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 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 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...
by Andy Chen | Jan 21, 2020 | New York, Torts
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...
by Andy Chen | Oct 31, 2019 | California, Family Law, New York
As mentioned previously on this blog, California is in the small group of US states that use the community property method of property division when it comes to dividing items during a divorce. If you are involved in or around a California divorce case, you know that the terms “community property” and “separate property” are used frequently. As also mentioned previously, the former is divided equally during a California divorce while the latter is not. If you’re interested, community property in California is defined in section 760 of the California Family Code while separate property is defined in section 770(a) of the California Family Code. New York, on the other hand, is not a community property state, but rather uses a property division method called Equitable Distribution. New York is similar to most states in the US in that only about 10 states (mostly in the western US and southwestern US) use the community property method. Unfortunately, this distinction can become confusing to talk about because New York also uses the term “separate property” like California does. However, in place of “community property,” New York uses the term “marital property.” Terminology aside, what also makes it confusing is that the definitions for separate and marital/community property look very similar. For example, in New York, “separate property” is defined in New York Domestic Relations Law section 236(B)(1)(d) as: property acquired before marriage or property acquired by bequest, devise, descent, or gift from someone other than the person’s spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property, except to the extent this...
