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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 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...

Revenge Porn Civil Lawsuits in California (CA Civil Code section 1708.85)

Nowadays, it is quite common for individuals to take photographs and/or videos of a sexual nature and share them with their current relationship partner. Unfortunately, sometimes the relationship ends in an acrimonious way and the recipient of said photographs and/or videos decides — who might feel wronged or slighted — decides to share them with others as a way of getting even. The term “Revenge Porn” is often used to describe this situation. In California, perpetrators of Revenge Porn (i.e. those who share sexual photos and videos of others) can be punished in a variety of ways. For example, there’s criminal prosecution under California Penal Code section 647(j)(4), which I will cover in a later post. One key thing I’ll point out now, though, is that if the victim in a Revenge Porn case is a minor (e.g. 16 or 17 years old), additional charges related to, for instance, child pornography may be on the table also. Many criminal sentences (e.g. jail time) are also increased for Revenge Porn cases involving a victim who is a minor. In this post, I’ll briefly go over the civil suit liability under California Civil Code section 1708.85(a), which provides: “A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse,...

New York Civil Battery

A while back, I wrote a post about what civil battery under California law. This post is going to be the comparable post for New York law. Law school in the US is somewhat generic in that you learn what a given offense (e.g. civil battery) is in the abstract, even though the actual criteria for the offense in the real world will dependent on the state. When I learned about civil battery, for example, I learned it as “a harmful or offense touching either done with subjective desire or knowledge to a substantial certainty”. If you’re thinking that that rolls off the tongue, you’re correct. When you actually want to sue someone for civil battery in the real world, however, you need more specific criteria than that. In California — as I described in my previous post linked above — the criteria for civil battery can be found in the So v. Shin case (cite: So v. Shin (2013) 212 Cal.Appl.4th 652, 669) as: defendant touched plaintiff, or caused plaintiff to be touched with the intent to harm or offend plaintiff, plaintiff did not consent to the touching, plaintiff was harmed or offended by defendant’s conduct, and a reasonable person in plaintiff’s position would have been offended by the touching. Under New York law, the comparable criteria for civil battery are: defendant intentionally made bodily contact against the plaintiff, that this contact was harmful or offensive to the plaintiff, that plaintiff did not consent to the contact, and These criteria are recited in a number of New York state cases including (1) Wende C. v. United Methodist Church...

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...