Partnership & Agency

4

l        Retired Partner’s liability;

l        Personal representation;

l        Deceased P’s liability;

l        Agent’s compensation for the services rendered;

l        Sharing loss among partners in the same manner as sharing the profits

l        A retiring P remains liable until he withdraws P-ship and a proper notice is given to creditors;

l        Doc of P-ship by estoppel applies to a person who holds himself out as a general partner;

l        A deceased P is no longer liable for new P-ship debts (only capital contributions are at stake to be lost);

l        In NY, an agent is entitled to compensation for her services rendered;

l        Unless specifically recited in the P-ship agreement otherwise, losses are shared equally among the partners if the agreement provides that the profits will be shared equally.

18

33

l        one who transact business through an agent is subject to NY jurisdiction;

l        Establishing IPJ over Defamation cause of action

l        Under the long arm statute (CPLR302), a person who transacts business in NY is subject to IPJ as to causes of action arising out of the business transacted.  Transacting business includes not only the personal transaction of business, but also transaction of business through an agent; (à C in Switzerland was Greek resident O’s agent via their P-ship.  The Uniform Partnership Act defines a “P-ship” as a voluntary association of 2 or more competent persons to carry on a business as co-owners for profit.  Partners are agents of one another.

l        Defamation cannot be a basis for establishment of IPJ in NY;

34

(a)     Assignment of Partner’s rights to a 3^rd party (creditor to an assignor partner);

(b)     Can P1 sue other Partners on a claim that arose when P1 was not partner?

(a)     Each P has PMS rights; (P-ship properties; Participate in Management; Sharing Profits); A 3^rd party assignee may only be entitled to P-ship interest, i.e., share distribution of profits or surplus, or assignor partner’s share of proceeds upon dissolution;

(b)     In general, P cannot sue other P.  The sole remedy of a partner who has a claim against the P-ship or another P is an action for an accounting.

43

(a)     Yummy restaurant’s bouncer throwing out the customer out of the restaurant and causing injuries. à Yummy restaurant liable?

(b)     The effect of P’s death on P-ship “k”

(a)     Yummy restaurant is vicariously liable though, in general, employer is not liable for its employee’s intentional tortious act.  However, as long as the employee’s act is considered within the scope of his employment, then the employer is vicariously liable.  Even if B were not expected to use force in the performance of his duties, his actions were solely motivated by the employer’s wishes.

(b)     Under NY law, a P-ship dissolves on the death of any P unless P-ship agreement provides to the contrary.  Therefore, if a surviving P2 with knowledge of P1’s death cannot enter P-ship “k” with 3^rd party.  If such K is made, it is void.  If, however, if P2 was not put on notice of P1’s death, then P-ship K entered with 3^rd party is enforceable.

Domestic Relation

8

(a)     The case file in its entirety from a social worker who has been taking care of foster child is admissible in a judicial hearing covered by the family court act? (EVI)

(b)     Can judge interview minor in chamber w/o putting the conference on the record?

(c)     STD applied to determine the termination of parental rights?

(a)     The case file is hearsay b/c it is a record of out-of-court statements offered for the truth of the statements contained therein.  Thus, it will be inadmissible unless it falls within a recognized HS exception.  Some may be qualified as BR exception thus it is necessary to determined the admissibility of each item in the file individually.

(b)     Judge on its discretion can take an un-sworn testimony of a minor b/c the BIC are at stake.  Thus, the judge may take the child’s testimony in camera. Only record that need be made is a stenographic record of the interview.  If this lacks, intelligent review of the judge’s decision by an appeal court will become impossible.

(c)     With the 3^rd party, the STD applied to the determination is MA & PA: M: mental illness of parent; A: Abandonment for 6 months; P: Permanent Neglect; or A: Abuse of child; by clear and convincing evidence.

10

(a)     Grounds of cruel & inhuman treatment exists or not?

(b)     Is cohabitation “a defense” in a divorce action for C&I treatment?

(c)     CPLR3212, Motion for SJ in a divorce action where D did not establish that there was a triable issue of fact.

(d)     Equitable Distribution (ED)  Issues; - H’s proceeds from his personal injury claim; - W’s advances received from W’s book written during the marriage;

(a)     W’s action for divorce can be based on the grounds of cruel & inhuman treatment which is defined by NY court as conduct by the Def’s spouse which so Endangers the P’s Physical or Mental well being as to render it unsafe or improper for the P to cohabit with the D.

(b)     Cohabitation a/f C&I treatment took place is NOT per se a defense to C&I treatment cause divorce action.  However, it may be of one factor to consider if there was a C&I treatment.

(c)     If D Fails to Establish that the there was a Triable Issue of Fact, then the court’s grant on the SJ motion by P may be proper.

(d)     “Marital Property” is subject to ED whereas a “Separate Property” is NOT subject to ED.  Here, H’s judicial award for pain & suffering is one exception to marital property.  However, W’s advances received from the book she wrote during the marriage is considered marital property thus it is subject to ED.  When assessing ED, a fault of spouse is not taken into account except it is “egregious”.

32

a) Jurisdiction to award a divorce;

b) Jurisdiction to terminate support;

c) Incorporation of SP in DJ; how?

d) W’s commission of adultery affects H’s support obligation?

a) A marital status is considered “res” thus IRJ instead of IPJ over spouse is required.  P’s domicile in state X is enough to establish IRJ;

b) IPJ is needed for alimony and/or child support action.

c) Unless specifically stated, a SA is presumed to be incorporated in a divorce decree.

d) Unless W is habitually living with another person and they hold themselves out as H&W, W’s adultery does not affect the H’s support.

47

a) Conversion Divorce (i.e., SA converted into a Divorce decree);

b) BY NY state Jurisdx Reqs for Divorce Action;

c) Full faith & Credit Clause

d) No mentioning of a maintenance award in the sister state divorce decree;

e) Modification of maintenance in SP;

a) CD is obtained, if P can show that the parties actually lived apart continuously for one or more years in substantial compliance with the SA.  Occasional cohabitation by itself during the period of SA is insufficient to rescind the SA.  However, the cohabitation with intent to reconcile abandons the SA.

b) For divorce action, NY court needs to have IRJ.  In addition, NY court requires Durational Residency Requirements in addition to IRJ.  Durational Residency Requirements = TDOMAR;

c) NY give full faith & credit to a divorce decree issued by another state if the state has a statutory basis for jurisdiction and if the D has been property served (MOP requirements satisfaction in the sister state);

d) No mentioning of which in the state X does not abrogate W’s right to have the issue of maintenance decided in NY as long as NY has IPJ over parties.

e) STD for modification of alimony in SA is “Extreme Hardship”.

51

a)       Elements of conversion decree of divorce (non-fault conversion divorce)?

b)       Sup Ct jurisdix & Family Ct Jurisdix;

a)       spouses having lived separate for a one year after a written separate agreement;

b)       Family court does not have jurisdix over divorce, separation, or annulments.  Supreme Court, instead, has jurisdix over these cause of actions.  Family Ct, however, has a concurrent jurx with Sup Ct. over support proceeding.  Unless the original divorce decree was obtained by the Sup Ct and which included a clause prohibiting the modification by the court other than the Supreme Court, then the family court has a jurisdix over the modification of child support.

52

a) Can P serve process on D who is out of the state?

b) Durational residency requirement in the divorce action;

c) Annulment based on fraud inducement;

d) Elements of abandonment:

e) Saving Account;

a) ALRAN: Service can be made on D who is out of the state by Attorney of that state; Look into the law of the state: NY Resident Adult Non-party;

à P by herself cannot serve on D by herself.

b) 2 Years lived in the state prior to commencing the action; and the state was a marital domicile of parties before they separated; à see TD-OMAR;

c) SL for Annulment based on fraud is 3 years.  The statute begins to run from the date of discovery of the facts constituting fraud by D at the time of marriage as an inducement to marry.

d) Elements of Abandonment = IOU (i) Intent not to return; (ii) for One Year; (iii) based on Unjust reason.

e) Saving account “J in trust for K” = considered to be “Totten trust”.  In NY, such a trust remains the property of the creator until the creator dies w/o having revoked the disposition.

57

a) Marital Property and separate property;

b) Is a straw person required in NY Real Property Law to make JT to TE?

c) An increase in the value of SP during the marriage, is this SP or MP?

d) Governing laws applicable to SA?

E1) STD for modification of Child support in SA;

E2) STD for modification of alimony (maintenance) in SA;

a) Marital property (MP) includes all property acquired by either spouse during the marriage, regardless of the form of title prior to the commencement of any matrimonial action;

 Separate property (SP) includes: (i) all property acquired before marriage; (ii) property acquired by bequest, device, or as a gift to one spouse; (iii) compensation for personal injuries; (iv) property acquired in exchange for or by increase in value of SP (less the contribution by the other spouse); and (v) property described as separate by written agreement of the parties.

b) No straw person is required to convey JT to both spouses as TE.

c) An increased value of the SP due to direct or indirect contribution of the other spouse will become MP.  è The original value is to remain SP!

d) SA is governed by ordinary K principles, thus 3 requirements are required for its formation; namely, (i) mutual assent; (ii) consideration; and (iii) no defenses to formation of the agreement.  The defenses to formation include (a) mistake, misrepresentation, and fraud. Fraud in factum occurs when one of the parties was tricked into giving assent to the agreement.

The difference from the ordinary K agreement and its principles is that each spouse owes to the other spouse a duty of the utmost good faith.

E1)

STD in DJ is “Substantial Change” in financial circumstance of a parent;

STD in SA is “Unforeseen and Unreasonable Change” in f-circumstance; (almost impossible STD)

E2)

STD in DJ is “Substantial Change” in f-circumstance;

STD in SA is “Extreme Financial Hardship” of one spouse; à However, the court must take into account BIC (enrolling in a nice college)

60

a) Whether a lump sum settlement of support is enforceable?

b) May a judge take a child’s testimony over her parents’ objections?

a) NY does not deny lump sum settlement of support obligations.  The court will look at the facts of the case.  If the spouse has dissipated the lump sum and is in danger of becoming a public charge, the court will invalidate the agreement and enforce the duty to support.

In addition, NY courts apply general K principles to SA. The courts generally will not order rescission of the SA freely entered into by the parties w/o fraud, duress, or misrepresentation.

b) Where BIC are at stake, the court may take the testimony of the child over the parent’s objections (or objections of the parties).

65

a) Divorce action based on abandonment;

b) If a sister state has a jurisdiction to decree the divorce when a D is NY residence;

c) When may a state X court modify the custody decree of a NY state court?

a) Divorce based on abandonment needs to be proved by IOU;

b) A divorce decree is entitled to full faith and credit if the sister state court had jurisdiction to grant the decree.  A court has jurisdiction to grant a divorce if (i) it has jurisdiction over at least one of the spouses and (ii) the other spouse is notified of the action.

c) The Fed Parental Kidnapping Prevention Act (PKPA) mandates the full faith and credit be given to child custody determinations of another state if the PKPA’s jurisdictional STDs are met despite the fact that custody determinations are not final.

If a court of another state has made a custody decree, another court may modify a decree if (i) it appears that the court that rendered the decree did not or does not have jurisdiction; and (ii) the modifying court has jurisdiction.

Generally, jurisdiction lies in the home state of the child.  A child’s home state is the state in which the child has lived with a parent at least 6 consecutive months prior to commencement of the proceeding.  If no state has home state jurisdiction, a state may exercise jurisdiction if doing so is in the BIC b/c the child & his parents or the child and one parent have a significant connection with the state.

73

a) Is breach of SA a valid ground for a judgment of separation?

b) Whether Reconciliation after the Separation Decree invalidates the separation decree?  Or doing so invalidates the separation agreement?

a) Def spouse’s refusal to provide the support to P’ spouse is ground for separation.  Thus, W is entitled to a judgment of Separation (Separation Decree).

b) Grounds for Conversion divorce are available under 2 distinct circumstances: (i) living apart pursuant to a Separation Decree and (ii) living apart pursuant to a Separation Agreement.

The reconciliation of the parties does not affect the Separation Decree.  Note, however, a subsequent reconciliation will invalidate a Separation Agreement and thus preclude a conversion divorce; however, here a separation decree was in place, which can only be modified or revoked by the court.

78

a) What must be shown for an award of temporary maintenance?

b) termination of alimony

c) termination of a child support upon emancipation;

a) Although the statute lists 10 factors to be considered in determining permanent maintenance, these factors (PAID SEAT) do not apply in determining the temp. alimony.  However, a primary factor the court must consider is the financial need of the applicant, thus the applicant must show proof of her inability to support herself while the action is pending.

b) The court’s discretion to elimination of support is supported upon proof of (i) W is habitually living with another man, and (ii) holding herself out as his wife, although not married to such man.

c) A hearing must be held if Son (Daughter) is in fact emancipated.  An automatic termination of the child support upon S beginning to work as a full time does not happen.

82

a) Establishing IPJ over Def in marital action;

b) for subject matter jurisdiction over marital res; (IRJ)

c) Durational residency Req?

d) motion for change of venue

e) Is adultery cause of denial of ED or alimony?

a) CPLR302(b): DADA

i) NY was the last “Recent Domicile” place for W&H;

ii) Abandonment took place in NY;

iii) Claim for support accrued under NY decree or under NY law;

iv) Execution of SA in NY;

b) since marital status is considered “res”, where either party resides is a state that has a IRJ over marital res;

c) Durational residency requirement is satisfied by either one of TDOMAR:

  - Two years of residency in NY by one spouse preceding to the commencement of the action;

  -  Both Domicile in NY at the time of the commencement of the action;

  - One year of residency in NY by one spouse immediately preceding the action +

      > married in NY;

      > cause of action arose in NY; or

      > both parties resided in NY as W&H;

d) grounds for change of venue are:  BIN

  - B: Bad venue was chosen by P;

    D must serve a written Demand to P to change venue with or b/f serving an Answer; 

    If P does not respond w/in 15 days, then D must make a Motion w/in 15 days from serving the Demand;

  - I: Fair & impartial trial is not had in the chosen county;

  - N: Convenience of Necessary W;

    Willingness of the W to testify; Substances of W to testify; and how W is inconvenienced by the venue must be set forth

Cf: CPLR327 Motion: (Forum Non-Convenience) – Doc of FNC is based on existence of both Procedural Jurisx (MOP) and subject matter jurisx of the court (capacity of the court to hear the case).  FNC motion seeks to dismiss P’s action b/c another state or county would be more proper forum to hear the case based on JUSTICE, FAIRNESS, CONVENIENCE to the parties and also a BURDEN of NY court.

  The longer the case goes on, the less the chance the court grants the motion.  (the fact one party is NY domicile will not prevent the court from granting the motion)

e) In general, court will not take into consideration marital fault in determining property distribution and/or alimony unless the marital fault is EGREGIOUS.

93

a) Does court have power to grant equitable distribution of marital property w/o divorce judgment?

b) Temporary Maintenance- how it is awarded?

c) Divorce judgment based on SA?

d) STD for modification of child support provisions in a SA?

a) A court only has this authority when part of relief granted is a divorce, annulment, or declaration of the nullity of marriage.  Since the court denied Wife’s action for annulment, the wife is not entitled to equitable distribution.

b) T-M is awarded during the pendency of an action when a party’s genuine financial need is justified.  However, it is well settled in NY, a court may not order T-M where parties have entered into SA that provides a maintenance until SA is set aside or breached by the parties.

c) No-Fault-Conversion divorce is granted upon proof that the couple has lived separate and apart pursuant to their SA for at least a year.  Proof must be furnished that the terms of conditions of the SA have been substantially complied with.

d) STD of modification of child support in SA is “unanticipated and unreasonable change in circumstances”.

99

a) Can an Equitable Property distribution on divorce be modified?

a) In a divorce action, the court may make any award concerning the possession of property.  Marital Property is subject to an equitable distribution based on the factors that include i) financial situation of parties, age and health of the parties, duration of marriage, maintenance awards, and contribution to acquisition of marital property.  Awards for maintenance, child support, or child custody may be modified.

However, property distribution award on divorce action is not modifiable.

Corporations

2

a) Preemptive Rights?

How it arise?

When it cannot be applicable?

b) Restriction on transfer of shares (restriction on the sale of shares owned by SH);

c) Rights of 3^rd person who bought shares from the SH who is under such unreasonable restriction of alienation;

a) A corp formed b/f Feb 22, 1998 , PR exists even if C of I is silent.  However, a Corp. formed a/f Feb 22, 1998 , PR does not exist unless it is mentioned in C of I.

PR cannot be exercised in case: COOTE:

-          Consideration other than cash;

-          Within 2 Years from the formation of Corp;

-          Shares used for Organic change of corp (merger or consolidation)

-          Treasury Shares: (previously owned by a SH but bought back by the corporation and held it as its treasury;

-          Shares issued to keep or attract Employee

b) NY allows imposition of reasonable restriction on the sale of shares of stock. However, imposing the condition that requires unanimous consent will be found UNREASONABLE restriction on alienation which thus Cannot Be Enforced.

c) If such 3^rd person has no knowledge of the restriction, despite its probable unenforceability, and paid value, then the 3^rd person is deemed BFP thus he is not bound by the restriction.

11

a) Process of Selling a Corporation to a willing purchaser?

b) If minority SH is not happy with the sale of the corp, what can be do?

c) An agreement not to compete between a purchaser of the Corp and the SHs/DRs of the Corp to be bought.  Is it exercisable?

a) 1^st: Must be Approved by BD Mtg; (ii) 2^nd, Must be Approved by SHs’ 2/3 votes for OLD Corp; by SH’s majority vote for New Corp (Feb 22 1998: critical date for determination of OLD or NEW);

b) Such minority SH can seek remedies with Appraisal Rights so that he can retire as SH for a company that will be subject to organic change where his initial purpose of joining as SH will become meaningless.

c) In NY a restrictive covenant is generally enforceable by injunction as long as the covenant is (i) necessary for the protection of the purchaser; (ii) reasonable in time, distance, and extent; and (iii) the covenant represents part of a bargained-for exchange (consideration).  Thus, the covenant in this nature is enforceable.

Note that covenant in employment “k” which restricts employees from competing with their employer after quitting or being fired for a cause:  In this case, the court considers TISUE elements:

(T) time restriction reasonable? (I) Inability for employee to work elsewhere; geographical area narrowly drawn?  (SUE) employee’s service must be SPECIAL, UNIQUE; or EXTRAORDINARY (basically for those professionals)

30

a) Does President have standing to bring an action under corporate opportunity Doc?

b) How to commence Derivative Action on behalf of corporation?

c) Process of Adding Director

d) The requirements of the SHs’ agreement regarding the amending the # of directors : -- is it enforceable?

a) Under Corp Opportunity Doc. (BCL section 720), neither Directors, Officers, nor controlling SHs may acquire or divert corporate property or opportunity to themselves w/o offering first to the corporation (or place them in conflict of interests with the corporation).

When a director (officer) breached this duty, then a president as an officer has standing.  This action can be brought by the corporation itself, an officer, director of the corporation or a SH.

b) Under BCL 720, a director can sue the one director based on misappropriation of the corporate opportunity. à There is no need to seek BD’s approval.

Under BCL 626, when a SH sues the one director based on misappropriation of corp opportunity, then SH is required to make a demand on the BDs to take action to cease/redress before the lawsuit may be commenced.  However, in case such demand is “futile (useless)”, then such demand is excused.

c) Director can be added by a majority vote of the SHs.

d) Absent a provision to the contrary in the C of I, the number of directors can be amended by a majority vote of SHs (majority of shares).  Even if the SH agreement requires the unanimous consent to do so, unless it is brought into the C of I, such provision in the agreement is not enforceable.

38

a) Carelessly buying B-acre by directors (& officers) constitutes breach of fiduciary duty of care?

b) Any defense available to the careless directors (or officers)?

c) Any other defense available to them?

C2) How can Director dissent to the improper action decided at the BD Mtg?

C3) How about Director who was absent at the BD’s Mtg?

d) Priority of Claims at a time of a corporate dissolution when bylaws allowing the liquidation funds to be distributed to SHs first

a) Directors and officers of a corporation must exercise the diligence, care, and skill that an OPP would exercise under similar circumstances in like positions. 

b) BJR may protect them from the breach if they exercise in good faith on available information.  However, they did not make any effort to obtain the reliable information before purchase, so BJR does not help!

c) C of I may limit the liability of directors to SH to BAD GIRL acts: (B) Bad faith act; (A) Asset distribution before paying to creditors; (D) improperly declared Divided (no surplus); (G) conduct for personal Gain; (I) Intentional misconduct; (R) Improper Redemption (buy back) of corporate shares; (L) Not dissenting to an improper Loan (*) to a fellow director;

Meaning of vote for or concur in:

For purpose of BCL, a BD who is present at the BD Mtg where “prohibited action” was taken is presumed to have concurred in the action unless (i) her dissent is entered in the minutes of the BD Mtg; (ii) her written dissent is presented to the secretary of the Mtg before its finish; or (iii) her written dissent is delivered or sent via registered mail to the secretary of corp promptly after the meeting;

(*) Absent D is presumed to have concurred unless: she sends or delivers her dissent by registered mail to the secretary of corporation promptly or causes her dissent to be filed w/ minutes within reasonable time after learning of the action;

d) Take care creditors first!

The bylaws are merely an agreement between the corporation and its SHs, the outsides dealing with the corporation are not charged with this knowledge of the bylaws, and thus they are not bound by the agreement.

45

a) Interested Directors – when his action would be allowed?

b) Is prevention of a takeover valid ground for the denial of inspection rights of SH?

a) Defenses to challenge to the interested director’s transaction are:

  - the transaction was fair and reasonable to the corporation when it was approved by the BDs. The burden to prove “reasonableness” is on the interested director; à fairness doctrine;

  - there was full disclosure of the D’s interests and it was approved by the SHs vote; or

  - there was full disclosure of the D’s interests and it was approved by the BDs w/o accounting the interested D (or approval by unanimous votes of the disinterested BDs where votes of interested D must be counted for the quorum purpose.)

b) Under BCL sec 624, any SH may demand inspection for any purpose reasonably related to such person’s interests as SH.  This right of inspection may not be denied even if the purpose of the inspection is to solicit SHs for tender offers.

72

a) What duties, if any, are owed by a promoter?

b) Does promoter have right to be compensated for his service to the corporation?

c) Self-dealings of Director – is it automatic breach of his fiduciary duty to the corporation?

a) A promoter is a person who provides organizational initiative for the formation of a business and the formation of a corporation to carry on the business.  Promoter owes fiduciary duties to the corporation to be formed and to any contemplated outside investors.

b) Under BCL, stock may be issued as consideration for labors or services performed for the corporation.

c) Directors owe their corporation a fiduciary duty and will not be allowed to unfairly profit at the corporation’s expense. Where a director has an interest in a transaction the corporation is to enter, then such interested director must present all material facts of the transaction to the disinterested directors or the SHs for approval.  Absent such approval, the transaction may be set aside if it is unfair to the corporation.

81

a) Can A who owns 40% of Shares enter a sale “k” of company with an investor X w/o first obtaining approval SHs?

a) Under NY BCL, any sale, lease, exchange or other disposition of all or substantially all of the corporation’s assets, (other than in the usual course of business conducts) requires SH’s approval. 

à The BD must first approve the sale and then send their decision to the SHs for approval.  Proper notice to the vote must also be given to SHs and the proposal of sale must be approved by majority shares.

If the proposal was approved by majority shares, then all dissenting SHs have right of appraisal (receive the fair market value for their shares).

88

a) Duty owed by dominant SHs to minority SHs?

b) Can a corporation repurchase its stock?

c) Requirements for SH’s approval of a merger?

d) Remedies for minority SH when they are unhappy with the merger?

a) Dominant SH (controlling SH) owes fiduciary duty to minority SHs.

b) The repurchase of the stocks from SH may be done if (i) doing so does not render the company insolvent; and (ii) doing so is NOT for an improper purpose;

c) A merger of 2 corporations formed after Feb 22, 1998 must be approved by a majority shares of each corporation.

d) The minority SHs can rely on “Appraisal Rights” by which they can retire as SH rather than continuing in the corporation with which they cannot achieve what they originally invested for.  When they exercise the Appraisal right, the shares will be purchased at fair market value, inter alia.

Wills/Trusts

14

a) Codicil which tries to revive the defectively executed Will 2;

b) Lawyer’s liability in defectively drafting a will;

a) Will 1 à defectively SWEPT Will 2 à Codicil, which tries to revive the Will 2;   Will 2 cannot be revived by the subsequent codicil because of the defective execution thereof.  Thus, Will 1 will be survived.

b) Layer’s liability can be claimed by L’s client, not the bequestees of the will.

16

a) Necessary W is an Intestate distributee;

b) Non-contest clause in a will;

c) Advancement

a) Intestate W needs to choose lesser of i) intestate share and ii) bequest under the will, to be a valid W to probate a will;

b) If one contest a validity of a will based on T’s capacity, execution of a will, then such a person takes nothing from the will unless such contest falls into one of exceptions of No-contest-Clause such as infancy, forgery, demanding an accounting, petition of construction of a will, (I FACED SIR),

c) Advancement made to a donee may be reduced when the advancement was made with a contemporaneous writing signed by either the donor or the donee, which demonstrates the donor’s intent. Otherwise, such advancement is deemed a mere inter-vivo gift.

26

a) Revocation of the Codicil (deleting A’s bequest) which modified the part of the Will 1;

b) Ademption of Will

c) Anti-Laps Statute;

Effect of B of the residual estate predeceasing T and leaving issue

a) Revocation of the codicil (deleting A’s bequest) by striking through the signature thereof property revokes the effect of the codicil.  Since NY does not recognize “reviver doctrine”, the modified part of the will 1 (deleting A’s bequest) cannot be revived.  Thus A gets nothing.

Note the non-amended portions of the Will 1 survive.

b) Ademption of the will ONLY applies to a specific legacy.  However, if the specific legacy (i.e., rare stamp collection) is insured then a specific devisee receives an insurance proceeds.

c) Anti-lapse Statute applies to this scenario and thus issue will receive what would have been given to B.

37

Trust

★

a) What is a general power of appointment in trust instrument?

b) What is spendthrift protection?

c) Which one is controlling if the spendthrift protection blocks the exercise of a general power of appointment?

d) M’s will says “Upon J’s death, Trust Co maintains payment of income to J’s children until the youngest attains age 35, at which time the principal shall be paid to J’s children equally”:  What is the problem?

e) Can creditors of decedent’s estate reach the property that is covered by a P of Appointment?

f) When SS (Surviving Spouse) is provided with $1M in an indefeasible trust, is this trust income deemed part of elective share (right of election) in case deceased spouse left $6M worth estate?

a) A general power of appointment can be exercisable wholly in favor of the donee, her estate, her creditors, or the creditors of her estate.  The power is exercisable if it can be effected during the holder’s life or by her will.

b) In NY, trust income interests are given spendthrift protection by statute.  Thus any income beneficiary cannot sell her trust interest and the beneficiary’s creditor cannot reach that interest unless falling into some exceptional categories.

c) The General Power of Appointment Prevails over the Spendthrift protection statute.

d) This provision in the trust violates RAP as to principal.  RAP provides that no FI is valid unless it vests within 21 years from the life in being.  However, NY perpetuities reform statute will automatically reduce all age contingencies to 21 years to save M’s appointment. à Age reduction contingency:

e) Yes, they can because M is treated as absolute owner so far as her creditors are concerned (as M has a general power of appointment).

f) The indefeasible trust ($1M) is NOT considered estate that is subject to the SS’s right of election.　 ★

39

trust

★

★

a) What is “inter vivos trust”?

b) How about “testamentary trust”?

c) What is the effect if the settler failed to name the trustee?

d) What is a Special Power of Appointment?

e) What is a General Power of Appointment?

f) What is a Testamentary POA?

g) Income interests & interests in principal?

a) Inter vivos trust is the one created during the lifetime of a settler.

b) Testamentary trust is the one created by will of a settler.

c) Failure in naming the trustee does not negate the validity of the trust: Rationale: Settler’s primary intention was to create a trust to carry out the specified objectives.  The court may appoint a trustee.

d) A special POA is exercisable only in favor of class of persons (not including the T, his estate, his creditors, or estate’s creditors).

e) A GPA is exercisable in favor of (……the aforementioned).

f) If T-POA was given to S by T, then S can only exercise his power of Appointment by S’s will.

g) Income Interests are given statutory spendthrift protection which prohibits the transfer unless it is specifically allowed in the trust, however, devise of the interests in the principal is not prohibited by this protection unless doing so is specifically prohibited in the trust.

48

Wills/Torts:

a) Proceeds from W-Death Action;

b) Personal injury Action;

c) A will drafting attorney serving as executor;

d) How the proceeds from the wrongful death action be distributed?

a) In a W-D action, the recovery is based on pecuniary loss by intestate distributees;

“pecuniary loss = loss of support medical / funeral expenses, voluntary assistance”;

b) In a P-Injury Action, the recovery is based on damages, i.e., pain & suffering;

c) By statute, if an attorney drafts a will that names the attorney as executor, the attorney must disclose to the client that (i) any person can be named executor; (ii) excess fee will be charged as being executor.  The client must sign a written acknowledgment of the disclosure.  Absent this acknowledgement, the commission of an attorney shall be 1/2 of the statutory commissions.

d) The proceeds from W-Death action be distributed proportionately based on the pecuniary loss to the beneficiaries.

54

a) In simultaneous death situation, what will happen to W&H’s possession of a land in TE?

a) In simultaneous death situation, TE will become TC and the interests for each spouse is distributed as if each had survived the other.

And thus 1/2 of interest in the land will be distributed to survivors of each spouse.  1/2 of interests in land will be conveyed to bequestees of W under the W’s will.  Similarly, the 1/2 of the interests in the land will be given to the will bequestees under the H’s will.

61

a) A divorced spouse’s Bequest of Will which was probated after the divorce;

b) Effect of SA on the will bequest;

a) In general, divorce terminates the rights under the will BUT a divorced spouse can inherit according to the will which was, IF, executed after the divorce; ★

b) a SA does not affect the bequests of the will unless SA expressly stated otherwise.

70

Trust

★

a) When a creator of trust can reach to satisfy claims against the creator;

b) How the trust can be revoked?

c) Specific legacy;

d) ABC Child (C) after the execution of the will giving nothing to one of BBC (before born Children) (A) & (B);

a) W’s creditor can reach the entire income from the trust which W had retained but cannot reach the principal unless the creation of the trust by W was in frustration of W’s creditors.  Rationale is that a person cannot frustrate the claims of her creditors by placing her property in trust for herself.   à where W is a creator of trust (creator = beneficiary). ★

The limitations on a creditor to 10% of the income of a trust is not applicable here because this rule applies only when Beneficiary and Creditor are not the same person (a spendthrift protection trust). ★

b) If a trust agreement is silent as to revocability, it is deemed irrevocable.  However, upon the written consent of all persons (beneficiaries) benefit from the trust, the creator of the trust may revoke it.

c) Ademption applies only to a specific legacy (such as a painting) when it is lost.  However, if the specific legacy was insured, then a specific legatee will receive insurance proceeds.

d) If W made no provision for one of Children A & B when W executed a will, then after born child C gets nothing.

90

★

a) Totten trust & will

b) Inconsistency between a gift letter and a will provision (later made);

c) a gift of stock; (300 shares of common stock in M Corp)

d) a gift of stock in the case of stock split; (650 shares of common stock in M corp consists of 300 shares originally purchased and 300 shares received as a stock split; and 50 shares received as a stock dividends.)

e) stock dividends

a) “T in trust for S”.  Unless TT is revoked in the specific language of the will, and if the trustee (beneficiary) survives the trust creator (depositor), the beneficiary’s rights vest at the time of the depositor’s death.

b) An inter vivo gift is made if (i) manifestation of donor’s intent; (ii)an actual delivery or a constructive delivery; and (iii) donee’s acceptance of the gift.  Here letter expressly mentioned the donor’s intent functions as an instrument of gift and thus is sufficient delivery.  Plus, there is no remarks in the letter that the gift is revocable.

c) a gift of stock in a publicly traded corporation is classified as a general legacy;

d) however, when it is split, then it is treated as a specific legacy;

e) Stock dividends are considered capitalization of accumulated profits.

95

a) What are required when Lawyer is serving an executor of the estate?

b) What are the requirements when Lawyer is given will bequest?

c) What are the required elements to be proven the validity of the will that was cut in half?

d) What are the required elements for a child born out of wedlock to have inheritance rights from the father?

a) If a will nominates the drafting attorney to serve as an executor of the estate, a disclosure statement must be signed by the testator/client that (i) any person can be named executor; and (ii) executor is entitled to statutory commissions, and (iii) the attorney also will be entitled to attorneys’ fee for any legal services rendered to the estate.  If all of these facts were clearly made in the signed statement, then the lawyer can collect a full commission.

b) Lawyer has to defeat an inference of UNDUE INFLUENCE.  In general, the burden of proving undue influence by preponderance of evidence is on the person contesting a will.  He must prove: (i) the existence of influence; (ii) the effect of the influence was to overpower the mind of the testator at the time of execution of the will.  Then the lawyer has to provide evidence that the will was freely made and the beneficiary attorney’s testimony alone is not sufficient.

c) If a will is in the sole possession of the testator and is found cut or otherwise mutilated, there is a presumption that the testator destroyed the will with the intent to revoke.  This presumption may be overcome by adequate proof to the contrary, such as fire destroyed it.

d) Such a child must prove that she is T (father)’s daughter.  Paternity can be established at a probate proceeding if there is clear and convincing evidence and the father openly and notoriously acknowledged the child as his own.  If paternity is established, then the child and her kin have full inheritance rights from the father.

Note that the child born out of wedlock is included in the term ABC children under the statute.

Criminal Laws

13

a)         waiver of Miranda rights;

b)         revoking Miranda rights;

c)          Conspiracy;

d)         Entrapment;

a) 5^th Amendment’s privilege against self-incrimination à a person in custody must be informed of his Miranda rights before interrogation.  Waiver of Miranda rights needs to be made in a voluntary, knowingly, and intelligent manner;

b) If D requests the presence of counsel before making his written statements, all questioning must cease.  Any waiver of the rights thereafter made without attorney’s presence is invalid, and any statements taken without the attorney’s presence are barred.

c) The elements of Conspiracy are (i) intent; (ii) agreement; and (iii) an overt act in furtherance of the conspiracy;

d) D may attempt to raise the defense of entrapment.  Under NY law, entrapment is an affirmative defense that must be affirmatively pleaded and proved by the Def by preponderance of the evidence that he lacked the predisposition to commit the crime and was induced to commit the crime solely by the acts of a police officer.

20

a) How can arrested felon Waive the Miranda Rights?

b) What will happen to the evidence found during the lawful arrest?

c) How can D waive the Miranda rights when he was arrested by Police who knew that D was represented by his L for pending case?

d) Elements of Conspiracy in NY?

e) How can D defend from the conspiracy charge?

a) D can waive the rights if the waiver is done Knowingly, Voluntary, and Intelligently.

b) Such evidence is admissible because the police may search one in custody in order to ensure their safety and to protect evidence from being destroyed.

c) If P knew that D was represented by L for the pending related case, then P cannot commence interrogations on D w/o presence of L.  If P knew that D was represented by L for the Pending Unrelated Case, then P needs to give reasonable time to D for seeking his attorney.  However, if D, after being given Miranda, knowingly, voluntary, and intelligently waives the rights, then such waiver is valid.

d) For guilty of conspiracy, 3 elements must present: (i) intent; (ii) agreement; and (iii) an overt act.

à In NY, a unilateral agreement is enough as the element (i) of conspiracy.

e) In order to defend himself from the conspiracy charge, D must plead and prove that (i) he Renounced the criminal scheme and (ii) Prevented the commission of the targeted crime by his action, not simply that the crime did not take place.  This Affirmative Defense must be proved by D by a preponderance of the evidence.

24

a) Crime of Facilitation?

b) Arson 1^st degree?

c) Arson 2^nd degree?

d) Arson 3^rd degree?

***************************

e) 1^st Deg. Murder?

f) 2^nd Deg. Murder?

****************************

g) Extortion?

h) Affirmative Defense to the Crime of Facilitation?

i) Is confession admissible when it was obtained from a person who was being held, but had not yet been arraigned, on another charge?

a) Under NY Penal Law, a person commits criminal facilitation when he Knowingly Aids in the commission of a crime but his culpability does not reach accomplice level. The facilitator Need only Believe that it was probable that he was rendering aid to the Commission of the Felony.

b) 1^st degree arson requires 2^nd degree elements plus D causes an explosion or fire by an incendiary or explosive device;

c) 2^nd degree arson requires 3^rd degree arson elements plus the Knowledge Someone was Inside and would be harmed or circumstances such that a person’s presence is a reasonable possibility (No injury needed).

d) 3^rd degree arson requires the “Intentional” Burning of a building or motor vehicle By intentionally setting a fire or causing an explosion;

where 4^th Degree is “Recklessly”

*************************************************************

e) Intentional Murder during the Commission of felony AND Intentional Murder with a Special Condition (killing judge, W, police officer, serial murder and other circumstances.

f) FIG: Felony Murder; Intentional Murder; Gross Reckless Murder (DMM)

*************************************************************

g) Obtaining property from another by means of threats to physically harm the victim or his property.

h) The affirmative defense is an attempt to prevent the commission of the targeted felony in timely fashion.

i) Confession obtained in violation of a Def’s right to counsel will be suppressed.

Def has 2 distinct rights to counsel:

-          Under 6^th Amendment (applicable to the state through 14^th), it provides a right to counsel after judicial proceedings haven begun.  Under federal case law, this right is offense specific, thus invoking the right with respect to one crime does not thereby invoking the right to another crime; the right must be claimed for each crime individually!

-          Under 5^th Amendment, the right to counsel arises out of Miranda whenever there is custodial interrogation by the police.  This right is not offense specific; thus, once invoked, Def cannot be questioned about any crime absent counsel.

-          NY Law goes even further to protect the right to counsel.  NY provides an Indelible Right to counsel (i) whenever Def is in custody and there is overwhelming police activity and Def requests counsel; (ii) at arraignment; (iii) upon the filing of an accusatory instrument; or (iv) whenever there has been any significant judicial activity.  Once NY right to counsel attaches, it may NOT be waived by anyone known to be represented by counsel w/o the counsel’s presence.

27

Grand Jury

a) If co-conspirator B’s Constitutional rights were violated (which resulted obtaining the illegal evidences, that can be used against co-co A), can Co-Co A has standing to assert the violation of his（Co-Co B’s） right?

b) How indictment at GJ is done?

c) Tell me about Burglary!

d) Tell me what you know about Larceny!

e) When can “fence” be an accomplice to a thief?

f) Does sole confession by one Co-Co get him under conviction?

What other elements are needed for Co-Co’s conviction?

g) Tell me something about Brady Material!

a) A has no standing to assert the violation of B’s constitutional rights despite A’s negative effect by the illegally obtained evidence through violation of B’s constitutional rights.  The constitutional rights were personal to B.

b) Indictment by GJ (Grand Jury) under NY law is done when the evidence before GJ is sufficient to establish a prima facie case that the Def committed the crime for which he is charged.

c) Burglary in 1^st degree, 2^nd degree, and 3^rd degree

- 3^rd = unlawful entry or remaining w/intent to commit any crime in a Bldg;

- 2^nd = 3^rd deg + in “dwelling” OR “Bldg” w/DAMS Aggregated Circumstances;

- 1^st = 3^rd deg + in “dwelling” w/DAMS Aggregated circumstances;

DAMS: Display of fire arm; D is Armed w/deadly weapon; Manifested the use of a dangerous instrument; Serious Physical Injury results;

d) Larceny is wrongfully taking another’s personal property with a specific intent to permanently deprive its owner or to deny the owner possession for an unreasonable length of time;

e) Receiver of stolen goods (a fence) is an accomplice to a thief only where there is proof of a prior agreement between them (1974).

f) Under NY Law, a person may NOT be convicted based on his admission alone, absent additional proof that the offence was actually committed. Thus, B’s confession by itself does not meet the standard for conviction of the crime B confessed.  B’s confession, if, is supported by Co-Co A’s statement (HS exception as admission by Co-co if made during the commission of felony), then it is sufficient to convict B to the charged crime.

g) Def may withdraw plea upon learning that the prosecutor withheld materially favorable evidence from the Def. (Brady v. Maryland 1963).

The doctrine of Brady, which holds that suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith of the prosecution.  Brady Material Doctrine does NOT apply in case that Def does not request such evidence (also, W’s death is not evidence).

29

a) Elements to establish Criminally Negligent Homicide?

b) Is B in drug race with A on two lane road liable as an accomplice?

c) Can Police officer B arrest D based on Probable Cause created by the observation of another Police Officer?

a) Criminally Negligent Homicide arises when one person causes the death of another due to the failure to perceive a substantial and unjustifiable risk of death.  The Def’s conduct must have been culpable (mere failure to perceive risk is not enough) and the death-producing event foreseeable. (example: negligent driving of autos)

b) A person who aids, counsels, or encourages the Principal in committing a crime is also guilty of the crime as an accomplice.  A’s conduct constituted criminally negligent homicide and B encouraged A’s conduct by participating in the drag race with A that resulted in V’s death thus B is deemed accomplice.

c) 4^th Amendment of Constitution protects individuals from Unreasonable Searches and Seizures by the government. To be reasonable, Arrest (which is seizures) must be based on Probable Cause.  Probable Cause to arrest is present when at the time of the arrest, the officer has within his knowledge that RPP to believe that the suspect has committed a crime.

A police officer may arrest a person w/o warrant when he has reasonable grounds to believe that a felony has been committed and that the person before him committed the crime.  Once the reasonable grounds were established by one police officer, then another police officer can rely on that police officer’s knowledge and make an arrest.

31

a) What is the crime when a person is knowingly Issuing a Bad Check (no sufficient funds at bank)?

b) What is the crime when a person issuing a bad check with intention to defraud?

c) What is the crime if a person agreed to loan money at an interest rate of 20% per month?

a) In NY, the act is deemed “Larceny”.  Under common law, the act establishes the common law crime of false pretenses.

B who received a check (draft) from A is a HDC because B takes the NI for value in good faith w/o notice of any real defenses against.  B, being HDC, is only subject to a real defense, not personal defense, so he is subject to “Infancy, Incapacity, Illegality, Duress, Fraud in factum, Insolvency.

b) Lacking the requisite intent, A is not liable to larceny. 

HDC is a holder who takes NI for value in good faith w/o notice of any real defenses against.  Illegality (usurious rate) is a Real Defense, thus C is not HDC.

C received a check amounting to $600 for $500 bills from A thus C is liable to usury (20% interest rate is a usurious rate).  Though A agreed to pay C interest on loan at usurious rate, A is not liable to pay C.

c) Loaning money at interest rate exceeding 25% per year (if the lender is not a bank) is a crime of usury.  The person loaning money at such high rate is guilty of the Crime of Usury.

42

a) Can Age 15 waive Miranda rights?

b) Tell me about Robbery?

c) First degree murder in felony situation, what are the elements?

d) If it is found that the Police was killed by a Fellow Police Officer in the combat with Def during the commission of felony, is D liable to a first degree murder?

a) Under NY law, anyone under age 16 is deemed an infant (minor) for the purposes of Criminal Law. A 15 year old person is not impossible to waive the rights if he does so knowingly, intelligently, and voluntary.  However, it is questionable if a minor can waive his rights Knowingly, Intelligently, and Voluntary.

b) Robbery consists of (i) taking of personal property of another; (ii) from the other’s person or in his presence; (iii) by force or threats of immediate death or physical injury to the victim, a member of family or some person in the victim’s presence; (iv) with intent to permanently deprive the victim of it.

c) For the first degree murder, the victim must have been intentionally killed by the defendant during the course of commission of the underlying felony or immediate flight therefrom.

d) If the killing was proved to have been done by the fellow officer, then Def is not liable to the first degree murder, however, he will be convicted of second degree murder which does not require an intentional killing during the felony.

46

a) Can GJ indict B (Burglar suspect) solely on N’s testimony?  ( à N: Neighbor)

b) Can police officer enter B’s house without warrant to search and seize the allegedly stolen property?

c) Can A challenge the violation of B’s rights under 4^th Amendment when the illegal search was conducted at B’s apartment?

a) GJ must have legally sufficient evidence presented before it to indict.  N, thus, must be able to testify as to each element of burglary in the 3^rd degree, the crime with which B was charged.  The elements for burglary are: (i) knowingly entering or remaining unlawfully; (ii) in a building (iii) with intent to commit a crime therein.  à N may not be able to testify “unlawfulness”.

b) The search and seizure of B’s apartment was unlawful.  In general, an officer must have a warrant to conduct a search and seizure unless S & S falls within one of several exceptions, such as consent, within the plain view, incident to a lawful arrest.

c) A does not have standing under 4^th Amendment to challenge the lawfulness of the search of B’s apartment.  A does not have a possession or right regarding B’s house.

55

a) Can D refuse a pre-charge line up after the arrest under 5^th or 6^th Amendments right to counsel?

a) The lineup does not violate Miranda.  Miranda requires that a def be advised of his constitutional rights whenever he is in custody (i.e., not free to leave) and subject to interrogation.  This Miranda right does not extend to a pre-charge lineup, even if the lineup is held after arrest.

Under 14^th Amendment, if the lineup is unduly suggestive or prejudicial, then due process is violated.

59

Rape case:

75

(a) Is a disorderly conduct statute that prohibits “inciteful behavior” overbroad?

b) How can Def be guilty of possession of obscene articles?

c) Who will determine if the article is obscene or not?

d) How about in the case of possession of a child pornography, does it have to be obscene to be guilty?

e) Can a warrant issued by a neutral magistrate on the basis of eye-W’s testimony w/o knowing the name valid?

a) “inciteful behavior” does not specify in sufficient detail the prohibited acts, it is thus overbroad or vague.  Thus, the statute is unconstitutional.

b) To be guilty of possession of obscene articles, the Def must possess the material with the intent to promote, Under NY Penal Code, a person who possesses 6 or more identical or similar obscene articles is presumed to possess them with intent to promote the same.

c) The Police Alone Cannot determine if the article is obscene or not but the court does.

d) Possession of which does NOT require “obscenity” of the article if children are involved.

e) Yes, it is valid because X’s statement rises to a probable cause to issue warrant.

77

a) The elements of issuance of Valid Search Warrant?

b) The requirements for obtaining a Warrant for a Wiretap (or video & audio surveillance)?

c) What is good faith exception?

d) Who bears the burden of insanity defense?

e) Standard for determining the Def’s sanity?

a) To be valid, a search warrant must be: (i) issued by a neutral magistrate; (ii) on a showing of Probable Cause; and (iii) based on an affidavit establishing the veracity and reliability of the person supplying the information.

b) The Affidavit must also Name the Suspect(s) expected to be overheard; describe with particularity of the Conversations to be Targeted; and include the Time Limit.

c) In most state, there is a good faith exception to the warrantee requirements.  NY does NOT allow the fruits of a warrant to be admitted into evidence if they are the result of an illegally issued warrant Despite Good Faith.

d)  In NY, all Defs are Presumed Sane; thus Def must raise the insanity issue.  The claim of insanity is considered an affirmative defense, and thus Def bears the burden of proving his mental disabilities by Preponderance Evidence.  Def must furthermore give the prosecution Advance Notice of an insanity defense.

State, however, does NOT have to prove Def’s Mental Capacity to commit the crime beyond the reasonable doubt.

e) NY’s insanity defense is based on a combination of two rules: M’Naghten rule and the Model Penal Code test. In NY, a person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate the Nature & Consequence of his conduct or that his conduct was Wrong.

This defense is different from “irresistible impulse test” where Def is unable to control his act or conform his conduct to the law.

87

a) Is larceny lesser-included crime of burglary?

b) Is entering a barn (naya) with intent to steal prize cow “burglary”?

c) Is a person guilty of first degree murder if he intentionally killed the non felons during the commission of the felony?

d) Can a co-conspirator who did not share the requisite intent to kill the victim be guilty of the first degree murder?

e) If an accomplice promised not to hurt or injure any person before the commission of the felony and then if the killing took place by another accomplice when they escaped from the site, can the accomplice still be guilty of murder or manslaughter?

a) Noops, a person can be guilty of both larceny and burglary.

b) Yes, as a barn constitutes a building and thus unauthorized entering into the building with intent to steal is a burglary.

c) Yes, the person is guilty of first degree murder if he committed intentional killing of 3^rd person during the commission of the felony.

d) Accomplice (co conspirator) is not guilty of first degree murder if he did not share the same requisite intent to kill during the commission of the felony.

e) Even if the accomplice did not have any intent to kill or injure during the commission of the felony before commencing the act, the accomplice is still guilty of felony murder when the killing took place by another accomplice immediately after the commission of the underlying felony, then the accomplice is liable to the felony murder.

92

a) Tell me about Kidnapping in the 2nd degree?

b) What are considered proper vehicle stop and scope of search without warrant?

c) Can the bag in the back seat, marked “NY Art Museum after the burglary took place at NY Art Museum allow a police officer to open up without warrant or without driver’s consent?

d) Once the bag filled with cash was found, then can the police officer open up the trunk?

a) Kidnapping in the 2ND degree is the abduction of another person where abduction is the restraint of a person with intent to prevent liberation by secreting or holding him in a place where he is not likely to be found.

b) Warrantless searches under vehicle exception are valid because there is a reduced expectation of privacy with respect to automobiles and their use.  It is proper to set up a roadblock as long as every automobile (or regular pattern) is stopped and the driver checked for sign of intoxication.  It is also proper, in connection with such a stop, to check driver licenses and registrations.

c) When the vehicle was going away from the NY Art Museum and the bag was marked “NY Art..”, the police officer had a probable cause to open the bag and examiner the contents.

d) Once the police officer discovered the bag filled with cash, then it was reasonable to search the rest of the vehicle for other stolen goods.  Thus, 5 paintings found in the trunk should not be suppressed at the court.

94

Repeat of the aforementioned issues.

Torts

5

a) What is SL for Medical Malpractice?

b) Can the released party (released prior to the judgment) seek a contribution or indemnification from the other tortfeasor?

c) Evidence:

When would “a Post-Accident design modification” be available as evidence?

d) In SPL case, P must show?

a) 2.5 Yrs from the malpractice.  Or, if there is a continuous treatment, then it is 2.5 Yrs from the last date for the treatment.

1 Year from the discovery of the foreign object.

For Infant, less than 10 years or 2.5 Years after turning to 18. 

à For instance, 1 Year Old can wait until 11^th Birthday.  17 Year Old can wait until 18 to sue and 2.5 Yrs from that point.

b) The party (D1) who was released before the judgment Can seek Neither contribution Nor indemnification from the other tortfeasor (D2). 

However, the other tortfeasor can be benefited from the released tortfeasor in such a manner that damages apportionment to D2 is deducted by D1’s paid amount or D1’s apportionment of the damages whichever is greater.

c) Under NY law, evidence of a post-accident design modification is admissible in a Manufacturing Defect-PL case, but NOT in a design defect-PL case.

d) In SPL case, P must show: (i) a product was Defective, i.e., Unreasonably Dangerous at the time it left the D’s premise; (ii) NO material alteration occurred when in use; (iii) the Defect of the product Caused the Injury;

7

a) What is a legal STD of care owned to an owner of a land when a person enters into the land?

b) What are the elements to prove “Negligence”?

c) When a brother B1 was hit and run by a negligent driver and died in the hands of a brother B2, then can B2 sue the driver for Negligent Infliction of Emotional Distress?

a) NY does not distinguish the common law STD of cares depending upon the status of the person in the land, such as trespasser, invitee, or licensee.

A single STD of care owned to the person on the land is “Foreseeability & Nature of Precautions” required to meet the STD of Reasonable Care under the circumstance.

b) Negligence can be establish by proving the elements:

 (i) Duty; (ii) Breach of duty; (iii) the Breach of the duty is the actual cause of Injury; and iv) the breach is the Proximate Cause of Injury; and (v) there was Damages.

c) B2 may sue the negligent driver if B2 can prove: (i) B2 is an Immediate Family Member; (ii) suffered Severe emotional distress; (iii) B2 was in the Zone of Danger of physical injury from the Def (driver)’s negligent conduct; and (iv) a Physical injury (some court does not require).

9

a) Does NY apply the defense of Intra-family Immunity for negligent action?

b) Can a child sue his parent for negligent supervision?

c) Can SL be tolled for the negligent action (act occurred in NY) while Def is out of the state

a) NY has eliminated this defense.  Thus, a child can sue his parents or vice versa.

b) A child may not recover against his parent for negligent supervision.  An opponent party cannot claim against a parent for negligent supervision of his child.

c) Def absent from NY does not entitle P to toll the SL during the Def’s absence because Def conduct in NY subject him to long arm jurisdiction.

18

A1) How much does P need to prove to establish a prima facie case of SPL against Def who rent a garbage tractor?

A2) How about SPL based on negligent theory?  What does P need to prove?

A3) How about the proof required under ordinary negligent theory?

B1) What is SL for indemnification action?

B2) Until when such action can be filed?

A1) P needs to prove that the product left the D’s control at unreasonably dangerous condition. 

A2) Under a negligent theory for SPL, P needs to prove that Def owned a duty, there was a breach of duty, and the breach was the actual and proximate cause of the injury and the damages.

In this case, a commercial lessor (a commercial supplier of the garbage truck not a manufacturer of the tractor though) owned a duty of strict liability to all foreseeable Ps.  Breach of the duty is established by showing that the product supplied by the Def was so defective as to be unreasonably dangerous.

Thus, P can prove that Def owed a duty and violation of that duty caused the product rented out at unreasonably dangerous condition by not going through an ordinary inspection process.

A3) P can also prove that Def’s employee breached the duty and that breach caused the injury of P by showing that the employee’s conduct was the breach of duty, i.e., ignored the safety operation procedures.

B1)  6 years.

B2) 6 years from the day the party paid.

48

See the will #48 also.

Wrongful Death Action:

a) How the proceeds from the wrongful death action be distributed?

Damage award from the personal injury action (pain & suffering):

b) How about any damages award in the action for pain and suffering?

a) In a wrongful death action, the recovery is based on pecuniary loss by the distributees and any damages recovered are not included as part of the decedent’s estate.  The amount of recovery should be based on loss of support, medical and funeral expenses, voluntary assistance, and the possibility of the diminishment of an inheritance due to the premature death.

b) Any damages recovered in the action for pain and suffering are included in deceased estate and will be divided among those named in the will according to the will provision.

49

Very similar to Prob # 18:

96

Elements to establish Defamation?

a) For defamation, the following elements must be proven:

 i) the material is not true; (ii) Publication; (iii) Harm to P’s reputation; and (iv) “malice” on Def’s part if P is a public figure.

97

a) What will be the proper action to recover “pain and suffering” sustained before the death?

b) Can a wrongful death action be maintained based on the claim of “pain and suffering” before the death?

c) What can claim in the Wrongful Death Action?

d) Do the damages recovered in the W-D action be included into the decedent’s estate?

a) A personal injury action can be maintained based on that cause.

b) Wrongful death cause of action cannot be maintained based on the pain and suffering Def sustained before the death.

c) In a wrongful death action, damages are limited to the pecuniary losses of the intestate distributees.

d) W-D damages award is not part of the decedent’s estate.  Thus, the personal representative for the deceased may allocate the award among the distributees who have sustained a pecuniary loss due to the decedent’s death.

100

See Conflict of Laws (NY Practice)

Contracts (sales)

6

a) When can SJ motion be granted?

b) When can a non-compete clause be enforceable against a former employee?

c) When the defense based on St of Fraud must be pleaded?

d) If the defense based on St of Fraud is raised during the trial, can it be still asserted?

a) SJ motion can be made by any party after issues have been joined (i.e., service of an answer or reply).  SJ motion may be granted by the court when the court finds that there is no material issue of fact to be disputed.

b) NC Clause in the agreement can be only enforceable when the following conditions are met: TISUE

 i) time limit is reasonable;

 ii) geographical restraints is also reasonable in seeking an employment;

 iii) the employee is SUE; special, unique, or extraordinary.

Thus, in general, NC clause is applicable only to those professionals.

c) St of Fraud Defense must be affirmatively pleaded in Def’s 1st Responsive Pleading (usually an Answer).

d) Because of the answer to c), thus if Def did not raise that defense in the pleading response to the P’s summons, then it is considered “Waiver”.  Therefore, the defense of St of Fraud cannot be raised during the trial!

11

15

a) material breach of 5 Year term employment contract;

b) duty to mitigate damages;

c) When can P seek damages when D broke, in the half way, the employment of K for 5 years?

a) Assigning P to perform watchman from promised position “executive & supervisor” in the 2^nd year is a material breach of the 5 Yr employment K, and thus P can immediately recover the damages (all remedies for breach of the entire K);

b) If the employment K is a salary for an ordinary performance, then P is under the duty to mitigate the damages by taking even less paying job as long as the job is replaceable in quality.  However, if P’s job is not mere salary for the performance type, then P does not have to take the job that is not equivalent to the P’s contracted duty;

c) P does not have to wait till the expiration of the 5 year term to seek the remedies for D’s breach of 5 year K.

19

a) What are the conditions for remedies of “Specific Performance” if the non-compete clause in the employment k is violated?

a) Specific performance is available for breach of covenant not to compete if the following conditions have been met:

 i) a valid ‘k”;

 ii) the conditions met;

 iii) the legal remedy is not adequate;

 iv) the decree is enforceable – court does not have difficulty enforcing it, in other words, no court supervision is necessary;

 v) a mutuality of remedy is present – each party has a cause of action if violated by another party;

 vi) no defenses against the enforcement.

23

a) Tell me about “exclusive agent” for a real estate contract by a real state broker?

a) In the exclusive right to sell (which is different from “exclusive agent”), the agent can collect his commission even if the seller procures the buyer on his own.  However, exclusive agent cannot collect the commission if the seller procures the buyer.

35

UCC

Art. 9

a) How can S (seller) perfect a security interest in their consumer goods?

b) What is “attachment”?

c) Why Art 9 loves PMSI?

d) Who may have PMSI in consumer goods?

e) What will happen when B (debtor) defaults in installment payment (loan payment)?

-- debtor in default –

f) What is the best remedy (or action) in case the collateral is in the hand of defaulting debtor who is planning to transfer or hide the collateral?

g) Any other remedies to S (secured creditor: seller) against the defaulting Buyer?

a) S can perfect the security interest in their good to be sold by just simply selling it to B (buyer). Because an automatic perfection for PMSI (Purchase Money Security Interest) in consumer goods occurs upon attachment.

b) Attachment is creation of an enforceable security interest; which requires the following elements: VCR;

 i) Value must be given by creditor;

 ii) Contract – Parties must agree to create the security interest by [a] security agreement (signed by the debtor & reasonable identity of the collateral; OR [b] Possession of collateral (no need for the security agreement); and

 iii) Rights in the collateral (debtor must gave rights in the collateral.

c) Art 9 loves PMSIs because they fuel commerce thus they get special treatment/exceptions.

d) When the purchase of consumer good is made on loan, creditor (either bank or shop) will automatically have PMSIs in the consumer goods.

e) The secured creditor (party) has a right to take possession of the collateral either by [a] self-help (however, no breach of peace allowed), or [b] replevin action.

f) Reliance on CPLR Art 71 (pre-judgment remedy of replevin) may be the best solution in which NY P can seek a prejudgment ex parte order of seizure to be executed by sheriff upon showing the court by affidavit:

 (i) P is entitled to possession of the chattel; (ii) the value of the chattel; (iii) no defense by Def against P; (iv) P will likely prevail on the merits; and (v) the chattel may become unavailable or be impaired. NY P must post an undertaking (bond) of twice the value of the chattel.

g) Strict Foreclosure – occurs when the secured party retains the collateral in FULL SATISFACTION of the outstanding debt; -- this works best when the value of the collateral approximates the value of the outstanding debt; 

-- Note if the collateral is consumer goods (PMSI situation), the strict foreclosure is NOT allowed when the debtor has paid 60% of the cash price in case of PMSI.  If more than 60% of the cash price has already been paid by defaulting buyer, then the secured party must sell the collateral w/in 90 days otherwise the secured party will be liable for conversion.

36

a) Acceptance w/diff. terms

What will happen if the acceptance to the offer contains different terms or additional terms if the offer and the acceptance were made between the merchants in sales of goods?

b) What can a party do when the party learns the financial insecurity of the other party in the executory stage of the ‘k’?

c) Is there any way to retract the repudiation (due to non-responding to the assurance demand) by the questioned party?

a)  Because of the sales of goods, UCC section 2-207 applies and according to the section, the acceptance can be made to the offer despite the fact that it contains terms different from the original offer unless the offer expressly conditioned otherwise.

Under UCC 2-207, additional terms become part of the contract unless: (i) the offer expressly limits the acceptance to its terms; (ii) additional term materially alter the “k”; or (iii) the objection has been given within a reasonable time;

Note that UCC rule of gap fillers:

    [a] remove different terms; and

 [b] UCC Art 2 fills them;

b) The party can demand the assurance from the other party, and if the other party did not respond within 30 days (or given reasonable time), then this is treated as repudiation.

c) The questioned party can retract the repudiation by performance before the due date for the performance.

45

a) What will be the remedy once S(seller) learns that B (buyer) is in insolvent?

b) What can S do about the future shipments to B after leaning that B was insolvent?

a) Under UCC 2-705, S can stop delivery of goods in transit if S discovers that the B is insolent.

b) S can rely on UCC 2-609 to demand assurance of due performance from B.  Note that B can do the same from S.  If no assurance was given from B within 30 days, then S can treat as a repudiation of ‘k’.

58

Prop-

erty

&

NY

Prac-

ice

a) In case of no writing or signature, can the oral agreement on the use of land be enforceable?

What is the defense on the servient tenement who wants to refuse the grant of easement to dominant tenement?

a) Unless there is a writing signed by the party to be charged, the real estate ‘k’ is not enforceable.

Statute of Fraud is the defense against the dominant tenement who wants to use the easement (right of the way) in the servient estate.

63

a) What are the conditions where an oral ‘k’ on sales of goods exceeding $500 becomes enforceable?

b) If the merchant’s memorandum contains the terms different from the oral k or the additional terms, what would happen then?

c) Does the addition of arbitration clause constitute a material alteration?

d) What is S’s remedy in case B repudiates the K after S having already made the goods requested by B?

a) The oral K on sales of goods becomes enforceable upon receipt of the merchant’s memorandum and no rejections/objections were made within 10 Days from the receipt of the memorandum.

b) Under UCC 2-207, as long as the additional terms in memorandum does not materially alter the original k terms, then the additional/different terms in the memorandum becomes part of enforceable K.

c) According to NY case laws (court of appeals), inclusion of Arbitration Clause constitutes a material alteration of a K.  Thus unless specifically agreed upon by the both parties, the arbitration clause does not become a part of K.

d) S is entitled to receive an incidental damages plus either the difference b/w market price and K price or the difference b/w resale price and K price (in case notifying D of such sales).

66

a) Tell me about revocability of the sub’s bid to a general contractor?

Can the general contractor accept the offer after 6 months from the date of the sub’s offer?

b) F.O.B.@ seller’s place?  What does it mean?

c) Can Seller cure deficiency in the goods prior to the contract’s date of performance?

a) Under UCC 2-205, when a merchant makes an irrevocable offer in writing and signed it, that offer will remain open and irrevocable for the time expressly stated in the writing or for a reasonable time, if not specified. No consideration is necessary to support the irrevocability of the offer. However, under no circumstance, the period of irrevocability exceeds 3 MONTHS.

Accordingly, if the acceptance to the offer comes after the 3 months period, then such acceptance does not bind the ‘k’ because the offer was open until the 3 months from the date of the offer in case no specific time period is in the writing.

b) If the shipment is F.O.B. seller’s place of business, then the seller is responsible until the goods are placed in the hands of a reasonable carrier.  Thus, any defects occurring during the delivery by the carrier is to be on the Buyer’s responsibility.

c) Seller can cure the deficiency in goods having been delivered if there is a remaining term before the ‘k’ date of performance.  Thus, refusal to accept the conforming goods is a breach of “k” by Buyer.

69

a) Possible to disclaim warranties of merchantability or a fitness to the specific purpose?

How can the “implied warrantee of merchantability” or “fitness” be disclaimed?

b) In the land sale ‘k’ originally between P and X (buyer), then before the closing date, X decides to assign all his rights to Y, is there privity of estate between P & Y?

B2) What are the conditions when ‘k’ is NOT assignable?

B3) If payment of $50K in advance and the rest of $50K in a bond (loan for 25 Yrs with 10% annual interest) is changed to $100K payment once, does affect the obligor’s risk?

a) Under 2-314, when a merchant sold goods, there is an implied warrantee of merchantability, which means that the goods sold must be “merchantable”, i.e., must be fit for the ordinary use.

Under section 2-315, when a seller (merchant or not) has reason to know the particular purpose for which the goods are to be used and the buyer is relying on the seller’s skill, there arises an implied warrantee for a fitness to the particular purpose.

Disclaiming the above may be done in 1 of 3 ways:

 i) by a conspicuous writing disclaiming his warrantees “as is” or “with all faults”; ii) as to the defects that can be revealed by a reasonable inspection; and iii) by course of dealing, course of performance, or a trade usage.

As to the above i), the word “merchantability” must be used in the writing when it was intended to disclaim. 

b) In land sale K, from P to X to Y:

When Y paid value to X for assignment of X’s rights in the original K between P and X, P & Y are in privity of estate.

B2) In general K is assignable unless:

-          prohibited by law or K terms;

-          personal service requiring special skill;

-          obligor’s risk will be materially altered;

B3) The tendered payment by Y ($100K once) changes the obligor’s interests and thus is not in accordance with the original K terms between P and X, thus Y cannot obtain the specific performance by P.

74

a) Is an oral employment ‘k’ that cannot be completed within 1 year from the date of ‘agreement’ enforceable?

b) Is a perpetual ‘k’, i.e., payment of commission eternally, enforceable in NY? 

C1) What types of ‘k’ when the goods were delivered primarily for the Resale?

C2) What will happen if the goods were destroyed after the delivery to the Buyer but before the specified return date?

a) Even if the employment duration under the oral ‘k’ is less than 1 year, if it cannot be completed within 1 year from the date of the oral agreement is not enforceable in light of statute of frauds.

b) In NY, a ‘k’ which by its terms continues indefinitely into the future and which cannot be terminated must be in writing to be enforceable. 

C1) Such “k” is called “a Sale or Return Contract”.

C2) For the purpose of determining the risk of loss, a Sale or Return contract is treated as an ordinary sale; i.e., the risk of loss passes to the Buyer after it takes delivery.

81

a) What damages are available when a cancellation of land sale K is effective?

b) How can the cancellation provision (cancellation must be made within 10 days) in the “k” be exercised?

a) Under current NY case laws, a seller (vendor) will be entitled to retain the down payment on the “k” as liquidated damages, if the down payment <10% of the purchase price.

b) To effectively cancel the offer, a letter of cancellation must be received by offeror within 10 days.

86

a) If a quantity of the goods is not specified in K, will this K be still enforceable?

b) When does the K become  Un-Conscionability?

b) What will happen when it was found there was a mutual mistake?

a) If such K uses the language “Required”, then it is assumed “Requirement K” that is enforceable as long as the buyer requires a good faith amount and the required amount is disproportionate to the stated estimate or otherwise comparable prior requirements.

b) Unconscionability of K arises when the clause in K is so one-sided as to be unconscionable under the circumstance existing at the time of entering the K in light of the general commercial background and needs of the particular parties. When the K is held by a court to be unconscionable, the K will not be enforceable.

b) In general, mistake as to the value of the goods will not be remedied by the court.  However, the K based on a fundamental mutual mistake of fact render it voidable by the adversely affected party because there was no meeting of minds. However, the court will investigate to determine if there was an assumption of risk of the mistake in question at the time of entering into the K.

91

a) What are the conditions for the merchant’s memorandum to satisfy the statute of fraud?

b) When will the delay in delivery be excused if the delivery was made after the K performance date?

a) The merchant’s memorandum meets the statute of Fraud when the merchant writes a memorandum after the oral agreement, b) there is no objection from the other party within 10 days after the receipt.

b) Delay in delivery may be excused when the occurrence of the event that was not foreseeable at a time of K (or the occurrence of the event made the performance impractical) and there is a timely notice from the seller under NY U.C.C. 2-615.  Plus the K was not of the time of essence type.

98

a) What is “coercion” in K formation?

b) Is “consideration” necessary in modification of “k” under UCC Art 2?

c) If the modification is not in writing or signed by the party to be charged, then what will happen then?

d) What is the exception to the S.O.F. under U.C.C. Art 2-201?

a) Coercion arises where a party’s free will to contract is overcome by an unlawful use of force or threats of imminent use of force.  In general, a party’s poor economic condition is not a ground for the defense of coercion.  Under UCC, a party is allowed to seek good faith modification.

b) Under the common law, consideration is required to modify a ‘k’ but under UCC Art 2 (sales of goods K), it is not.  Under UCC Art 2, a K may be modified without consideration as long as the modification is sought in good faith.

c) Under U.C.C., to be enforceable, ‘K’ of sale of goods exceeding $500 must be in a writing signed by a party to be charged.  If one party sends a merchant’s memorandum, which is sufficient to bind the party, it will bind the other party unless the other party objects within 10 days.  Basically, these rules will apply to the non-modified K and modified K.

d) Under UCC Art 2-201, SOF does not apply in case the K involves the specifically manufactured goods.

Real Property

23

a) Recording statute in NY for a real property?

b) If a deed to transfer the property from B to A was recorded but the real intention of B for the transfer of the deed was to create a security interest to pay back the loan by B to A within the period, does this deed convey the real property?

c) If a landlord appoints X to be his “exclusive agent” to sell Blackacre, then what will happen when the landlord sold the property?

a) NY is a race-notice jurisdiction where a BFP, who purchases the Real Property for value without notice, who records first prevails over those who make a claim to the property.

b) If B’s intention of transferring the property to A is to be security for the loan to A, then the transferring the deed to B does not make an absolute conveyance, but only created a mortgage.

c) There is a difference between “the exclusive agent K” and “the exclusive right to sell”.

-          In an exclusive agency K, if the seller procures his own purchaser, the agent is not entitled to a commission.

-          In the exclusive right to sell, the agent collects his commission even if the seller procures the purchaser on his own.

Thus, the exclusive agent “X” is not entitled to a commission because the landlord procured a purchaser by himself.

50

a) Can a lease, which does not contain “No Assignment” Clause, be assignable?

L à A (assignor) à B (assignee)

b) Enforcement of Option Clause in the lease of assignor by the assignee:

Is the assignee B entitled to the option clause which gives right to purchase the land in the lease b/w L and A?

c) Risk of Loss:

Who will bear the risk of loss when the property was damaged 40% by a strong wind before the closing?

a) A lease that does not contain “no assignment clause” is freely assignable because a covenant against assignment will not be implied in favor of a landlord, unless it can be shown that the covenant was material to the landlord’s bargain and expectations.

L à A (assignor) à B (assignee)

b) In NY, a legitimate assignee is entitled to the benefit of all terms of the lease that RUN WITH THE LAND, which touches and concerns the land.  The option to purchase the land is the benefit of the term in the lease, which runs with the land thus B is entitled to the option clause in the lease.

c) As to the damage caused by the windstorm, NY will apply the Uniform Vendor and Purchaser Risk Act if the contract b/w S (seller) and B (buyer) is silent as to the risk of loss.

The act provides that the risk of loss passes to the purchaser ONLY when a legal title passes or the purchaser takes actual possession.

53

a) When is filing a notice of pendency proper?

b) Can a notice of pendency be filed before commencement of a suit?

c) What does P have to do after filing a notice of pendency with the County clerk?

d) If P did not serve a summon & complaint to D within 30 days from the filing of the notice of pendency, what will happen then?