Shared Flashcard Set


NY Bar Exam - MBE
Problem areas

Additional Law Flashcards




Aggregation of claims in diversity

permitted for multiple Ps with common/undivided interest (counterclaims not counted)


permissive counterclaims MUST meet jurisdictional amount


compulsory counterclaims dont

Supplemental Jurisdiction in Fed Q

only when additional claims against same party if common nucleus of operative fact

Supplemental Jurisdiction for Diversity

Permissive Joinder: addition of party asserting claim cannot violate complete diversity rule (no need to meet Aic


Counterclaims - compulsory counterclaims need not satisfy AiC but permissibe counterclaims must satisfy BOTH req.


Cross-claims: okay if same transcation/occurance if court has SMJ do not need to satisfy either req. 

Erie: where substantive or procedural unclear

1. valid federal statute on point when state and federal laws conflict = Fed law

2. no federal rule on point = state law if outcome det.

3. substantive law = elemetns of claim, SoL tolling, burden

4. Procedural law = judge/jury allocation, atty's fees, equitable legal determination

Conflict of Laws issue in Erie

Fed court applies state conflict-of-laws rules where Dct is located

Service of Process requirements

Timing: 120 days after filling complaint

Method: personally, at Ds usual house or w/ person suitable age resides there or with D's agent. 

- if Corp then with agent or officer

Waiver: request in writing and addressed to individaul D or officer must give D at least 30 days to return waiver. 

- extends time to answer from 21 to 60 days after waiver sent.

Motions Timing

Motions against complaint w/in 21 days of service.

- 12b MTD must be asserted first or waived (exceptions lack of SMJ, failure to state a claim, failure ot join necessary party)


- 12c judgment on pleadings: after answer filed


Answer filed 21 days afer service if no MTD, if MTD then 14 days after notice of courts action.


Reply w/in 21 days after served order to reply

Joinder of Claims Rules

Permissive: party may join independent or alternative claims of whateever nature against opposing party

- Div. P may aggregate all claims to satisfy AiC

- Fed Q - nonfed claims can be joined only f same case/controversy.


Compulsory counterclaims: if arises out osf same transaction occurance and doesnt add party court lacks jurisdiction over. 

Permissive counterclaims: discretion but SMJ required.


allows person holding property to force all potential claimants into single lawsuit.

- only stakeholder needs to be diverse for SMJ. 

if Diversity met where claimants citizens of different states property ned only be 500. 

Alteration or Relief from Judgment

no later than 1 year after judment if mistake, inadvertence, surprise, excusable neglect, newly discoverd edivedn not vailable, fraud, misrepresentation or misconduct by opposing party.


final judment requirement

collateral review allowed in clas action cert, injunctions.

Future Interests

Reversion: grantor who transfers estate less than he owns retiains right to posess estate.

Possibility of reverter: automatically reverts to gantor upon occurrence of state event when fee simple determinable conveyed.

Right of reentry: held by grantor after fee simple subject ot condition subsequent.

Remainder: becomes possessory upon expiration of prior estate of known fixed duration

 - vested: if knwon ascertainable no conditions

- contingent: if unascertainable or condition precedent

executory Interest: thrid party not remaider which cuts estate short upon occurance of conditon. 

Statute of Frauds

In writing signed by party to be charged and contian all the essential terms

- Exception part performance wher ebuyer 1) takes possession 2) remits all or part of purchase price and/or 3) buyer makes substnatial improvements.

- reliance: specific performance permitted if party seeking enforcement reasonably relied on K and would suffer hardship.

Marketable title

title free from defects or unreasonable risk of litigation

buyer can rescind/recover payments sue for breach or sue for Specific performance iwht abatemetn of purchase price

Time is of the essence land sales

generally nto enforced unless express in K. but party failing ot perform on closing date is in breach

Tender of performance for land Ks

concurrent conditions so if one party repudiates then nonrepudiating party excused but buyer must give sellertime to cure title defect.

Deed Delivery

at time of transfer grantor must INTEND to make present transfer of propery to grantee. 

- rebuttable presumption of delivery if 1) physical transfer of deed 2) recording of deed

- intent can be implied by words/condcut of grantor

- parol evidence is admissible ot establish intent.

NOte transfer for grantors agent not delivery but transfer to grantees is

Types of Deeds

general warranty:

- seisen (grantor owns land described in deed)

- right to convey (grntor has right to sell)

- against encumbrances (no undeclared encumbrances)

- quiet enjoyment (not disturbed in possession by other claim)

- warranty (defence grantor against lawful claims)

- futher assurances (do whatever nece to pass title)


Special warranty: same as title but only warrants agaisnt defects during time grantor has title


Quitclaim : no covenants.


strucutres built onto property an dincorporated into structure generally become part of realty but can be removed if.

- seller reserves right to remove fixture upon sale K

- leased property can be restored to former condition w/o damage in reasonable time.


1) harmful or offensive contact

2) to person of another (or connected)

3) causation (direct or indirect)

4) D's intent (itransfered intent applies)

Intentional Infliction of Emotional Distress

1) intent (not transfered) or recklessness

2) extreme and outrageous conduct (beyond human decency)

3) third party liability (distress immegiate family withor without resulting body injury or other bystander resulting in body injury)

4) causation (substantial factor test)

5) damges (severe emotional distress can include punitives if D know sheihgtened sentsitivity)

Private Nuisance

substantial and unreasoanble interference with anothers use or enjoyment of land

- interference must be intentional, negligent reckless or abnormally dangers

- substantial interference - outweighs usefulness of action

Defense: regulatory copliance incomplete and comming to nuisance may be considered NOT dispositive.

Public nuisance

unreasonable interference with a right common to general public

must be uniue damage ot individual.

can only be abated by public authority

Negligence Standard of Care

1) reasonably prudent person: physical not mental characteristics considered in determining reasonableness

- voluntarily intoxicated erson is same as sober

- child reasonable child of similar age intelligence and expericnee unless adult activity. (under 5 gen incapable)

2) CBA: froseeable likelihood that Ds conduct cause harm, forseeable severity of resulting harm Ds burden in avoiding harm.

3) Custom: evi admissible but not conclusive. professionals expected same skill knowledge and care as others in community (doctors national and failure to inform consent is malpratice unless waived, known or unconscious)

4) negligence per se: D neglets to perform statutory duty D is liable to anyone in class intended to be protected 

5) common carriers, innkeepers and cars special. 

6) land possessors. 


1) cause in fact: but for Ds act injury wouldnt hav eoccured substntial factor test

2) Proximate Cause: limits liability to Ps who were foreseeable victims of Ds conduct or if in scope of liability of conduct. 


interveneing casue - cause of Ps harm that occurs after Ds tortious act

supercededig cause- breaks chain of causation not liable for unforeseeable interveneing cause (criminal act, intentional tort thrid party) negligent interening acts are foreseeable (med malpractice)


1) actual damages: must prove actual ijury to person /prop not just economic loss.

2) comepnsatory dmages to mkae V whole

3) duty to mitigate

4) personal injury includes pain and suffering medical lost wages and eggshell rule

5) prop damages: difference between fair market before an dafter

6) collateral source rule- beneifts not credited against liability bu tNY removed

7) punitives- C and C standard malicious wilful and wanton or reckless beh. 


1) defamatory language 

2) of or concernig P

3) publication - intentional or negligent communication to 3rd party.

4) falsity (public concern)

- if public concern or public figure P has burden to prove false. prove malice 

- If private P not public concern not required ot prove falisty D may prove truth as affirmative defense negligence standard.

Introduction of Evidence

1) role judge/jury. prelim Qs competency is judge weight and credibility is jury.

2) challenges to ruling - must affect substnatial right of party and must object or offer of proof

3) completeness rule - partial intor of evi adverse party may compel into of omitted protion

4) judicial notice: adjudicative facts ubject to judicial notice is not subject ot reasonable dispute eithe rgenerally knwon or reliable sources. 

Character Evidence

1) civil traisl: inadmissible unless essential elemtn of claim.

2) criminal: 

- Ds characet: P may not intro unles sdoor opened; D ma into inconsistent character rep or opinion. P can rebut with attack Ds character.

- V's character: by D may assert bad character when relevant to defense, P may rebutt good or that D has identical trait. 

WItness Impeachment

challenge ot witness tesimony based on character for turthfulness bias ability ot perceive contridictory statement or another witness.

- can intro contrary evi on non-collateral matter

- adverse parts inconsistent statemnet

- prior inconsistent statemnt eunder oath/isgned writing

- impeaching statement smade by witness during direct introduced to preempt impeachment by oppoing p

- criminal D can intro other admissible evidence.

Authenticating Tangible Evidence

must be authenticated with sufficient evi to support

1) physical objects: perosnal knowledge, distinctive chracteriscs, chain of custody, reproduction by testimny, x-rays

2) documents: stipulation eyewitnes testimony or handwriting verification. 

- ancient docs 20s years 

- public records

-reply letter

-self-authenticating3) oral statements: authenticated by any person who has heard voice at any time. 

Hearsay unavailability not required

1) preesnt sense impression

2) excited utterance

3) mental or phyiscla conditin statement 

4) statement made formedical treatment diagnosis

5) recorded recollection

6) business records

7) public records

8) learned treatises

9) judgment of previosu conviction

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