See page 7. “A party to an administrative proceeding must be afforded the due process protections of the Fourteenth Amendment and the New York State Constitution, i.e., a short and plain statement of the matters asserted, an opportunity for a hearing within a reasonable time, reasonable notice of such hearing, and an opportunity to present written argument on issues of law and evidence on issues of fact.”

See page 9. “A party must attempt to obtain whatever administrative relief might be available before proceeding to the courts. This includes utilizing procedures for both administrative hearings and internal administrative appeals. The major exceptions are agency actions that are challenged as either unconstitutional or wholly beyond the agency's grant of power or when resort to an administrative remedy would be futile or its pursuit would cause irreparable injury.”

See page 8. “Administrative agencies may exercise those powers expressly authorized by their enabling statutes, including the power to conduct administrative investigations. Agencies have the ability in furtherance of an investigation to issue subpoenas to compel the attendance of witnesses or the production of evidence.”

See page 10. “Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion.”

See page 10. “If the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency, and its interpretive regulations are therefore to be accorded much less weight.”

See page 7. “Unlike the specificity requirements of an indictment in a criminal proceeding, the due process required in an administrative proceeding for a charge of misconduct is that the charge need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him or her and to allow for the preparation of an adequate defense.”

See page 10. “Although specific findings of fact are beyond judicial review, whether an administrative agency determination is supported by substantial evidence is a question of law.”

See page 7. “The formal rules of evidence contained in the CPLR do not apply to administrative hearings, but rules of privilege do, and a party has the right to cross-examination.”

See page 6. “The NYCRR is a published compilation of the rules and regulations of all state agencies.”

See page 6. “Under the separation-of-powers doctrine, the legislature cannot delegate its lawmaking power to an administrative agency.”

See page 7. “Discovery in an administrative proceeding is not governed by the CPLR. Each agency may adopt rules for discovery and depositions to the extent and in the manner appropriate to its proceedings, and the parties to the proceeding are subject to these rules.”

See page 6. “A public hearing is not required before the adoption of a rule unless a statute specifically requires a hearing.”

See page 10. “Once the court determines a rational basis exists for an agency's determination, its review is ended.”

See page 6. “The legislature may endow administrative agencies with the power to fill in the gaps in the legislative product by prescribing rules and regulations consistent with the enabling legislation.”

See page 8. “There is a two-step test for evaluating standing claims: (1) a party must show some harmful effect, whether economic or non-economic, and (2) the interest sought to be protected must be arguably within the zone of interest to be protected by the statute under which the agency has acted.”

See page 6. “The notice of adoption must contain information similar to that required in the notice of the proposed rule and must also include the effective date of the rule and an assessment of the public comments received on the rule.”

See page 7. “An adjudicatory proceeding is defined as any activity, other than rule-making or employee discipline, in which a determination is required by law to be made only on the record and after a hearing.”

See page 10. “In reviewing agency determinations involving findings of fact made without a formal adjudicatory hearing being required by statute or law, the court must determine whether there is a rational basis for the determination or if it was arbitrary and capricious.”

See page 9. “If a constitutional claim hinges on factual issues, the necessary record must be established at the administrative level. And if the underlying statute provides an exclusive administrative remedy, the futility and irreparable injury exceptions do not apply.”

See page 9. “A determination that is interlocutory in nature may be reviewable if there are extraordinary circumstances.”

See page 9. “Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to review becomes final and binding upon the petitioner.”

See page 11. “Every ‘agency’ ( defined very broadly as ‘any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature’)(Public Officers Law § 86) must make available for public inspection and copying all records, except those records or portions thereof that fall within certain enumerated exceptions. Access to governmental records under FOIL does not depend on the purpose for which the records are sought.”

See page 10. “Judicial review of administrative actions pursuant to Article 78 is limited to questions of law.”

See page 10. “An agency’s discretionary acts and policy decisions may be set aside only if there is no rational basis for the exercise of discretion and the act complained of is arbitrary and capricious.”

See page 8. “In order to justify a subpoena issued in furtherance of an investigation, the agency must make a preliminary showing that the information sought in the subpoena is reasonably related to a proper subject of inquiry and that there is some basis for inquisitorial action.”

See page 8. “Statutes governing adjudicatory proceedings before particular agencies may independently confer subpoena power, and if there is a specific statutory grant, the agency's power to issue subpoenas is derived solely from such grant.”

See page 11. “Administrative disciplinary penalties may be set aside only if such punishment constitutes an abuse of discretion.”

See page 7. “The agency must provide a party with a hearing on the record before an impartial officer having the power to administer oaths and issue subpoenas; it must keep a complete record of the proceeding; and the final determination must be in writing and include findings of fact and reasons for the decision”

See page 10. “Determinations of fact made after a formal adjudicatory hearing where evidence is taken must be made on the record as a whole and be supported by substantial evidence.”

See page 7. “Not all of the elements of due process required for a criminal proceeding are required for an administrative adjudicatory proceeding.”

See page 9. “Actions for declaratory judgment under CPLR 3001 may be used to challenge agency actions that are not reviewable under Article 78, including challenges to agency rulemakings.”

See page 6. “Except for emergency rules and certain other specified rules, a rule is not effective until it is filed with the Secretary of State and the notice of adoption is published in the State Register.”

See page 10. “If the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight.”

See page 11. “An executive session may be called only by a motion on majority vote of the public body in public session, and the motion must identify the general topics to be discussed in the executive session.”

See page 10. “New York administrative agencies are entitled to deference in matters of statutory interpretation of legislation governing the agency and in issuing decisions within the agency’s own special expertise.”

See page 8. “A request to withdraw or modify a subpoena must first be made to the person who issued it, and motions to quash or enforce administrative subpoenas are not part of the hearing process and must be made in supreme court.”

See page 9. “Article 78 of the CPLR provides the judicial proceeding and procedure used to challenge agency determinations.”

See page 10. “An action is arbitrary and capricious if it is taken without sound basis in reason or regard to the facts.”

See page 7. “All persons appearing at the hearing are accorded the right to be accompanied, represented and advised by counsel.”

See page 6. “There does not need to be a specific and detailed legislative expression authorizing a particular administrative act, as long as the basic policy decision has been articulated by the legislature, the administrative rule or regulation is not inconsistent with the statutory language or its underlying purpose, and the administrative agency is not engaging in broad-based policy determinations.”

See page 10. “The standard of review is whether an agency's decision is supported by a rational basis (Id.) or was affected by an error of law or was arbitrary and capricious or an abuse of discretion.”

See page 11. “Minutes must be taken at all open meetings (including executive sessions), must include all matters voted upon, and must be made available to the public under FOIL.”

See page 11. “The permitted topics include matters which will imperil the public safety if disclosed; matters involving law enforcement and criminal investigations which would imperil effective law enforcement if disclosed; discussions regarding proposed, pending or current litigation; collective negotiations with employees; the medical, financial, or employment history of individuals or matters leading to their appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal; the preparation, grading, or administration of exams; and the proposed sale or lease of real property or the proposed sale or acquisition of securities when publicity would substantially affect the value of such property.”

See page 7. “If the relevant enabling statute specifies a hearing on the record, then SAPA demands an adjudicatory proceeding and all of the procedures of Article 3 are mandatory upon the agency.”

See page 6. “Prior to the adoption of a rule, an agency must submit notice of the proposed rule to the Secretary of State for publication in the State Register and afford the public an opportunity to submit written comments on the proposed rule.”

See page 7. “Except as otherwise provided by statute, the burden of proof is on the party who initiates an administrative proceeding.”

See page 8. “These doctrines are generally applicable to quasi-judicial administrative determinations that are made pursuant to the adjudicatory authority of an agency employing procedures substantially similar to those used in a court of law. However, where a party is a nominal party or did not have a full and fair opportunity to litigate the material issue before the agency, the doctrines will not be applied.”

See page 27. “In town and village justice courts, an action may only be commenced and jurisdiction acquired by service of a summons, and a special proceeding is commenced and jurisdiction acquired by service of either a notice of petition or order to show cause.”

See page 28-29. “Personal service upon a domestic or foreign limited liability company (LLC) is made by delivering the process to (i) any member of the LLC, if the management of the LLC is vested in its members, (ii) any manager of the LLC, if the management of the LLC is vested in one or more managers, or (iii) any other person or agent authorized or designated to receive process, or . . . by service upon the Secretary of State.”

See page 27-28. “[Affix-and-mail] requires affixing the process to the door of the actual place of business, dwelling place or usual place of abode of the defendant, mailing the process to the defendant at his or her last known residence or actual place of business, and thereafter filing proof of service.”

See page 26. “New York courts may exercise personal jurisdiction over a non-domiciliary who in person or through an agent . . . commits a tortious act within New York, except as to a cause of action for defamation.”

See page 28. “If a particular method of service on either an individual or a partner requires filing of proof of service, such filing is a prerequisite to the completion of service. The filing must be done within 20 days of the last previous act to effect the service (affixing or mailing), and service is complete 10 days after the filing. The defendant’s time to respond does not begin to run until service is complete.”

See page 26. “Due process limits the exercise of general jurisdiction to a state in which the corporation is ‘at home.’ If a corporation is not incorporated in New York or maintaining its principal place of business here, New York courts will only exercise general personal jurisdiction in the exceptional case — when the foreign corporation’s operations are ‘so substantial and of such a nature as to render the corporation essentially ‘at home.’”

See pages 27. “[Deliver-and-mail] requires delivery of the process to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the defendant, mailing the process to the defendant at his or her last known residence or actual place of business, and thereafter filing proof of service.”

See page 27. “Except in town and village justice courts, actions are commenced by the paper filing or, where authorized or required in some counties and as to certain types of actions, electronic filing of a summons and complaint, or summons with notice, with the clerk of the court in the county where the action is brought.”

See page 26. “The particular assertion of long-arm jurisdiction must comport with the federal constitutional due process requirements that (1) the defendant must have minimum contacts with New York such that the defendant should reasonably anticipate being sued in New York, and (2) the maintenance of the suit against the defendant in New York must comport with traditional notions of fair play and substantial justice.”

See page 27. “The summons must specify the basis of the venue designated by the plaintiff and contain the index number and date of the filing with the clerk of the court. If a complaint is not served with the summons, the summons must contain a notice stating the nature of the action and the relief sought in the action, and except in medical malpractice actions, the sum of money for which judgment may be taken in the event of a default.”

See page 25. “A nondomiciliary who commences an action in New York, even if he or she is not otherwise subject to personal jurisdiction in New York, submits himself or herself to personal jurisdiction in any separate action brought against him or her by any party to the pending action.”

See page 25. “With respect to in personam jurisdiction, New York recognizes five potential bases: presence, consent, domicile, doing business (subject to constitutional limits) and “long-arm jurisdiction.”

See page 28. “In matrimonial actions, service must be made under either subdivision (1) [personal delivery] or (5) [court-ordered service].”

See page 28. “A partnership may also be served by serving the managing or general agent of the partnership or the person in charge of the partnership office within the state at such office, mailing the process to the partner intended to be served by first class mail to his or her last known residence or the partnership place of business, and thereafter filing proof of service”

See page 25. “A nondomiciliary who commences an action in New York, even if he or she is not otherwise subject to personal jurisdiction in New York, submits himself or herself to personal jurisdiction in any separate action brought against him or her by any party to the pending action and is deemed to have designated his or her New York attorney as an agent upon whom process may be served in such separate action.”

See page 28. “When mailing is made to a defendant’s actual place of business, it must be by first class mail, the envelope must be labeled ‘personal and confidential,’ and it must not indicate that it is from an attorney.”

See page 25. “Jurisdiction over persons, property and status is divided into three categories: in personam, in rem and quasi in rem.”

See page 29. “Any person domiciled in the state or subject to personal jurisdiction under the long-arm statute may be served outside the state in the same manner as service is made within the state by any person authorized to make service within New York who is a resident of New York, or by any person authorized to make service by the laws of the jurisdiction in which service is made, or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.”

See page 28. “Service under CPLR 308 (4) [affix-and-mail] is not available unless service under subsections (1) [personal delivery] and (2) [delivery-and-mail] cannot be made with due diligence.”

See page 28. “Personal service upon a domestic or foreign corporation is made by delivering the process to an officer, director, managing or general agent, or cashier or assistant cashier, or to a registered agent, or to the Secretary of State.”

See page 28. “The mailing required by CPLR 308 (2) [delivery-and-mail] or (4) [affix-and-mail] must occur within 20 days of the delivery or affixing, and a later mailing will not cure the defect in service.”

See page 25. “General jurisdiction permits a court to hear all claims against an entity, whereas specific jurisdiction permits a court to hear only those claims that arise out of the entity’s contacts within the state.”

See page 27. “Personal service in an action upon a natural person must be made by any non-party at least 18 years of age pursuant to one of the CPLR 308 subsections: (1) personal delivery, (2) deliver-and-mail service, (3) service upon an agent, (4) affix-and-mail service, or (5) court-ordered service.”

See page 27. “A special proceeding is commenced by the paper filing or, where authorized or required, electronic filing of a petition and notice of petition with the clerk of the court in the county where the special proceeding is brought. . . . Although CPLR 304 does not require the filing of a notice of petition with the petition, one is usually filed, and one must be served on the respondent. Also, some other statutes and rules do require filing a notice of petition for commencement of a special proceeding.”

See page 28. “Personal service upon a partnership is made pursuant to CPLR 310 by personally serving the process on any one of the partners, utilizing any of the methods authorized for service on an individual under CPLR 308.”

See pages 25–26. “General personal jurisdiction can no longer be asserted against a foreign corporation based solely on the corporation’s continuous and systematic business activity in New York. Due process limits the exercise of general jurisdiction to a state in which the corporation is ‘at home.’”

See page 103. “CPLR 4512 provides that one spouse is competent to give testimony against the other spouse. Thus, under New York law, a witness-spouse is not excluded or excused from giving testimony about matters that might be damaging to the party-spouse; however, spouses are entitled to invoke a privilege for confidential communications in any type of proceeding.”

“True” is incorrect because the statement is too broad; the phrase “any statement” makes it inaccurate. While business records are admissible if made in the regular course of business, within a reasonable time, etc., not every statement in the record is automatically admissible. If the record includes statements made by third parties outside the business, those parts are not admissible unless another hearsay exception applies.

See page 111. “Details as to how a particular injury occurred that are not useful for purposes of medical diagnosis or treatment are generally not considered to have been recorded in the regular course of a hospital’s business.”

See page 102. “In both civil and criminal proceedings, 7 evidence of a defendant's prior uncharged crimes is inadmissible to prove the defendant's propensity to commit the charged crime or act in issue, but may be admitted under certain circumstances where the probative value of the proof outweighs its possible prejudicial effect. Evidence of uncharged but similar acts is therefore admissible to establish, for example: • Motive, • Intent, • Absence of mistake or accident, • Identity, • Common scheme or plan • Opportunity, • Preparation • Conduct inextricably interwoven with the charged acts, • Necessary background information or explanation, or • A complete narrative of the subject event or matter.”

See page 112. “CPLR 4517 (a) (3) establishes a hearsay exception for testimony by a witness given at a prior trial involving the same parties and arising from the same subject matter, provided the court finds that: • The witness is not available because of death, age, sickness, infirmity or imprisonment; • The witness is more than 100 miles from the place of trial, or out of state, unless the absence was procured by the party offering the testimony; • Attendance cannot be procured despite diligent efforts of the party offering the testimony; or • Exceptional circumstances exist making its use desirable.”

See page 105. “In a civil proceeding impeachment is limited to crimes, i.e., felonies or misdemeanors, and the crime can be proven by the record of conviction whether or not the witness denies it.”

See page 107. “The privilege will not attach to communications made by the spouses in the known presence of outsiders (People v Ressler, 1 7 NY2d 174 [ 1966]). The spousal privilege for confidential communications applies in all civil and criminal proceedings.”

See page 110. “In New York, a ‘marginal time lag’ is allowed between the event and the description by the declarant.”

See page 102. “Evidence of habit of a person or routine practice of an organization may be admitted in a civil action to establish that a person or organization acted in conformity with that habit on a particular occasion.”

See page 103. “Both Family Court Act   343.1 (2) and CPL 60.20 (2) establish a rebuttable presumption that a child less than nine years old is incapable of giving testimony under oath.”

See page 101. “Whenever evidence of a person's character is admissible, proof thereof generally may only be by testimony as to his or her general reputation in the community. The individual opinion of a witness who knows the defendant personally and has firsthand knowledge of his or her character is inadmissible. . . . In some civil or criminal proceedings, character evidence may be admissible where that character is an essential element of a crime, charge, claim or defense, in which case the relevant character may be proved by reputation testimony and by proof of specific acts.”

See page 104. “CPLR 4517 (a) (1) expressly provides that the prior trial testimony of a witness may be used by any party to contradict or impeach that witness if the witness testifies in a subsequent civil action involving the same parties and subject matter.”

See page 105. “The credibility of a witness may be impeached on cross-examination by asking about prior specific criminal, vicious or immoral conduct of the witness, but only if: • The nature of the conduct or the circumstances in which it occurred bears logically and reasonably on credibility, • The question has a good faith basis, • The question does not relate to a charged crime for which the witness was acquitted, and • In a criminal case, if the witness is the defendant, any question about the prior conduct was authorized by the court prior to trial. For other witnesses in a criminal case, such prior authorization by the court is not required, but a party may seek an advance ruling addressed to the court's discretion regarding the permissible scope of cross-examination with respect to the prior conduct.”

See page 108–09. “A witness may not refuse to testify on the ground that the testimony might expose the witness to civil liability. A witness is, however, entitled to avoid testifying to self-incriminating facts. The objection may be raised only to specific questions that the witness believes would require incriminating answers.”

See page 107. “Communications made in the presence of other third parties, whose presence is known to the client, are not privileged. For the privilege to apply, communications must be made for the purpose of providing legal advice or services in the course of a professional relationship.”

"All" is too broad. If the communication was not made for the purpose of providing legal advice or services, it is not covered.

See page 101. “In a civil case, evidence of good character may be admitted only after a person's good character has been directly called into question by evidence of bad character.”

Try a hypothetical question testing this concept:

In a civil lawsuit, Mia’s honesty was challenged when opposing counsel introduced testimony suggesting she had a history of dishonesty in her business dealings. Mia wants to offer testimony from two coworkers who will describe her reputation in the community as honest and trustworthy. Is Mia permitted to introduce this good character evidence?

A. No, because good character evidence is never admissible in a civil case

B. Yes, because Mia’s good character had been directly attacked by evidence of bad character

C. No, because only one witness may testify if good character is directly attacked by evidence of bad character

D. Yes, because a party in a civil case may introduce good character evidence at any time

Answer: B. Yes, because Mia’s good character had been directly attacked by evidence of bad character

Explanations:

“No, because good character evidence is never admissible in a civil case” is incorrect because never is too strong. Good character evidence can be admitted if the defendant’s good character is directly attacked by evidence of bad character

“No, because only one witness may testify if good character is directly attacked by evidence of bad character” is incorrect because witnesses are not limited to one person.

“Yes, because a party in a civil case may introduce good character evidence at any time” is incorrect because good character evidence can only be introduced after a person’s good character was directly called into question by evidence of bad character.

See page 152. “A landlord of a residential premises cannot refuse to rent or offer a lease to a potential tenant on the basis that the potential tenant was involved in a past or pending landlord-tenant action or summary proceeding by a prior landlord to recover possession of leased premises.”

Want more NYLE questions? Check them out here. 

See page 155. “Security deposits in residential leases cannot exceed one month's rent.”

See page 155. “If a rental is in a building containing six or more family dwelling units, the landlord must deposit the security in an interest-bearing account.”

See page 161. “New York is a race-notice jurisdiction whereby an unrecorded conveyance is invalid against a subsequent good faith purchaser for value who first records.”

“True” is incorrect because these are the requirements for a race-notice jurisdiction, not a race jurisdiction. In a pure race jurisdiction, good faith is irrelevant; priority goes to whoever records first.

See page 152. “Unless a greater right to assign is conferred by the lease, a tenant may not assign a residential lease without consent of the landlord, which consent may be unconditionally withheld without cause, but a landlord who unreasonably withholds consent must release the tenant from the lease if the tenant so requests upon 30 days' notice. But if the residential lease is in a dwelling having four or more residential units, a tenant has a right to sublease, upon complying with notice provisions contained in the statute, subject to written consent of the landlord, which consent may not be unreasonably withheld.”

See page 151. “A landlord may not refuse to rent or discriminate in the terms of any rental on the ground that the tenant has a child or children, but this prohibition does not apply to: • housing units for senior citizens subsidized, insured, or guaranteed by the federal government; or • one or two-family owner-occupied dwelling houses or manufactured homes; or • manufactured home parks intended and operated for occupancy by persons 50-55 years of age or older.”

See page 152. “There is a rebuttable presumption that a landlord is acting in retaliation if the landlord attempts to evict a tenant within one year after the tenant makes a complaint or brings an action for retaliation.”

See page 158. “After the sale there is no right to redeem.”

See page 152. “The landlord must keep a record of cash receipts for three years.”

See page 153. “Every written or oral lease for residential property is deemed to contain a warranty of habitability.”

See page 151. “A lease for a period longer than one year is void unless in writing subscribed by the party to be charged or his or her lawful agent (GOL 5-703). A lease for a period of one year or less may be oral.

See page 153–54. “A landlord seeking to terminate a residential tenancy or to increase the rent 5% or more must notify the tenant as follows: If the tenant has occupied the premises ( or has a lease term) less than one year, the landlord must give at least 30 days' notice.”

See page 156. “If either legal title or possession of the property has been transferred, the buyer bears the loss.”