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Equitable Distribution vs. Community Property

I live and practice law in California. When it comes to divorces, California is one of nine US states that follow the Community Property system when it comes to dividing property. In theory, community property is a simple idea — namely, the general rules are that (1) whatever the individual spouses acquire on their own prior to the marriage is their own property and is not split up during a divorce, and (2) whatever the individual spouses acquire during the marriage is generally “community property” and, thus, needs to be divided 50/50 in the event of a divorce. To be clear, though, (1) and (2) are just the general rules under the California community property system. There are exceptions under which, for example, an item acquired during the marriage is still the separate property of the spouse acquiring it due to the manner in which the item was acquired. In practice, though, applying the community property system can be quite involved. Over on my Youtube channel, I put out a video a few months back going over some common problems that occur when you try to apply the idea of community property in the real world. Here is the video. If you haven’t seen my Youtube channel, I encourage you to take a look at it as I go over community property as well as various other ideas related to California law also. What I am going to do in this post, though, is try to compare Community Property to the other system — Equitable Distribution — that is in place in the other 41 US states. By the...

New York Statute of Limitations – Conversion

In this post, I’m going to continue my series of exploring various statutes of limitation for torts under New York law. Previously, I went over statutes of limitation for torts like fraud and wrongful death. In this post, I’m going to talk about one of the lesser known torts, the tort of conversion. The tort of conversion is about interference and specifically interference with plaintiff’s ability to possess an item they have the legal right to possess. In New York, the criteria for conversion are (1) the existence of plaintiff’s possessory right or interest in the item, and (2) defendant’s dominion over that item or interference with it in derogation of plaintiff’s rights. In my admittedly limited research, the New York authority I found for that is a New York Court of Appeals case called Colavito v. New York Organ Donor Network, Inc (2006) 8 N.Y.3d 43, 49. As my first aside, I’ll point out that California also provides for the tort of conversion so it is not specific to New York. In California, the elements for conversion are (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrong act or disposition of plaintiff’s property rights; and (3) damages suffered by plaintiff. The California authority for that — because I care and know that you’re interested — is a California Supreme Court case called Lee v. Hanley (2015) 61 Cal.4th 1225, 1240. A reminder as well that the California Supreme Court and New York Court of Appeals are both the highest state courts in their respective states and, as a result,...

New York Statute of Limitations – Enforcement of Money Judgments (NY CPLR section 211(b))

In this post, I’m continuing my travels through New York’s statutes of limitations. In prior posts, I went over the statutes of limitation for fraud as well as wrongful death. In this post, I’m going to talk about enforcement of money judgments. In more plain language, enforcement of judgments refers to the act of collecting on a judgment (e.g. that defendant pay $50,000 to plaintiff) that a court renders in favor of a winning party in a civil case against the losing party. The statute of limitations for enforcement of judgments refers to the time period within which that collection activity has to take place. In New York, the statute of limitation for enforcement of money judgments is 20 years. If you’re interested — and I know you are — the governing statute here is section 211(b) of New York’s Civil Practice Law and Rules (CPLR). Section 211 states: “On a money judgment. A money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it.This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged. Property acquired by an enforcement order or by levy upon an execution is a payment, unless the person to be charged shows that it did not include...

New York Abuse of Process

In this post, I’m going to go over the tort of Abuse of Process under New York law. I went over Abuse of Process under California law in a prior post. As a refresher, a tort is something a person who has been wronged can file a civil lawsuit over. The plaintiff in such a suit most often requests some amount of money from the defendant, although other types of relief (e.g. declaratory, injunctive, etc) are possible also. As it is in California, many torts in New York are element-based. In other words, there are a set number of criteria for that tort. The plaintiff establishes the defendant’s liability for the tort by proving that each of those elements are met. In New York, the criteria for Abuse of Process are: regularly issued legal process, civil or criminal, compelling performance or forbearance of some act, and the person activating the process was moved by an ulterior purpose to do harm, without economic or social excuse or justification, and the person activating the process south some collateral advantage or corresponding detriment to the plaintiff that is outside the legitimate ends of the process, and plaintiff suffers actual or special damage. Based on my cursory research, there seem to be quite a few cases in New York that lay out these criteria. I could be wrong, but it looks like all of those cases stem from a 1975 Court of Appeals of New York case called Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc Local 1889 AFT AFL-CIO (38 NY2d 397). The case is...

New York Statute of Limitations – Wrongful Death

In this post, I’m going to go over what the statute of limitations is for a wrongful death lawsuit under New York law. As a refresher, a “statute of limitations” is the time period within a lawsuit has to be commenced. If you miss this time period — even by a day — and file your lawsuit late, you could have the most perfect lawsuit (e.g. the best evidence, multiple independent witnesses, an admission by the defendant, etc) and you could still lose just because you filed your suit too late. There are certain situations in which a statute of limitations is paused (aka “tolled” in lawyer-speak if you want to google it), but those are the exception rather than the rule. Tolling is also beyond the scope of this particular post, although I may address it in a future post. The relevant NY statute on the topic of the statute of limitations in a wrongful death civil lawsuit is New York Estates Powers & Trusts Law section 5-4.1(1)), which states: “The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent’s death; provided, however, that an action on behalf of a decedent whose death was caused by the terrorist attacks on September eleventh, two thousand one,...

New York Commercial Bribery (NY Penal Law sections 180.00 and 180.03)

Background of this post: I’m a podcast junkie. I listen to them all the time (e.g. iPod, car, in the office, etc). Lately, a lot of them are from Wondery. One of their podcasts is called American Scandal and goes over scandals of various kinds (e.g. Iran Contra, Boston College athletics gambling, etc) that have occurred through the 19th and 20th centuries. One of the scandals they went over was Payola. In essence, it was the practice in the early to mid-20th centuries where radio DJs were paid money to promote or play one record company’s songs over another with the goal of making certain songs more or less popular than others. These payments were, of course, not disclosed to the public who generally thought that the songs being played were just part of the day’s normal broadcast. Part of the American Scandal podcast went over how New York played a role in ending payola because of its statutes criminalizing commercial bribery. Those statutes are the topic of this post. More accurately, I’m going to go over what the current commercial bribery statutes in New York are. Statutes change all the time. The current statutes may or may not have been what was in effect back when Payola was occurring. Under current New York law, there is both second-degree and first-degree commercial bribery under sections 180.00 and 180.03, respectively, of New York’s Penal Law. What’s the difference between the two degrees? Well, I’m glad you asked. The answer is the magnitude of the benefit and damage involved. Under section 180.00, second-degree commercial bribery is defined as:   “A person...