal property - of another - by an intentional false statement - with the intent to defraud 3) Statement must be of a past or present event, not a future promise
CL Specific Intent Crimes: Crimes against the Person (A, P) 2)
Assault 1st degree premeditated murder
Section 11
(50 cards)
MBE Duress ∆
Req: Forced - to commit a crime - because of a threat - of imminent death or serious or bodily injury - of himself or a close family member MBE: Never a defense to homicide
NY Pinkerton Rule
NY: no vicarious liability for a person who doesn't participate in the actual crime
NY Wharton Rule
You can be convicted even if there is a mistake between the parties OR if all other parties are acquitted
When can you use Non-Deadly force and Deadly force to Prevent a Crime?
Non-Deadly Force: any crime Deadly Force: a felony risking human life
When can you use force to protect your property
General Rule: not a defense Burglary Rule: is a defense if defendant is in his home
Infancy NY
Under 13 is family court 13-14: Murder 2 is criminal court 14 - 16: murder 2 + serious crimes against person or property Over 16: always is criminal ct
NY Receipt of stolen property
i. Knowingly possessing stolen property. Does not merge with larceny. ii. Impossibility is not a defense
Permissible Character Evidence
M otive I ntent M istake I dentity C ommon scheme
Attempt in NY
R: D was in "Dangerous Proximity" of committing the crime
NY Burglary Degrees 1,2,3 (keoruiabwtitcaci)
3rd Degree → knowingly entering or remaining unlawfully in a building with the intent to commit a crime inside 2nd Degree → 3rd degree burglary, plus one of the following: a. The building is a dwelling; or b. A non-participant is injured; or c. The ∆ carries a weapon. 1st Degree → the defendant knows that he is burglarizing a dwelling, plus one of the following: a. A non-participant is injured; or b. The ∆ carries a weapon.
NY Mental States (5)
1. Intent (MPC: "purpose") - ∆'s conscious desire to accomplish a particular result. 2. Knowledge - ∆ is aware of what he is doing, or ∆ is aware that it is practically certain his conduct will cause a certain result. 3. Recklessness - ∆ is aware of a substantial and unjustifiable risk, and consciously disregards that risk. 4. Negligence - ∆ should have been aware of a substantial and unjustifiable risk. 5. Strict liability (no mental state required) Note: knowledge of weight of a controlled substance is not an element of the offese; only knowledge of its nature.
Requirements of a Duly Executed Will: 18 Swine Entered Into Panama 2 Were Executing w/in 30 days
18 is the min age to write a will S igned by testor E nd of will is where the signature must be I n the presence of two witnesses P ublish, tell attesting witnesses "this is my will" 2 W itness is the minimum Executed within 30 days - witness must sign w/in 30 days of each other
NY Robbery 1,2,3
Robbery 3: forcible stealing Robbery 2: forcible stealing + one additional factor - have an accomplice - V is injured - Stealing a car Robbery 1: forcible stealing + aggravating factor - Serious injury - Uses or displays a firearm Affirmative Defense: D can prove its unloaded or not functional
Combination Test for Insanity: 1) who is it used by? 2) what type of defense is it? 3) Rule
1) MPC 2) Can't appreciate the criminality of his conduct 3) ∆ can't conform his conduct to the requirements of law
NY Arson Degrees
4th Degree → reckless burning of a building or motor vehicle a. Defense: ∆ is property's sole possessor or owner 3rd Degree → intentional burning of a building or motor vehicle a. Defense: consent of owners + intent to cause damage for a lawful purpose + no reason to fear injury to another. 2nd Degree → 3rd degree + the ∆ knows or should have known that someone was inside the building. 1st Degree → 2nd degree, plus an explosive or incendiary device
Defense to Felony Murder (4 parts)
Elements: D was not the actual cause of death D didn't have a deadly weapon D had no reason to believe his co-felons had deadly weapons D had no reason to believe his co-felons intended to do anything that was likely to result in death
NY Criminal Mischief
i. 1st degree → intentional damage of another's property by explosion ii. 2nd degree → intentional damage ($1500+) of another's property iii. 3rd degree → Intentional damage ($250+) of another's property iv. 4th degree → Intentional damage of another's property; reckless damage ($250+) of another's property
4 Requirements for Contracts: NO AC
N o defenses O ffer A cceptance C onsideration
NY Accomplice Liability Rule
Aids or encourages - the principle w/ the intent that the he commit a specific action Applies to all crimes
When can a Judge vacate an Arbitration Award? (BCE)
B ias of an arbitrator chosen to be neutral C orruption, fraud or misconduct in arbitration E xceeded his powers (very rare)
MBE: Entrapment
Req: the government - unfairly tempted - the defendant - to commit a crime - originated from the government - defendant has a fairly clean record
Additional reasons to dismiss - SPARERIBS
S tatute of Limitation P ayment A rbitration award R elease E stoppel (Collateral) R es judicata I nfancy of π B ankrupcy discharge S tatute of frauds
M'Naughten Test: 1) who is it used by? 2) what type of defense is it? 3) Rule (∆dkhaww, o, ∆dutnoha)
Majority: Cognitive If he didn't know his act was wrong, OR If he didn't understand the nature of his act
NY Violations
Offenses other than traffic infractions which are punishable by ≤ 15 days imprisonment.
When can you use force to resist arrest
NY: allow non-deadly if the police use excessive force
MBE Pinkerton Rule
R: a defendant - is liable - for all other foreseeable crimes - committed in the furtherance of the objective
Can you have a 1 person Conspiracy- CL? NY?
CL: No, need 2 guilty minds. If all other parties are acquitted there can be no conspiracy NY: Yes
NY: Entrapment
Req: the government - unfairly tempted - the defendant - to commit a crime - originated from the government - defendant has a fairly clean record
Motion to Dismiss - DOWNFFALL
D ocumentary evidence as a basis for defense O ther action pending btwn parties W ant of capacity by π N on-joinder of a necc party F ailure to state a cause of action F orum non Conveniens A dditional affirmative defenses L ack of person jx L ack of subject matter jx
** VOLUNTARY INTOXICATION NY
NY: defense to specific intent or knowledge crimes Req: the intoxication - prevents the defendant - from forming - the requisite state of mind
T-Subs occur when PEG is a SLUT
P resently exercisable PoA E mployee pension/deferred compensation plans G ifts made w/in 1 yr of death over 13k S urvivorship estates L ifetime transfers with strings attached U S gov't bonds T otten trust
Insanity Defense Requirements
at the time of the crime D lacked the ability to understand the wrongful nature of his act
NY: Impossibility ∆
Factual Impossibility NEVER a defense to conspiracy. Legal Impossibility is not a defense in MY
Are you guilty if you mistake the need for Self-Defense?
Reasonable Mistake: Always a complete defense Unreasonable Mistake NY: not a defense Minority: mitigates the offense
"Substantial Capacity" Test for Insanity: 1) who is it used by? 2) what type of defense is it? 3) Rule
1) NY 2) ? 3) D didn't have the substantial capacity to understand the nature of his act or appreciate the wrongfulness of his conduct
The relationship is DISMAL if spouse can't take her share
D ivorce I nvalid divorce by surviving spouse S eperation decree (not agreement) M arriage is voild A bandonment by surviving spouse L ack of financial support by surviving spouse
Aside from Self-Defense, when can you use force?
Prevent a Crime Protect Property Resist Arrest If you are Law Enforcement
MBE: Necessity ∆ (dmrbttcwntpagh)
- defendant - must reasonably believe - that the conduct was necessary - to prevent a greater harm -Never a defense to homicide
NY: Necessity ∆
Req: the harm avoided - must be greater than - the harm caused Can be a D to homicide
NY: Duress ∆
Req: Forced - to commit a crime - because of a threat - of imminent death or serious or bodily injury - of himself or a close family member NY: Is a defense to homicide
T-Subs are not made in LOG PITS (they are made in the oven, duh)
L ife insurance O ne-half of a qualified pension and profit sharing benefits G ifts under 13k made w/in 1 yr of death P re-marrage irrevocable transfers I T S
NY Types of Illegal things to Possess
- Controlled substance - Firearm - Must be loaded and operable - Present of gun in a vehicle means that all people possessed it - NY criminal possession of stolen property
NY Larceny Rules & degrees
Forgery, Embezzlement & False Pretenses under the MBE are all Larceny in NY Degree of Larceny is determined by Value Larceny 1: over 1 mil Larceny2: over 50k Larceny 3: over $3k (memorize) Larceny 4: over 1k Petit Larceny: under 1k
Irresistible Impulse Test for Insanity: 1) who is it used by? 2) what type of defense is it? 3) Rule
1) ? 2) Volition 3) ∆ is unable to control his actions, OR Unable to conform his conduct to the law
Will is admissible to probate in NY if the will was validly executed according to the laws of the state where... (DWN)
D omicile of T at execution/death W ill was executed N Y
2 Types of Force in Self-Defense
Non-Deadly: If it is reasonably necessary - to protect against - an immediate use - of unlawful force (a shove) Deadly: Only can use when he is facing an imminent threat of death or serious bodily injury (weapons)
Defenses Against Contract Formation: MEAN PLUM
Mutual mistake about material fact, Economic duress Ambiguity or Misunderstanding- different wavelengths No Consideration Public Policy Lack of capacity Unconscionability Misrepresentation/Non-Disclosure of Material Fact if Party should've/knows the other doesn't know. Innocent party prevails
Degrees to Felony Murder
Murder 2 if accidental Murder 1 if killing is intentional
When does civil party have a right to trial by jury? [R, C, A, D, M]
R eplevin C laim to real property A nnulment of marraige D ivorce action (other than no-fault), on the grounds of divorce (but not money or child custody) M oney damages only
NY Retreat Rule
He is unable to safely retreat, OR Is in his home Initial aggressor can never use deadly force
Section 12
(50 cards)
3 degrees of Assault in NY (icpi)
Assault 2: Intentionally causing physical injury Assault 1: assault 2 + Weapon Assault 3: assault 2, but non-serious injury
PING! You've got an Easement
P rescription by AD I mplication from an existing easement N ecessity G rant
2 requirements to satisfy an Art. 2 Satisfactory Writing for SoF
1) contain quantity and is 2) signed by ∆
9 Aggravating Factors for Murder in NY (lmfw2ttsi)
1) LO engaged in duties & ∆ should have known 2) Murder for hire 3) Felony murder w/ intentional murder 4) Witness intimidation 5) 2 or more deaths 6) Terrorism 7) Torture 8) Serial Murder (24 mo) 9) In custody or escaped custody
5 NY Mental States (S, K, N, R, I)
STRIct liability KNOWledge Negligence Reckless INTEnt
NY: Murder (wap, witcdoa, ctdosaoa3p)
When a person, with intent to cause death of another, causes the death of such a person or a 3rd party
NY: Vehicular Assault 1, 2 & Aggr.
1) .08 causing serious injury + one factor 2) .08 causing serious injury 3) Reckless + .08 causing serious injury + one factor
CL - 2 requirements Satisfactory Writing for SoF
1. all material terms 2. signed by ∆
4 CL Mental States (S, M, G, S)
SPECIFIC intent MALice GENERAL intent STRIct liability
Requirements for Specific Performance (V, C, L, M, N)
VALid contract CONditions of K have been satisfied LEgal remedy is inadequate MUTuality of remedy is present NO defenses available
If you have an ENDCRAMP, your easement is over
E stoppel N ecessity ends D estruction of servient land C ondemnation by eminent domain R elease in writing by dominant land A bandonment by physical action M erger of dominent & servient lands P rescription by AD
MBE: General Intent (gaotfctc, nntitsr)
Generally Aware of the Factors Constituting the Crime, no need to intend the specific result
NY: False Imprisonment 1 & 2 (2=urawhc, bwtkiiu)
1) 2 + risk of serious injury 2) unlawfully restraining another w/o her consent, but w/the knowledge it is unlawful
NY: Negligence (∆shbaoasaur)
∆ should have been aware of a substancial and unjustifiable risk
Only a LASS can get a Negative Easement
L and A ir S upport S tream water form an artificial flow
I had a covenant WITH V
W riting I ntent T ouch and concern H orizontal V ertical
MBE: Murder definition (cdoawma)
causing the death of another with malice aforethought
5 Types of Defenses (I, V, N, D, E)
INSANity VOLuntary intoxication MISTake NECessity DUress ENTRApment
CL: Malice (iowrdakr))
intentionally or with recklessness Disregard a Known Risk
CL: Specific Intent (adtaasr)
a desire to achieve a specific result
MBE: Requirement for Voluntary Manslaughter (NDOA)
N o time to cool-off D idn't cool-off O bjectively adequate provocation A ctually provoked
NY: Murder 1 (i,e,a)
1) intent to kill 2) 18+ 3) aggravating factor
Requirements for Economic Duress in a contract: TAN
T hreat to break an existing contract A greed only to get first contract done N o other alternative for π
MBE: False Imprisonment definition & mens rea (tucoapwhc)
- General Intent - The unlawful confinement of a person w/o her consent
MBE: definition of Voluntary Manslaughter (ikcithopaap)
Intentional killing committed in the heat of passion after adequate provocation
The 5 requirements to satisfy an Art. 2a - Satisfactory Writing for SoF (S, Q, D, R, S)
1) state its a lease 2) quantity 3) duration 4) rental payments 5) signed by ∆
Manslaughter 1 in NY: mens rea & the 3 crimes (IIU)
Intent 1) Intentional killing under EED 2) Intent to cause serious bodily injury 3) Unjustifiable abortional act more than 24 weeks and causes death of mother
Req for Withdrawal Defense in NY (PV'd CiCi)
π revented the crime from occurring V oluntary renunciation C hange of heart, not fear C omplete renunciation
NY: Vehicular Homicide
DUI above .08 and kills someone
NY: Laws Governing Contracts
Art. 2 = sale of goods Art. 2a = lease of goods CL = everything else
Types of Monetary Remedies (P, C, A, L, I)
PUNative damages CONsequential EXPEctation AVOIDable LIQUIDated INCIDENTal
NY: Intent (∆dtaasr)
∆ Desire to Achieve a Specific Result
Felon Murder Crimes (BRAKES)
B urglary R obbery A rson K idnapping E scape S exual assault
Statute of Frauds in NY: (L, P, F, A)
LEAse of goods over 1k PROmise to pay a discharged debt FINDers fee or broker commission (no atty or real estate agents) ASSignments of insurance policies
NY: 3 crimes qualifying for Aggravated Murder
1) ∆ is 18 + 2) V is -14 3) in an especially cruel and wanton manner
Non-Compete Restrictive Covenants (L, N, B, P, U)
Limited in distance, extent and time (10 yr) Necessary for protection Bargained for exchange Public policy is not burdened Only if services are unique
NY: Knowledge (∆IAOOPCHCWCaCR)
∆ is aware of or practically certain his conduct will cause a certain risk
3 crimes that constitute Murder 2 in NY (i, f, h)
1) Intentional killing that doesn't qualify for Murder 1 2) Felony murder, unintentional murder 3) Highly "reckless" killing (usually 2+ victims)
1) What is the general rule of Incapacity Defense? 2) Which groups lack Capacity to enter into a contract (3 ways to describe McCaulay Culkin) 3) What are 3 the exceptions to the rule
Incapacitated defendant may disaffirm the contract 2.a) Intoxicated 2.b) Mentally Incompetent (must be adjudicated in NY) 2.c) Minors 3.a.) Minor's life insurance, educational loans, realty contracts of marital home, athletic or artistic 3.b.) Implied affirmation - retaining the benefit after gaining capacity 3.c.) Incapacitated party is liable for reasonable value of necessary items
Impossibility of a Contract: (S, D, I, D, F, F)
Supervening governmental regulation Death/incapacity of an "essential person" Increase in cost (rarely an excuse) Destruction of something necessary for performance Frustration of buyer's primary purpose (Only if seller knew buyer's purpose when entering k)
Brad Raber Kills Unicorns: Requirements for a Quasi-Contract
B enefit to ∆ via goods or services R easonable expectation of compensation by π K new or had reason to know of π's expectation U njust enrichment of ∆
Mens Rea & 3 crimes that constitute Man 2 in NY i) diaoacdasaurod, ii) aias, iii) r
1) ∆ is aware of and consciously disregards a substantial & unjustifiable risk of death 2) aiding in a suicide if ∆ uses distress or deception to kill 3) Recklessness
NY: Aggravated Homicide
LO killed in the line of duty
MBE: Battery (tuaoftariebioaot)
The unlawful application of force to another, resulting in either bodily injury or an offensive touching
ESCAPIST - Valid Warrantless Search & Seizure
E vanescent evidence S earch Incident to Arrest C onsent A utomobile (need pc, unless car is pulled over P lainview I nventory S pecial need of Gov't Officials (drug testing/searching) T erry Stop-n-Frisk
Two crimes that constitute MBE Assault (AorI)
1) Attempted battery 2) Intentional creation (more than words) of a reasonable fear in the mind of the V
NY: Recklessness (∆iaosaur, acdi)
∆ is aware of a substancial and unjustifiable risk, and consciously disregards it
Year & a Day Rule
MBE: death must occur w/in 1yr & 1day NY: death may occur anytime
3 crimes that constitute homocide in NY (VAC)
V ehicular assault & homicide A ggravated Homicide & Murder C riminally negligent homicide
This Land Contract must be Valid b/c Sarah Weinblatt Doesn't Lie & Cheat
S igned W riting D escribing L and & C onsideration
Section 13
(50 cards)
NY: Rape 3 (req. 2)
V is -17; ∆ is 21+ sex w/ person incapable of consent (other than age)
Name of Statute for Wills
EPTL
NY: (i) The 2 crimes that qualify as Kidnapping 1 (ii) the crime that is Kidnapping 2
1) abducting someone for (a) ransom, (b) 12+ hours with intent to rape/rob/injure 2) abducting someone
NY: Sexual Misconduct (req. 2)
1) vaginal, oral or analy sex w/ another w/o consent 2) sex w/ dead person or animal
14th Amendment- Substantive Due Process Clause
14th Amendments. requires court to review the substance of the state & local law rather than just the procedure
Enabling Clause
13th Amendment. Congress can prohibit racially discriminatory action by anyone- government or private citizen.
SoL for Medical Malpractice
2.5 years from the date of malpractice Exception: continuous treatment for the same condition Exception: foreign object rule (1 year from discovery, if later than 2.5 years)
NY: 4 crimes that qualify as Rape 1
1) sex by force 2) sex w/ person who is physically helpless 3) V is -11 4) V is -13; ∆ is 18+
Privileges & Immunities Clause
Article IV - prevents discrimination against non-residents
Name of Statutes for Contracts (3)
Art. II (sales of goods) Common Law (all other) Art II(a) (Leases)
Name of Statutes for Mortgages NY (2)
NY GOL NY RPL
Equal Protection Clause
14th Amendment. prevents states from grossly unreasonable discrimination
Mens Rea of Statutory Rape (i)MBE, (ii)MPC, (iii)
MBE: SL MPC & Minority: mistake is a ∆ NY: SL -17
5th Amendment- Substantive Due Process Clause
requires court to review the substance of the federal law rather than just the procedure
MBE: Kidnapping (fitctviasp)
False imprisonment that conceals the V in a secret place
NY: Misdemeanor Custodial Interference
taking a relative -16 from lawful custodian w/ intent to hold for a protracted period
Takings Clause
5th Amendment.
Name of Statute for Corporation
BCL
Contract Clause Impairment of Contract
prohibits states of enacting any law that retroactively impairs contractual rights
Name of Statutes for Real Property (3)
- NY RPL - NY GOL (general obligations law) - Uniform Vendor & Purchaser Risk Act
1st Amendment.
protects location & content of private speech, freedom of association & religion, freedom of press,
MBE: definition of Rape siwvcab: (1)f, (2)t, or (3)u
Sexual intercourse w/o V's consent accomplish by: 1. force 2. threat of force 3. unconscious
Necessary and Proper Clause
congress can enact all laws necc and proper for executing any power granted to any branch of the federal govt.
Name of Statute for No Fault Insurance
NY Insurance Law
Procedural Due Process
8th Amendment. fair hearing is required for a gov't agency to take a person's life liberty or property
Name of Statute for Crim
NY Penal Law
Name of Statute for Secured Commercial Paper
Article 3 of the UCC
NY: Testimony corroborating rape must do two things:
1. Establish at least an attempt to have sexual contact 2. Connect ∆ w/ commission or attempt of the crime
11th Amendment
Prevents Federal court from hearing private & foreign claims against states
Name of Statute for Worker's Comp
NY Worker's Comp Law
Name of Statute for Domestic Relations
DRL
Name of Statutes for Torts (3)
Art. 16 of CPLR NY VTL (non-resident motorist statute) EPTL (wrongful death)
Commerce Clause
congress can prohibit private racial discrimination via interstate commerce
14th Amendment; Section 5
congress can adopt the appropriate legislation to enforce the 14th amendment.
Doctrine of Sovereign Immunity
No suits against state government in state courts
NY: Felony Custodial Interference
taking a relative -16 from lawful custodian w/ intent to hold for a protracted period AND intend to permanently remove from state OR Endangers his safety OR materially impairs his health
Name of Statue for Crim Pro
CPL
Name of Statute for Agency & Partnership
NY Partnership Law
NY: Rape 2 (1 req.)
V is -15; ∆ is 18+
SoL for Professional Malpractice
3 years from termination of services on the matter "Professional" = learned professions (architect, engineer, attorneys, accountants) - Personal injuries S/L still starts on date of injury - Special rule when personal injury injury action against architect or engineer brought > 10 years after building was completed: π must serve notice of claim on ∆ 90 days before suit is brought.
Name of Statute for Secured Transactions
Article 9
Interstate Compact Clause
if an agreement between the states increases states powers at the cost of federal power, congress must approve
15th Amendment
Fed and state can't prohibit voting on basis of race. Only gov't not private action
Supremacy Clause
Federal over State
Establishment Clause
Protects freedom of religion
Name of Statute for NY Practice
CPLR
Privileges of Citizenship
14th Amendment. states must give their citizens the privileges and immunities of national citizenship- life, liberty...
Bill of Attainder
Can't inflict punishment on people w/o a judicial trial
Article III pertains to...
the Judiciary
Full Faith & Credit Clause
states recognizing other states judicial decision
Section 14
(50 cards)
Tolled SoL for π's insanity
Tolled for 10 yrs or insanity ends. 3+ SoL: gets longer of 3yrs or yrs left on SoL -3 SoL: the whole SoL
What is the rule for (i) when a party move for Summary Judgment, and (ii) what are the two exceptions to this rule?:
(i) Cannot move for SJ prior to ∆'s answer (ii) Exceptions: 1) The court convert's ∆'s motion to dismiss into SJ 2) π files motion for SJ in lieu of complaint (allowed in certain circumstances)
Time limits for ∆'s Answer dictated by service of process
Personal delivery in NY: 20 days Mail plus acknowledgment: 20 days after ∆ mailed acknowledgment All others: 30 days
What days can process be served
- Any day but Sunday - Cannot serve on Saturday if π knows that ∆ is a Saturday-Sabbath observer
Time SoL tolls for ∆'s death
Add 18 months to SoL
How to serve process on an infant
Must serve: Parent Guardian Any person with legal custody A married adult spouse of ∆ AND infant if 14+
Methods of serving process on a NY Corp
(1) Personal delivery to: Officer of corp Director of corp Designated agent Managing agent (supervisory responsibility) (2) Serve 2 copies on NY Secretary of State
2 Requirements to commence a case
File process with county clerk Serve process on ∆ within 120 days after filing process
What is the Purpose of a Motion for Summary Judgment?
It allows a party to show, before trial, that although the pleading are facially sufficient there is no genuine issue of material fact for the trial. A party may move for SJ on any claim or defense asserted. If the only remaining issue is $ of damages, the ct can grant SJ on liability can have an immediate trial for $.
SoL when π is a non-res of NY when the out-of-state action arose
Apply the shorter S/L between NY and the other state
What is the purpose of a Motions on notice
Purpose: gives adversary an opportunity to be heard in opposition
3 ways to choose venue
1) County where real estate in question is located 2) Where either Party resides 3) If no residence, then π chooses
Tolled SoL for absent ∆ 1) If ∆ was absent from NY when CoA accrued 2) If ∆ was in NY when CoA accrued, but left for more than 4 months continuously 3) The exception
1) If ∆ was absent from NY when cause of action accrued: tolled until ∆ comes to NY 2) If ∆ was in NY when cause of action accrued but left for more than 4 months continuously --> tolled until ∆ returns to NY 3) Exception: S/L not tolled if π has a basis for personal jx over the absent (e.g. long-arm)
SoL: products liability
Negligence: 3 years from date of injury
In what circumstance don't you need PJx over a matrimonial action?
If π isn't seeking money & π lives in NY Note: Ct has in-rem jx over marriage
2 ways to "Amend a Pleading"
1) As of right: Each party gets 1 opportunity to amend w/in 20 days after ∆serves the answer. Can include anything that would have been raised in the complaint/answer 2) Motion to the Ct for "Leave to Amend"
When is a "Motion on Notice" (i) made?, (ii) what is a return date?, (iii) how much advance notice must be given
i) When served or dropped in mailbox ii) The date papers are presented to court iii) 8 days
Settlements involving multiple Tortfeasors Effect of settlement on NON-settling tortfeasors
Any judgment against non-settling parties is reduced by the larger of: (1) the amount of the settlement; or (2) the settling tortfeasor's equitable share of the fault
CPLR Art. 16 (personal injury claims and joint tortfeasors)
In a personal injury claim, when a joint tortfeasor is not more than 50% at fault and π has sustained non-economic damages (pain and suffering, mental anguish), then ∆ can only be required to pay her own share of π's non-economic damages
Contents of ∆'s Answer (AC DC)
Affirmative Defenses Counterclaims Denials (or else implied admission Cross-claims
3 Affirmative defenses that are never waived
1. Non-joinder of a necc party 2. Failure to state a CoA 3. Lack of SMJx
What are 4 ways to satisfy the SJ burden?
Produce and present contrary evidence showing a triable issue of fact (1) Affidavits by persons with actual knowledge (2) Relevant documents (3) Discovery materials (4) Collateral Estoppel (already had a full & fair hearing) CANNOT rely solely on the pleadings
5 Types of Long-Arm Jx & 1 action that it can't be used
1) Business transaction in NY 2) Economically sign contract ∆ agreed to supply goods/services in NY 3) ∆'s tortious conduct in NY 4) ∆'s ownership/use/possession of real property in NY 5) ∆'s tortious act outside NY that causes injury in NY, PLUS (i) ∆ regularly solicits business/persistent course of conduct in NY; (ii) ∆ derives substantial revenue from goods or services consumed in NY; or (iii) ∆ should expect his act to have consequences in NY & derives substantial revenue from interstate/international commerce Note: no long-arm jx for defamation
When can you get Long-Arm Jx in a Matrimonial Action
1) π is a resident, AND (a) NY was matrimonial domicile (b) ∆ abandoned π in NY (c) ∆'s monetary obligation was under an agmt executed in NY or accrued under the laws of NY
SoL for Wrongful death claim
2 years from date of death
How to service process by mail
1) Certified Mail 2 copies of acknowledgment and prepaid return envelope 2) Service is effective only if ∆ sends acknowledgment within 30 days 3) Otherwise π must use another method, but ∆ pays cost
What is an Order to Show Cause?
Type of Motion on Notice that is a preliminary order Signed ex parte Directs the adversary to "Show Cause" why it should not be granted After it is signed, the order & underlying motions papers are served on opponent
3 Requirements for motion to dismiss
1) Made before service of answer 2) If denied, must serve answer within 10 days 3) If you make a motion to dismiss and don't raise lack of personal jx, you waive that defense Can also raise affirmative defenses in the answer
SoL: exposure to toxic substance
3 years from earlier of discovery of injury, or date injury should have been discovered with reasonable diligence
What is the time limit for making a Motion for SJ?
W/in 120 days of filing of the note of issue (which places the case on the ct's calendar)
What is the process after a Motion on Notice is decided? What is the time limit for appealing the order?
The prevailing party must serve a copy on the losing party 30-day limit to appeal from order
What are the 4 situations in which CPLR Art. 16 doesn't apply (personal injury claims and joint tortfeasors)
1) Tortfeasors who acted with intent 2) Tortfeasors who acted with recklessly 3) Tortfeasors with hazardous substance 4) Drivers and owners of motor vehicles (except police and firefighters)
(i) What is the Non-Resident Motorist Statute, and (ii) How is it served
(i) Non-domiciliary's ownership or use of an auto on a NY roadway causes an accident (ii) mail 1 copy to NY sec. of state & 1 copy to ∆'s residence
SoL: Municipal Tort Liability
1 year and 90 days from date of accident π must serve notice of claim within 90 days of accident
Who can serve process in (i) NY, (ii) Outside NY
(i) NY: Any non-party aged 18+ (ii) Outside NY: Any NY resident 18+, or anyone authorized to serve process in that jx
Settlements involving multiple Tortfeasors Effect of settlement on Settling Tortfeasor for (i) contribution and (ii)indemnity
(i) Party who settles cannot sue or be sued for contribution (ii) Party who settles can sue and be sued for indemnity
Methods of serving process on a Person (Personally, Leah's Nails Experience Age)
PERSONAL delivery LEAve and Mail (within 20 days of each other) NAIL and Mail (within 20 days of each other) EXPEdient service (with court order) AGEnt specifically designated by ∆ to receive process
2 Possible responses to "Summons and Complaint"
1) Answer 2) Motion to dismiss
What are the 3 parts of a Motion on Notice? (NAN)
1) Notice of motion 2) Affidavits 3) Memo of law
4 situations where an Order to Show Cause filed (A, S, T, R)
(1) Accelerates return date (2) Grant an immediate stay of proceedings (3) TRO (3) Required by statute
SoL: indemnity and contribution
6 years from the payment of judgment by the defendant
The 2 forms of process
1) Summons and complaint 2) Summons with notice If neither are used, it's a defect in personal jx and ∆ can move to dismiss
Ex Parte Motion- (i) what is it, (ii) when is it used, (iii) what are the opponents remedies
(i) A motion where no advance notice is given to opponent (ii) When the moving party needs express statutory authorization (iii) There is no appeal directly from an ex parte order. Opponent must make a motion on notice to vacate it. If that motion is denied, then the party can appeal.
3 Bases of General Jx & where to serve them
1) Presence in NY (when served) 2) Doing business in NY (can be served anywhere) 3) Domicile in NY (can be served anywhere)
When can you (1) and can't (4) get a 6 month continuance on your SoL
CAN: When action is commenced timely but dismissed before trial, π gets additional 6 months from dismissal to re-file the action CAN'T: (i) dismissal not on the merits, (ii) dismissal b/c lack of PJx, (iii) π's neglect to prosecute, (iv) π's voluntary discontinuance
2 Possible responses to "Summons with Notice"
1) Notice of appearance 2) Demand for the complaint (π must serve complaint within 20 days or else ∆ can move to dismiss)
Definition & 4 Parts of an 3rd-Party Impleader
When ∆ joins another party alleged to be liable in part/whole. 1) ∆ may file a summons and third-party complaint after serving answer 2) ∆ must serve a copy on both TPD and π within 120 days of filling 3) TPD must serve 3rd-party Answer on ∆, π and all other parties w/in 20/30 days 4) π may amend the complaint to assert a claim against TPD as well
Tolling of SoL for π's infancy
3+ SoL: gets longer of 3yrs or yrs left on SoL -3 SoL: the whole SoL Exception: med mal only can toll 10yrs
3 Bases of Specific Jx
1) Long-arm jx 2) Non-resident motorist statute 3) Consent
Due process test for jx
Satisfied if claim arises out of conduct of ∆ that is so purposefully directed towards NY that ∆ reasonably should anticipate being sued on that claim in a NY court
Section 15
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Rights protected by Strict Scrutiny
Marriage, procreate, custody of children, live w/ extended family, upbringing of your kids, use contraceptives
SoL for Strict Liability of Products
3 years from date of injury
Provisional Remedies What is a Temporary Receivership?
When the Ct. appoints a 3rd party to manage ∆'s property
Provisional Remedies 1) What is a Notice of Pendency? 2) In what circumstances can it be filed? 3) When is it required?
1) Gives record notice to potential buyers that real property is subject of an equity action 2) An equity action in which the judgment will have a direct effect on title, possession, or use of real property. 3) In a mortgage foreclosure
What is an Option Contract (i) CL, (ii) NY
(i) Paid-for promise to keep offer open (ii) Signed written promise to keep offer open is irrevocable for stated time (no consideration necc)
4 things needed to file for matrimonial action (P, V, A, P)
1) Person Jx 2) State a valid ground for separation 3) Allege & fulfill the residency requirement. 4) Personal service of process
2 ways to Serve Process on an Unlicensed Foreign Corp
(1) Personal delivery to: Officer of corp Director of corp Designated agent Managing agent (supervisory responsibility) (2) Serve 1 copy on NY Secretary of State & 1 Cert. Mail to the Corp.
Mechanics of Joint-n-Severable Liability
1) π may collect full judgement from any ∆ 2) The ∆ held liable for 100% can seek reimbursement from other tortfeasors MS: can't seek when based on intentional torts NY: Anytime
2 Grounds to oppose a "Motion to Amend a Pleading"
a) The amendment will be a detrimental change of position as a result of the delay (death, disappearance, loss of evidence). b) The proposed amendment has no merit
Who can & can't invoke the Dormant Commerce Clause
- Citizens can - Aliens and Corp cant
Provisional Remedies How does π get an Attachment and what 3 things must it allege? (G,P,U)
File an affidavit of support showing- (i) Grounds for application of an attachment (ii) Probability of success on the merits (iii) An undertaking to indemnify ∆ for the damages
Define the 3 Standards of Review
Strict Scrutiny: necessary/compelling Intermediate Scrutiny: substantial/important Rational Basis: rational/legit
2 Requirements for Impeachment
1) Majority of house 2) 2/3 of senate
1) What is a Requirements Contract? 2) Under which body of law is it acceptable? 3) What will invalidate a Req. Contract?
1) It is a promise to fulfill all the requirements a party has of a certain item 2) Art. 2 3) Buyer can't surprise by requesting an amount out of line with prior demands
(1) When is a Rejection of an Offer Effective? (2) What are the two alternatives to Outright Acceptance & what are their ?
1) Rejection effective when received 2) Counteroffer = terminates original offer 3) Conditional acceptance = rejection and counteroffer
Provisional Remedies How long is a Notice of Pendency last?
Notice of pendency is effective for only 3 years (unless mortgage foreclosure action)
Provisional Remedies What is a Preliminary Injunction?
Type of remedy that maintains status quo while equity action is pending
Provisional Remedies How does π get a Preliminary Injunction and what 3 things must it allege? (G,P,U)
File an affidavit of support showing- (i) Grounds for application (ii) Probability of success on the merits (iii) An undertaking to indemnify ∆ for the damages
Provisional Remedies What is the process for an Order to Seize Chattel (MoN, FA, UtI)
1) π makes a 'Motion on Notice' or an 'Ex Parte Motion' 2) File affidavits showing probability of success on the merits 3) Show an undertaking to indemnify ∆ for wrongful seizure
SoL for Breach of Warranty
4 years from date ∆ delivered the product to the next buyer in the chain (for manufacturer, it's the date manufacturer sold to wholesaler)
SoL if π was a NY resident when the out-of-state action arose
Apply NY S/L
How many jurors are in a Civil Jury?
6. 5 out of 6 must agree
What is the purpose of the Parol Evidence Rule
Keep out evidence of a prior or contemporaneous agreement that contradicts a later writing.
1) What is Res Judicata? (btaFJoM, aocaootST") 2) What is the 1 exception?
1) When a claim against a particular ∆ has been brought to a "final judgment on the merits," all other claims by the π against that ∆ are barred if the other claims "arise out of the same transaction" or occurrence 2) Exception: personal injury not raised in divorce proceeding
4 Requirements for a case to Judiciable in Fed Ct (SRMP)
Standing Ripeness Mootness Political Questions
Provisional Remedies What are the 2 things required to file a Notice of Pendency and what isn't required?
IS: (1)filing a notice w/ the county clerk of the county where the real property is located. (2) Service of the suit must be accomplished within 30 days of the filing of the Notice of Pendency or else ∆ can cancel it upon motion. IS NOT: Doesn't require court order or bond. If filed incorrectly a motion can be made to cancel it.
Provisional Remedies In what 2 situations will a Preliminary Injunction be given? (PI & H)
1) π seeks permanent injunction; or 2) ∆ threatens to harm π's interest in the subject matter of the suit
What are the 4 exceptions to the Parol Evidence Rule (CCE, EaDAF, IaVoAT, SaPIW)
To correct a clerical error To establish a defense against formation To interpret a vague or ambiguous term To supplement a partially-integrated writing
(i) What is the rule for the Revocation of an Offer? (ii) What are the 4 exceptions to that rule? (O, M, F, S)
Rule: Offeror can revoke at any time before acceptance 1) Option contract 2) Merchant's firm offer: signed written promise to keep offer for sale of goods open (3 month max) 3) Starting to perform in a unilateral contract 4) Foreseeable reliance before acceptance (rare)
When (1) is not, (2) is an Ad an Offer?:
1) Generally an ad isn't an offer 2) The ad specifies quantity to be bought
How to serve process on a mentally-incapacitated (2)
(1) Parent, guardian, or any person with legal custody (2) Must Serve on ∆ if she has a ct appointed rep
Ways π can meet the residency requirements for matrimonial action (0, 1-2, 2+ years)
0 Years: both parties are NY residents when action commenced 1-2 Years: (a) Marriage took place in NY (b) NY was matrimonial domicile at some point (c) Grounds for divorce arose here 2+ Years: Automatic if either party has been a resident of NY for 2 years.
Explain the 4 grounds for filing an Art. 78? (C, P, MC, MR)
1) Certiorari- challenges the results of a trial-type hearing by admin agency to see if supported by substantial ev 2) Prohibition- stop a judicial officer from exercising power that is "grossly" beyond his jx 3) Mandamus to Compel- performance of an act required by law (applies to Corps) 4) Mandamus to Review- agency determination made w/o a trial-type hearing (uphold unless arbitrary & capricious) Extras: brought in SC, must serve 20 days b4 return date, can seek declaratory or injunctive relief (or damages, if incidental)
Provisional Remedies 1) When can π get a Temporary Receivership? 2) How do they get it?
1) π makes a motion on notice 2) π has an Equity Claim in which specific property is the subject matter AND there is danger that ∆ will injury or destroy the value of said property
Provisional Remedies What is an Order to Seize Chattel
When a Sheriff 'seizes chattel' to ensure enforcement of a judgment awarding possession of the chattel to π
1) Name for when an offer is indefinite as to price 2) What does the court do?
1) Open price term 2) Court reads in a "reasonable" price, unless its for real property
Provisional Remedies In what 2 circumstances is Attachment used?
π is seeking money damages AND (1) ∆ is an unlicensed foreign corporation or a non-domiciliary residing outside NY; OR (2) ∆ is about to conceal or remove assets from NY w/ intent to defraud creditors or frustrate enforcement of a judgment
5 threshold issues for a court to decide to avoid arbitration (AtA, WtS, VAC, ECP, S)
1) Did the parties 'Agree to Arbitrate' 2) Is the dispute 'within the scope' of the arbitration clause 3) Is the arbitration 'clause valid' (separate from validity of K) 4) Is there an 'express condition precedent' to arbitration 5) 'Statute of limitations'
Provisional Remedies What is a TRO and in what circumstances can π get one?
When there is a threat of immediate injury, π can ask the court to grant a TRO ex parte, to maintain the status quo until the motion for preliminary injunction is decided.
How long does a π's death toll her claim so her "duly appointed rep" can sue on her behalf
Longer of 1yr from π's death or remaining SoL
6 Ways an Offer can Terminate (L, R, R, D, D, S)
1) Lapse of time (if stated, or else a reasonable time) 2) Revocation by offeror 3) Rejection by offeree 4) Death of either party before acceptance 5) Supervening illegality 6) Destruction of the subject matter of the contract
Provisional Remedies- 5 steps needed to obtain a TRO (EMfPI, DSP, AfT, JS, ERD)
1) Make an Ex Parte Motion for Preliminary Injunction via OTSC 2) Demonstrating "significant prejudice" if NO notice is given to OC 3) Ask for a TRO 4) Judge signs the OTSC including a TRO 5) Get an expedited return date
How to obtain a jury trial
Party filing Note of Issue can make a demand for jury trial or else the right is waived. Other parties can file their own separate Demand for jury trial
Provisional Remedies- What is Attachment?
- π obtains an order from the court. Gives it to the sheriff who levies upon ∆ property. A levy gives a lien. Levy on real property is filed w/ county clerk; levy on personal property is given to the holder. - ∆ gets damages if attachment is made by improper procedure, or if ∆ wins on the merits.
Indemnity: 1) Definition, 2) Three circumstance it applies to, 3) Two you can't
1) Shifts 100% of the responsibility to 3rd party 2) Contract; Products liability; Vicarious liability 3) Gross negligence & Intentional Torts
What is a Provisional Remedy and what are the 5 types (A,P,T,O,N)
Provides a measure of security to π for the ultimate enforcement of a potential judgment. 1) Attachment 2) Preliminary injunction 3) Temporary receivership 4) Order to seize chattel 5) Notice of pendency
Definition of Offer
Manifestation of intent to be bound
The MILD police power Congress has is...
M ility I ndian reservation L and (federal) D istrict of Columbia
Test for whether a Case has Standing in Federal Ct (I C, R, N, N)
1) Injury: "π must alledge & prove that she has been/will imminently be injured 2)Causation- alledge/prove injury was caused by ∆ Redressible- a favorable ct decision will remedy the harm No 3rd Party Standing No general grievances
Definition of Collateral Estoppel? What are the 3 requirements? (SI, AL&D, F&FOtLtC)
Prevents re-litigation if of "specific fact issues" 1) 'Same issue' in former and current proceeding; 2) Issue was 'actually litigated and decided' in former proceeding; and 3) Party against whom issue preclusion is asserted 'had a full and fair opportunity' to litigate that issue in the former proceeding.
Section 16
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