NY Bar Exam: All NY Subjects

Little orphan Annie dies of cancer on her 18th birthday. She is survived by her sisters, Sally and Sarah, the son of her dead brother, and her maternal grandparents. Who gets the property?

(1) Sally and Sarah get 2/3 (2) Nephew gets 1/3 (3) Grandparents get nothing unless no siblings or parents.

What are the rules for adverse possession in NY?

(1) SoL is 10 years (2) Tenant in common with exclusive possession w/o ouster can get AP after 20 years (3) Possession without good-faith belief or claim of right is a trespass (4) De minimis hedges, fences, etc. are deemd permissive and nonadverse

When is an inference permitted for failure to call a witness?

(1) W's knowledge is material to trial (2) W would give noncumulative testimony favorable to W's side (3) W is "available"

What are three fallback exceptions to applying the law of a foreign jurisdiction?

(1) contrary to public policy (rare) (2) foreign law is merely procedural (3) foreign law is a penal or tax law

When does NY provide a right to counsel in pre-charge lineups?

(1) police are aware D is represented on another charge AND (2) D requests his attorney police awareness is objective (should have known) rather than subjective

What are the three additional categories of contracts within SoF?

(1) promise to pay discharged debt (2) assignment of insurance policy or promise to name beneficiary (3) commission or finder's fee unless attorney/licensed broker/auctioneer

What are the two types of non-person beneficiary trusts recognized in NY?

(1) trusts for cemetry purposes (2) trusts for pets

What is the difference between a "defense" and an "affirmative defense"?

Defense: prosecution must disprove beyond a reasonable doubt Affirmative Defense: must be raised+proved by defendant by a preponderance. Affirmative Defenses: insanity, EED, entrapment, duress Defense: self defense, justification, necessity, infancy

What is the difference between a frolic and a detour?

Frolic: substantial departure from employment (2) Detour: small side trip that does not erase liability

What is the NY standard for inefective assistance of counsel?

Greater protection than us consitution. (1) failed to provide "meaningful representation" (2) a single error that is "sufficiently egregious and prejudicial as to compromise a right to fair trial" (3) absense of stratetgic explanation for attorney's performance (4) failure to make a motion if D shows motion had a reasonable chance of succeeding

What are the Neumeier Principles?

Harm occurs in State Y (1) P and D are from same place, apply that place's law (2) One party is from Y, and the law in Y would be beneficial to their side. Apply Y. (3) any other case: Apply Y unless -forum has an interest -would not impair "multi-state system" -would not produce "great uncertainty" for litigants (public policy exception)

A NY plaintiff purchases a ticket and then boards an aircraft from NY to MA. The plane crashed in Massachusetts. The plaintiff's family brings a wrongful death action. NY has an unlimited recovery for wrongful death MA has a $15,000 damages cap for wrongful death What law applies?

Here, while the vested rights approach would point to MA law as the situs of the injury, this approach is no longer followed in NY. NY would apply interest analysis governed by Neumeier principles. Here, while MA arguably has an interest, NY also has a legitimate interest in ensuring its domicilliaries can get a substantial wrongful death recovery. Therefore NY law applies

What are the NY requirements for a warrant informant?

Higher than the constitution. Applicant must demonstrate: (1) Reliability of source (2) basis of informant's knowledge

Do easements prevent marketable title in NY?

KNOWN or BENEFICIAL easements do not prevent marketable title. However, unlike multistate, VISIBLE easements do prevent marketable title.

What choice of law for real property passed via death?

Law of situs

What is the choice of law for inter vivos transactions of personal property?

Law of situs (vested rights)

What choice of law for personal property passed via death?

Law of the decedent's domicile at the time of his death

What is the classical choice of law approach?

Lex Loci Delicti. Apply the law where the transaction took place.

Does NY follow lien theory or title theory?

Lien theory.

When can a life tenant undertake beneficial (ameliorative) waste in NY?

Multistate rules (1) FMV is not diminished (2) consent of remainder OR "changed conditions" NY adds: (3) does not violate any agreement (4) life estate is at least 5 years (6) written notice of change served on remaindermen

When does a gratuitous assignment become irrevocable?

Multistate: (1) performance complete (2) detrimental reliance NY: also (3) signed writing

A contracts with B for B to paint A's house. B does so. B then gratuitously signs a release that A will not have to pay. Valid?

Multistate: No. no consideration NY: Yes, as long as its a written instrument.

A orally contracts with B that A will visit B once a month for the remainder of B's life for a price of $50/week. Within statute of frauds?

Multistate: Yes. This could hypothetically be performed within one year, if B dies within one year. NY: No. "Lifetime" is presumed greater than one year

When is moral consideration binding?

Multistate: never NY: (1) writing (2) expressly stated (3) proven (4) signed by promisor

What are the rules in NY for character witnesses?

Must be criminal cases ONLY reputation, not opinion ONLY relevant traits

T, trustee is a very wealthy individual, and is enamored toward the beneficiaries. He thus decides to loan money to the trust at an interest rate of 2%, much lower than the market rate of 5%. Permissible?

NO. "no further inquiry". Even if the trustee is giving the trust a great deal, it is invalid.

Who bears the risk of loss in real estate transactions in NY?

NY adopted UVPRA, which places risk on seller unless buyer has legal title or possession

NY unlicensed real estate broker alleges an oral "finder's fee" agreement from a NJ corporation. NJ corporation has many NY contacts. The oral agreement was alleged to have taken place in NJ. The broker sues in NY court to enforce the fee. NY law does not allow oral contracts on these facts; NJ law does. What choice of law?

NY. NY has a strong interest in ensuring that, as an international center of commerce, principals can count on the fact that they will not be held accountable for fraudulent or unfounded claims.

What is the insanity defense standard in NY?

NY: as a result of mental disease or defect, he lacked substantive capacity to know or appreciate either (1) nature and consequence or (2) that such conduct was wrong. --easier than M'Naghten, but harder than MPC. no "irresetible impulse" branch

Can a non-licensed broker enforce a claim for commission?

No

Is commuting within the scope of employment?

No

What is the difference between executory interests and contingent remainders in NY?

No difference. They are simply called "remainder subject to a condition precedent".

Can an incompetent ever agree to revocation?

No. Consent of a minor or incompetent cannot be obtained

Does NY have a stautory redemption?

No. NY only has an equitable right of redemption. There is no stautory right of redemption after sale.

Can a child sue his parent for negligent supervision?

No. This claim is not allowed in NY. But otherwise, no intra-family immunity

T is trustee for two trusts, A and B. A has a plethora of overly risky assets, while B has a plethora of overly safe assets. He thus trades some assets from A and B, so that both trusts are appropriately balanced. May he do so?

No. This constitutes "self dealing" under the trust laws, and is thus subject to the "no further inquiry" rule.

If all beneficiaries consent, can a trust be terminated?

No. Under Claflin doctrine, this is not allowed if termination would be contrary to purposes of the settlor.

Can a settlor also named as beneficiary obtain spendthrift protection?

No. this could defraud creditors.

When does an oral trust of land become a constructive trust?

Oral agreement to hold land in trust is invalid unlesss (1) fraud in the inducement (2) oral promise was made in context of a confidential relationship (3) promise proved by clear and convincing evidence

What is a totten trust?

Poor-man's trust. deposit to bank in trust for another. depositor resreves right to withdraw funds at any time. on depositor's death, passes to named beneficiary NO formalities.

What are the rules for a power of attorney?

Power of attorney is durable (goes beyond incapacity) unless it expressly provides it is to terminate on the incapacity of the principal.

What is NY stance on P's contributing negligence?

Pure comparative negligence. Can recover even if mostly at fault

T is trustee of a $1,000,000 trust created by a will. T thinks that he will maximize the overall return on trust assets by investing in the stock market. The income beneficiary sues to stop T, arguing that the stock market investment will subject her lifetime income interest to too much risk. Result?

T must manage the trust as a prudent investor, in the context of the entire trust portfolio. Thus, if T thinks the stock market will in the long run maximize expected total return for the trust, his action is appropriate. Thus the income beneficary's claim fails.

What are the rules for spendthrift trusts?

A "spendthrift clause" prohibits voluntary and involuntary transfers of a beneficiary's interest. All trusts are automatically given spendtrhift protection.

Are there any special rules for conspiracy when a co-conspirator testifies?

A D can only be convicted of conspiracy if the co-conspirator's testimony is corroborated by additional evidence

What is a resulting trust?

A fallback trust that comes into being if the usual trust formalities are not followed.

What is the principle of comity?

A foreign country judgment will be enforced if (1) Foreign court had jurisdiction (2) Fair procedures were used in adjudicating case Court is entitled to use value judgments to resolve the issues

What is an exception to the res requirement?

An inter-vivos trust created without res is valid if "poured-over" to by a will.

What are the three ingredients of an agency relationship?

Assent, Benefit, and Control

What if an employee trip has both a personal and a business purpose?

The business purpose is sufficient. Multi-purpose trips are still within the scope of employment

What is interest analysis?

The choice of law method that applies the state law from the state that has "the greatest interest" in the outcome. Step #1: Is there a false or true conflict? False conflict: only one state has an interest True conflict: both states have an interest Step #2: False conflict: apply the law from the state that has an interest True conflict: if the forum has an interest, it will apply its own law

What is the NY indelible right to counsel?

The indelible right to counsel affords greater protection to D's than the US Constitution. Kicks in when (1) D in custody, police are acting "overwhleming to a layperson", and D requests counsel (2) At arraignment (3) Filing of an accusatory instrument (4) Any significant judicial activity

What is the choice of law for real estate?

The law of the situs (vested rights)

What law governs automobile insurance policies?

The law of the state where the policy was written

What is NY's permissive use statute?

The owner of a car is NOT vicariously liable for intentionally tortious operation by the driver

What is cy pres doctrine for charitable trusts?

Trust terms can be modified if the original purpose of the trust can no longer be accomplished. Court will direct the trust property toward another charitable purpose close as possible to the original

If the trust comes with an invasion power (eg income to B, with ample provision for her lifestyle and support), when should the trustee invade the principal if B requires a distribution for lifestyle and support?

Trustee should look at B's overall financial situation. If B is quite independently wealthy, trustee need not make a distribution. If the trust document is silent w/r/t invasion power, a beneficiary can never compel a trustee to make a distribution, as it is deemed in the full discretion of the trustee.

Does NY have a dram shop law?

Yes, NY has a dram shop law. This means a bartender may be liable for overserving a patron in the form of vicarious liability for the patron's harms. In a conflict of laws situation, NY courts should not apply dram shop liability to an out of state defendant from a state where there is no dramshop law. It is unlikely that the out-of-state bartender would adjust his conduct in conformance with the dramshop law in this case.

Does NY impose vicarious liability to parents for children?

Yes, for willful and intentional property torts of children over age 10, up to $5,000

Does NY have a duty to retreat before deadly force?

Yes, unless (1) not safe to do so (2) in own dwelling (3) is police officer (4) is assisting a police officer

Can an irrevocable trust ever be revoked?

Yes, upon consent of settlor AND all beneficiaries

Is suretyship within SoF in NY?

Yes. But NY does not adopt the "main purpose" exception to suretyship in SoF. Therefore, any suretyship agreement must be in writing, even if suretyship gets a pecuniary benefit.

T, trustee of ABC Trust, signs as "T, trustee of ABC Trust". Is T personally liable?

Yes. Mere notation that T is trustee. Need to explicitly say its on behalf of the trust, eg "ABC Trust, signed by trustee T".

Can a single defendant be convicted of conspiracy in NY?

Yes. NY adopts the single guilty mind approach.

What are the NY rules regarding alibi?

if prosecution asks within 20 days of arraignment, D must provide the details circumstances and witnesses of his alibi defense

What are the elements of negligent misrepresentation?

multistate factors: (1) misrepresentation by a professional (2) breach of duty (3) causation (4) reliance (5) damages PLUS ny factors: (1) awareness that statement was to be used for particular purpose (2) reliance by a known party in furtherance of the purpose (3) conduct by D demonstrating defendant's understanding of the reliance

What is a doctor's standard of care when he undertakes a rescue?

multistate: standard is ordinary due care NY: only liable for gross negligence. this special rule is for licensed health professionals only; a layperson is still subject to ordinary care.

What type of recording statute does NY have?

race-notice

What are the $ minimums for the NY General Obligations Law?

$250,000 means that a NY choice of law clause is valid regardless of any connection to NY.

Grannie, a widow, dies intestate with 4 children, A, B, C, and D. She was predeceased by B, who had 3 children, Gabbie, Gatsby, and Ginger, and D, who had 2 children, Ger and Gus. A has a son, Gary. Upon Grannie's death, who gets the property?

(1) A and C are still alive. Each gets 1/4 (2) B and D left a total of 5 children. Each gets 1/10. (3) Gary gets nothing.

Grandpa dies leaving a will that provides that his property will go to "the issue of my daughter, Danielle." Danielle had 3 children, A, B, and C. C had already died, but left behind 2 children, G1 and G2. B had also died, as did her 1 child, G3. G3 left GG1 and GG2 behind, who live. Who gets Grandpa's property?

(1) A gets 1/3 (2) G1 and G2 get 2/9 each (3) GG1 and GG2 get 1/9 each.

What are the elements of issuing a bad check?

(1) A person as drawer puts a check into circulation (2) Knowing he does not have sufficient funds to cover (3) With intent or belief that payment will be refused by drawee (4) Payment is refused by drawee

What RAP reforms has Ny adopted?

(1) Age contingency fix (25 -> 21) (2) Men can have children at age 14. Females can not have children over age 55. (3) "widow" is construed to be current spouse (4) presumption that creater intended a valid interest

What are the NY rules regarding residential tenant assignment and sublease?

(1) Assignment is presumptively not allowed. Assignment requires writen consent of owner. (2) Subleases are presumptively allowed. Landlord cannot unreasonably withhold right to sublease.

What are the NY rules for victim's past behavior in rape cases?

(1) Conviction for prostitution within three years prior (2) Rebuttal evidence of sexual propensity if victim testifies he or she was chaste

What are the spendthrift exceptions?

(1) Creditors who furnish necessaries (2) Child support or alimony (3) Federal govt (4) Other creditors beyond income needed for "education and support" under "4" the subjective lifestyle of the beneficiary is taken into account, and is thus a last resort. creditors can also (combining) get 10% of income

What is the difference between "conduct" laws and "damages" laws?

(1) Damages, apply Neumeier (eg guest statute) (2) Conduct, apply the place of the harm always (eg speed limit)

What are the three major duties of the trustee?

(1) Duty of loyalty. No self-dealing (no further inquiry) (2) Duty to segregate trust property. No commingling. (3) Duty to preserve and make productive. Trustee must invest the property as a prudent investor would.

What are the rules pertaining to NY real estate agents?

(1) Entitled to commission upon furnishing a ready willing and able buyer (2) Contract must be in writing UNLESS licensed attorney or real estate broker (then oral is ok)

When is an employer liable for intentional torts?

(1) Force is authorized (bouncer) (2) Promotion of employer's business (hires thugs to beatup picketers) (3) friction is inherent (bill collection)

What are the two exceptions for tort liability of a principal when there is no employment relationship?

(1) Inherently dangerous activities OR (2) nondelegable duties -construction workers -owners of land -common carriers

What are the special evidentiary privileges recognized in NY?

(1) Journalist privilege. If published, confidential news sources need not be disclosed (2) Psychologist/Psychoteherpaist/Social Worker/Rape Counselor

What are the default rules for revocability?

(1) Lifetime trust is irrevocable unless power to amend or revoke is expressly reserved -amendments must be in writing, signed, and witnessed by two people

What are the rules pertaining to options without consideration?

(1) Multistate: option is invalid; option contract must be supported by consideration (2) UCC: "Firm offer" provision. Signed writing by a merchant for up to 3 months (3) NY: Writing/Signed + states "irrevocable", the offer is not revocable during time stated

When can the offeror revoke a unilateral contract offer in NY?

(1) Multistate: part performance creates an irrevocable offer, and offeree is entitled to complete performance and demand payment (2) NY: part performance is immaterial; offeror can revoke at any time before performance is completed

What are the NY rules for NIED?

(1) P must be in the zone of danger of physical injury (2) P either experienced a threat of physical impact or observed a threat of physical impact toward an immediate family member requires physical symptoms

What are the three exceptions to an express choice of law provision in a contract?

(1) Public policy of an interested state is contrary to the choice presented, and that choice of law has no interest (2) No reasonable basis for choice: "no substantional relationship to parties of transaction" (3) Lack of "true consent" by one party

What are the four forms of authority?

Actual Express: P tells A directly that A can do a task Actual Implied: A reasonably believes P has given A the authority Inherent: P, a pizza shop owner, tells A to deliver a pizza to X. A has the inherent authority to take the pizza from the pizzeria (it is not tresspass), because it is a necessary task to complete the delivery. Apparent: A third party relies on the appearance of agency when dealing with A

Trust pays A income for life, residuary to B. The Trust initially has assets of $1,000,000 invested in a diversified stock portfolio, and T, the trustee has been making income payments of $30,000 per year to A. However, the past year has been a great year, and the principal amount increases to $1,400,000 due to a great year in the stock market, exclusively as capital gains growth (eg the stock prices rise). At common law, capital gains are allocated to principal, not income. However, T thinks that the income payments to A should be increased to $40,000 per year in the interests of fairness. B sues T for misallocating the capital gains to income. Result?

B's claim will fail. The trustee, by default, has an "adjustment power" under the Uniform Principal and Income Act. The trustee may, in his discretion reallocate investment portfolio return if appropriate or necessary to carry out the trust purposes. The factors to be considered are: (1) nature purpose and duration of the trust (2) intent of the settlor (3) circumstances of the beneficiaries (4) need for liquidity, regularity of income, and (5) natur e of the trust's assets.

A, B and C conspire to rob a bank. However, on the day of, A gets extremely sick and does not participate; only B and C actually rob the bank. During the bank robbery, B intentionally kills a police officer while B and C are fleeing the bank. Who is guilty of what?

B+C: First Degree Robbery + Conspiracy to commit First Degree Robbery + First Degree Murder A: Conspiracy to commit First Degree Robbery only. No vicarious liability, since A did not participate in the crime

What consent is needed to create an agency relationship?

Both the principal and the agent must consent

When is a principal liable for the torts of its agent?

Employer-Employee Relationship AND Conduct is within scope of the employment

What is the NY statute governing wills and estates?

Estates Powers and Trusts Law (EPTL)

What is the difference between an "exclusive" and a "nonexclusive" broker's contract

Exclusive: if anyone (including owner) produces a buyer who is ready, willing, and able to buy, broker gets commission Nonexclusive: if the broker produces a buyer who is ready, willing, and able to buy

What is prima facie tort?

Fallback tort in NY. Intentional infliction of pecuniary harm without justification. Pecuinary loss is an essential element.

What are the five formalities of trust creation?

W-VARBIT: Writing, signed by settlor and at least one trustee Valid trust purpose Acknowledged before notary or in presence of two witnesses Res Beneficiary Intent to create trust Trustee

What is ratification?

When P ratifies an unauthorized transaction by A, P becomes bound

When is an agent liable in contract?

When the principal is undisclosed, either partially or fully. Partially: existence is known, but identity is not.

When does NY have criminal jurisdiction over an out of state defendant?

Whenever conduct in NY was sufficient to establish an element of the offense

When must a D provide notice of insanity defense?

Within 30 days from a not guilty plea