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New York Clergy Privilege (CPLR section 4505)

In law, a privilege — broadly speaking — is the ability to not disclose information that one would ordinarily have to. For example, many people have heard of the Attorney-Client privilege which requires that an attorney not disclose certain information received from their client unless the client authorizes it. The goal of a privilege like the Attorney-Client privilege is to allow the client to speak candidly with their attorney in order to get the best possible advice without having to worry that what they say will be used against them later on in some way. In this post, I’m going to go over a slightly different privilege, namely Clergy Privilege under Section 4505 of New York’s Civil Practice Law and Rules (CPLR). Section 4505 recites the privilege as follows: Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion or duly accredited Christian Science practitioner , shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor. The idea here is that if a person is allowed to speak freely to their minister or other religious adviser about an issue they are conflicted on, the person is more likely to think through the problem, reach a good resolution, and ultimately whatever is morally and ethically right under the circumstances. The Clergy Privilege is not unique to New York. California has it also, except there is it called the “Clergy-Penitent Privilege”. See California Evidence Code sections 1030 to 1034. The major New York case that describes a lot about the Clergy Privilege is from...

California Dying Declarations (CA Evidence Code 1242)

In court, there are a ton of rules about what evidence can be used and what evidence can’t be used. In past posts, I’ve described how only relevant evidence (in California; in New York and under Federal law) can be used in court. What occurred in the real world is often not what is dealt with in court. Many laypeople are shocked to know this when they get involved with their first court case. In California state court, the set of rules that govern what evidence can and can’t be used is the California Evidence Code. In federal court, there are the Federal Rules of Evidence. The specific name varies, but every jurisdiction in the United States generally has its own set of evidence rules. One major component of the evidence rules — regardless of jurisdiction usually — is hearsay. Hearsay is easy to define — I learned it in law school as (1) statement, (2) made by a person, (3) outside of court, and (4) an attempt is being made to admit that evidence for the truth asserted therein. See section 1200 and onward in the California Evidence Code. These criteria are, obviously, fairly basic. As an aside, in the real world, it’s rare that you would quickly be able to tell if these criteria are satisfied. You’d likely have to answer some more nuanced questions first, such as “What exactly is a ‘statement’?” Anyway, aside over. If these 4 basic/simplified criteria are met, then the statement can’t be used in court… unless an exception of some kind applies. As many law students in the US — and...

Relevant Evidence under New York law (plus Federal law!)

A few posts ago, I went over what the definition of “relevance” was under California law and why it was important. Here’s that post, in case you missed it. In this post, I’m going to go over the analogous definition under New York law. In New York, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probably than it would be without the evidence.” This is from the 1977 NY Court of Appeals case of People v. Davis. 43 NY 2d 17. As a reminder, the highest court in a state is the final arbiter of what the law of that state means. In California, the highest court is the California Supreme Court. In New York, however, the highest court is the Court of Appeals. If you look at the California and New York definitions side-by-side, similarities do emerge. New York: Relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” California: “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (California Evidence Code section 210) The thrust of both definitions is that relevant evidence is that which has the tendency to prove or disprove a fact which is material to the dispute at...

New York Statute of Limitations – Fraud

In this post, I’m continuing with my series on Statutes of Limitation in both California and New York. In a prior post, I described the statute of limitations that applies to a civil fraud lawsuit under California. This post will be the New York counterpart to that post. The New York answer is a bit more complicated. Instead of a flat figure (e.g. 3 years, 5 years, etc), New York’s statute of limitations for civil fraud is the greater of: six years starting from when the fraud is actually committed, or two years from the time when the fraud was actually discovered or when it could have been discovered with plaintiff’s reasonable diligence. All of this is in section 213(8) of New York’s Civil Practice Law and Rules (CPLR 213(8)). It’s quite important, I think, that CPLR 213(8) provides for the “greater of” as opposed to the “lesser of”. For instance, suppose that CPLR 213(8) said the statute of limitations was the lesser of six years from the fraud is committed or two years from the time the fraud was or could have been discovered. If the fraud is discovered soon after (say, a few months) of it being committed, then the plaintiff only has the two years from the date of discovery to file suit. If the fraud isn’t discovered right away (e.g. say it goes undiscovered for several years), then the defendant is in the clear as soon as they hit the six year mark. Because CPLR 213(8) instead says “greater of”, though, it goes in the plaintiff’s (i.e. fraud victim’s) favor. For a fraud that is...

California Statute of Limitations – Fraud

I recently put out a post about the statute of limitations that applies to a breach of contract case in California. In that post, I explained that a “statute of limitations” is the time period within which a plaintiff has to file their lawsuit. If they miss it — and can’t come up with a good tolling argument — then they will lose their case. Their evidence could be rock solid (e.g. the proverbial smoking gun), but they will lose simply because they waited too long. In this post, I’m going to continue that theme and discuss another statute of limitations. We’re talking about California again, but this time it’s the statute of limitations for a civil fraud suit. As an aside, my experience has been that fraud is alleged in cases way more often than it actually happens. Fraud — at least in California — has a very, very, very specific definition. If you’re going to allege it in a lawsuit, I would highly recommend that you look up that definition and know it back to front. Anyway, aside over. The statute of limitations for a civil fraud suit is 3 years. That’s section 338(d) of the California Code of Civil Procedure. As before, knowing that the proverbial clock is 3 years is only part of the solution. The other part is that you need to know when this 3 years starts. The answer to that is when the plaintiff discovers the fraud. That’s also in section 338(d) which provides: “The cause of action… is not deemed to have accrued until the discovery, by the aggrieved party, of...

False Imprisonment in New York

A while back, I put out a video on my Youtube channel about the Shopkeeper’s Privilege in California. In short, this is a justification that the proprietor of a business (e.g. a store) can use to detain someone they believe is committing a theft (e.g. shoplifting). Normally, detaining someone could be considered False Imprisonment and is something that the person who has been falsely imprisoned could be sued for. I learned about the Shopkeeper’s Privilege in law school in California, but the concept exists in other states also. I wrote about the New York Shopkeeper’s Privilege in a recent post and how it’s codified in statute, specifically n New York, for example, it’s Section 218 of the New York General Business Law. In this post, I’m going to describe the antecedent tort to Shopkeeper’s Privilege, namely what False Imprisonment involves. This post will specifically be about the False Imprisonment in New York. I’ll put out a subsequent post about how the tort of False Imprisonment is defined in California law. As with most things in law — I’m speaking generally and not specifically about California or New York — the tort of False Imprisonment has various criteria. If you are the plaintiff and you satisfy those criteria (e.g. your witnesses, evidence, etc are sufficient), you win. Keep in mind, however, that the defendant in your case will do everything in his/her power to show that your evidence not only doesn’t meet the criteria, but that the evidence shows precisely the opposite. In other words, you as the plaintiff haven’t come even remotely close to satisfying the criteria required to...

Relevant Evidence in California (CA Evidence Code section 210)

It should hopefully not surprise anyone that evidence is important in legal disputes. The parties will inevitably say their own versions of what happened, but unless someone has evidence to back up what they’re saying, the outcome will likely disappoint all involved. Not all evidence is treated equal, however. The evidence in question has to be relevant to the dispute in order to be of interest to a judge, a jury, the lawyers, etc. In this post, I’m going to talk about what “relevant” means in California court cases. The definition, unfortunately, varies from state-to-state. New York has a different definition as does the Federal Court system. Hopefully, though, you can see that the definitions are similar, regardless of the jurisdiction. In California state court, relevance is defined in California Evidence Code section 210, which provides: “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” I bolded the end of that definition to highlight that ‘the tendency within reason to prove or disprove any disputed fact’ is the essence of what relevance means. Relevance is important because it limits what evidence can be admitted. Under section 350 of the California Evidence Code, only relevant evidence is admissible. In the abstract, this should hopefully make sense to everyone. It would be confusing and a waste of time and energy to admit or use evidence that is unrelated (i.e. is not relevant) to what the dispute or case is about. In practice,...

California Statute of Limitations – Breach of Contract

Contracts are super prevalent in everyday life. If you have a loan (e.g. for your car), then you likely have a contract specifying things like what you have to pay and when and what happens if you don’t pay when you’re supposed to. Companies rely on contracts to do business with one another all the time. I would posit that literally everything you buy has been made and transported to you by a series of companies that have contracts between them specifying what each company’s obligations are and what fee they want to be paid. Contracts, of course, aren’t perfect. When problems arise and a lawsuit needs to be filed over, say, one party not doing what they are supposed to under the contract, one thing that needs to be examined is whether it is too late to sue. The time limit in which you have to file a civil lawsuit is called a “Statute of Limitations.” This varies not only state, but also by the type of case you want to file. If you miss this statute of limitations and then try to file your case, you will almost certainly lose your case because you’ve waited too long. In certain rare situations, you might be able to make an argument for why the statute of limitations period should be paused for a period (e.g. one year). This is called “tolling” and, if successful, would extend the statute of limitations period by that same amount of time that the proverbial clock was paused. If you’re the plaintiff, the filing date of your case will hopefully be within this extended...

Shopkeeper’s Privilege in New York

A few years ago — 2016, it appears — I put out a video on my Youtube channel about the Shopkeeper’s Privilege in California. Here’s the video. This post will go over the Shopkeeper’s Privilege as it exists in New York. Like California, New York’s Shopkeeper’s Privilege is also statutory. The governing New York statute is Section 218 of the New York General Business Law. Section 218 provides that if a defendant is sued for “false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass, or invasion of civil rights” by a person detained at a retail establishment, the defendant may raise as a defense that the plaintiff was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a police officer or an owner or employee of the retail establishment and that there were reasonable grounds to believe that the plaintiff being detained had committed a theft. (Note: I am paraphrasing this somewhat due to length. If you’re going to actually use the statute (e.g. in court), do always take a look at the section’s actual text first). If you compare this to how California’s Shopkeeper’s Privilege works (see California Penal Code section 490.5(f)), you should see similarities. As always, this post is meant to only briefly go over a singular topic. If the Shopkeeper’s Privilege — either the California or New York one — please do additional research before proceeding and do not rely on just this blog post. Lastly, I’ll repeat again as I do at the end of every post related to New York...

California Legal Protections for Reservists and Active Duty Servicemembers

If you are in the military in any way, you’re likely entitled to various legal protections under California law that — at least in theory — are meant to make it easier for you to perform your military service. These laws allow, for instance, may allow you to resume your old health insurance when your active duty service ends. It may allow you to enjoy a reduced interest rate on loans and other debts when you’re on active duty. There are housing-related benefits as well related to rental agreements and mortgages. In this post, I’m going to describe California’s laws in this area in a very general or high-level way. There are a lot of laws so I can’t go over all of them because if I did, this post would be enormous. As I make follow-on posts over time, however, I will probably hit a lot of these topics anyway. I am going to start this process by describing some common themes or ideas that all of these laws have that hopefully make it so all who are entitled to these benefits actually receive them. When working on cases in this area of California law, the first thing I ask is what kind of military member am I working with? By that, I mean is this person an active duty service member (e.g. Lance Corporal in the Marines), a member of the California National Guard, or a member of the Naval Reserves who has been called to active duty? As with anything in the law, technicalities and definitions like this can be important. The benefits provided are similar,...