NY BAR Final Exam Review

Last updated 25 April 2024

973

PRESENT SENSE IMPRESSION [803(1)]

State v. Jones

i. Declarant is available as a witness
ii.Statement is describing/explaining an event or condition (need not be startling)
iii. Statement made while perceiving or immediately thereafter (2-3 mins after the event)
iv. Declarant has personal knowledge

EXCITED UTTERANCE [803(2)]
truck insurance, lira (the throat doc), and state v jones (man bites dog)

i. Declarant is available as a witness
ii. Statement relates to a startling event or condition
iii. Statement made under the stress of excitement caused by the event or condition (immediately thereafter not required)
iv. Declarant has personal knowledge

Factors to determine whether there is a startling event

1) Nature of the event (event's nature)

2) Appearane, behavior, or condition of the declarant (declarant's look and actions)

3) The declarant's age and profession

4) Content of the declarant's statement itself

5) Declarant's physical proximity to OR psychological perspective of the event

6) Unsoliticited statement, OR response to a question (response = reflection! NOT an EU!)

EXISTING STATE OF MIND [803(3)]

i. Declarant is available as a witness
ii. Statement of the declarant's then existing state of mind, emotion, sensation or physical condition
iii. Not a statement offered to prove the fact remembered or believed (unless it relates to the execution, revocation, identification, or terms of the dclarant's will)
iv.

Hillmon Rule

Statement of present intent can be used as circumstantial evidence to prove that the declarant did the act he stated
• Contemporaneous statements of an out of court declarant's intent can be admitted to show state of mind

When is a statement of Declarant's then-present intent (i.e. his then-Existing SOM admissible as circumstantial evidence for a third-party's conduct)?

This piece of evidence needs CORROBORATIVE evidence for such evidence to allow for a reasonable inference of a third-party's conduct.

Rule 803(5) - Recorded Recollection

Present Recollection Revived/Refreshed vs. Past Recollection Recorded

To qualify for admission under 803(5), the following requirements must be satisfied:

1. The document was prepared or adopted by the witness
2. The witness has firsthand knowledge of the matter recorded
3. The matter was fresh in the witness' memory when the document was made or adopted
4. The witness vouches for the accuracy of what has been recorded even though she cannot remember the facts recorded
5. The witness has insufficient recollection to testify fully about the matter recorded even after looking at the document
6. The document is the authentic memorandum and has not been altered

Procedure for Admission under 803(5)

A. The declarant must be present to testify to the foundation for admitting the recorded recollection

B. The recorded recollection "...may be read into the record but may not itself be received as an exhibit unless offered by an adverse party."

BUSINESS RECORD [803[6]]

i. Declarant is available as a witness

ii. A business and record (doesn't include personal business but includes illegal business)

iii. Made or transmitted by a person with knowledge (person making this statement must have a business duty to report/make the record)

iv.At/near the time the data arose (reasonable)

v.In the course of a regularly conducted business activity

vi. It was the business' regular practice to make record

Admissible UNLESS source or preparation of information indicates untrustworthiness.

IF MEDICAL RECORD, THEN STATEMENTS IN REPORT MUST REASONABLY PERTINENT FOR MEDICAL DIAGNOSES OR TREATMENT

PUBLIC RECORD [803(8)]

i. Declarant is available as a witness
ii. Made by a public agency or its employees
There are 3 subparts (803a,b, or c) that apply to Records of public officers/ agencies
All three subparts are qualified by the "trustworthiness" provision of 803(6)

803(8)(a)

A public record of the activities of an office or an agency

803(8)(b), with an exception!

matters observed pursuant to a duty imposed by law
•Duty to report
•Except in criminal matters observed by the police or offered by the prosecution

803(8)(c) , but ONLY in certain case, OR against certain party

factual findings resulting from an investigation (including opinions or conclusions)

- Made pursuant to authority granted by law AND EITHER

- Only in civil cases.

- OR only against the government in criminal cases

What is another way that a proponent of a biz record's admission can satisfy "the duty to report" element?

You can substitute this 803(6) element with one of the other Hearsay exceptions! For instance:

- Party Opponent Admissions - 801d2A-E
- W's Prior Statements - 801d1A-C

Obvious detail(s) that a biz record lacks untrustworthiness for admission

The biz record appears to have been prepared for the sole purpose of litigation.

FORMER TESTIMONY [804(b)(1)]

i.Declarant is unavailable as a witness per 804(a)
ii. Must be a former testimony (from another deposition or hearing)
iii. The testimony is offered against the same party (or in a civil case, a predecessor in interest)
iv. There was an opportunity for and
v. A similar motive to direct, cross, or redirect examination in both proceeding

DYING DECLARATION [804(b)(2)]

i.Declarant is unavailable as a witness per 804(a)
ii.Declarant believes that death is imminent
iii. The statement concerns the cause or circumstances of impending death
iv. Declarant has personal knowledge
v. Can only be offered in civil cases or criminal homicide

804a - 5 circs where declarant is unavailable

situations in which the declarant--

(1) [PRIVILEGE]--is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) [REFUSAL TO TESTIFY, like pleading the 5th] persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) [LACK OF MEMORY]---- testifies to a lack of memory of the subject matter of the declarant's statement; or

(4)[DEATH/PHYS or MENTAL IMPAIRED]--- is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) [UNREACHABLE]---is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under Dying Declarations, Stmnt Against Interest, or , the declarant's attendance or testimony) by process or other reasonable means.

Statement Against Interest - 804(b)(3)

i. Declarant is unavailable as a witness per 804(a)
ii. The statement is so far against declarant's interest that the declarant wouldn't have said it if he/she didn't believe it to be true.
• Reasonable person in the declarant's position wouldn't have made the statement
iii. The interest considered are:
•pecuniary interest •proprietary interest • civil or criminal liability • his claim of civil liability against party-opponent • AND READ THE ACNs for Other possible interests
iv. Must be adverse to the declarant
v. The declarant must be aware of that adversity at the time of making the statement

When are exculpatory statements admissible against the declarant of such statement, pursuant to FRE 804b3, and the rationale.

These statements are only permissible if there is corroborating evidence.
Rationale [for applicable FRE as well]: the declarant would not want to lie about something AGAINST their interests. Rather, they'd lie to serve, not undermine, their own interests!]

What is an exculpatory statement

A declarant's statement that exculpates the accused who offers the declarant's statement for admission. The declarant's statement also likely exposes himself or another to criminal/civil liability.

What is Hearsay under rule 801 and 802?

Heary is an out of court statement offered for the truth of the matter asserted within such statement. THerefore, inadmissible, unless an 803 (declarant availability not relev) or 804 exception (declarant MUST NOT be available). (i.e. 803 and 804 are NON-hearsay)

What is NOT a statement?

non-assertive conduct; implied assertions

What is NOT for the TOMA?

statement sought for admission as circumstantial evidence of--
State of Mind

Notice or Knowledge

Legally operative (significant) language where the statement is an element.

Impeachment purposes (track what the statement concerns...may lead to the impeachment rules of 607, 608b, and 609a)

NOT hearsay

801d1 - Prior witness statements
(a) Prior Incon statement, made under oath at trial
(b) Prior consistent statement to rebut charge of motive to fabricate (must be made BEFORE motive alleged, NOT after the charge)
(c) Prior Witness ID

801d2 - Party Opponent Admissions

FRE 805 (MUST STATE WHEN THIS APPEARS!)

Multiple Hearsay, or Hearsay within Hearsay

BUT NOT a problem for pub. records (w/multiple hearsay) sought for admission in a CIVIL ACTION!..remember, the auto deference of trust for pub record

Recall Recorded Recollection...if you use a letter (with multiple statement from diff declarants) to refresh recollection, is that allowed or not?

This IS allowed, provided the proponent does not seek admission of the evidence. Otherwise, propopent (who MUST be the ADVERSE party, see rule 803(5), supra) MUST find a proper hearsay. exception for admitting EVERY statement, per 805.

Cases re: Biz Records exception

Johnson v Lutz (demos where duty to report happens, at witnessing accident, not later report)

Williams v. Alexander ( in furtherance of hospital biz = Biz Recs for Hospital!)

Vigneau - independnt verification of info, Western Union checks signatures)

Duncan - EVERY BIZ rec (even within another Biz rec) must meet biz rec exception, per 805 multiple hearsay rule

Hahneman - computer generated evidence would saisfy biz record exception 803(6)

Palmer (accident report, by those involved, for the lawsuit!)

Lews v. Baker (report, by those NOT involved in the accident, and pursuant to law!)

OATES- gloss on biz or pub records (law enforcement chemist report NOT admitted)

Cases re: Pub Records

Beech Aircraft - JAG jet crash accident report admissible under 803b(c) (fact finding can be reasonably inferred opinions or concl)

OATES - gloss on public records--against def in crim case, EVERY declarant and authory must testify!

U.S. v Grady (Strictly routine records, not law enforcer's observations of the accused actions...so okay under 803(B)

What to do If a declarant has no duty to report the statement he contributed to the report?

Here, see if another hearsay exception (803 (1), 2, 3, or 804b2) applies!

Case that demos FRE 805

Sana v. Hawaiian Cruses (defendant's insurer's report, multiple hearsay, but OK, and trustworthiness not at issue, b/c insurer with no incentive to produce the report FOR the plaintiff (Sana), who wanted to bring that report in.

PLUS, insurance aganet had duty to prepare report.

Cases that demo Former Testimony;

Traverlers Fire Insurance Co v. Wright (the bros., one faced fraud in former trial, found that bro's opp (even just ONE bro) to cross ex W in crim case on SAME issue, AND w/SAM INTEREST AND MOTIVES as other bro has in the instance case, show identify of issues (& parties) and opp for satisfactory cross-ex in prior case

Lloyd v Amer Export (civl action, who started the fight, coast guard hearing was first action)

US v Salerno (reiterates similar motive elem must be met even where first proceeding was grand jury proceeding and subsequent case is a criminal trial)

Elements to satisfy submission of former testimony in criminal case into a subsequent civil case

1) Impossibile to obtain testimony of W who testified in crim case (i.e. Declarant is UNAVAILABLE)
2) An opp to cross-ex the W by party against whom testimony is sought to be used in the civl case, OR by one whose motive and interest in cros ex was the same

3) Identity of issues

Cases that demo Statements against interest 804b3

State v. English (statement to popo by 3rd party, against his PENAL interest, and exculpatory for def, was NOT admissible...need coroboration)

GM McKelvey (Ohio) (written and signd confession were admissible statements against their pecuniary interests--Classic 804b3 example)

US v Barrett (neutral stmtn with statement against interest - all come in..insider knowledge can show statement against interest--the insider knowledge can be corrobation for the statement against interest being one that exculpates the def seeking to admit it)

Williams v US (statements that curry favor of police--are collatt stmnts, just narrative, and not against interest, thus collatts not allowed if no statement against interest (i.e. self-inculpatory statement, not non-self inculp)

Cases that demo 803(3) about THEN-state of Mind

adkins v brett (evidence of Convo between plaintiff and wife, wife felt at the time: distate for plaintiff...admissible as then-SOM)

Hillmon - intent at the time for future conduct, OK; if intent at time for future conduct w/3rd party--NEED Corroboration

Shepard v. United States (Dying Mrs. Shepard's statements about who poisoned her was not admissible for DD, OR for then-SOM, b/c her words spoke to past act, NOT forward one, AND to a past act BY a 3rd party no les!)

Pheaster (kidnapped teenager, never found, his statements--about intent to go meet up with someone--passed as being then-SOM, esp. wi/ his GF's corroborative testimony (she met def BEFORE while he met Larry). PAST events (GF's words) show greater chance of the FUTURE conduct by Larry to happen.

Domicility Rule for Individuals

Individuals may have only ONE domicile at a time, as a matter of law.

Determined in two ways:

Domicile by Choice
OR
By Operation of Law

Individual's Domicile by Choice

1) Any person OF LEGAL CAPACITY (e.g. of sufficient age and sound mind) may establish domicile by choice (i.e. Physical Presence and Intent to Remain)

2) Via Physical Presence AND INTENT TO REMAIN
--Phys Pres - Where person actually AND physically is, even if for a short time.
--Intent (voluntary [e.g. not incarcerated!], not compelled); critical element; use circumstantial evidence (e.g. voting recs, realty ownership, tax payments, driver's licennse). Need NOT establish permanency.

Individual's Domicile by Operation of Law

Where people cannot choose their domicile by choice (due to lack of legal cap), then this is the other means.

For Minors - Domicility

Domiciled where their parents are domiciled
UNLESS legally emancipated child

NY: Domicile typically follows the father, WHEN there is a CHOICE.

Age: Minor status ends at age 18. After 18, can choose her domicile by choice.

For Incompetents - Domicility

Retains parents' domicile for lacking cap to choose one's own

Prior Choices - Keeps the domicile previously selected before the loss of one's legal cap to chose.

corps - Domicility

Domiciled in the State in which they are Formed/Incorporated.

General Domicility Rules

Once established, domicile is presumed to continue until clearly changed. Travel, even long travel, does not dislodge domicile.

The burden of showing a change in domicile falls on the party that assert the change

Change--An individual may change her domicile by meeting the test for chosen domicile above (physical presence and intent to remain in the new place

On the bar exam, first ask whether the court has jurisdiction; then ask whether venue is appropriate; then ask is there a conflict of law question, i.e., whether the event or transaction at issue touches on more than one state.

Ordinarily, the determination of domicile is a question of fact.

Three sources for Choice-of-law determinations

Statutes

OR, K provisions

or Case Law

General Approaches

Most Significant RElationship Test _ RST

OR

NY Approach #1 - Most Significant Relationship Test (aka the Grouping of Contacts" Test) or the Center of Gravity Test.

While approach is to find place with closest connection to the relevant issue, Court focuses on the policy objectives behind competing laws of different states. Courts still ask three questions

1) What is the precise issue in controversy?

2) What policies do the relevant state laws aim to serve

3) What state's interest is MOST signfiicant given those policy concerns.

Used Mostly In CONTRACT disputes!!
Step 1 - If there an ENFORCEABLE COL clause, then follow that clause!
Step 2, If NO clause (or NOT enforceable), then use the TEST here!

NY Approach #2 - Governmental Interest Approach

Focuses on interests of a state and its law in resolving a particular dispute.
1) This approach PRESUME that the FORUM state will apply its OWN law, UNLESS a party can show that another state's law makes better sense.

2) BUT IF the forum state has no interest in the litigation, then the forum state will Apply the law of the state that does have an interest in the case

3) NOTE: FNC - If forum state has NO INTEREST in a case whatsoever, then that forum state court may on occasion DISMISS the case altogether

AND NY court adopts this approach's reasoning in many contexts. (e.g. property, tort, and inheritance law)

7 areas with Substance-Specific Rules

1) Torst

2) Contracts

3) Property

4) Inheritance

5) Family Law
6) Workers' compensation
7) Insurance litigation

NY COL for Torts & Neumeier

Where only one law is proper, so that the law courts will use.
Default, if the tort occurred between two NYers in NY, then NY law obviously apply.

BUT,
If more than law MIGHT apply, then New York Courts apply the GI approach.

1) Contacts (what contacts are a) in this suit and b) where are the contacts located)
--domicile of the parties
--AND, location of the tort.

2) AND, Purpose: Is the purpose of the pertinent tort law to regulate conduct or to allocate loss?

Is the purpose of the relevant law to regulate condcut, THEN NY courts usually apply the law of the STATE WHERE the tort occured.

If the relevant law's purpose is to ALLOCATE LOss, then follow the Neumeier rules (NY case)

NY COL for K

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NY COL for Property

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NY COL for Inheritance

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NY COL for Fam Law

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NY COL for Worker's Compensation

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NY COL for insurance litigation

...

Neumeier Approach (only where law allocates loss, e.g. limits liablity, grants immunity, dictates contribution, etc.)

Again where tort is about loss allocation issue:
Same Domicile Rule - apply the law of that shared domicile

OR

Split Domicile Rule - then apply the law of the place of injury (w/ exception for when

Law of the Situs (law of the place of a particular thing or event)

This law involves:

1 - Real Property

2- Tangible personal property
(resolved by law of D's domicile)

3- Intestate succession to real property
(determined by the law of the place of the real property).
4 - Success to real property by a valid WILL
(determined by the law of the place of the real property

NOTE: a testator can CHOOSE to have NY Law apply to his will, so long as the choice is valid.

Family Law - Marriage

Valid so long as in compliance with the law of the state where marriage took place.

Full faith and credit clause req

FFC recognizes the marriage, unless running afoul of very pwerful public policy.

e.g. bans on incest, bigamy, marrying kids; AND in some states (per DOMA?) same-sex marriages.

Fam Law - Divorce

NY courts apply the law of the plaintiff's domicile in such proceedings

Fam Law - Premarital agreements

Generally, NY uses the law of the state with the MOST SIGNIF Relationship to the relevant matter, when determining the enforceability of such agreements.

Fam Law - Marriage and Property

For pre-marital property, law of the SIUTS controls for real prop;
AND the law of the Domicile controls for personal property

For real prop acquired DURING the marriage, then the law of the situs controls.
and Recall Property acquired AFTER the marriage: Not marital property!

Family Law - Legitimacy

Apply the law of the domicile of the PARENT whose parental relationship is in question

Fam Law -Adoption

NY applies it OWN law

Worker's Comp

SCOTUS: Any state with a legit interest may apply its law, which may be where

1) the employment relationship was entered

2) OR, the injury occurred

3) The principal employemnt took place; or

4)

What happens if court decides NY's WC law does NOT apply?

Here, then the court DOES NOT APPLY some other state's WC, but INSTEAD the court DISMISSES the case.

Leaves the employee to file its claim ELSEWHERE

Contrast: In other non-WC settings, NY courts will apply the other state's law.

AND note: Employer and Employee MAY choose which state's WC law apply BY K, assuming the K is VALID.

ANalytical NOTE: NY courts compare NY's WC law to another state WC law before deciding whether or not to apply NY's WC law.

NY - Choice of Law Defense - Defense to Application of Foreign Law

This defense says it inappropriate to apply ANY law that is NOT NY's own law. Three flavors

1) Procedural

2) Contrary to Public Policy

3) Penal Laws

Procedural COL defense

A defense that asserts
1) NY courts ALWAYS apply NY procedural law (rationale: Control of Process)
2) and thus that the foreign law itself is procedural, and THUS NY procedural law controls, not foreign law.

Rule: What counts as procedural:
1) proper forum rule s

2) Proper form of action rules

3) Sufficiency of pleadings rules

4) Cause-splitting rules
5) Joinder Rules (of claim or party)

6) Joinder

7) Venue Rules
8)Discovery Rules

9)Jury Trial rules

10) Service of Process rules

11) Trial procedure rules;

12) Enforcing judgment rules.

NOTE: The forum state's law is generally applied in order to determine whether a law is substantive or procedural.

Other "sorta" procedural rules (i.e. may be construed as substantive)

Burdens of Proof (but NOT when clear that the burden is intended to SHAPE a party's SUBSTANTIVE rights)

SOL - (NOT necessarily in all settings, such as
1) Rights - the SOL restricts a statutory right and NOT JUST a statutory remedy.
2) Prescription/adverse possession - IF SOL vests as a result of prescription or adverse possession, then deemed substantive and thus, foreign law will control; AND
3) Borrowing statutes (i.e. barrings suits that would be precluded in other stats' courts by those states' SOL).
--NY's applies only if the COA accrue OUTSIDE NY state.
-If the out of state COA accrues IN FAVOR of NY res, then NY law still will control.

Statutes of Repose , SOFs, and Laws dictating survivorship (deemed substantive)

limit the time in which an action may be brought, re

Substantive

Damages

Generally treated as substantive

Evidence

Many are deemed procedural (so NY rules apply), UNLESS:

1) PER (substantive, so apply law of state that dictates the validity of the relevant K)

2) Privileges are also treated as substantive, but no uniformity under NY case law. Recent cases suggest using a version of most signif relationship or govt interest approach test to resolve Q of whether or not a privilege is substantive or procedural (i.e. which state has the greatest stake [NY or the other state] in the claim in this case)

Public Policy

Ny courts will REFUSE to apply laws that are contrary to the own public policy. BUT the concerns must be FUNDAMENTAL, and STRONGLY HELD. More than a mere variance. Thus, forum court, must CLOSELY scrutinize the foreing law, and the forum state's public policy.

Must be repugnant.

NOTE: Under GI approach, this defense is NOT incorporated, so the forum state applies its OWN public policy affirmatively, to decide that it will apply its OWN law.

Penal Laws

One state will NOT enforce another state's penal laws.

NY applies ONLY NY's penal laws, but only covers ONLY Actual criminal prosecutions, NOT civil actions involving monetary sanctions.

Note, RST 2d specifically excludes wrongful death actions and cases based on Statutory liability of officers/directors/SH of corps for debts

Limits on Choice of Law provisions

These can be:

1) US Constitution (DPC, requiring suff. contacts w/forum state/, and FFC to public acts, records, AND judicial proceedings of EVERY other state, BUT not to apply another state's law in violation of its own public policy.)

2) Statutory Limits
AND
3) Contracts and Party Choice

Due Process Limits

The significant contact to meet and not exceed this limit can be:
1) the tort happened in NY

2) The K was formed or breached in NY

3) The property sits in NY; or

4) The defendant lives in NY.

NOT enough that the action was brought in NY's courts, nor is it enough that plaintiff once lived in NY

Statutory Limits

In direct limit on COL, where, for example, Federal Laws give exclusive jurisdiction over certain disputes to federal courts (e.g patent disputes, antitrust and bankruptcy matters).

Contracts and Party

Parties may, themselves, choose the law to apply to a particular dispute. Where the K is truly valid, the courts will typically enforce the choice of law clauses, UNLESS:

1) The K itself is INVALID

2) The COL clause is inapplicable to the relevant dispute

3) The COL is too unrelated to the lawsuit;

4) The COL runs afoul of public policy, AND the foreign law chosen is truly obnoxious.

Erie Doctrine (when to apply state law in the federal courts, when sitting in Diversity Jurisdiction)
(goal, for fed courts to run as surrogate state courts).

Under this doctrine, if a law is substantive, then the federal courts apply state substantive law to state-law claims, but they may use federal PROCEDURAL law.

Issue What counts as a SUBSTANTIVE law, and what qualifies as a PROCEDURAL law.

Substantive:
Elements of a claim
Defense
Privileges
Burdens of Proof

VS.

Procedural:
Pleading
Discovery
Services of Process

When sitting in Div J, fed courts do more than aply state substantive law, THEY ALSO follows THAT STATE'S COL RULES!! (i.e. that fed court sitting in NY, and in DIV J, does NOt AUTOMATICALLY apply NY law to every state law claims, but rather mimics what a NY course would do under NY's choice of laws rules!

Sources of guidance on matters of state law, to federal courts

1) State Const
2) State statutes
3) State common law (ie. state's highest court are authoritative)
--if the SHC is silent, then Feds MUST TRY to guess what the SHC would do if face with that question
--OR, the fed may look to lower state courts opinions for insight
--OR, may try to ask for input vai certification of the question to the State's court (even highest) itself.

New York courts ARE required to take judicial notice of the laws of a foreign country IF (3 elements)

1) When a litigant makes a request to the court to take judicial notice of the laws of the foreign country;
AND
2) and provides notice to each adverse party of his intent to do so;
AND
3) When a litigant provides the court with sufficient information relevant to its determination of whether to take judicial notice of the laws of the foreign country.

Recognition/Enforcement of Foreign Judgments (Where, When, and How?)
Const. Provision

Once state must give FFC to the judicial decision of another state , assuming
1) FFC reqs are met
and 2) No defenses against FFC apply.

FFC

As a general rule, required to recognize and enfroce foreign judgment IF:
A court of competent jurisdiction had rendered a final judgement afer and based on the merit of the case

1) Jurisdiction - court had to have had jurisdiction by that foreign' court's own terms/rules

2) Finality - the judgment was rendered final (i.e. under the laws of the rendering state)

and

3) On the Merits - VT judgment must have been made on the merits - That is it must have reached the substantive issues in the case.

REIT: ( The judgment was rendered by a foreign court of competent jurisdiction and was made on the merits rather than on procedural issues. AND The judgment was finalized under the laws of the foreign court and NO oustanding appeal!)
I.e. Second law always look to the law of the first, in order to detrmien whether FFC applies.

If FFC is proepr (b/c the req met, then the initial decision be enforced with preclusive effect (i.e. claim preclusion as res judicata, and collateral estoppel issue preclusion) (that the rendering state's own law would give).
NOTE: IF the second court is a FEDERAL COURT (i.e. not another State court), then you rely on the FFC ACT (statute!), NOT on the FFC of the US Const., even though anlayis are the same.

If the
AND ASSUMING NO DEFENSES APPLY!

Defenses to FFC

Penal Laws (not going to enforce penal judgments of other states)

Inconsistent judgments (NY won't recongize all conflicting judgement, so NY courts generally choose to recognize the most RECENTLY rendered judgment

Equity - in a narrow class of cases, namely those of FRAUD, equity may PERMIT NY courts to refuse to recognize state judgement
- NOT of intrinsic fraud (e.g. perjured testimony
Extrinsic fraud

No defense via MOL or MOF (i.e. can only be raised on direct appeal, NOT as a COLLATERAL ATTACK

Are collateral attacks allowed?

Generally, yes, but not likely to be successful.

Foreign COUNTRY judgments

Usually governed by Treaty OR an Act, such as the Unfirom FOreing Money Judgments Recognition Act (UFMRA), which provides that states recongize jdugements Granting OR denying specific sums of money,but NOT those judgements involving:
1) taxes
2) alimony
3) child support
4) OR penal damages

AND if no treat or FMJRA application, Court guides itself by discretion and comity.

Discretion requires asking

1) Whether foreign court had valid jurisdiction under which it issuea final judgement (and NO outstanding appeals!), issued based on the merits of the case
AND 2) wheher the foreign court implemented fair procedures in hearing the case.

NOTE: Even if Americna court chooses to recognize a foreign country judgment, thant that court's OWN method of enforcement controls, NOT the foreign countries.

Divorce Decrees Rendered by Other States Courts

General rule is these are entitled to FFC, so long as

1) Issuing state had jurisdiction to render the decree

2) AND the decree is valid in the issuing state

Applies to bi-lateral divorces

ANd even EX-PARTE divorces issues by court with PJ over only one spouse, BUT not given to COLLATERAL issues in EX PARTE Divorces (e.g. propety, custody, and alimony), UNLESS, both spouses agree to having the collateral matters enforced in different jurisdiction.

Child Custody judgments

WHere all 50 states are parties to the Unform Child Custody

Child's home state may make INITIAL custody decisions.
AND such decisions respected by all other states.
BUT CHANGED ONLY IF the initial state lost ALL connection with Parent AND the child.

Decrees from other nations (Via comity only and reqs of domicility)

NY will usually recognize foreign nation divorce judgements as a matter of COMITY, if the reqs of the domicility are met.

Matters of property, custody, alimony, and the like are considered AS IF the decree came from ANOTHER AMERICAN state.

Superior Court

and Superior Court Jurisdiction

3 parts of this Court
- Appellate (final Super court judgments; of Law,Chancery, and of tax court)
-Law (Trial Court)(General part, Sp<15K part, Smallclaims <3k part)
- Chancery Division (Trial court) (General Equity party; Family part; Probate part)

Trial courts are of GENERAL J (i.e. can exercise SMJ of state OR fed ct), because NJ trial courts have CONCURRENT jurisdiction, UNLESS Congress makes power over federal claims EXCLUSIVE to FEDERAL jurisdiction.

ALso, even when DIVERSITY is met, this court takes cases of:
Probate Matters (Chancery Division's Probate Part)
Domestic Relations (Chancery Division's FAMILY part).

Personal J, via In Personam Jurisdiction

BECAUSE NO LAS in NJ, this is met by either (5 circs)

1)Personal service in New Jersey while voluntarily present (i.e. no fraud or force)
2) Entering a general appearance without objecting to personal jurisdiction
3) Contractual consent to personal jurisdiction
4) Domiciled (NPs) or Incorped (Entities) in NJ
5) OR MCs
-----
AND FOR 14A purposes (i.e. circ 5):
The defendant has "minimum contacts" and purposeful availment with the jurisdiction.
The exercise of jurisdiction is fair and reasonable.
The defendant is notified and has an opportunity to be heard.

Immunity

...

Venue

NJ courts divided by county

Depends on statutorily-specified types of actions

Real Prop actions - properly heard where the real estate is located

Actions against public entities -

Attachment actions -

Probate Actions - where the decded DIED. IF not Ded in NJ, then where there is ANY estate prop in a NJ county

Family part actions
--welfare/support/status of child - where the child is domicilied
-- Divroce/annulment--First (1) where P was domiciled,
----(2)if NOT (1), then where D is when the claim arose
-----(3)If not (2) or (1), then where P is domiciled when COA arose
-----(4) if not (3)

Change of Venue

Threshold: A party must make a motion for this no more than 10 days after expiration of the time for the service of the last permissible responsive pleading, (or if action is summary action, on or before return date). OR ELSE, FACE WAIVER!!

Can be ordered by Superior Court Judge when:
1) Initial venue not peroply laid in accoradance with the rules
2) there is substantial doubt that a fiar and impartial trial can be held in the INITIAL venue
3) a change would be convenient for the parties and W, AND in the interests of justice
4) OR, the the change would allow consolidation of cases from other counties, ONLY if all claims involve a COMMON QUESTION of law or fact, arising out of same transaction or series of transactions.
5) OR, WHEN a family part psot-judgment motion made, AND both parties reside out the county of original venue, AND application made to the court by either party to change venue to a county where one of the parties now live.

Forum Non Conveniens

Applies in NJ, and so allows a NJ court to delicne jurisdiction whenever the ends of jutice indicate that trial in the forum selected by P would demonstrably inappropriate for the trial of the matter.

Elements: Applies when:
1) Forum would be too inconvenient fo rhte parties, AND for the Ws
2) AND another, MORE convenient forum is availab.e.

Commencement of Proceedings

1) First file a complaint (i.e. not comenced by needing BOTH SUMMONS and Complaint served on D)

2) Then court assignes EACH action to one of the fourth litigation
3) THen court gives P a TAN w/in 10 day

Confidential Personal Identifiers in Pleadings

Includes redactions for:
SSNs
Driver's License #
Vehicle License plate #
Insurance policy number
Active financial account #s
Active credit card #s

Service of Process

...Sheriff can
P's attonrey or agent
Private Process Server
Any competent adult who has NO direct interest in the lit

Process may be served on an individual defendant or on any competent member of his household over 14 years old.

Service of process may be completed using certified return receipt requested mail if reasonable attempts to personally serve the party failed.

NOTE: The person serving the party may voluntarily file proof of service. (ie. SOP's validity is NOT affected, if proper, by failure to file proof of service).

HOW
1) To Individuals:
a) to D DIRECTLY,
b) OR left at the abode w/ a competent houlsed member at least 14 years of age
2) OR, on a partnership (to any General Partner)
3)Corp
a) any Off, Dir, Trustee, Managing or General agent
b) A

Complaint

---must state facts upon which the claim is based showing the pleader is entitled to relief.
---must include a demand for judgment for the relief to which the pleader deems herself entitled.
---Different types of relief or relief in the alternative may be demanded in the same pleading like this.

Time for Service

...

Defenses by Pre-Answer Motion

...

NOTE: These 6 above can be raised in the answers itself, BUT if what is raised is either
(lack of PJ, Insufif proccess or Insuff SOP, AND asserted in the ANSWER itself, then you MUST (1) file motion to dimiss, (2) w/in 90 days, AFTER service of the answer, OR ELSE YOU WAIVE THESE particular assertions!!

Motions to Dismiss in Malpractice Cases / Affidavits of Non-Involvement

...

The affidavit must assert that the defendant was not involved in the treatment or care at issue.

The affidavit must assert that the defendant was not required to provide care.

AND If the affidavit is inaccurate or false, the court can sanction the party.

- NOTE: Abuse of this process can lead to reinstatement of the claim against the provider, either upon motion, or upon court's own inititive, AND such reinstatement NOT barred by SOL defense that was NOT valid at time original action was filed
- COurt can also impose sanctions
- AND MUST refer to matter to the Attonrey General
-AND to appropriate professional licensing board for further review.

Denials

...

Time for Filing Answer

...

Affidavit of Merit

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Amendments as a Matter of Course

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Fictitious Party Rule and Relation Back

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Time to Respond to an Amended Pleading

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Sanctions

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Entire Controversy Doctrine, p. 64

(SUPER important)

Requires joinder of the following claims related to a single underlying transaction: All legal and equitable claims by all parties

Cross-claims

Under NJ rules, these (and counter-claims) are PERMISSIVE by one party against a coparty, EVEN if NOT related to any other claim in the case.

Mandatory Disclosures

...

Scope of Discovery

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Expert Witnesses

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Amendment of ANswers to Interrogatories

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Timing of Discovery

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Oral Depositions

NO LIMIT, UNLIKE FRCP

PROVIDE 10 days

Notice of Deposition

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Videotaped Depositions

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Availability of Interrogatories

NO limits, but courtr can limit this number o protect party from annoyance, expense, aembaraassment, or oppression.

Timing of Service o...f Interrogatories
(When to serve)

...

Answers and Objections to Interrogatories

Wihtin 60 days after being served with the interrorgatories

If you object to a Q, either answer the Q by stating the Q is improper, OR Within 20 days after being served, file a notice of motion to STRIKE any Q.
If NO obejction to any question, then

Timing of Response

...

Physical and Mental Exams

...

Requests for Admission

...

Motion to Compel

...

Failure to Comply with COurt Order and Failure to Make Discovery

Under NJ rules, the enforcement action depends on the type of discovery device used (and consequently the type of delinquent response to that action)

If party (DOP) fails to obey an order to PPD, court MAY impose sanctions listed under Federal Rule 37 (8 flavors):

i) Matter addressed becomes established (i.e no longer in dispute) as fact in the action
ii) That DOP is banned form supporting or opposing designated claims or defenses in the pleadings
iii) That DOP is banned from introducing designated matters into evidence
iv) Court can stay further proceedings, until the order is obeyd by DOP
v) Court can DISMISS entirety or part of the ACTION
vi) Court can STRIKE entirety or part of the PLEADINGS
vii) Render a DEFAULT Judgement AGAINST DOP
viii) Treat DOP's failure to obey any order (EXCEPT order to submit to PM Exam), as CONTEMPT of Court.

Automatic Disclosures

...

Mandatory Arbitration

This is mandatory for:

1) Auto negligence actions
2) Personal injury actions (exect prof malpractice or Prod Liablity)
3) Actions on a book, account or instrument of obligaiton
4) Personal injury protection claims against a pliantif's insurer

Voluntary Dismissal

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Right to Jury

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Jury Size

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Requirements to Reach a Verdict, p. 95

...

Peremptory Challenges

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Additur

...

NJ Supreme Court (7 powers)

Power to
- make rules governing NJ courts' admin
- to admit attorneys to practice of law
- to discipline admitted NJ attorneys
- to hear appeals as of right for cases of a SUBST> Q under NJ or US Consts.
- Hear appeals as of right when a judge of APPD dissents in that case
- Hear Appeals as of right in cap punishment cases (but CAPP abolished now)
AND,
- To grant review upon a discretionary certification

Personal Service within New Jersey (IPJ 1)
w/ 2 exceptions (but ONLY 1 for NJ)

Where
1) D voluntarily present in NJ
2) While in NJ, D is given SOP.

3) NOT, If D's presence in NJ is procured by for force or fraud.

4) BUT PERMITTED for Def who enters NJ SOLELY to be in the judicial proceeding

Def's domiciled or incorporated in NJ (IPJ 2)

For NATURAL person, Domicility in NJ - IPJ
(must define Dmociility- 1) estbalished presence, 2) intent to remain permantnelty)
(Note: So SOP need not be in NJ, can be wherever you are located!)

For CORPS - incorp in NJ, establishes IPJ over a corp.

Consent to IPJ (IPJ 3) by an out-of-state D;

For P's - exists b/c you file the lawsuit

For D - can be express (e.g. via contract)

General Appearance with out Timely Objection to IPJ

...

Service of Process out-of-state (i.e. Minimum contacts test under out-of-state's LAS)

Analytical Approach:
Here, you will undergo the Due Process Clause's required Minimum Contact/FPSJ test (i.e. firs the OOS's LAS, and then the DPC MC/FPSJ test)

Affirmative Defenses (as in Federal Rules) (18 of them)

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Deadlines to Pleadings

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Key Article 9 Terms

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collateral

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4 types of Article 9 goods as personal prop

Goods;

Farm Products;

Inventory;

Equipment

The debtor's use of a good dictate the type of good.
Can ONLY fit in ONE type AT ONE TIME.
BUT, OVER TIME, the good CAN move from one type to another.

Consumer Goods

...

Farm Products

1) ONLY where the debtor is FARMER,
2) and are crops, livestock, or products of livestock

Inventory

Goods held for sale or lease by the debtor
OR
Goods that are used or consumed in the operation of a biz.

Equipment

Residual category of goods.

Types of non-goods (or intangible goods)

Account (arising from an Article 9-specified transaction)

Instrument

Chattel Paper

Deposit Accounts

Documents

Investment Property

General Intangibles (residual cateogry)

Attachment

...

Perfection - different methods

...

Perfection by Filing a Financing Statement

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NY preliminary admissibility standard - Conditional Relevancy

Here, NY has a variety of preliminary standards

NY asks whether fact could be found rationally

note more use of CCE stnadard

Co-conspirator hearsay exception

...

Prior bad acts for propensity

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Authentication of physical evidence

...

Forfeiture by wrongdoing exception

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Handwriting comparison

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Judicial Notice

and exception to the NY rule for JN

Discretion for use of ADFs or LFs,

Required of fed and state public statutes and constitutions, and of the common law.

In New York, courts must take judicial notice of state constitutions and state laws, even without request; federal law has no provision for judicial notice of legislative facts.
In New York, courts may take judicial notice of private acts of the United States Congress and the New York legislature, even without request; federal law makes no such provision.
Under federal law, a court must take judicial notice of a fact if requested by a party and supplied by that party with proper supporting sources; under New York, the court has discretion to do so.

Burden Shifting

...

Balancing Test for Relvance

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Proof of Character by Criminal Defendant

NY recognizes this for:

1)

2)

BUT NOT 4)

Evidence of Victim's Character when offered by Criminal Defendant

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Admissibility Standard for Character

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Habit Evidence

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Character evidence of defendant

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Conditional Relevance

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Prior Bad Acts of Defendant

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Prosecutor's Right to Rebut Character Evidence Offered by Criminl Def.

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NY's 6 rules as to Witness Competence

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NY's rule as to W's exposure to Liability

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Impeachment

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NY's Voucher Rule, and Exceptions

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NY rule on Introduction of Evidence of Character for Untruthfulness or Truthfulness

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New York rule on admissibility of prior bad acts

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NY rule on admissibility of Prior Convictions for IMPEACHMENT purposes

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NY rule on admission of prior inconsistent statements

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NY rules on expert Ws

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Eyewitness IDs

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False Confession Expert Testimony

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Standard for Admission of Scientific Evidence

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Authentication of Tangible Evidence - Standard of Proof in NY

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Authentication of Tangible Evidence - ANcient Documents NY

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Tangible Evidence Authentication - Writings in NY

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TEA Business Records

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TEA of Newspapers and Periodicials

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TEA of Testimony of Subscribing W

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TEA of Duplicates (and note THREE exceptions)

These are generally inadmissible, but "three" exceptions:
• Two exceptions:
o Accurately reproduced business records - Photocopies or faxes.
o Protected copies - Duplicates of a writing by a process that stores an image that cannot be altered without leaving a trace of the alteration.
• Note: A page from a multi-copy form, i.e., customer copy of a receipt, is considered an original.

Privileges - NY's prereq

1) Requires confidential communication
- NOTE: if the asserter/holder KNOWS that the communication is NOT considered private (e.g. EMPLOYEEE EMAIL!), then the privilege does NOT attach.
2) Not communicated to an UNNECESSARY third party

3)NOT WAIVED

4) okay

Spouses' Privileges in NY - what is RECOGNIZED, and WHat is NOT recognized

NO testimonial privilege between spouses, BUT two exceptions

BUT there is Confidential Communications Privilege
-NOT applicable in three situations

ACP in NY

Recognized, with two exceptions (i.e. about dead people)

- Not estate's beneficiary (b/c not the estate attorney's client

PHysician-Patient Privilege

...

Psychotherpaist Patient privilege

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Social Worker-Client privilege

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Clergy-pentitent privilege

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Library records

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Child-to-Parent privilege

- Not from Parent to Child

Rape Counselor-Client privilege

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Professional Journalist Privilege

...

Subsequent Remedial Measures in NY - two rules

- Allows in SL cases that claim a manufacturing defect

- and blocks in PL actions for asserting design defects or needs to war

Offers to pay evidence in NY

same as FRE but

and depart

Plea Negotiations in NY

...

Victim's Past Sexual Conduct in NY

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Def's Past Sexual Conduct in NY

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Prior Statements of Testifying W - in NY

3 rules

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Prior Statement of Identification in NY

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Opposing Party Statements in NY

Defined as EXCEPTION to hearsay rules

Adoptive Statements in NY

A shrug by a def whose accomplice named him as as a perp is and

Vicarious Statements in NY

Requires AUTHORIZATION for agent to speak on the event or made the statement AND did so AS the event was

Co-conspirator Statements in NY

Only prima facie evidentiary finding, but WITHOUT reference to the statements themselves to be introduced.

Unavailable Declarant Rule in NY

VARIES according to the exception that applies.

Former testimony in Criminal Actions in NY

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Former testimony in Civil Actions in NY

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Dying Declarations in NY

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Statements Against interest

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Pedigree Exception

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Present Sense Impression in NY

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Statements of Condition

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Statements for Medical Diagnosis or Treatment

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Business records

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Public Records

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Learned Treatises

No admissible for substantive evidence, can only use for impeachment purposes.

Scientific Works

Generally NOT admissisible when offered for their trust, but may admissible for other purposes

Prior Judgments in NY

NOT a compareable as in NY

Forfeiture by Wrongdoing

...

Catch-All Exception

NOT in NY, must either
1) meet one of the exceptions
OR
2) be a civil matters, and where writings necessary to determine the issue,
3) then admissible either as impeachment OR as substantive evidence, IF Statement must be written under conditions that assure accuracy and truth;
Statement must be necessary to fairly adjudicate the issue
; but victim statements are USUALLY NOT admissible.

Trust

this is a bifurcation of title into legal and equiable title.

RAP

Always applied against Future Interests

Limits uncertainty, by requiring all equitable interests in that trust to become certain (not necessarily possessory) w/in the perpetutiies period

Contingent interests must or open classes w/interests must vest within the perpetuities period (i.e. 21 years from death of a life in being AT THE TIME OF THE conveyance.

This includes analysis of Savings Statute, and Suspension Statute.

Saving Statute

A rule of construction that, when the grantor creates a specific contingency, the EPTL provides a presumption that the parties intended that the contingency would occur w/in 21 years FROM THE DATE OF THE INSTRUMENT, in order to rescue the transaction from being voided.

Suspension Statute

Prevents fragmentation of an estate PAST the perpetuities period by requiring (a) some combo of people actually existed DURINGthe perpetuities period (b) be capable of conveying fee simple ownership of the property DURING the perpetuities period.

Thus, while passing RAP, then fails Suspension Statute.

Hint: Look for fragmented ownership or contingent interests that eist over a period of time.

Merger Doctrine

Limited as long as there is some other beneficiary, even a contingent remainder beneficiary, and the court may even appoint a co-trustee to avoid this doctrine,

otherwise, when trustee nad B are the same, then the equitable and legal interest MERGE, causing the trust to become an outright gift.

Trustee

Hold legal title, but if not named by settlor in the trust interest, then the court can appoint one.

Typical reqs for Express Trusts

1) Intent
2) Trust property
3) Valid Trust purpose
4) Beneficiaries

And in NY:
Must have in writing, signed by the settlor AND trustee
AND either
(a) notarized
(b) OR executed in the presence of the two SUBSCRIBING Ws

Thus: Oral declarations of trust are MOST LIKELY invalid in NY.

Intent req for an express trust

1) No special lange required
2) Selttlor need only intent to split up title into equitable and legal title to property
3) MUST manifest either Before, OR at the time of the property's conveyance.
NOTE: Owner either

1) Settlor expresses just mere wish or desire (i.e. just precatory language, which if, in a trust instrument, reflects a poorly-drafted trust instrument.

2) Failed gifts (that MAY be construed as a trust, to save the gift)

"Trust Property" Req

Can be any actual property interest

BUT NOT mere expectancy (e.g. NOT trust profits.)

"Trust Purpose" Req.

Created for any purpose that is NOT illegal and NOT in violation of public policy
(e.g. restraint on marrying ANYONE).
hint: look for ONEROUS terms.

"Trust Beneficiaries" Req.

There must be one or beneficiaries who sufficiently definite to be capable of enforcing the trust's terms against the trustee.

Beneficiary must be ascertained or ascertainable at the time of they are entitled to take their interest.

Settlor

The creator of the trust
The grantor of trust property
Must be at least 18 years of age and be capable of entering into contracts

Inter vivos trust

Created during the settlor's life

can be revocable or irrevocable

NY presumes it is REVOCABLE

revcaoble by settlor at any time during settlor's life.

Testamentary Trust

EITHER
Created AT settlor's death (Created BY A WILL, then like THAT WILL, this trust MUST follow Will Act formalities.

OR
Created INTER VIVOS (i.e. a POT)
which means this trust gets INCORPORATED by REFERENCE into a will (and thus need not comply with will formalities.).

Pour over trust (POT)

a form of inter vivos trust, except it is funded with trust property at death of the settlor.

Totten Trust

A form of joint bank account in which the deposit put sin money in trust for a beneficiary
- BUT NO BIFURCATION of title into equitable and legal title.
- Depositor retain control over the money
- Dep can use the money for her own benefit

AND
- can revoke at any time
thus, B has no conrol over the money
(contrasts with Joint bank accounts (which are also testamentary substitutes, ).

Life Insurance Trust

AKin to POTs, funds of the trust come from the payout of a life insuranc epolicy at insured's death

UTMA account

Adopted in NY
- permits gifts to minors by setting up a custodial account to manage the property until minor reages age of 21

The minor holds legal title to the account subject to the custodian's statutory powers.

Charitable Trusts

A trust that provides income and/or principal for LEGIT charitable purposes

NOT same as private trusts b/c
1) Not subject to RAP
2) AND the charitable purpose substitutes for the beneficiary

LEGIT CP is limited to:

1) Relief of the poor
2) Advancement of education or religion
3) Promotion of good health
4) Govt or municpal purposes
5) OR other purposes benefitting the public at large OR a particular segment of the community

B/c no specific beneficiary to enforce the trust's terms, THE NYS AG's Office has the authority to enforce this trust.

Strictly construed by the courts.

NOTE: If this trust fails, then anlayze whether a PRIVATE trust (b/c perhaps the beneficiairies are SUFFICIENTLY defined. (or vice-versa, b/c the purpose may fall within EPTL's categories for charity)

Trusts for the benefit of INDIVIDUAL PETS

Authorized by the EPTL, but expires after 21 years.

Cy Pres doctrine

Under the EPTL, allows for the terms of a charitable trust to be modified if the original purpose becomes illegal, impractical, or impossible to perform.

Remedial "Trusts"

Honorary Trusts

Resulting Trusts

Constructive Trusts

Honorary Trusts

Arises where settlor tired leaving property to an IMPERMISSIBLE BENEFIT that is NOT a chiratable purpose.

(e.g. a trust for care of a SPECIFIC grave plot...NOT a CHARITABLE PUROSE (b/c not public at large, so construe as this "TRUST" where money transferred ot the trustee, and trustee may, but not required to abide by the trust).

Resulting "Trust"

Where an attempted trust creation fails. But, the trustee does NOT keep the property outright. The trustee MUST return property TO THE SETTLOR.

Constructive Trust

An equitable remedy to prevent unjust enrichment in the event of some WRONGFUL conduct.
Sought where going to NY Supreme Court to exercise its

Elements are:

1) A confidential OR FID relationship between the transferor and transferee

2)A promise

3) A transfer of property in reliance on that promise

4) Resulting in unjust enrichment.

Rights of Beneficiaries (and Obligations of the , DEPENDING on the TYPES of trusts - 3 types

(either inter vivos, or testamentary)

Mandatory Trusts

Discretionary Trusts

or
Support Trusts

(refers to obligations of the trustee to the beneficiary)

Mandatory Trust

Where trustee is required to pay out no un-specified money to the beneficiary.

Discretionary Trust

Gives trustee discretion about how much to pay out (and sometimes to whom)

Look for terms that imply discretion
(absolute discretion; trustee may pay, or from time to time as trustee sees fit.

Beneficiary has NO claim to any specific payout

BUT Trustee CANNOT ABUSE the discretion (i.e. no arbitrary

Support Trust

Requires trustee to pay out to B in accordanc ewith some PRE-SPECIFIED OBJECTIVE standard

Thus trustee's discretion is CONSTRAINED, and must provide for style of life that B is accustomed to.

Rights of CREDITORS (TOrt or K) of Beneficiaries

Where a creditor right to trust property depends on
1) kind of trust

AND
2) Kind of beneficiary

Mandatory Trust

Creditor can get trust prop to the extent of the beneficiary can get the trust prop.

Discretionary Trust

Creditor does NOT have ANY access to the trust prop (b/c Trutsee w/greatest dsicretion in this turst).

ONLY TIME Creditor CAN collect ANYTHING: The DISTRIBUTIONS that the Trustee ACTUALLY PAYS to the B. (either TORT Creditor OR K creditor)

Spendthrift Trust

(i.e. great asset protection from judgment/debt collection)
AND an important PRESUMPTION

Offer control of mandatory trust, BUT also combines it with the ASSET protection of the DISCRETIONARY trust

Elements
1) MUST restrict B's power both to voluntarily OR involuntarily transfer the equitable interest.

NY rule: ALL trusts are PRESUMPTIVELY such trusts.

4 Exceptions (i.e. where creditors CAN get at this trust's assets)
1) Children and Spouses seeking family support (i.e. child support or spousal maintenance)
2) People providing NECESSITIES (doctors, gocers; EMT?)
3) The GOVERNMENT (tax LIENS)
4) Income beyond that needed to provide for the beneficiary according to his station in life (ie. EXTRA MONEY is not spendthrift-protected)

AND MORE EXCEPTIONS

Termination of a Trust - 2 flavors

By Consent

or WITHOUT Consent

note: AND may not be terminated by a court simply because the expense of administering the trust is uneconomical

Termination by consent in two circs

Either in
REVOCABLE IVT (lifetime trust) - terminated by the settlor, pursuant to the terms of the trust

OR IRREVOCABLE trust
Can be terminated with the consent of the SETTLOR; AND the BENEFICIARIES.

NY: A remainder in heirs or next of kin does NOT create a beneficial interest requiring consent.

Termination WITHOUT consent

Occurs b/c trust automatically terminates when the purpose is accomplished, MEANING under Claflin Doctrine, NO MATERIAL PURPOSE remains.

A MATERIAL PURPOSE depends ont he trust instrument's language.

Note: Spendthrift trust has a material purpose of asset protection for beneficiaries. THUS, the SPT's purpose remains as long as the beneficiairy lives, so NOT terminated until B dies.

Trust Modification rules

Modfiied if an UNANTICIPATED change in condition FRUSTRATES the trust's TERMS or PURPOSE.

I.e. MORE than just being BETTER of withthe modification.

.

Special Needs Trust

- provides EVEN greater asset protection and ongoing asset management, especially for an incompetent beneficiary.

REMOVING a trustee

A FORM of Modification

B's can seek this if

1) Incapcaity of the trustee (i.e. can't perform trustee duties)

2) Breach: T materially breached his duties

3) T's COIs (e.g. Sefl-dealing, ABSOLUTE prohibition
(EXCEPTION: IF COI was APPARENT to SETTLOR at time of TRUST's CREATION, then not removal gorund)

4) SERIOUS disagreement bet T-B or Co-Ts

5) OR Poor Performance because of trustee's actions or omissions.

Self-dealing by Trustee!

Absolutely prohibited. So trustee cannot buy or sell trust assets for HER PERSONAL cap. Thus there must be a NO-FURTHER INQUIRY. Trustee is AUTOMATICALLY LIABLE.

Trustee's Duties and Obligations

Duty of Impartiality - treat Bs with impartiality; can't favor one B over the others, UNLESS Turst instrument directs otherwise.

Principle/Income Problem
lifetime B - gets income from trust
remainder B - gets principal
Governed by the UPIA(uniform Princpal and Income Act

UPIA

Under this act adopted by NY:where Trustee can go to the court and have this statute applied to permits lifetime B a reasonable return of income in a given year, REGARDLESS of the actual amount of income that year. In applying the Act, the trustee MUST balance the following

1) The intent of the settlor and the express langauge of the trust instrument

2) The nature, likely duration, and purpose of the trust;

3) the identity and circs of the Bs

4) Relative needs for regularity of income, preservation and appreciation of capital, and liquidity

5) net amount allocated to income under other sections of the Act;

6) the anticipated effect of econ conditions on income an dprincipal; and

7) anticipated tax consequences of the adjustment.

BUT NOT SOUGHT if Trustee is also a lifetime B (COI!)

Exam tipL Look if One trust b making out better than other category of beneficiaries.

NY - Unitrust

Alternative to UPIA's reasonable rate of return

Under NY law, pay out fixed percentage of total trust assets to the income beneficiary.

Power of Appointment

This a delegation to some else in the future to decide WHO takes the FUTURE interests.

e.g. O gives prop to A for life and THEN TO WHOMEVER A DESIGNATES.

The grantor creates the power (typically the settlor);

The grantee holds the power;

The objects are people for whom the power can be exercised.

NOTE: SUbect to the RAP

Can be testatmentary powers (i.e. exercised by donee at the donee's death); OR IVT powers (exercised during Donee's lifetime)

Trustee Admin and Trustee Duties

Where T has all the powers over the prop as if it wer his own, unless otherwise provided, so long as udner Trust instruemnt direct
(e.g. Contract
Sell or lease
Transfer)

Trustee owes aboslute duty of loyalty and good faith to the Bs (no self-dealing, UNLESS a Bank is acting as Trustee. Thus can deposit the trust assets in that bank's own institution).

Duty to not commingle funds

Duty of Prudence (SOUND INVESTING) - See also UnPrudInvestAct - duty to invest consistent with MODERN portfolio theory:
Diversity investments;
Account for risk tolerance and investment horizon of the Bs;
(i.e. It requires the trustee to act as a prudent investor would.
It creates a duty of sound investing.
It requires the trustee to make informed decisions regarding the investment scheme.)
Keep a combination of stock and bonds, risk and security.

May have duty to sell and diversity a portfolio EVEN if the trust directs otherwise (i.e. go to court to seek a modification of the trust).

ALso dity to disclose

Duty to Account for trust assets

Promoter, and extent of liability for pre-inc Ks

SOmeone who takes action on behalf of a corporation before the corp is formed (eg. arrange financing or enter into K; preincorp services
ALSO required to put the PUTATIVE CORP's INTERESTS ABOVE of his own.

Pre-INc - K entered into on corp's behalf when copr not yet formed. So, Promoters are LIABLE, UNLESS:
1) the 3p to the prein K knows corp not formed yet, BUT still agrees to look solely to the corp once that corp's formed. (BOP is ON the PROMOTER!!)
2) OR, Uncess Corp formed, AND it enters into a NOVATION with the 3P to the contract.

Novation

A New k with exact terms as original K, but promoter is REPLACED by corp as a party to the K.
AND 3P is NOT under obligation to agree to such a new K

Corp's liability for Pre-Inc Ks

AND
Promoter and COrp both liable until novation.

Note: Promoter can't be a legal agent for a NON-existent princip

Exception to No liablity
Express adoption: BOD takes FORMAL action to adopt the K

OR, Implied adoption: When Corp, w/ full knowledge of K's existnce, ACCEPTS the K's benefits

RESULT:
Once Corp adopts the K, then BOTH the Corp and Promoter are liable (Although promoter may NOT be liable IF 3P and Corp enter into a NOVATION), AND Corp can itself enforce that K AGAINST the 3P.

Incorp procedrue

1) One or more incorps prepare and sign a doc called Cert of Incorp

2) Deliver to NY DOS for filing
3) Incorp is ANY Naturual Person over the age of 18 (usually just the promoter, or any attorney hired to do this)
a) NO liability for merely signing/delivering COI to NY state
b) NO liablity for pre-inc Ks (UNLESS also the promoter!)

Contents of COI - what MUST be in the COI

1) Corp Name (diff. from other existing NY corps, and type of corporate entity)
2) Corporation, Incorp, or Limited (to later public they deal with a limited liability entity)
3) Statement of Corp's puprose (Specific or Generic ok)
4) Corp Duration (if LIMITED , then MUST state it, OR ELSE your COrp has PERPETUAL EXISTNECE!)
5) County location for Office of Corp IF in NY, OR, IF NOT, then REgistered Agent (w/ statement that such agent is corp's agent to accept service of process

6) Authorized Shares (State aggregate number of shares of stock that corp allow to issue, and par value, if any, of those shares)

7) Sec of State Designation (if NY domicilied PrPoB (to receive service of process against the corporation (plus address where Sec can send copy of any process it receives)

Contents of COI - what MUST NOT be in the COI

1) No state police, chamber of commerce, or board of trade
2) Not financial institution related terms UNLESS you get permission of NY Superintendned of Banks, or of Insurance, as proper

Contents of COI - what MAY be in the COI

1) enumeratecorporate powers that copr possesses, OR just rely on what BCL allows as IMPLIED powers

2) Exculpatory charter provision (absolves the DIrectrom from Pers Liablity for NEGLIGENT biz decision
(BUT NOT bad faith, illegal, OR done for improper personal benefit

3) AND, other provision so long as LEGAL and RELATION to corp's biz or affairs

Organizational Meeting

ONLY after COI has been filed
THEN
1) Incorporator holds this, at which
2) adopt corp's INITIAL bylaws
3) AND Appoint initial Directors who hold office UNTIL first annual SH's meeting.

Effects of Proper Incorp

1) This is a DE Jure Corp
-Properly formed under the law.
- ONCE the COI is received by DOS
- AND FILED by DOS

2) AND Limited Liability

3) But SH can lose ther investment, NO more than their Investmene
4) Creditos can't go after personal assets of SHS if Corp lacks money to pay creditors

5) BUT NOT IF Court pierces the corporate veil

One of 2 effects of DEFECTIVE Incorp

1) Lack of good faith effort to incorp - you are promoter and face personal liability for the "nonexistent" corp's role

OR 2) If GOOD Faith effort to incorporate to comply with NY BCL formation req
a) Owner must make GFE (e.g. prepare and sign a COI , AND then ATTEMPT to deliver it to the DOS for filing
AND
b) Owner MUST operate the biz as if it were a corp
AND
c) Owner MUST not know that the incop req HAVE NOT been meet.

I.E.
Good faith effort to incorporate
AND, Owner operates business as if a corporation
AND, Owner believed he was fulfilling statutory obligations

REsult if GFE :Biz becomes a De Facto Corp; Owner becomes a De Facto SH, and thus NOT liable for obligations inucrred in the corp's names (i.e. Onwer gets LL!)

Corp by Estoppel doc?

NOT recognized in NY

So, a person who THINKS he's dealing with a corp does NOT estop that person from suing the defective corp's OWNER PERSONALLY.

Piercing the Corporate Veil

In NY, while LL ordinarily protect personal assets of corp shareholders, the exception is where necessary to
1) prevent fraud or illegality
2) OR to achieve equity
Which is all called PCV

Factors

- Shareholds carrying on the biz for personal GAIN, AND not corp GAIN.

- Corp for illegal biz, or perpetuate a fraud

- Ignoring Corp formalties largely or compleltely, like : no stok certs issue; no annual sh

- the corp is NOT adequately capitalized (amount of SH's investment in corp is "trifiling" compared to biz to be done and to the associated risks.

Ultra Vires action

Where the corp LACKS power to engage in a certain action because such action is in excess of or beyond corp's purpose stated in the COI (express powers) or BCL (implied or general powers)

Who can challenge such actions (i.e. Who has standing to assert this is happening?): a) shareholder, to enjoin or stop it
b) Or NY state to stop or enjoin
c) Or Corp against directors, officer, or employee who engages in this action

3 Corp instruments control Corp Governance

Order of Importance

COI

Bylaws

BODs resolutions

If any conflict, the COI TRUMPS the other two, followed by the Bylaws

COI

This must be filed with NY DOS to incorp the biz;

May have provisions about corp governance

How to amend

Amending COI

Minor errors or inaccuracies? Just use a cert of correction (but NOT for corp name change)

Signfificant changes (incl. name change)? Need a Certificate of AMENDMENT
- ID each provision of original COI for amending or elminated
- Include substitute or added provisions

WHO can amend?
IF no SH or Subscibers contractually required to buy shares? Then just incorporators
BUT IF SHs, then Majority of OUTSTANDING SHARES can vote on approving amnemdent

Bylaws

Concerns and govern corp biz and conduct of affairs

- Deatils about SH meetings, BOD meetings
- Notice to the meeting
- Quorum reqs
- Voting res
- Number of Directs
- How to fill vacancies
- Types of commitees that board may form
- Types of officers the corp may have

WHO w/last word on bylaw adoption? the SHAREHOLDERS (though they can share them if provided so in COI

BOD's Resolutions

Written record of the BOD's resolve that corp take certain action
-Documents corp's authority to engage in certain actions

Shareholder Meetings (2 types)

Eiether Annual or Special

Annual - A CORP required to be held each year on the date specified in bylaws

Consequence:
NOT effect on corp's existence,
and NOT invalidation of biz conducted by the corp
BUT an SH can get a court order to compel corp to hold annual meeting, IF Corp refuses to.

Special Meeting - so

Notice of a Meeting- 60-10 rule

Notic MUST be given, to SHs, no more than 60 days, AND NO LESS than 10 Days before the meeting date.

If SPECIAL meeting, then must:
1) State who is calling it
2) AND purpose of that meeting
3), AND ONLY that biz may be done at the special meeting

Voting Reqs for a SH meeting (e.g. the RECORD DTE)

Only SHs of RECORD at close of biz, ON that record will be entitled to attend and vote at upcoming SH meeting

Exceptions
1) Beneficial owners oshares in PUBLICLY traded Corporations (e.g. shares held in a brokerage account, while brokerd-dealer is "record" owner, the investor is "Beneficial owner"
2)Fidcuiaries OTHER than trustees (anyone BUT a trustee, can be voted by him w/out transfer of such shares into his name
3) Trustees - only AFTER shares have been transferred into HIS name as Trustee or into the name of his nominee (result, trustee becomes shares' record owner)

Treasury Shares

Shares of a copr that
1) were previously in hands of investors
2) BUT now repurchased or redeemed by that corp AND are being held in its treasury

CANNOT VOTED by the corp
NOT deemed "outstanding" for purposes of SH meeting Quorum requires
AND, NOT assets of the corp.

Bondholders

that and other debt security holders are "K claimants" of corp
THUS, NO Voting Rights, UNLESS their K granthem such rights (COI does)

Number of Votes

One vote per one share, UNLESS changed in COI

AND if More than one stock CLASS or SERIES, then COI MUST delineate voting powers

What do SHs Vote on

See the MNEMONIC of CORE

Election of directors

Amendment to COI
Sale of all or SUBT all corp assets

Merges/COnslidations

Corp's dissolution

NOTE: other matters, the vote is NOT legally required.

Quorum Reqs

NY: Majority of all outstanding voting shares will establish this.

Def: This is the CRITICAL MASS of shares required to be present (in person or by rpoxy) at the SH meeting, in order for SHs to take legally binding action on the corp
When a certain class or series of SHs are entitled to a separate class vote, then need majority of shares of such class/series.

COI or BYLaws can specific a quorum as less as 1/3 (no lesser) of all voiting OUTS shares

ONLY COI can provide for a majority GREATER than a simple majority
Once QRM met, not broken if SH leaves.

Separate Class Voting

This voting is required when a proposed amendment to COI would ADVERSELY affect rights of any class or series of shares
THUS that class or series whose rights are affect are entitled to vote on the proposed amendment, in addition to holders of those shares voting collectively with the rest of the other SHs on the proposed amenedment.

Effect: Providing the adversely affected shareholders with this separate class vote gives them a VETO power over the proposed amendment.

NOTE: COI can provide for holders of a certain class/series to have a separate vlass vote on OTHER matters (i..e in addition to the BCL's req separate class voting on adversely affecting amendments).

Special voting for directors

Traditional voting v. Cumulative Voting

Generally voted by a PLURALITY of votes cast at SH meeting (i.e. whichever nominees gets most SH votes will be elected).

Traditional Voting: SH casts number of votes for ONE certain nominee as equals the number of shares she owns

Cumulative Voting: Designed to help minoirty SHs elect one or more director nominees of their choosing to the board. MUST be PROVIDED in the COI, or else the traditional voting is the default voting mechanism to elect Directors.

IF provided for, then each SH can cast that number of votes as equals her # of shares, multiplied by the number of open board seats.

Man then cast ALL of her votes for a single nominee, OR spread them out (evenly or unevenly) over multiple nominees

Special Voting for Directors - Classified Board

Generally, all Direcotrs up for reelection on annual basis, UNLESS COI provides for tw, three or four class of Directors (i.e. a CLASSIFIED board)

Each direct is up fo reelection, in each class, in successive years

# of directs in each class must be as nearly equal in number as possible.

Prevents SHs from replacing all or most of the incumbents in a single annual election. (whereas ClassBoard requires two or more years for such an ouster of the incumbents).

Proxy voting by SH

Expiration, and Revocation

SH can cast an absentee vote called this, where an SH appoints another person to vote her shares as she has directed in her proxy

Expiration: Validity Expires generally after 11 months unless provided otherwise in the written proxy.

Revocable (unless made irrevocable) by SH by:

Irrevocable Proxy

Where a proxy cannot be revocable if
1) The proxy must state on its face that it is irrevocable
AND
2) SH must give th proxy to someone who has AN INTEREST IN the shares covered by th proxy (i.e. couple w/an interest), in NY, includes:

(i) a pledgee - i.e. who receives the pledged shares as collateral.
(ii) A person who agreed to purchase the shares;
(iii) Corp creditor who extends or keepign giving credit to corp, IN CONSIDERATION of the proxy (and proxy MUST state the C, amount of credit, and name of person giving this credit)
(iv) When an officer of a corporation was given a proxy as part of an employment contract (and that proxy must state it is C of such employment K, Officer's name, and the employment period of that officer).

(v) a person designated under a valid SH's voting agreement.

RESULTS
1) The holder of this, NOT the SH, is entititled to vote the shares covered by the proxy as the HOLDER sees fit (b/c SH cedes her voting authority over the shares for the duration of such proxy AND
2) SH cannot reovke this proxy for duration of the proxy.

Voting Pool

A contractually binding voting agreement on how SHs will vote their shares, and enforceable via remedy of Specific Enforcement if that agreement is breached.

Lasts as long as the agreement specifices, does NOT fave to ve filed with the corp.

Voting TRUST

transfer of legal ownership; separate

Valid for up to 10 years (or extendible up to 10

Can still receve dividens
Can get distirbutions
and Can still bring derivative actions in corp's name
And can still inspect corp books and records as NY law allows.

Inspection of Corp Records

SH has this right
1)to copy AND inspect SPECIFIC records
2) During Normal Biz Hours
3) after written notice 5 days prior to inspect
4) With a stated PROPER purpose (UNLESS seeking from written request, copy of ANNUAL balance SHEET AND/OR the COrp's PROFIT/LOSS statement)
5)

Proper Purpose (for Inspection/copy of corp records)

vs.

Improper Purpose

relatest to SH's interest IN the corp

MUST provid

Derivative Suits

- Brought on behalf of corp FOR A HARM SUFFERED BY THAT CORP.

- Broughtly only by
(a) any RECORD or Beneficila SH,
(b) Holder of trust certificate

-STANDING RQ: holder at time of action brought, AND at time of transaction of which complained
- MUst name Corp as nominal Def
- Real Def usual

- ANy recovery goes to the corp
- Court CAN awared plaintiff SH reasonable expenses (like reasonable atty's fees)

- Pre-litigation WRITTEN, PARTICULARIZED Demand on BOD, UNLESS FUTILE (factor test for futility: disinterested/independent, whether transaction complained of was product of a valid exercise of the director's Business Judgment).
(so, get around this demand by showing Directos are SELF-interested in transaction, OR causing harm to the corp

- Settlement or discontinue of the action requires court approval.

SH FIDs

GEnerally, NONE to corp or SH, when not controlling SHS.

To be a controlling SH, need not own more than 50% of outstanding shares.

IF CONTROLLING SHs, then FID where

Selling his controlling interest to an outsider

or Seekign to eliminate other SHs from the corp;

OR Receiving a distribution denied to the other shareholders;
OR seeking to dissolve the corp.

BOD Composition Reqs

#

Qualifications: At least 18 years of age, and IF provided, whatever COI says

BOD - Term, Selection, and Resignation

...

BOD - Removal FOR Cause

...

BOD - Removal WITHOUT Cause

...

BOD - Replacement of a New Director

...

BOD - Meeting Reqs.

...

BOD - Voting Reqs.; Quorum Rules; Required Votes

Voting Agremeents (generally unenforceable b/c independent judgement MUST be exercised

...

Committees; Types of Committees;

and Powers

Audit

Financing

Nominating

Exercise generally whatever powers are granted to it by the full board, the COI, or the by-laws. BUT NOT
Fixing BODs or COmm members' comp

Submitting to SH SH-approval-req actions

Filling Board or COmms vacancies

Adopting/Amending/repealing Bylaws; OR
AMendming/Repaling BOD resolutions that are not expressly so.

Loans to Directors

Generally, corp CAN'T do this (lend or gaurantee Director's obligation, UNLESS (2 crics)
1) Majority of shares' holder

3) Compliance with NY's interested-director statute.

Fiduciary Duties - BCL

1) Director Must perf his duties as director, and as comm mber in GOOD FAITH, and Degree of care that an ORDINARILY purdent person in a LIKE posision would use under similar circs (good faith action and reasonable actions)

2) Duty of Care - In making biz decision, must act with knowledge/skill of an ordinarily prudent person handlign his own property ANd for any special knowledge/skills

Duty of Care - Reliance on others; and BJR

BJR - a legal presumption that a director, in making biz decision, met his fid duties to the corp, UNLESS a demonstratbel COI, or bad faith exists, then NY courts DO NOT second guess the directors' biz judgment.
- FURTHER, Directors protection from Duty of care violation allegation, if directors made INFORMED, good faith decision
- ONly focuse on decision making process, not on the substance underlying the actual deicison made. (Boardroom is thepalce to make biz decsions,, NOT courtroom w/hindisght benefit).

Duty of Loyalty

Requires director act in a manner that director reasonably believes in the best interest of the corporation.

Breached if Director places his own interset above the corporations

Arises in:
Self Dealing transactions

usurpation of a Corporate Opporutnity

Actions that lead to director being entrenched in officer

Self-Dealing: 3 circs

...

Interlocking Directorates

What coprs have, when one or more directs sit on boards of two coprs.

Safe harbor rule (3 circs to "cleanse" the self-dealing transaction)

...

And if no Safe Harbor rule, when still considered a a fair and reasonable transaction

Note: The last analytical steps after
1) Breach of DOL or DOC
2) A COI or Self-Dealing
3) No Safe Harbor (in any 3 circ)
4) So, what the court will or won't do.

...

Usurpation of a Corp Opp - another basis for breach of duty of loyalty

...

Distribution (3 points)

...

Dividend

...

Distributions - Authorization and Limitations (New York's Legal Capital Rule

W/in BOD 's discretion, unless abuse of discretion or distribution in bad faith

New York's Legal Capital Rule

An Insolvency Determination

And a surplus/net profits determination

RESULT: If met, then corp can make a LEGAL distribution.

Insolvency determination prong

Not made if corp is either insolvent or would be render insolvent b/c of the payment of distribution

Insolvent means: f unable to pay its debts as they become due in usual course of business.

SNP determination

Depends on the positivity or negativity of the surplus (in latter, solvency must exist)

Surplus: Amount determined by looking at the corporation's BALANCE SHEET

Surplus = Total Assets - Total Liabilities - Stated Capital

Net Profits - Amount determined by looking at corp's profit/loss (or income) statement

Distributions (Rule synthesis!)

These are payable at BOD's discretion, AND THEN ONLY out of funds LEGALLY available for the payment

Dividend rules - Dividend Equlity and the Record Date

...

Outstanding stock and how can corps reacquire this stock

Stock that is authorized
Stock that has been issued
Stock that is currently in the hands of investors

Reacquire either through Purchase:

OR through Redemption: when corp exercises a K right to buy back that soctck. Result: Reacquired stock is called treasury stock (which is authorized/issue, BUT NOT outstanding)

Treasury stocks

...