by Andy Chen | Mar 8, 2020 | Evidence, New York, Statutes... and stuff
In this post, I’m going to continue my tour of the various evidence privileges under New York law. In prior posts, I’ve gone over privileges such as the Clergy Privilege. In this post, I’m going to go over a less well-known privilege, and that’s the Library Records Privilege under section 4509 of New York’s Civil Practice Law and Rules (CPLR). In short, this privilege forbids the disclosure of any information tending to show what a person reads at a library, how they use the library, etc. In case you’re wondering, California does have a similar privilege although it isn’t under the California Evidence like other evidence privileges, but rather it’s under the Government Code. For example, see Section 6267 of the California Government Code. New York CPLR section 4509 provides as follows: Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute. I’ve bolded and underlined several portions that are exceptions to the general rule that library records cannot be disclosed to anyone. First,...
by Andy Chen | Mar 6, 2020 | Evidence, New York, Statutes... and stuff
In several prior posts, I’ve gone over various evidence privilege under New York law. Many people have heard of the attorney-client privilege, for example. In prior posts, I’ve gone over New York’s Library Records privilege as well as the Psychologist-Patient privilege. Speaking broadly, an evidence privilege is something that forbids the disclosure or use of information that would otherwise be admissible as evidence in a court case or other legal dispute. The logic behind an evidence privilege is that a more important purpose (e.g. obtaining necessary medical treatment sooner) will be served if a person is able to speak freely with, for example, their doctor or lawyer if they don’t have to worry that what they say could be used against them somehow. In this post, I’m addressing another privilege, namely the Rape Crisis Counselor privilege under section 4510 of New York’s Civil Practice Law and Rules (CPLR). Section 4510(b) describes the privilege as: “A rape crisis counselor shall not be required to disclose a communication made by his or her client to him or her, or advice given thereon, in the course of his or her services nor shall any clerk, stenographer or other person working for the same program as the rape crisis counselor or for the rape crisis counselor be allowed to disclose any such communication or advice given thereon nor shall any records made in the course of the services given to the client or recording of any communications made by or to a client be required to be disclosed, nor shall the client be compelled to disclose such communication or records…” Section 4510(b) then...
by Andy Chen | Mar 4, 2020 | Evidence, New York, Statutes... and stuff
In this post, I’m going to continue my tour of the various evidence privileges recognized under New York law. Broadly speaking, an “evidence privilege” is something that forbids the disclosure or use of information that would otherwise be evidence in a legal dispute. The rationale behind evidence privileges is that there is a broader and more beneficial goal that would be served by allowing a person to not have to worry about whether what they say could be used against them later in a legal dispute. Many people have heard of the attorney-client privilege before, for example. The rationale is that the client — and society as a whole, hopefully — will be better off if a client can speak freely with their attorney without worrying that what they say might be used against them later. The topic of this post will be New York’s Psychologist-Patient privilege under section 4507 of New York’s Civil Practice Law and Rules (CPLR). The rationale is that in order to get the best possible medical treatment as quickly as possible, a patient needs to be able to speak freely and candidly with their psychologist without worrying that what they say could be used against them later. Like any privilege, however, there are exceptions which I will discuss later on. Anyway, CPLR Section 4507 provides as follows: “The confidential relations and communications between a psychologist registered under the provisions of article one hundred fifty-three of the education law and his client are placed on the same basis as those provided by law between attorney and client, and nothing in such article shall be construed to...
by Andy Chen | Mar 3, 2020 | Evidence, New York, Statutes... and stuff
In today’s post, I’m going to go over New York’s Social Worker evidence privilege under section 4508 of New York’s Civil Practice Law and Rules (CPLR). In past posts, I’ve gone over various other New York evidence privileges, such as the Rape Crisis Counselor privilege, the Library Records privilege, the Psychologist-Patient privilege, and the Clergy privilege. I’m guessing that most people have heard of the Attorney-Client privilege also. As with those posts, remember here that an evidence privilege is — in essence — the ability to refuse to disclose or forbid the use of information that would otherwise be evidence in a legal dispute of some kind. The rationale is that a higher purpose (e.g. allowing a person in need to quickly obtain frank and honest medical or legal advice) is served by allowing the person to speak freely without worrying that what they say could be used against them. Anyway, that said, New York’s Social Work privilege is in CPLR section 4508. The main part of that is 4508(a), which states: “A person licensed as a licensed master social worker or a licensed clinical social worker under the provisions of article one hundred fifty-four of the education law shall not be required to disclose a communication made by a client, or his or her advice given thereon, in the course of his or her professional employment, nor shall any clerk, stenographer or other person working for the same employer as such social worker or for such social worker be allowed to disclose any such communication or advice given thereon… “ The terms “licensed master social worker” and “licensed...
by Andy Chen | Feb 19, 2020 | Evidence, New York, Statutes... and stuff
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...
by Andy Chen | Feb 17, 2020 | California, Criminal law, Statutes... and stuff
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...
by Andy Chen | Feb 16, 2020 | Evidence, New York
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...
by Andy Chen | Feb 9, 2020 | New York, Torts
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...
by Andy Chen | Feb 7, 2020 | California, Torts
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...
by Andy Chen | Feb 5, 2020 | New York, Torts
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...
