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State a cause of action if...
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.
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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
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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
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When can the motion to dismiss for failure to state a cause of action be made?
At any time during the action
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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
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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
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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
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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.
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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.
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PROFESSIONAL RESPONSIBILITY
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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.
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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.
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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.
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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.
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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.
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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
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Character is at issue in these civil cases:
- defamation
- child custody
- negligent entrustment
- negligent hiring
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Forms of character evidence admissible when character substantive issue in litigation:
- reputation
- specific instances of conduct
- opinion
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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
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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
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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
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but for test=
P must show that the injury would not have occurred "but for" D's negligence
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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
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negligence per se defenses:
- - compliance was impossible
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- - an emergency justified violation of the statute-
- ~D must show that complying with the statute would be even more dangerous than violating the statute
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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
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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.
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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.
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trespass to chattels: intermeddling damages=
If itnermeddling, must show damages.
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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.
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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.
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A mortgagor remains personally liable for mortgage after a transfer unless:
- -release by mortgage/lender
- -modification of transferee's obligation by mortgagee/lender
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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
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ademption=
the extinction or withdrawal of an inheritance because decedent did not own the property at the time of death. Limited to specific devises
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Is net income from a business operated by a co-tenant on the premises is not required to be shared with any other cotenants.
No
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When can co-tenant get reimbursed for improvements that generated profits?
Partition suit
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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
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equity of redemption: When must mortgagor(borrower) must exercise the right of equity of redemption?
before the foreclosure sale
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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
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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
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NY: if easement by necessity, property must be
virtually useless
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easement by prescription elements
- 1) open and notorious
- 2) continuous
- 3) hostile
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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
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Types of consideration
- refraining from doing something
- doing something
- promising to do something
- promising not to do something
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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
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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.
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Commerce Clause in plain english
Congress can regulate channels, instrumentalities, persons or things in interstate commer or activiaties that substantially affect interstate commerce
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Treaties must be approved by ____
2/3 vote of the Senate
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Article I-contracts clause=
No state legislation may retroactively impair the obligation of contracts. The article does not apply to federal action or to court decisions
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President's domestic powers mnemonic
EARVEPA
- 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
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attempt=
intent to commit+ conduct that intends to effect the commission of a crime + very near to the accomplishment of the intended crime.
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Under New York law the relevant analytical approach to choice of law in tort actions is
governmental interest
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governmental interest=
apply the law of the jurisdiction with the most significant interest in, or relationship to, the dispute.
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If the conflicting laws concern allocation of loss, court will use __________ rules, which consists of three rules.
Neiumeier
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Laws that allocate loss include:
charitable immunity statutes, guest statutes, wrongful death statutes, vicarious liability statutes, and contribution rules.
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Neuimeier Rule 1
If parties have same domicile, apply loss allocagion aws of their domicile
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Neuimeier Rule 2
If parties have split domicile (each from different states), apply laws of whatever state where the tort took place
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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."
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