Under the CPLR, a P states a valid cause of action if, on its face, the P’s complaint states any valid grounds for which relief can be granted.
If D seeks a judgment dismissing a complaint on the ground that it fails to state a cause of action, the court must then...
detemrine whether the allegations, liberally construed and viewed in the light most favorable to the P, plead a cognizable claim
IF a court finds that even if all of the allegations are deemed to be true, the _____________ , the motion to dismiss will be granted.
substantive law doesn’t recognize the cause of action
When can the motion to dismiss for failure to state a cause of action be made?
At any time during the action
a permanent injunction is
a court order to start or stop doing a specific act, which is gratned after a final hearing on the merits
For permanent injunction, moving party must show:
inadequacy of remedies at law and money damages are insufficientP has a protectable property interestinjunction can be enforced ANDthe balance of hardship is in P’s vafor
DUTY OF LOYALTY
duty to disclose
The duty of loyalty includes the duty to disclose to the board any transaction that will benefit a director personally interested transaction
Any deal between the corporation and one of its directors, or business of which its director or officer is also a director or officer, or business in which he has a substantial financial interest, is an interested director transaction.
interested transaction set aside unless director or officer shows one of the following:
(1) the deal is fair and reasonable to the corporation; or
(2) the material facts and the director’s interest were disclosed or known and the deal was approved by a majority of shareholders; or
(3) a majority of directors approve it provided a quorum is met excluding any votes of the interested directors; or
(4) a unanimous vote of disinterested directors, if interested directors are needed for a quorum.
Under the New York Rules of Professional Conduct, an attorney must not represent a client if a reasonable lawyer would conclude that a conflict of interest exists when either:
(1) the representation will involve the lawyer in representing differing interests; or (2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.
An attorney can represent multiple clients who pose a potential conflict of interest among them provided:
1) a disinterested lawyer would believe that the attorney can competently represent the interest of each AND
2) each consents to the representation after full disclosure of the implications, advantages, and risks involved.
Under the RPC, an attorney cannot enter into a business transaction with a client if they have differing interests unless:
(1) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed in writing;
(2) the client is advised to seek the advice of independent legal counsel in writing ; and
(3) the client gives informed consent in writing.
In terms of gifts, under the RPC, an attorney must not:
(1) solicit any gift from a client, including a testamentary gift, for the benefit of the lawyer or a person related to the lawyer; or
(2) prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any gift, unless the lawyer or other recipient of the gift is related to the client and a reasonable lawyer would conclude that the transaction is fair and reasonable.
For gifts, related persons are
A spouse, child, grandchild, parent, grandparent or other relative or individual with whom the attorney or the client maintains a close, familial relationship.
Character evidence in civil cases admissible as evidence only when:
character is the substantive issue of the litigation
OR used to prove
motive, opportunity, knowledge or intent, preparation or plan, or identity
Character is at issue in these civil cases:
Forms of character evidence admissible when character substantive issue in litigation:
specific instances of conduct
character evidence not admissible in criminal cases unless:
D opens the door and places his character in issue by either
1) calling a character witness on his behalf
2) taking the stand to testify to his good character
Once D opens the door to his good character, prosecution may:
present evidence refuting the accused's asserted good character via reputation or opinion testimony
if accused offers evidence of victim in a a rape case, past sexual behavior only offered if:
1) proves accused was not source of hte semen or injury
2) past acts with the DEFENDANT show consent
but for test=
P must show that the injury would not have occurred "but for" D's negligence
negligence per se: basic rule:- P must be in the class of people intended to be protected- the accident must be of the type of harm that the statute was intended to protect against, and -the harm was caused by violation of that statute
- P must be in the class of people intended to be protected
- the accident must be of the type of harm that the statute was intended to protect against, and
-the harm was caused by violation of that statute
negligence per se defenses:
- compliance was impossible
- an emergency justified violation of the statute-
~D must show that complying with the statute would be even more dangerous than violating the statute
attractive nuisance doctrine:
i) an artificial condition exists and knows, reason to know kids likely to trespass
ii) knows, reason to know unreasonable risk of death or severe bodily harm
iii) the children, b/c of their youth do not discover or cannot appreciate the danger
iv) the utility to the land possessor of maintaining the condition is slight compared to the risk of injury; and
v) the land possessor fails to exercise reasonable care
trespass to chattels=
intentional interference with P's right of possession by either dispossessing the P of the chattel or using or intermeddling with P's chattel.
damages for trespass to chattels: dispossession
If dispossesion, P must prove damages by either the actual damages caused by the interference or the loss of use.
trespass to chattels: intermeddling damages=
If itnermeddling, must show damages.
assumption of risk form only valid if
1) The plaintiff is aware of its terms; 2) the injury which occurs is within the risks of which the plaintiff agreed to relieve the defendant; 3) the disclaimer is not contrary to public policy.
what is the standard for determining whether title is marketable?
The title must be free of an unreasonable risk of litigation at the time of closing.
A mortgagor remains personally liable for mortgage after a transfer unless:
-release by mortgage/lender
-modification of transferee's obligation by mortgagee/lender
a life tenant is generally obligated to pay 1. ______ . The remainderman is responsible for repaying 2. _______
1. current expenses related to the property, such as mortgage interest
2. mortgage principal
the extinction or withdrawal of an inheritance because decedent did not own the property at the time of death. Limited to specific devises
Is net income from a business operated by a co-tenant on the premises is not required to be shared with any other cotenants.
When can co-tenant get reimbursed for improvements that generated profits?
equity of redemption=
a common law right held by the mortgagor(borrower) to reclaim title and prevent foreclosure upon the full payment of the debt
equity of redemption: When must mortgagor(borrower) must exercise the right of equity of redemption?
before the foreclosure sale
What rights to heirs/devisees have when the purchaser in a real estate sales contract dies after formation but before closing? Who pays?
the heirs or devisees are entitled to compel the vendor to proceed with the transaction, via a judgment for specific performance if necessary.
the representative of the estate, not the individual heirs
How are expectation damages measured when buyer rescinds property contract?
The difference between the contract price and the market price at the time of the breach
NY: if easement by necessity, property must be
easement by prescription elements
1) open and notorious
adverse for 10 years
In New York, there are four leasehoold estates in which tenant has present possessory interest and landlord has a future interest:
(1) tenancy for years;
(2) periodic tenancy;
(3) tenancy at will; and
(4) tenancy at sufferance
Types of consideration
refraining from doing something
promising to do something
promising not to do something
modifying a services or real estate contract to do something already legally obligated to do is not consideration and no K unless:
-both parties change their duties
- unforeseen circumstances compels party to change position
- third party promises to pay
The rights of an intended beneficiary vest when the beneficiary:
(i) detrimentally relies on the rights created;
(ii) expressly assents to the contract at of one of the parties' request; or
(iii) files a lawsuit to enforce the contract.
Commerce Clause in plain english
Congress can regulate channels, instrumentalities, persons or things in interstate commer or activiaties that substantially affect interstate commerce
Treaties must be approved by ____
2/3 vote of the Senate
Article I-contracts clause=
No statelegislation may retroactively impair the obligation of contracts. The article does not apply to federal action or to court decisions
President's domestic powers mnemonic
Enforce the laws
Appoint purely executive officers
Remove executive officers (congress no power to remove)
Veto- has 10 days to exercise, can be overridden by 2/3 vote of each house. P can't impound funds
Executive privilege to withhold military and diplomatic secrets unless important government interest
Pardon- only federal prisoners
Absolute immunity in civil suits based on actions taken while in office
intent to commit+ conduct that intends to effect the commission of a crime + very near to the accomplishment of the intended crime.
CONFLICT OF LAWS
Under New York law the relevant analytical approach to choice of law in tort actions is
apply the law of the jurisdiction with the most significant interest in, or relationship to, the dispute.
If the conflicting laws concern allocation of loss, court will use __________ rules, which consists of three rules.
Laws that allocate loss include:
charitable immunity statutes, guest statutes, wrongful death statutes, vicarious liability statutes, and contribution rules.
Neuimeier Rule 1
If parties have same domicile, apply loss allocagion aws of their domicile
Neuimeier Rule 2
If parties have split domicile (each from different states), apply laws of whatever state where the tort took place
Neumeier Rule 3
State may abandon the split domicile rule if abandoning it advances relevant substantive law purposes and doing so does not "impair the smooth working of the multi-state system or produc[e] great uncertainty for litigants."