New York Bar Exam Distinctions

NEW YORK BAR EXAM DISTINCTIONS

New York adopted the Uniform Bar Examination (UBE) in July 2016. The portable UBE score (MBE, MEE, MPT) tests general national rules. New York preserves its own substantive law through a separate component: applicants must complete the online New York Law Course (NYLC) and pass the New York Law Exam (NYLE), a 50-question, open-book test. The NYLE tests the many areas in which New York departs from the national rules — civil practice under the CPLR, evidence, domestic relations, trusts and estates under the EPTL/SCPA, the General Obligations Law, tort doctrine, criminal procedure, real property, and the business and professional-responsibility rules. This page is a focused map of those departures.

📘 New York administers the Uniform Bar Exam (UBE) plus the New York Law Course (NYLC) and New York Law Exam (NYLE). This page covers only where New York law departs from the national rules. For the universal doctrine, see the MBE Subject Outlines and MEE Subject Outlines.

I. NEW YORK CIVIL PRACTICE (CPLR)

The Civil Practice Law and Rules (CPLR) governs civil litigation in New York and is the single most heavily tested NYLE subject. Where federal procedure follows the FRCP, New York follows the CPLR, and the two diverge in commencement, limitations, jurisdiction, disclosure, motion practice, and judgments.

A. Statutes of Limitations (CPLR Article 2)

NY Rule: New York's limitations periods are fixed by statute: negligence/personal injury and property damage — 3 years (CPLR 214); medical, dental, and podiatric malpractice — 2½ years (CPLR 214-a), running from the act or the end of continuous treatment; intentional torts (assault, battery, false imprisonment, libel, slander, malicious prosecution) — 1 year (CPLR 215); breach of contract — 6 years (CPLR 213); fraud — 6 years from commission or 2 years from discovery, whichever is longer (CPLR 213(8)); and recovery on a judgment — 20 years (CPLR 211). National materials quote a generic "personal injury" period; New York's are specific and must be memorized. Infancy and insanity toll the period (CPLR 208), and the continuous-treatment doctrine tolls med-mal limitations until treatment for the same condition ends.

NY Rule (Borrowing Statute, CPLR 202): When a non-resident plaintiff sues on a cause of action that accrued outside New York, the action is timely only if timely under both New York's period and that of the place where it accrued — the court "borrows" the shorter foreign period. National practice has no uniform borrowing rule; New York's is mandatory and frequently tested.

ESSAY WRITING TIP: When an essay turns on timeliness, identify the cause of action first, state the precise CPLR period and citation, fix the accrual date, then apply any toll or the borrowing statute. Do not write "two or three years" — name the exact period (e.g., "2½ years under CPLR 214-a"), because the grader wants the specific New York number.

NY BAR TIP: The most tested limitations trap is the 1-year intentional-tort period (CPLR 215) versus the 3-year negligence period (CPLR 214). A defendant sued for "negligence" whose conduct is really an intentional battery may defeat the claim because the intentional-tort year has expired. Watch also for medical malpractice mislabeled as ordinary negligence — the 2½-year period and continuous-treatment toll change the result.

B. Commencement by Filing

NY Rule: Since 1992 New York is a commencement-by-filing jurisdiction. An action in Supreme or County Court is commenced by filing the summons and complaint (or summons with notice) with the county clerk and paying the fee, not by service; the statute of limitations stops on filing, with service to follow within 120 days (CPLR 306-b). National: service commences the action in many systems. New York: filing commences and stops the clock.

C. Personal Jurisdiction and the Long-Arm Statute (CPLR 301, 302)

NY Rule (General Jurisdiction, CPLR 301): New York courts have general jurisdiction over a defendant present, domiciled, or — for corporations — "at home" in New York. After Daimler AG v. Bauman and Aybar v. Aybar, mere "doing business" or registration no longer confers all-purpose general jurisdiction; the corporation must be essentially at home (place of incorporation or principal place of business).

NY Rule (Long-Arm, CPLR 302): CPLR 302(a) confers specific jurisdiction where the claim arises from New York contacts: 302(a)(1) — transacting any business within the State or contracting to supply goods or services here; 302(a)(2) — committing a tortious act within the State (the act, not just the injury, must occur in New York); 302(a)(3) — committing a tortious act outside the State causing injury inside the State, but only if the defendant regularly does business or derives substantial revenue from New York, or expects New York consequences and derives substantial interstate revenue; and 302(a)(4) — owning, using, or possessing real property in the State. National long-arm statutes often reach the full extent of due process; New York's 302 is narrower and enumerated.

EXAMPLE: A Connecticut manufacturer makes a defective tool in Connecticut that injures a plaintiff in New York. There is no 302(a)(2) jurisdiction because the tortious act (manufacture) occurred outside New York; jurisdiction lies, if at all, only under 302(a)(3), and only if the manufacturer regularly does business or derives substantial revenue from New York. This act-in-state versus injury-in-state distinction is a classic NYLE issue.

ESSAY WRITING TIP: Always separate the two jurisdictional inquiries — first ask whether there is a statutory basis (301 for general, 302 for long-arm), then whether exercising jurisdiction comports with due process. A defendant can satisfy due process and still escape New York jurisdiction because no enumerated 302 ground fits. Cite the specific subsection.

NY BAR TIP: CPLR 302(a)(2) requires the tortious act to occur physically in New York — out-of-state defamation or manufacturing does not satisfy it even if the harm lands here. And 302(a)(1)'s "transacting business" can be met by a single purposeful transaction, unlike the continuous "doing business" standard.

D. Service of Process (CPLR 308)

NY Rule: Personal service on a natural person is made by: (1) personal delivery; (2) "deliver-and-mail" — delivery to a person of suitable age and discretion at the defendant's actual place of business, dwelling, or usual abode, followed by mailing; or (4) "nail-and-mail" — affixing to the door of the actual dwelling or place of business and mailing, available only if delivery under (1) and (2) cannot be made with due diligence. For methods (2) and (4), proof of service must be filed within 20 days and service is complete 10 days after filing. National practice (FRCP 4) is more permissive; New York's due-diligence prerequisite for nail-and-mail and its filing/completion timing are strictly enforced.

E. Provisional Remedies

NY Rule: New York's provisional remedies include attachment (CPLR Article 62), chiefly where the defendant is a non-domiciliary or secreting assets; preliminary injunction and TRO (CPLR Article 63), requiring likelihood of success, irreparable injury, a balance of equities, and an undertaking; and the notice of pendency / lis pendens (CPLR Article 65) in actions affecting title to or possession of real property, effective three years and renewable. The notice of pendency is a uniquely powerful and tested New York device.

F. Pleadings and CPLR 3211 Motions

NY Rule: New York is a notice-pleading state but sometimes requires verified pleadings (e.g., matrimonial actions and Article 78 proceedings). A defendant attacks the complaint by a CPLR 3211 motion to dismiss on enumerated grounds — lack of jurisdiction, the statute of limitations, documentary evidence, failure to state a cause of action, and others. Unlike FRCP 12(b), CPLR 3211(a)(1) allows dismissal on documentary evidence that utterly refutes the claim, and CPLR 3211(e) imposes a "single motion" rule waiving certain defenses (notably personal jurisdiction) if not raised. National: FRCP 12(b)(6) tests sufficiency on the pleadings alone. New York: 3211 adds documentary-evidence and improper-service grounds and a strict waiver structure.

G. Disclosure (CPLR Article 31)

NY Rule: CPLR 3101 commands "full disclosure of all matter material and necessary," construed liberally in Allen v. Crowell-Collier. National practice under FRCP 26 turns on relevance and proportionality and includes mandatory initial disclosures; New York has no FRCP-style mandatory initial disclosure and frames the standard as "material and necessary."

H. Summary Judgment (CPLR 3212)

NY Rule: A motion for summary judgment may not be made until issue has been joined — not before the answer is served (CPLR 3212(a)). There is no "early" summary judgment. The movant must establish entitlement as a matter of law by evidence in admissible form; the burden then shifts. National: FRCP 56 permits motions at various stages. New York: issue must be joined first, and the deadline to move (often 120 days after note of issue) is enforced.

I. Article 78 Proceedings

NY Rule: A special proceeding under CPLR Article 78 challenges the action or inaction of a government body or officer, replacing the old writs of certiorari, mandamus, and prohibition. The classic questions are whether the body failed to perform a duty, proceeded without jurisdiction, acted on an error of law or arbitrarily and capriciously, or rendered a decision unsupported by substantial evidence. The limitations period is generally four months (CPLR 217). This proceeding has no direct FRCP analog.

J. Appeals, Collateral Source, and Structured Judgments

NY Rule (Appeals): Most final judgments and many intermediate orders are appealable as of right to the Appellate Division (CPLR 5701), which reviews questions of law and fact and may modify on the facts. Further review in the Court of Appeals is generally by permission and largely limited to questions of law (CPLR 5601–5602). National federal appeals (28 U.S.C. § 1291) are generally limited to final judgments; New York's appeal-as-of-right scope is broader.

NY Rule (Collateral Source, CPLR 4545): In personal-injury, property-damage, and wrongful-death actions, the court reduces the award by collateral-source payments (such as insurance) that indemnify past or future economic loss — a departure from the common-law collateral-source rule that bars such offset. Large future-damages awards in medical-malpractice (Article 50-A) and other personal-injury/wrongful-death (Article 50-B) actions are paid as structured, periodic judgments rather than a lump sum.

ESSAY WRITING TIP: For any CPLR essay, build on the FRCP-versus-CPLR contrast: name the rule number, state the New York standard, then state "National: X. New York: Y." Graders reward candidates who flag that summary judgment cannot precede joinder of issue, or that 3211(a)(1) permits a documentary-evidence dismissal unavailable under FRCP 12.

NY BAR TIP: High-frequency CPLR points are the borrowing statute (CPLR 202) for out-of-state non-resident plaintiffs; commencement by filing and the 120-day service window (CPLR 306-b); the long-arm grounds of CPLR 302(a)(1)–(4); the four-month Article 78 period; and collateral-source reduction under CPLR 4545.

II. NEW YORK EVIDENCE

New York has not adopted the Federal Rules of Evidence. New York evidence law is overwhelmingly common-law and statutory, scattered through the CPLR, the Criminal Procedure Law, and case law. The Unified Court System's "Guide to New York Evidence" is a restatement, not binding authority. Because the MBE tests the FRE, the candidate must keep two systems straight.

A. Character and Prior-Crimes Evidence: Molineux, Ventimiglia, Sandoval

NY Rule (Molineux): Under People v. Molineux, evidence of a defendant's uncharged crimes or prior bad acts is inadmissible to show propensity but may be admitted for a non-propensity purpose — motive, intent, absence of mistake, identity, or common scheme or plan. New York reaches the same result as FRE 404(b) but through case law, with no rule numbering.

NY Rule (Ventimiglia): Before offering Molineux evidence, the prosecution must obtain a Ventimiglia hearing outside the jury's presence weighing probative value against prejudice. There is no comparable mandatory federal procedure.

NY Rule (Sandoval): Where the defendant will testify, a Sandoval hearing determines in advance the extent to which the prosecution may cross-examine the defendant about prior convictions and bad acts to impeach credibility, balancing probative value against unfair prejudice. This Ventimiglia/Sandoval framework is a distinctly New York pretrial mechanism with no FRE counterpart.

B. Privileges

NY Rule (Physician-Patient, CPLR 4504): New York recognizes a physician-patient privilege protecting information a physician, dentist, nurse, or podiatrist acquires in a professional capacity, waivable by putting one's condition in issue. National: no physician-patient privilege at federal common law. New York: CPLR 4504 protects it.

NY Rule (Other Privileges): New York codifies the attorney-client (CPLR 4503), psychologist (CPLR 4507), social-worker, clergy (CPLR 4505), and spousal-communications (CPLR 4502) privileges; these statutory privileges and their waiver rules control in New York courts.

C. The Dead Man's Statute (CPLR 4519)

NY Rule: New York's Dead Man's Statute bars an interested witness from testifying, in an action against the representative or successor of a decedent, about a personal transaction or communication with the deceased — preventing self-serving, unrebuttable testimony against the estate. The bar is waived when the representative opens the door by testifying about the transaction or examining the interested witness about it. The Federal Rules contain no Dead Man's Statute; this is one of the most heavily tested New York evidence distinctions.

EXAMPLE: A plaintiff sues a decedent's estate, claiming the decedent orally promised to pay him $20,000. The plaintiff cannot testify to that conversation — he is an interested witness barred by CPLR 4519. A disinterested bystander who overheard the promise may testify, having no stake in the outcome.

D. Hearsay and Common-Law Exceptions

NY Rule: New York recognizes most familiar hearsay exceptions, but through case law. The present-sense-impression exception traditionally requires substantially contemporaneous description and some corroboration. Party admissions are treated much as federally, but New York's analysis is doctrinal rather than rule-numbered. The business-records exception is codified at CPLR 4518, with a certified-records provision allowing admission without a live custodian. Candidates should not assume FRE language (e.g., "non-hearsay" admissions under FRE 801(d)) maps cleanly onto New York doctrine.

E. Impeachment

NY Rule: A party generally may not impeach its own witness with a prior inconsistent statement except under CPL 60.35 (criminal) where the witness's trial testimony affirmatively damages the calling party. Cross-examination about prior convictions is permitted but, for a testifying criminal defendant, is governed by the Sandoval balancing above. Extrinsic evidence on collateral matters is barred.

ESSAY WRITING TIP: On a New York evidence essay, resist citing FRE numbers. State the New York rule by name — Molineux, Ventimiglia, Sandoval, the Dead Man's Statute, CPLR 4504 — and explain the result. If contrasting, say "Under the FRE this is Rule 404(b); in New York the controlling authority is People v. Molineux."

NY BAR TIP: The Dead Man's Statute (CPLR 4519) and physician-patient privilege (CPLR 4504) are perennial NYLE answers, both differing sharply from federal law. Memorize the elements of the Dead Man's bar (interested witness, action against estate/successor, personal transaction with the deceased) and its waivers.

III. NEW YORK DOMESTIC RELATIONS

Family law is governed by the Domestic Relations Law (DRL) and Family Court Act. New York's property, support, and divorce-ground rules are distinct and tested on the NYLE.

A. Grounds for Divorce

NY Rule: Since October 2010, New York recognizes no-fault divorce under DRL § 170(7): an irretrievable breakdown for at least six months, attested under oath, provided economic and custody issues are resolved. New York also retains the traditional fault grounds of DRL § 170(1)–(6): cruel and inhuman treatment, abandonment for a year or more, imprisonment for three or more consecutive years, adultery, and living apart pursuant to a separation judgment or agreement for one year. New York was the last state to add no-fault and still keeps fault grounds on the books.

B. Equitable Distribution (DRL § 236(B))

NY Rule: New York is an equitable-distribution state, not community property. On divorce, marital property (acquired during the marriage regardless of title) is divided equitably — not necessarily equally — under statutory factors, while separate property (owned before marriage, inheritances, third-party gifts, personal-injury compensation) is retained by its owner. The DRL § 236(B)(5)(d) factors include the marriage's duration, the parties' ages and health, the custodial parent's need to occupy the marital home, homemaker contributions, and lost inheritance and pension rights. National: community-property states split acquests equally. New York: equitable, factor-driven division.

NY Rule (Professional Licenses — O'Brien Overruled): Under O'Brien v. O'Brien (1985), enhanced earning capacity from a professional license or degree earned during the marriage was marital property subject to distribution. The Legislature abolished this rule by amendment to DRL § 236(B) effective for actions commenced on or after January 1, 2016: a license, degree, or career enhancement is no longer marital property, though the court may consider a spouse's direct or indirect contributions to the other's enhanced earning capacity when dividing other assets and setting maintenance. The old O'Brien rule is no longer the law.

C. Maintenance (Spousal Support)

NY Rule: New York applies a statutory formula for temporary and post-divorce maintenance (DRL § 236(B)(5-a) and (6)), driven by the parties' incomes up to a statutory cap, with two calculations (depending on whether child support is also paid) and an advisory duration schedule tied to the length of the marriage, subject to deviation. National maintenance law is largely discretionary; New York front-loads a guideline calculation.

D. Child Support (CSSA)

NY Rule: The Child Support Standards Act (DRL § 240(1-b); Family Court Act § 413) sets presumptive percentages of combined parental income up to a statutory cap: 17% for one child, 25% for two, 29% for three, 31% for four, and at least 35% for five or more, prorated between the parents by income share, with add-ons for child care, health, and education. National guidelines vary widely; New York's flat-percentage CSSA structure must be memorized.

EXAMPLE: Parents with combined income within the cap and two unemancipated children owe a presumptive basic obligation of 25% of combined parental income, allocated in proportion to their respective incomes, with add-ons for child care and unreimbursed health expenses.

ESSAY WRITING TIP: A New York family-law essay rewards three moves: classify each asset as marital or separate, apply the equitable-distribution factors (not a 50/50 default), and run the CSSA percentage. State the percentage explicitly and note the income cap and pro-rata allocation.

NY BAR TIP: Flag the 2016 statutory overruling of O'Brien — enhanced earning capacity and professional licenses are no longer marital property. An essay treating a medical license as a divisible asset is using outdated law. Memorize the CSSA percentages cold.

IV. NEW YORK WILLS, TRUSTS, AND ESTATES (EPTL/SCPA)

Trusts and estates are governed by the Estates, Powers and Trusts Law (EPTL) and Surrogate's Court Procedure Act (SCPA), departing from majority assumptions on execution, revocation, the elective share, intestacy, and representation.

A. Will Execution (EPTL 3-2.1)

NY Rule: A valid New York will requires that the testator (1) sign at the end; (2) sign or acknowledge the signature before at least two attesting witnesses; (3) declare to them that the instrument is the testator's will (publication); and (4) the witnesses sign within 30 days of one another. Matter following the signature is generally disregarded. New York does not recognize holographic or nuncupative wills, except a narrow, time-limited exception for armed-forces members in actual military service and mariners at sea. National: many states accept holographic wills. New York: only the military/mariner exception.

B. Revocation

NY Rule: A will is revoked only by a later writing executed with testamentary formalities or by a physical act (burning, tearing, cutting, cancellation) by the testator or by another at the testator's direction and in the testator's presence (EPTL 3-4.1). New York does not follow partial revocation by physical act — striking out a clause does not revoke it; revocation by act must be of the whole instrument.

C. The Elective Share (EPTL 5-1.1-A)

NY Rule: A surviving spouse may elect against the will to take the greater of $50,000 or one-third of the net estate, computed on an augmented estate including testamentary substitutes (Totten trusts, jointly held property, survivorship accounts, and certain lifetime transfers), reduced by what the spouse already receives. National elective-share fractions vary; New York's is the greater of $50,000 or one-third.

D. Intestacy (EPTL 4-1.1) and Representation

NY Rule: Under EPTL 4-1.1, a spouse and issue: the spouse takes the first $50,000 plus one-half of the residue, the issue take the balance by representation; spouse and no issue takes all; issue and no spouse take all. New York's "by representation" (EPTL 1-2.16) is a per-capita-at-each-generation system: divided into equal shares at the first generation with living takers, the shares of deceased members combined and redivided equally among the next generation — differing from both classic per stirpes and strict per capita.

E. Anti-Lapse (EPTL 3-3.3)

NY Rule: New York's anti-lapse statute saves a gift to a predeceasing beneficiary only where the beneficiary was the testator's issue or sibling, passing to that beneficiary's surviving issue; if the beneficiary falls outside this class, the gift lapses. National anti-lapse statutes often cover a broader set of relatives; New York's is limited to issue and siblings.

F. Advancements and Simultaneous Death

NY Rule (Advancements): A lifetime gift is treated as an advancement against an heir's intestate share only if proved by a writing signed by the donor or donee (EPTL 2-1.5) — unlike common law, which sometimes presumes advancements.

NY Rule (Simultaneous Death): Under EPTL 2-1.6, absent sufficient evidence of survival, property is distributed as though each person survived the other, preventing double passage of the same property.

ESSAY WRITING TIP: On an EPTL essay, march through execution formalities element by element (signed at the end, two witnesses, publication, 30-day witness rule), then revocation, then distribution. When distributing to descendants, apply EPTL 1-2.16 per-capita-at-each-generation, not per stirpes, unless the will directs otherwise.

NY BAR TIP: Three EPTL points recur: (1) no holographic or nuncupative wills except the military/mariner exception; (2) the elective share is the greater of $50,000 or one-third against an augmented estate; and (3) anti-lapse protects only issue and siblings. New York's representation is per capita at each generation, not classic per stirpes.

V. NEW YORK CONTRACTS AND THE GENERAL OBLIGATIONS LAW

New York's General Obligations Law (GOL) departs from the national contract rules chiefly in the Statute of Frauds, modifications and releases, and consideration substitutes.

A. Statute of Frauds (GOL 5-701, 5-703)

NY Rule: GOL 5-701 requires a signed writing for, among others, an agreement not to be performed within one year, a suretyship promise, an agreement in consideration of marriage, and — distinctively — a contract to pay finder's-fee or brokerage compensation for negotiating a business opportunity or the sale of a business. GOL 5-703 requires a writing for conveyances and leases of real property for more than one year. New York's "negotiating a business opportunity" finder's-fee provision is a notable extra.

B. Modifications and the "No Oral Modification" Clause (GOL 15-301)

NY Rule: Under GOL 15-301, a written contract that says it cannot be changed orally cannot be modified or terminated orally; an attempted oral modification is unenforceable unless executed or the party is estopped. National common law often allows oral modification notwithstanding such a clause; New York enforces it by statute.

C. Consideration Substitutes — Written Releases, Modifications, and Past Consideration (GOL 5-1103, 5-1105)

NY Rule: New York lets a signed writing substitute for consideration. GOL 5-1103 makes a signed written agreement to modify or discharge a contract enforceable without new consideration. GOL 5-1105 makes a signed written promise enforceable though supported only by past consideration, provided the writing expresses it and it would be valid but for the time of its rendering. GOL 5-1109 validates a signed written firm/irrevocable offer even outside the UCC. National common law requires fresh consideration for modifications and treats past consideration as none; New York reverses those defaults. New York has also abolished the legal effect of the seal (GOL 5-1101 et seq.).

EXAMPLE: A creditor signs a writing forgiving part of a debt, reciting that the debtor previously performed valuable services. Under common law the promise might fail for lack of new consideration (past consideration is no consideration); in New York, GOL 5-1105 makes the signed writing enforceable because it expresses the past consideration.

ESSAY WRITING TIP: When a New York contracts issue involves a modification, release, or finder's fee, reach for the GOL section by number. Note expressly that a signed writing can replace consideration under GOL 5-1103/5-1105 and that a no-oral-modification clause is enforced under GOL 15-301 — both reversing common-law defaults.

NY BAR TIP: The most tested GOL points are signed written modifications and releases without consideration (5-1103), the past-consideration writing rule (5-1105), enforcement of no-oral-modification clauses (15-301), and the finder's-fee Statute of Frauds (5-701).

VI. NEW YORK TORTS

New York tort law diverges from the national rules on comparative fault, several liability, dram-shop and Labor Law liability, no-fault auto insurance, wrongful death, and municipal notice of claim — among the most testable New York distinctions.

A. Pure Comparative Negligence (CPLR 1411)

NY Rule: New York follows pure comparative negligence: a plaintiff's recovery is reduced in proportion to her fault but she may recover even if more than 50% at fault (CPLR 1411). Contributory negligence and assumption of risk are not complete bars but go to apportionment. National jurisdictions split among pure and modified comparative systems; New York is firmly pure comparative.

B. Modified Several Liability for Non-Economic Damages (CPLR Article 16)

NY Rule: Under CPLR Article 16, a defendant 50% or less at fault is liable only severally — not jointly — for the plaintiff's non-economic damages (pain and suffering), paying only its proportionate share; a defendant more than 50% at fault remains jointly and severally liable. Economic damages remain subject to joint and several liability, and Article 16 has exceptions (e.g., certain intentional torts, motor-vehicle cases, hazardous-substance and reckless conduct). New York's Article 16 carve-out for low-fault defendants' non-economic damages is a signature rule.

C. Dram Shop and Social-Host Liability (GOL 11-100, 11-101)

NY Rule: Under GOL 11-101, a person injured by an intoxicated person may recover from one who unlawfully sold alcohol to a visibly intoxicated person who caused the injury; GOL 11-100 extends liability to one who unlawfully furnishes alcohol to a person under 21. New York imposes no broad common-law social-host liability for serving adults; liability is statutory.

D. Labor Law §§ 240(1) and 241(6) — The "Scaffold Law"

NY Rule: Labor Law § 240(1), the "scaffold law," imposes absolute (non-delegable) liability on owners and general contractors for elevation-related (gravity) injuries to construction, demolition, and repair workers caused by failure to provide proper safety devices; the worker's comparative negligence is generally not a defense. Labor Law § 241(6) imposes a non-delegable duty to comply with specific Industrial Code provisions (subject to comparative fault), and § 200 codifies the general duty to provide a safe workplace. There is no national analog to the scaffold law's absolute liability — one of the most heavily tested New York tort distinctions.

EXAMPLE: A worker falls from an unsecured, unbraced ladder while repairing a building. Under Labor Law § 240(1), the owner and general contractor face absolute liability for the elevation-related failure to furnish a properly secured ladder, and the worker's own carelessness ordinarily does not reduce recovery.

E. No-Fault Auto Insurance and the Serious-Injury Threshold (Insurance Law § 5102)

NY Rule: New York is a no-fault automobile-insurance state. An injured person recovers basic economic loss (medical, lost earnings) from his own insurer regardless of fault, and may sue in tort for non-economic damages only if he sustains a "serious injury" under Insurance Law § 5102(d) — death, dismemberment, significant disfigurement, fracture, permanent loss of use, permanent consequential or significant limitation, or a 90/180-day disability. National fault-based systems impose no such threshold; New York's serious-injury gate is a frequent essay issue.

F. Wrongful Death and Loss of Consortium

NY Rule (Wrongful Death, EPTL 5-4.1): A wrongful-death action is brought by the personal representative for the distributees and recovers pecuniary loss only — New York allows no recovery for survivors' grief or loss of companionship. The period is generally two years from death. A separate survival action (EPTL 11-3.2) recovers the decedent's own pre-death pain and suffering. National jurisdictions often allow loss-of-society damages; New York limits recovery to pecuniary injury.

NY Rule (Loss of Consortium): New York recognizes a spouse's derivative loss-of-consortium claim, requiring a valid marriage at the time of injury, but does not recognize a child's claim for loss of a parent's consortium.

G. Municipal Liability and Notice of Claim (GML § 50-e)

NY Rule: Before suing a municipality or public corporation in tort, a claimant must serve a notice of claim within 90 days of accrual (GML § 50-e), and the action must be commenced within one year and 90 days (GML § 50-i); the municipality may demand a § 50-h examination. National practice imposes no uniform notice-of-claim prerequisite; in New York, failure to file a timely notice of claim is fatal absent leave to file late.

ESSAY WRITING TIP: For a New York personal-injury essay, screen early for (1) notice of claim if a public defendant appears, (2) the no-fault serious-injury threshold if a car is involved, (3) Labor Law §§ 240/241 for a construction/elevation injury, and (4) Article 16 several-liability limits on non-economic damages.

NY BAR TIP: The four most tested tort distinctions are pure comparative negligence (CPLR 1411), Article 16 several liability for low-fault defendants' non-economic damages, the Labor Law § 240(1) scaffold law, and the 90-day notice of claim (GML § 50-e). Wrongful death's pecuniary-loss-only limit is also a trap.

VII. NEW YORK CRIMINAL LAW AND PROCEDURE

The MBE tests federal constitutional criminal procedure, which applies in New York too. But New York's Penal Law and Criminal Procedure Law (CPL) contain distinctive rules tested on the NYLE, and New York's state right to counsel is broader than the federal floor.

A. Homicide Under the Penal Law

NY Rule: Murder in the second degree (Penal Law § 125.25) covers intentional killing, depraved-indifference murder (reckless conduct evincing depraved indifference under circumstances of grave risk), and felony murder (a death during an enumerated felony, with a limited affirmative defense for a non-killer accomplice). Murder in the first degree (§ 125.27) is reserved for narrow aggravated circumstances. Manslaughter covers intent-to-injure killings, killings under extreme emotional disturbance, and reckless killings. New York's depraved-indifference doctrine was narrowed in People v. Feingold, making it a culpable mental state, not merely a level of risk.

B. Defenses

NY Rule: New York's justification (self-defense) statute (Penal Law § 35.15) imposes a duty to retreat before using deadly physical force if the defender knows he can retreat with complete safety — except in one's own dwelling, and provided one is not the initial aggressor. National "stand your ground" states impose no retreat duty; New York requires retreat outside the home. Extreme emotional disturbance is New York's heat-of-passion analog, an affirmative defense reducing murder to manslaughter; insanity (§ 40.15) is an affirmative defense of lack of criminal responsibility by mental disease or defect.

C. The "Indelible" New York Right to Counsel

NY Rule: New York's state constitutional right to counsel is broader than the federal Sixth Amendment. It "indelibly" attaches upon the commencement of formal proceedings or a defendant's actual retention or request for counsel; once counsel has entered the matter, police may not question the defendant about it in counsel's absence, and the defendant cannot waive counsel except in counsel's presence. The People v. Rogers rule bars questioning even on unrelated matters once a represented defendant is in custody on the represented charge. National: offense-specific and waivable after Miranda. New York: an indelible right that cannot be waived outside counsel's presence.

D. Grand Jury, Speedy Trial, Suppression, and Discovery

NY Rule (Grand Jury): A felony prosecution generally proceeds by grand jury indictment (CPL Article 190), and a defendant has a statutory right to testify before the grand jury. The federal grand-jury right is not incorporated against the states, so New York's indictment requirement is a matter of state law.

NY Rule (Speedy Trial, CPL 30.30): New York's statutory "ready rule" requires the prosecution to be ready for trial within set periods (e.g., six months for a felony), measured by chargeable delay — separate from, and often more protective than, the constitutional speedy-trial right.

NY Rule (Suppression, CPL 710): Motions to suppress physical evidence, statements, or identification testimony are made under CPL Article 710, with named hearings — Mapp (physical evidence), Huntley (statements), Wade (identification), Dunaway (probable cause). Parker warnings advise a defendant that trial may proceed in absentia if he absconds.

NY Rule (Discovery Reform, CPL Article 245): Effective 2020, New York replaced its prior limited discovery with automatic, broad disclosure, requiring the prosecution to turn over most material early and tying compliance to the CPL 30.30 readiness clock — a major departure from the old "blindfold" regime.

ESSAY WRITING TIP: Keep the two tracks separate — on the MBE apply federal constitutional criminal procedure; on a New York essay layer the broader state protections on top, especially the indelible right to counsel and the CPL 30.30 clock. If a represented or arraigned defendant is questioned without counsel, flag the indelible-right issue even where Miranda was given.

NY BAR TIP: The indelible right to counsel is the headline distinction: once it attaches, the defendant cannot waive counsel except in counsel's presence. Also memorize the duty to retreat outside the home (§ 35.15), the CPL 30.30 readiness periods, and the 2020 CPL Article 245 discovery reform.

VIII. NEW YORK REAL PROPERTY

New York's recording act, adverse-possession statute, and mortgage-foreclosure rules are the principal departures from general property doctrine.

A. The Recording Act (Real Property Law § 291)

NY Rule: New York is a race-notice jurisdiction. Under RPL § 291, a subsequent purchaser or mortgagee for value prevails over a prior unrecorded conveyance only if she takes without notice (actual, constructive, or inquiry) and records first. National recording acts split among race, notice, and race-notice; New York is race-notice, so the candidate must satisfy both prongs.

EXAMPLE: O conveys to A, who does not record. O then conveys the same parcel to B, who pays value with no notice of the A deed, and B records before A. B prevails under RPL § 291 as a good-faith purchaser who recorded first. Had B recorded only after A, A would win — B would not have recorded first.

B. Adverse Possession (RPAPL Article 5)

NY Rule: Adverse possession requires possession that is hostile and under a claim of right, actual, open and notorious, exclusive, and continuous for 10 years (RPAPL 501; CPLR 212). The 2008 amendments redefined "claim of right" to require a reasonable basis for the belief that the property belongs to the possessor and deemed de minimis non-structural encroachments (lawn mowing, plantings, fences) and acts of permission permissive and non-adverse, making hostile possession harder to establish than under the older case law. New York's 10-year period and 2008 "claim of right" tightening are distinctive.

C. Mortgages and Foreclosure

NY Rule: New York is a lien-theory, judicial-foreclosure state — a mortgage creates a lien, and the lender must foreclose through a court action, not by private power of sale. Under RPAPL 1301, the mortgagee must elect remedies: while a foreclosure is pending, the lender may not separately sue on the note without leave of court. Residential foreclosures carry a mandatory settlement conference. National practice includes non-judicial power-of-sale foreclosure; New York requires judicial foreclosure and enforces the RPAPL 1301 election-of-remedies bar.

ESSAY WRITING TIP: On a New York recording-act problem, apply both race-notice prongs — show the later taker was a good-faith purchaser for value without notice and recorded first. On adverse possession, apply the 10-year period and the post-2008 "claim of right" and de-minimis/permissive-encroachment rules.

NY BAR TIP: New York is race-notice (RPL § 291); adverse possession runs 10 years with the tightened 2008 "claim of right" standard; and foreclosure is judicial with the RPAPL 1301 election-of-remedies bar against a simultaneous suit on the note.

IX. NEW YORK BUSINESS RELATIONSHIPS

New York's Business Corporation Law (BCL), Limited Liability Company Law, and Partnership Law contain distinctive rules departing from general and model-act principles, the most famous being the LLC publication requirement.

A. Corporations (BCL)

NY Rule: A shareholder derivative action is governed by BCL § 626, requiring that the plaintiff be a shareholder at the time of the transaction (contemporaneous-ownership rule) and allege either a demand on the board or the reasons demand was excused as futile. New York permits close corporations to manage through shareholder agreements restricting the board's discretion, and minority shareholders have statutory dissolution and buy-out remedies (BCL §§ 1104-a, 1118) for oppressive conduct. These requirements are tested by citation.

B. Limited Liability Companies — The Publication Requirement

NY Rule: New York's LLC Law contains a unique publication requirement: within 120 days of formation, an LLC must publish notice of its formation once a week for six successive weeks in two county-clerk-designated newspapers and file a certificate of publication. Non-compliance suspends the LLC's authority to sue in New York (though it does not void the LLC or destroy limited liability). No other major jurisdiction imposes a comparable mandate — a frequently tested New York oddity.

C. Partnerships

NY Rule: New York's Partnership Law follows the older Uniform Partnership Act framework rather than RUPA. Partners are jointly liable for partnership debts (joint and several for wrongful acts), and New York recognizes limited partnerships and registered LLPs, the latter also subject to a publication requirement. RUPA's defaults (entity theory, dissociation) differ from New York's UPA-based statute.

ESSAY WRITING TIP: On a New York business-associations essay, cite the governing statute (BCL, LLC Law, Partnership Law) and flag the New York-specific hurdles — the BCL § 626 demand/contemporaneous-ownership requirements and the LLC publication requirement — that have no clean model-act analog.

NY BAR TIP: The LLC publication requirement is the most distinctive New York business-entity rule — non-compliance suspends the LLC's right to sue. Also remember BCL § 626's contemporaneous-ownership and demand requirements and the §§ 1104-a/1118 oppression-dissolution and buy-out remedies.

X. NEW YORK PROFESSIONAL RESPONSIBILITY

New York's Rules of Professional Conduct (NYRPC), effective 2009, track the ABA Model Rules in structure but depart in several tested respects.

A. Confidentiality and Its Exceptions

NY Rule: NYRPC Rule 1.6 protects "confidential information" — a broader category than the Model Rules' "information relating to the representation," including information protected by privilege, likely to be embarrassing or detrimental if disclosed, or that the client asked be kept confidential. The permissive-disclosure exceptions differ in detail, including to prevent reasonably certain death or substantial bodily harm and to prevent the client from committing a crime. National (Model Rule 1.6): "information relating to the representation." New York (NYRPC 1.6): "confidential information."

B. Advertising and Solicitation

NY Rule: New York imposes detailed advertising and solicitation rules (NYRPC 7.1–7.5) more specific than the Model Rules — content and labeling requirements (e.g., "Attorney Advertising"), retention of advertisement copies, solicitation restrictions, and rules on domain names, trade names, and nicknames. New York's advertising regime is among the most detailed in the country.

C. Other Notable Differences

NY Rule: New York has its own conflict, imputation, and screening rules, distinctive rules on sex with clients (NYRPC 1.8(j)) and on safeguarding client funds in IOLA accounts, and its own disciplinary structure through the Appellate Division departments. Model Rule numbering corresponds, but the New York text and some thresholds differ.

ESSAY WRITING TIP: On a New York professional-responsibility question, apply the NYRPC by rule number and flag where New York is stricter or broader than the Model Rules — especially Rule 1.6's broader "confidential information" and the detailed Rule 7.1–7.5 advertising regime.

NY BAR TIP: Expect at least one NYLE item on confidentiality or advertising. New York's "confidential information" is broader than the Model Rules' "information relating to the representation," and its advertising rules carry specific labeling and record-retention requirements the Model Rules lack.

XI. NEW YORK DISTINCTIONS CHECKLIST

Flag the following high-frequency New York departures from the national rules whenever they appear:

1. Limitations periods (CPLR): 3 years negligence/property damage; 2½ years medical malpractice (CPLR 214-a); 1 year intentional torts (CPLR 215); 6 years contract; and the borrowing statute (CPLR 202) for out-of-state non-resident plaintiffs.
2. Commencement by filing (not service), with a 120-day service window (CPLR 306-b).
3. Long-arm jurisdiction (CPLR 302(a)(1)–(4)) — enumerated and narrower than full due process; (a)(2) requires the tortious act in New York, (a)(3) reaches out-of-state acts causing in-state injury only with the substantial-revenue/business nexus.
4. No summary judgment before issue is joined (CPLR 3212), and CPLR 3211 documentary-evidence dismissal unavailable under FRCP 12.
5. Article 78 proceeding to challenge government action, with a four-month limitations period.
6. CPLR 4545 collateral-source offset and Articles 50-A/50-B structured judgments for future damages.
7. Dead Man's Statute (CPLR 4519) barring an interested witness's testimony to transactions with the deceased, and the physician-patient privilege (CPLR 4504) — neither exists in federal law.
8. Molineux / Ventimiglia / Sandoval framework for prior-crimes and impeachment evidence — New York case law, not FRE 404(b)/609 numbering.
9. No-fault divorce since 2010 (DRL § 170(7)) alongside retained fault grounds; equitable distribution; O'Brien overruled (2016) — professional licenses and enhanced earning capacity no longer marital property; CSSA percentages 17/25/29/31/35%.
10. Will execution (EPTL 3-2.1): signed at the end, two witnesses, publication, 30-day witness rule; no holographic/nuncupative wills except the military/mariner exception; no partial revocation by physical act.
11. Elective share (EPTL 5-1.1-A): greater of $50,000 or one-third of the augmented estate including testamentary substitutes; intestacy and per-capita-at-each-generation representation (EPTL 1-2.16); anti-lapse limited to issue and siblings (EPTL 3-3.3).
12. General Obligations Law: signed writings substitute for consideration on modifications/releases (GOL 5-1103) and past consideration (GOL 5-1105); no-oral-modification clauses enforced (GOL 15-301); finder's-fee Statute of Frauds (GOL 5-701); the seal has no effect.
13. Pure comparative negligence (CPLR 1411) and Article 16 several-only liability for non-economic damages of defendants 50% or less at fault.
14. Labor Law § 240(1) "scaffold law" absolute liability and § 241(6) non-delegable Industrial Code duties for elevation/construction injuries — no national analog.
15. No-fault auto insurance with the Insurance Law § 5102(d) serious-injury threshold for tort recovery of non-economic damages.
16. Wrongful death (EPTL 5-4.1) recovers pecuniary loss only (no grief/loss-of-society); loss of consortium is derivative and limited to spouses.
17. Notice of claim within 90 days (GML § 50-e) and a one-year-and-90-day suit period against municipalities (GML § 50-i).
18. Indelible right to counsel — cannot be waived outside counsel's presence (Rogers line); duty to retreat outside the home (§ 35.15); CPL 30.30 speedy trial; CPL Article 245 automatic discovery.
19. Race-notice recording act (RPL § 291); 10-year adverse possession with the 2008 "claim of right" tightening; judicial foreclosure with the RPAPL 1301 election-of-remedies bar.
20. LLC publication requirement (suspends the right to sue if unmet); BCL § 626 derivative-suit demand/contemporaneous-ownership rules; BCL §§ 1104-a/1118 minority-oppression dissolution and buy-out; and the broader NYRPC Rule 1.6 "confidential information" definition plus New York's detailed advertising rules (7.1–7.5).