NEW YORK CONFLICTS OF LAWS SUMMER 2011 RECOGNITION & ENFORCEMENT OF JUDGMENTS

how does it come up?: - in a torts question - in short answer questions how to spot?: - they'll give you the law of a state other than NY what it is: - conflict exists btwn. laws (substantive rules) of 2 states, the laws of which happen to be involved in the case ex: Contract made in state A, to be performed in state B, by parties from state D what our goal is: - identify the rules to pick which laws apply Introduction - Recognition and Enforcement of Judgments
General Situation: Facts show a judgment rendered in another state or country, outside of NY. Should that judgment be recognized and enforced by New York courts? Definitions 1. Rendering State = the state handing down the judgment 2. Recognizing State = the state called upon to recognize and enforce the judgment

Sister State Judgments

General Rule The sister state judgment will be entitled to full faith and credit in the recognizing state if: 1. The judgment meets the full faith and credit requirements, and a. Rendering court must have had Valid Jurisdiction both PJX and SMJ under rendering states own law. b. Rendering courts judgment must have been a Final Judgment; AND i. Modifiable Judgments are not final get no full faith and credit, but it will usually still be enforced under principles of comity 1. E.g. future alimony, future child support (modifiable). ii. Judgments for amounts in arrears are final. c. Judgment must have been rendered On The Merits i. Two situations that are on merits for FF&C purposes, but not elsewhere: 1. default judgments and 2. consent judgments a. b/c parties had opportunity to go to a judgment on the merits ii. E.g., dismissal for failure to sue within SOL period is not on the merits. 2. No valid defenses apply a. Only Two Valid Defenses i. Judgment is Penal In Nature (e.g., criminal sanctions or civil fines where govt is ); OR 1. Rule: If a judgment was rendered for an offense against the public, it will not be enforced by a sister state. ii. Judgment was rendered by Extrinsic Fraud relating to the judgment (e.g., bribing of a judge) 1. Rule NY will not enforce sister state judgments that were rendered b/c of fraud that could not have been dealt with in the underlying case. a. E.g., perjury of witnesses is intrinsic fraud and not a defense.

b. Non defenses to discuss even though they are not legitimate defenses and will be granted FF&C. i. The judgment is a tax judgment ii. The judgment is based on a cause of action that violates the forums public policy iii. Mistakes by the judge in the earlier trial (proper remedy is to appeal or make motion to rehear) iv. Inconsistent later judgment (A later judgment can be enforced even though it is inconsistent w/ a
valid earlier one. Enforce the last judgment in time. Double jeopardy should have been raised at trial.)

Foreign Country Judgments

Foreign country judgments can be recognized and enforced in NY if NY states Two-Part Comity Test is fulfilled: 1. Jurisdiction was proper, and 2. Fair procedures must have been used in the foreign country proceeding a. Look for substantial contacts

Special Situation Family Law Judgments

Family Law Jurisdiction in a Nutshell Each type of judgment has its own jurisdictional test: 1. Divorce SMJ Rule: rendering state must have been the domicile of at least one spouse. a. Three situations: i. Ex Parte Divorce occurs when only one spouse is domiciled in the rendering state at the time divorce decree is issued, and is enforceable in NY. ii. Bilateral Divorce occurs when both spouses are domiciled in the rendering state at the time the divorce decree is issued, and is enforceable in NY. iii. Consent Divorce occurs where both parties want out of the marriage quickly and go to a different state to get the divorce, and is not enforceable in NY. 1. E.g., NJ couple, Vegas divorce, invalid in NY. b. Procedural matters: i. Burden of proof to show no SMJ is on the party who says the divorce is invalid (attacker). Attacker may use post divorce evidence in his attack (e.g., witness heard spouse tell someone I lied in Nevada and told them I was domiciled there.) ii. Any interested party who is not estopped can attack a divorce decree for lack of SMJ. 1. Interested party excludes any stranger to the marriage. 2. Estoppel occurs in four situations: a. Attackers who were subject to PJ in the earlier divorce proceeding (i.e., spouse in bi-lateral divorce) cannot attack SMJ of divorce at judgment stage. b. Attackers who played a meaningful role in the granting of the divorce. (E.g., husband drove wife to airport when he know she was moving in order to get a divorce.) c. Persons who are in privity w/ a party to the divorce (e.g., kids). d. A spouse who has remarried in reliance on the earlier divorce. 2. Property awards (e.g., child support, alimony) Rule: rendering court must have had PJ over spouse who rights are being determined. 3. Child custody Rule: rendering court must have been the childs home state. The Divisible Divorce Doctrine 1. Rule If a decree has some parts that are enforceable in NY, and some parts that are not, the enforceable parts will be given effect by NY courts and the unenforceable part will be ignored. 2. Ex Wife moves to NV, leaving her child and husband in NY. She gets an ex parte divorce, with alimony, child support, and custody. a. The divorce? Enforceable b/c at least one spouse was domiciled there. b. The alimony & child support? Unenforceable b/c the NV court didnt have PJ over John

c. Child custody? Unenforceable b/c Nevada is not childs home state

[Divisible divorce doctrine says the divorce is still good, but ignore the rest.]

DOMICILE
Four Ways Domicile Might Appear on Bar Exam

1. Rule: The intestate succession of personal property is determined by the law of the state in which the decedent was
domiciled at death. (Real property goes according to laws of the situs.)

2. Rule: Domicile at death determines which state can get estate taxes. 3. Rule: Domicile of a spouse determines SMJ for the purpose of divorce. 4. Rule: Domicile is very important when applying NY choice of law rules.
Domicile of Choice
Prerequisite Legal capacity is needed to make a domicile of choice (capacity = ability to fend for yourself) Two-Part Test to Establish a Domicile of Choice 1. Physical presence in that state a. Can be for a very short time and still satisfy requirement Once obtained, a domicile of choice is kept until another one is acquired. b. Merely leaving the state does not constitute relocating domicile. A person must have a new place to stay and intent. 2. The intent to remain for the foreseeable future (i.e., indefinitely no plan to leave) a. A person can have only ONE domicile b. NY rule is that actions speak louder than words when it comes to determining intent. However, different states courts can disagree and both declare that a decedent was domiciled within their own state. This means that a decedents estate can be made to pay estate tax to two different states and this does not violate the rule against double taxation. c. The motive for going to another state (even to flee authorities, e.g.) to acquire a domicile is irrelevant ((i) presence and (ii) intent are all that matter).

Domicile by Operation of Law

General Idea If a person has no legal capacity to acquire a domicile of choice, that person will be assigned one by operation of law. Domicile of a Child 1. If child has "capacity" --> can acquire a domicile himself (domicile of choice) 2. If no capacity: a. Intact Family If the child does not have legal capacity to get a domicile of choice, the child will have the domicile of the childs parents. b. Divorced Parents If the childs parents are divorced, domicile is that of the parent who has custody of the child. Domicile of a Married Woman Living Apart From Her Husband in a Different State 1. Common Law (old rule in NY) Married women retain the domicile of their husbands 2. Today Married women can obtain a domicile of choice, just like anyone else

CHOICE OF LAW
--> if multi-state contacts, how to decide which state's law applies

Constitutional Limitations ((i) Due Process & (ii) Full Faith & Credit)
Test (same for DP and Full Faith both being met) The state chosen must have a significant contact or contacts with the parties or the subject matter of the litigation which give it a legitimate interest in seeing its law applied. [Significant contact giving legitimate interest] No weighing of interests is necessary; as long as state meets this test, its law can be applied. 1. Sufficient interest (usually) a. Interest in the welfare of residents is sufficient to satisfy the constitutional standard. E.g., State has an interest in exercising a favorable law over a resident to achieve favorable result for , even where accident took place in another state and where is a non state resident. 2. Insufficient interest a. If a party moves to a different state after the occurrence giving rise to the litigation, and this is the only contact with the state, the states interest is insufficient. b. If the only contact w/ the parties or the litigation is that the suit is brought in a state, then it would be unconstitutional to apply that states law.

Vested Rights (territorial) Approach to Choice of Law (Traditional/Old Approach)

General Rule Under the vested rights approach, the law to be applied is the law where the rights of the plaintiff vested. Torts

1. Rule The instant an injury occurs, Ps rights become vested, so the vested rights rule would say to apply the law of
the place where the injury occurred, or the place of the wrong.

2. Point This is not always the place of the negligence (or other wrong), but is the place of the injury
Contracts Rights under a contract vest at the moment the contract is made, so the vested rights rule would say to apply the law of the place of making of the contract. General Points 1. The vested rights approach had a rule for every area of law 2. The rules were all territorial rules, pointing to a single place 3. States policy interest is not a factor. Major Problem w/ Vested Rights Approach They often wound up pointing to a state that had absolutely no policy interest in the outcome of the litigation. 1. E.g., Two NY drivers collide in Ontario Ontario law would apply under Vested Rights Approach (this is Babcock the case that changed the law).

Interest Analysis Approach to Choice of Law

Five-Step Babcock Approach to Interest Analysis (focus: policy interest of each state in the outcome of the litigation) 1. List the factual contacts w/ each state a. E.g. - car registered and insured in NY, parties are NYers vs. accident occurred in Ontario. 2. Note the different state laws at issue a. E.g. - Ontario has statute that forbids passenger from suing driver ; NY does not have that statute and would let the sue. 3. Find out the policies underlying each states law (by consulting legislative history and court decisions) a. E.g. - why does NY not have the statute? B/c we are not concerned over collusion with insurance companies and preventing guests from suing hosts.

b. On test, look at who the state's laws are designed to protect (P or D). 4. Relate the facts to the policies to see if the state has an interest in seeing its law applied a. On test Does the party being favored by a states law (from step #3) reside in that state? --> If so, that state
has an interest

5. Apply the law of the state w/ the greatest governmental interest in the outcome a. False conflict (as in Babcock Ontario had no interest at all) i. Idea Really only one state has an interest in having its law applied ii. Rule Apply the law of the only jurisdiction w/ an interest in the litigation iii. E.g., NY v. NY , accident was in Ontario. Apply NY law.
b. True conflict i. Idea Two or more states involved have an interest in the litigation, and one of them is the forum state ii. Rule Presumption in favor of applying forum states laws, unless the interest of the other state is much greater iii. E.g., NJ v. NY in NY court. Under NJ law, wins, under NY law, wins. NY law is presumed to apply unless there is a great interest for NJ to apply its law. Disinterested forum i. Idea Where two or more states have an interest in having their law applied and the forum is not one of them ii. Rule NY courts divide and do one of two things: 1. Apply the law that is closest to NY law (majority in NY), or 2. Apply the "better" law (Minority in NY big loophole) iii. E.g., NJ v. PA in NY court. Under NJ law, wins, under PA law wins. NY sides with law most similar to its own. Unprovided-for case i. Idea Where no state has an interest in applying its own law ii. Rule If no state has an interest in seeing its law applied, just apply NY (forum's) law. iii. E.g., NJ v. PA in NY. Under NJ law, wins, under PA law wins. NY law applies.

c.

d.

Torts

1. Law on Loss Distribution Most tort rules a. Rule Apply the 5-step Babcock test PLUS the additional three rules of Neumeier (and apply the law of the
state indicated) i. Neumeier Rules (Nutshell apply law of place of injury unless both parties live someplace else) 1. When P and D are domiciled in the same state, that states law will be applied 2. When P and D are domiciled in different states, then if the law of the place where the accident occurred helps its citizens, that states law will be applied. 3. Unprovided-for case When P and D are domiciled in different states and the law of the place where the accident occurred does not help its citizen, then you still apply the law of the place of the injury unless the other jurisdiction has a greater interest in the outcome. 2. Law Regulating Conduct a. Rule Apply the law of the place of injury b. E.g., rules of the road.

Contracts - parties may attempt to choose the law in advance 1. 2. Matters of Contract Construction a. Rule Parties can always choose any states law in the contract for matters of contract construction. Matters of Contract Validity a. Rule Parties can also choose the law to govern matters of contract validity provided three things exist:

3.
4.

i. The choice cant be contrary to a fundamental policy of a state w/ a greater interest than the chosen state. ii. There must be a substantial relationship to the parties or the transaction 1. Exception: a. New Yorks Special Statute on Large Contracts i. If the K is for more $250K or more parties can choose NY law even if the contract has no connection w/ NY at all. ii. If the K is for more than $1M and the parties choose NY law in the contract parties may also put in a clause specifying that NY may be the forum, and courts are prohibited from dismissing under forum nonconveniens. iii. The choice must be free of duress; that is, not a contract of adhesion. Contracts Where Parties Dont Specify Governing Law Apply Babcocks 5-step approach to determine what states law to apply. a. when interest analysis used for contracts: call it - "the most significant relationship test" Special Rule for Insurance Contracts a. Rule All issues regarding the rights and duties under an insurance policy are determined by the state where the policy is written, even though Babcock/Neumeier might point elsewhere.

Real Property The law of the situs of the real property governs, that is, the law of the place where the property is located. Personal Property 1. General Rule The law of the place where the personal property is located governs a. Exception If the personal property is passing by intestate succession, the state chosen is the state of the decedents domicile at death Inheritance A non-NY domiciliary can choose NY law in a will to apply to the disposition of NY assets, even to oust spouse from elective share. Family Law 1. Valid Marriages a. Rule If a marriage is valid where performed, it is valid everywhere i. Exception If a marriage would violate the strong public policy of a state then it may not be recognized even though it was valid where performed (NY almost never applies this exception) ii. E.g., NY will recognize gay marriages performed in NH. 2. Void Marriages a. Rule Marriages void where performed are void everywhere i. Exception If a marriage is void b/c it failed to comply with some technical requirement of the state where performed, it can still be recognized in NY if it would have complied w/ the NY rule. 3. Divorces Governed by law of plaintiffs domicile.

Defenses to Choice of Law

1. Procedural, Not Substantive Law a. Rule Court will not apply other states law procedural laws b. Examples of Procedural Laws: i. Burden of proof 1. Rare exception: where BOP would be outcome determinative, it is treated as substantive. ii. Ability to bring counterclaims iii. Statutes of limitations 1. Exception Borrowing statute a. If P is non-NY resident apply whichever S/L is shorter b/t NY & state where accident occurred b. If P is NY resident borrowing statute doesnt apply, NY S/L always applies

c. Common Substantive Laws (Apply the Babcock/Neumeier analysis)

Contributory vs. comparative negligence Statute of frauds Parol evidence rule Contribution among tortfeasors Direct action statutes (allowing P to sue insurance company directly w/out first suing negligent party) 1. NY regards them as substantive, so they may be applied in NY courts if that law is chosen Law Violates Public Policy a. Idea The law is against the public policy of the forum state b. Point The law must be really offensive for this to apply (so this defense is basically useless) Penal Law a. Idea That the law is a penal law --> a crim. law or civil fine will not be imposed if from another state b. Point Applies only to offenses against the public c. Examples criminal judgment or civil fine i. ii. iii. iv. v.

2.

3.

Use of State Law in Federal Courts

Rule A federal court sitting in diversity must use the choice of law rules of the state in which it sits.

Notice and Proof of Foreign Law

Rules 1. 2. Courts will take judicial notice of sister-state and federal law, but the law of a foreign country is a fact which must be pleaded and proved If the foreign law cannot be determined, then a NY court will apply NY law, so long as there is no injustice