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270 Cards in this Set

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Whether a valid contract exist between two merchants for the sale of goods when the parties intended to determine the purchase price after delivery of the goods.
The U.C.C governs this issue b/c the contract involves the sale of goods. In addition, SOF applies to contracts for the sale of goods at a price of $500 or more. Under the U.C.C., a sale of goods contract must contain a quantity term and the quantity term is the only essential term in a U.C.C. contract. The failure to state the price does not prevent the formation of a contract if the parties intended to enter into a contract w/t the price being settled before delivery of the goods. If the price term is missing, the court will supply a reasonable term for the price.
Whether a real estate contract which grants one party the exclusive right to cancel the contract is illusory(R-14)—(the contract contained “Buyer shall have the absolute right to cancel this contract at any time prior to closing, and, in such event, the down payment shall be returned to Buyer.”)
For a contract to be valid, there must be consideration on both sides of a contract; that is, the promises must be mutually obligatory. Consideration is the bargain for exchange b/n the parties to the contract which constitutes a benefit to the promisor or a detriment to the promisee. Agreements in which one party is bound and the other is not lack mutuality and the consideration often fails b/c the promise is illusory. The right to cancel a contract at any time may be illusory promise. Consideration is valid if the right to cancel is restricted.
Issue: when a cancellation is effective and what damage are available for breach o a land sale contract. (Q81—“Buyer shall have the absolute right to cancel this contract upon written notice to sellers w/n 10 days of the date hereof, in which event the down payment shall be returned to Buyer.)

X entered into a valid written agreement with A for the sale of their home. A provision in the agreement allowed X to cancel without liability if done within 10 days of execution. To validly exercise the right of cancellation granted within a contract, it must be received during the time period and in the matter set forth in the agreement. Received by A after the 10 day limitation, the cancellation is ineffective.
Typically, damages are measured by the difference between the contract price and the market value of the land on the date of breach. Under current New York case law, a vendor will be entitled to retain the down payment on the contract as liquidated damages if the down payment does not exceed 10% of the purchase price.
Whether the contract b/n S and B is void for indefiniteness.(Q86)
Under common law, the essential terms of an agreement must be definite and certain in order to be binding. In this case, the quantity of bulbs being sold is unstated in the agreement. Therefore, under the common law, the agreement would be void for the indefiniteness.

However, the transaction b/n S and B involves a sale of goods which is governed by U.C.C. U.C.C. provides that when an agreement specifies that the quantity of goods to be sold will be measured in terms of “requirements,” the term “requirements” is to be interpreted as the actual good faith requirements needed by the buyer.
At issue are the grounds for unconscionability.(Q86)
The basic test for determining the unconscionability of a K is whether in light of the general commercial background and needs of the particular parties, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the K.
Whether the mutual mistake as to the nature of the goods being supplied by S renders the agreement void. (Q86)
Generally, mistakes as the value of the subject matter will not be remedied by the court. However, a K that is based on a fundamental mutual mistake of fact which results in a material effect on the agreed-upon exchange of performance is voidable by the adversely effected party. The courts will investigate the facts of a particular case to determine whether the parties assumed the risk of the mistake in question when hey negotiated their K.
※ Whether the addition of an ARB provision in an acceptance b/n merchants will be included in their K.(Q63)
Under U.C.C., as b/n merchants, the proposed additional terms become part of the K unless they materially alter the original K, the offer expressly limits acceptance to the terms of the offer, or the offeror has already objected to the particular terms or objects w/n a reasonable time after notice of them is received.

The court of appeals has held that inclusion of an ARB agreement materially alters a K for the sale of goods, and thus, it will not become part of a K unless both parties explicitly agree to it.
※ Whether a suncontractor’s bid, to be used by a general contractor for his bid, is irrevocable. (Q66)—merchant firm offer
Under U.C.C., when a merchant makes an irrevocable offer and signs it, that offer will remain open and irrevocable for the time expressly stated in the writing of for a reasonable time if no specific time is stated. However, under no circumstances can the period of irrevocability exceed 3 months. No consideration is needed to support the irrevocability of the offer.
※ who bears the risk of loss when a contract states F.O.B., seller’s location, and the good are destroyed prior to receipt by the buyer.(R-14)
This written contract is governed by the U.C.C. The general rule is that in a contract for a sale of goods b/n merchants that state F.O.B., seller’s location, F.O.B. is the delivery point. The risk of loss shifts to the buyer as soon as the seller completes its delivery obligations. The seller must deliver the goods to a common carrier and arrange for shipment, including obtaining and tendering all documents necessary for the buyer to take possession of the goods and promptly notifying the buyer of the shipment. If the goods are destroyed while in transit to the buyer, the loss falls on the buyer and the buyer remains liable to the seller for the contract price.
The issues are what type of K is involved and who bears the risk of loss on it. (Q74-C corp. made a K to Z, a retailer, whereby C will deliver 30 lenses to Z, Z agreed to either purchase or return them by August 31.)
Under the U.C.C., where delivered goods may be returned by the buyer even though they conform to the K, the transaction is a sale or return K if the goods are delivered primarily for resale. The facts state that…

Under the U.C.C., if the seller is a merchant (and does not use a common carrier), the risk of loss passes to the buyer only when the buyer takes physical possession of the goods. For the purpose of determining the risk of loss, a sale or return K is treated as an ordinary sale. If the goods are returned to the seller, the risk of loss remains on the buyer while the goods are in transit.
※ Whether an oral K for services that can’t be performed w/n one year is enforceable.(Q74)
Under SOF, a K which can’t be performed w/n one year can’t be enforced unless it is in writing. In measuring the applicable period for the SOF, the period runs from the date of the agreement and not from the date of performance. Unless it is in writing, an employment K is terminable at will.
※ Whether a perpetual K is enforceable w/t a writing. (Q74- C corp. said to A “if you can get business from S Corp., we will give you 15% commission on each sale. The commission are to be paid indefinitely.” A got paid commissions until the day he was fired by Y.)
In NY, a K, which by its terms continues indefinitely into the future and which can’t be terminated unless there is a breach, must be in writing to be enforceable.
Whether the parties’ agreement violated the SOF. (Q91—X, not a merchant, ordered for 12 specially designed sweat suits from F. Inc. so note that there is no merchant’s memo applied )
Generally, to be enforceable under the U.C.C. SOF, a K for the sale of goods for $500 or more must be evidenced by a writing signed by the party to be charged. While F wrote a letter stating that a K had been made b/n the parties, the letter did not meet the requirements discussed above, b/c the letter was not signed by X, the party to be charged.

However, specially manufactured goods are exempted from the requirements of the U.C.C. SOF under certain circumstances. A K may be enforceable if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, and the seller, before notice of repudiation is received, has made either a substantial beginning of their manufacture or commitments for their procurement.
※ Whether seeking modification of a price term in good faith constitutes coercion. (Q98- modification of the price b/c the cost raise)
Coercion arises where a party’s free will to K is overcome by an unlawful use of force or threats of imminent use of force. A party’s poor economic condition generally is not a ground for the defense of coercion. The U.C.C. allows a party to seek modifications in good faith,
※ whether the consideration is required to modify a K for the sale of goods.(Q98)
Under the common law, consideration is required to modify a K, but this is not true for a K for the sale of goods. A K for the sale of goods may be modified by agreement of the parties w/t consideration as long as the modification is sought in good faith.
※ Whether failure to put in writing a modification of a K for the sale of goods for more than $500 is a defense where a party has materially changed position in reliance on the modified price.(Q98)
※ Whether a merchant’s confirmatory memo is sufficient to bind its recipient under the SOF. (Q63)
Generally, to be enforceable under the U.C.C. SOF, a K for the sale of goods for $500 or more must be evidenced by a writing signed by the party to be charged; although b/n merchants, if one party send the other a memorandum (a written confirmation) of the K sufficient to bind the sender, it will also bind the recipient if the recipient does not object w/n 10 days of receiving the memo. Theses rules apply to modified Ks as well as unmodified Ks.

However, even though the SOF has not been met, the modification will operate as a waiver here, allow S to enforce the modified price term. The waiver may be retracted only by reasonable notice given before the other party changes position in reliance on the waiver.
Whether a party must tender delivery when the other party unequivocally(clearly) indicates that he will not perform.(Q98)
Under K, S was required to deliver goods to B.. Although ordinarily the delivery would be a condition precedent to B’s duty to pay, the condition will be discharged here b/c of B’s anticipatory repudiation. Anticipatory repudiation arises when one party to the K unequivocally indicates that he will not perform. In such situation, the nonrepudiating party has an option of several remedies, including suspending her own performance.
Issue: whether the nondelivery of the goods by the deadline constituted a breach of contract that would prevent seller from obtaining damages.
New York UCC provides that delay in delivery or nondelivery by a seller who complies with the statutory notice requirement is not a breach of his duty under a contract for sale if performance has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made. The seller must notify the buyer seasonably that there will be delay or nondelivery.
whether there was repudiation of the K and whether this repudiation was retracted. (Q36- The buyer was 90 days behind in his business obligations)
When reasonable grounds for insecurity arise, a party may demand in writing adequate assurance of the performance. After receipt of this demand, the party whose performance is being questioned must provide adequate assurance w/n 30 days. However, this time limit is not relevant where the aggrieved party has not canceled, materially changed his position, or otherwise considered the repudiation to be final. Instead, the questioned party may retract the repudiation before the performance is due.
Issue: what rights and remedies D Inc. has upon receipt of notification that R is insolvent and how R’s insolvency affects future shipments from D Inc. to R. (Q45)
Under UCC, a seller may stop delivery of goods in the possession of a carrier if he discovers that the buyer is solvent.

Under UCC, if reasonable grounds for insecurity arise with respect of the performance of either party, the other party may in writing demand adequate assurance of due performance. If the assurance is not given within 30 days of demand, the party requesting the assurance may treat the contract as repudiated.
Issue: whether lack of profitability amounts to impracticability or impossibility of performance or not, which might excuse the party to perform
Generally, a later unforeseen event make performance impossible may provide an excuse for non-performance. But lack of profitability never excuses performance because it does not constitute impracticability or impossibility of performance. It also does not constitute commercial impracticability.
※ what remedies are available to a seller when the buyer repudiates after the goods have already been manufactured.(Q63)
Under U.C.C., when the buyer repudiates or refuses to accept goods, the seller is entitled to recover incidental damages plus either the difference b/n the K price and the market price or the difference b/n the K price and the resale price of the particular goods. Seller’s incidental damages include such expenses as costs of storing, shipping, returning, and reselling the goods which are incurred as a result of the buyer’s breach.
Issue: what is the proper remedy for the non-breaching buyer under UCC Art. 2?
There are three monetary remedies. First, buyer is entitled to return the deposit given to seller whether or not buyer cancel the contract after seller’s breaching. Second, buyer has remedy to cover the price to purchase the substitute goods, but buyer must be act without reasonable delay, act in good faith and a reasonable cover. Finally, as an alternative to cover, buyer ahs remedy of recovering money damages which is the difference between the contract price and the market price on the date of knowing seller’s breaching and consequential as well as incidential damages.

There are two other non-monetary remedies, specific performance and replevin. Specific performance is an equitable remedy that buyer can get specific performance if the goods are unique or other proper circumstances: buyer believes he cannot obtain the similar goods elsewhere, etc. Buyer is entitled to replevin when he is unable to cover after reasonable effort and goods must be identified to the contract.
※ Whether failure to close on a specified date in a real estate contract which states that “time is of the essence” constitutes a material breach of K entitling the non-breaching party to keep the down payment.(R-14)
The general rule is that failure to perform by the time stated in a K is not a material breach if performance is rendered w/n a reasonable time. However, if K specifically provides that “time is of the essence,” the failure of one party to perform on time is considered to be a material breach. The damage for a breach of land sale K is the difference b/n the K price and the FMV of the land. However, a down payment may be liquidated damages if the parties agree at the time of contracting that such payment will be retained by the seller in the event of a breach. For the clause to be valid, damages must be difficult to ascertain at the time K is formed and the amount must be a reasonable forecast of compensatory damages.
※ at issue is the seller’s rights to cure prior to the K’s date of performance.(Q66)
Under U.C.C.’s “perfect tender” rule, a buyer may rejects goods for “any defect” in the goods. However, if the seller can cure the defect w/n the time originally provided in the K, he may do so by giving reasonable notice of intent to cure and subsequently tendering confirming goods which the buyer must accept. Failure of the buyer to accept the confirming goods will be a breach of the contract.
Issue: whether an assignor who assigns all of his rights under a contract can bring suit for performance against the obligor
The effect of an assignment is to establish privity of contract between the obligator and the assignee while extinguishing privity between the obligor and assignor. When a valid assignment occurs, the assignor’s rights under the contract are extinguished and may thereafter be exercised only b the assignee.
whether privity of contract existed b/n S (obligator) and Y (assignee). (Q69)
The effect of an assignment is to establish privity of contract between the obligator and the assignee while extinguishing privity between the obligor and assignor.
Contract rights are assignable unless there is a restriction in making such assignment. Restrictions on assignments include assignments prohibited by law or contract terms, assignments of personal service K, or assignments that vary the obligor’s risk.
※ Whether any warranties arose in the sale here, and if so, whether the warranties were disclaimed. (Q69- B bought a burglar alarm from M, the K stated that “M will not act as an insurer under this K. He has no responsibility for any losses arising from failure of the burglar alarm system.)
U.C.C. provides that in a sale by a merchant who deal in goods of the kind sold, there is an implied warranty of merchantability. This means that the goods must be fit for the purposes of ordinary use.

U.C.C. also provides that an implied warranty of fitness for a particular purpose exists when a seller, merchant or not, has reason to know the particular purpose for which the goods are to be used and that the buyer is relying upon the seller’s skill and judgment to select suitable goods.

The issue then is whether these warranties were disclaimed. All implied warranties may be disclaimed in one of 3 ways: (1) by a conspicuous writing included in the K stating that the product is taken “as is,” “with all faults,” or any other plain language indicting that the seller was disclaiming his warranties; (2) by inspection or refuse to inspect prior to the making of K, in which case there is no implied warranty as to defects that would have been revealed by a reasonable examination; and (3) by course of dealing, course of performance, or usage of trade.
※ Whether oral statements made prior to or contemporaneously with a written K, which contradict or supplement the written terms, may be admissible as testimony regarding the terms of the K.
Oral statements made prior to or at the time of a written K are parol evidence and as such their admissibility is governed by the Parol Evidence Rule (“PER”).

The PER bars the admission of any testimony of contemporaneous oral statements to a written K that is offered to establish terms inconsistent with the K.
What constitutes a breach of an employment contract. (Q15)
A breach of K occurs when there is an absolute duty to perform and such duty has not been performed. A material breach is deemed to have occurred when the nonbreaching party does not receive the substantial benefit of his bargain due to such nonperformance or defective performance.

When a material breach of K occurs, the nonbreaching party may consider the K at an end, meaning that the nonbreaching party has no further performance under the K. He has the immediate right to all remedies available for breach of the entire K, including damages. In employment K, if the employer breaches, the employee is entitled to the full K price.
※ whether H (employee) had a duty to mitigate damages. (Q15-employer asserted employee’s failure to accept comparable employment)
In employment K, if the employer breaches, the employee has the duty to mitigate damages by using reasonable care in finding a position of the same kind, rank, and grade in the same area. The fact that the like position does not pay the same amount does not remove the requirement of mitigation by the nonbreaching party.

However, this is not an ordinary employment K, b/c the consideration here was not simply salary for performance. In this case, H’s employment K was the basis for the sale of his interest in S corp., and thus the salary represented more than just compensation for services. Hence, H is not under a duty to mitigate damages b/c this employment K is part of a bargained-for exchange, and H’s interest is greater than simply compensation for personal services.
Issue: when a court may grant summary judgment when the underlying claim is a non-compete clause (Q-6)
In order to enforce a covenant not to compete, the employer must how that (1) the services to be performed under the contract are unique, thus rendering any legal remedy inadequate; (2) the covenant is reasonable as to both geographic scope and duration; and (3) the covenant is reasonably necessary to protect the employer. Covenants tending to restrain a person from engaging in his lawful vocation and disfavored and are sustained only if they are not unduly burdensome on the person restrained and only to the extent that they re reasonably necessary to protect the legitimate interest of the employer.
※ D bought assets of corp. from A and C. A and C executed an agreement with D, wherein they agreed not to compete with D in the N county for 10 years. Will D receive an injunction. (Q11)
A restrictive covenant is generally enforceable by injunction, as long as the covenant: (1) is necessary for the protection of the purchaser; (2) is reasonable in time, distance, and extent; and (3) represents part of a bargained-for exchange. Covenants not to compete can be enforced in the absence of a showing that enforcing the covenant would preclude the covenanting party from pursuing its business.
Issue: enjoining the use of customer lists as unfair trade competition in summary judgment (ref, NY practice)
The first counterclaim sought to enjoin use of the customer lists as unfair trade competition. In New York, former employees may solicit their former employer’s customers in the absence of an express contract to the contrary or any secret or confidential character of the employment. This is especially so where the former employer’s customers are openly engaged in business in advertised locations.
Whether a confession is admissible when it was obtained from a person who was being held, but had not yet been arraigned, on another charge, was informed of his rights, and waived them?
Under the exclusionary rule, a confession that was obtained illegally generally is not admissible into evidence. Thus a confession obtained in violation of a defendant’s right to counsel will be suppressed.

A defendant has two distinct rights to counsel. The 6th amendment provides a right to counsel after judicial proceedings have begun. Under federal case law, this right is offense specific, meaning that a defendant who claims the right with respect to one crime does not thereby invoke the right as to other crimes; the right must be claimed for each crime individually.

A defendant also has a 5th amendment right to counsel which arises whenever there is custodial interrogation by the police. This right is not offense specific, once claimed, a defendant can not be questioned about any crime absent counsel.

New York law goes even further to protect the right to counsel. NY provides an indelible right to counsel whenever the defendant is in custody, there is overwhelming police activity, and the defendant requests counsel; at arraignment; upon the filling of an accusatory instrument; or 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 unless counsel is preset.

Note: a confession taken in violation of Miranda but otherwise voluntary may be used to impeach D. if he testifies at trial.
Whether D validly waived his Miranda rights?
For a confession to be admissible under the fifth amendment’s privilege against self-incrimination, a person in custody must be informed of his Miranda rights prior to interrogation and in effect waive such rights. Such a waiver must be knowing, voluntary, and intelligent. In New York, the waive must be obtained in the presence of counsel if the defendant is known to be represented by the counsel.
Whether D had revoked his Miranda waiver before any written confession?
If D requests the presence of counsel before making any written statement, all questioning must cease.

D’s statement that he would not sign a statement without speaking to his attorney constituted a revocation of his Miranda waiver. It was necessary that all questioning cease until the attorney arrived or until D himself initiated further conversation. Thus, under federal constitutional law, D’s written statement will be excluded. In addition, under New York constitutional law, once a criminal defendant is custody request an attorney, al questioning must cease until the attorney is present. Any waiver of rights made out of the presence of the attorney after such a request is invalid, and any statement taken after such a request is barred. This is the Arthur-hobson rule. Consequently, once D requested to speak with his attorney his statement could no longer be used against him.

It is irrelevant that attorney actually went to the police station and attempted to see D. it is D’s request, and not attorney’s presence, that protects D form interrogation.
Whether D can waive his counsel on the present case if the police know that D is being represented by counsel on a pending unrelated charge?
(New York Rule) A confession will be admissible only if the defendant properly waives his Miranda rights. If the D is known to be represented by counsel in the pending case, waiver must be in the presence of counsel. If the defendant is not known to be represented, he can waive his right to counsel himself, even if he is represented by counsel on an unrelated case and the police was aware of that representation.
Infant’s 5th amendment right?
Generally rule regarding waiver.

Nevertheless, to invoke the rights, a suspect generally must specifically ask to speak within an attorney; merely asking to speck with someone else, such as a probation officer, does not invoke the suspect’s 5th amendment right. However, in NY there is an exception - attempts to keep parents from their infant children held by police may invalidate a confession. (under NY law, anyone under age 16 is considered an infant for purpose of criminal law. NY law allows the prosecution of defendants ages 14 or 15 who are responsible for serious offenses against person or property. They need not be brought up on juvenile delinquency charges in family court. A defendant who is age 13, 14, 15, may be prosecuted for second degree murder )
Whether the 5th and 6th amendment right to counsel applies to a pre-charge lineup?
The lineup did not violate Miranda. Miranda requires that a defendant be advised of his constitutional rights whenever he is in custody and subject to interrogation. The warnings are intended to protect defendants against self-incrimination.

Here, there is no doubt that the D. were in custody; however, there was no interrogation. There is no 5th amendment right against self incrimination that prevents the taking of physical evidence, such as is taken at a lineup. Therefore, the failure to give Miranda warnings before the lineup is irrelevant.

Neither was the defendant’s right to counsel violated. (6th amendment right) The right does not extent, however, to a pre-charge lineup, even if the lineup is held after arrest.

NY indelible right to counsel does not apply to the pre-charge lineup.

Due process was not violated. The due process clause prevents a lineup that is unduly suggestive.
Whether driver was properly warned of the consequences of refusing a blood test?
Vehicle and Traffic law and the required automobile liability insurance policy state that a driver’s license can be revoked for refusal to submit to a blood test, but only where the suspect has been warned of this consequence of his refusal to submit. No warning is given, no revocation is possible.
Whether tests of physical condition are testimonial or communicative in nature so as to require the issuance of Miranda warnings prior to their administration?
The privilege against self-incrimination of the fifth amendment, as applied to the states through the fourteenth amendment, bars a sate form compelling a person to provide evidence of a testimonial or communicative nature. Evidence is testimonial or communicative when it reveals person’s subjective knowledge or thought processes. Physical performance tests do not do this; rather, they exhibit a person’s degree of physical coordination for observation by the police. Therefore, Miranda warnings are not required to be given before the administration of such test. However, any evidence obtained that has been tainted by the illegal arrest would be prohibited form being introduced at trial by the exclusionary rule.

Here, D’s performance of the physical test, such as walking a straight line, were not testimonial in nature and so no Miranda warnings were required. However, the test results will probably be barred from evidence anyway because it is the fruit of an unlawful arrest.
Whether the test is the fruit of an unconstitutional arrest?
Under the exclusionary rule, evidence is inadmissible if it was obtained in violation of a defendant’s fourth, fifth, or sixth amendment rights. thus, if the test (evidence) was the fruit of an unconstitutional arrest, the test (evidence) must be excluded from evidence.

Under the fourth amendment, which applies to the states through the fourteenth amendment, all warrantless arrests in a person’s home are deemed to unreasonable unless exigent circumstances (hot pursuit) exist. The government has the burden of proving the exigent circumstances, and the Supreme Court has found that the fact that a defendant’s blood alcohol level might dissipate while the police leave to obtain a warrant is not sufficiently exigent where, as here, the crime involved is a misdemeanor traffic violation.

The court indicated that any evidence found in the home, as the product of an improper warrantless search, is tainted and as such should be suppressed. However, it is important to distinguish evidence obtained on the premises from evidence obtained subsequently, which because of its “attenuation” to the illegal conduct, is admissible. The determining factor is whether the evidence obtained was an exploitation of the unconstitutional aspect of the arrest. If so, the evidence is suppressed; if not, the evidence is allowed.
Whether a police officer may arrest a suspect based on probable cause created by the observation of another police officer. (it is deemed to be probable cause from another police’s information)?
The 4th amendment of the US constitution provides individual protection from unreasonable searches and seizures by the government. To be reasonable, arrest, which are seizures of the person, must be based on probable cause. Probably cause to arrest is present when at the time of the arrest, the officer has within his knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime. Under some circumstance, an arrest will be reasonably only if made pursuant to a warrant. However, a police officer generally does not have to obtain a warrant before arresting a person in a public place, even if the officer has time to obtain a warrant. A police officer may arrest a person without a warrant when he has reasonably grounds to believe that a felony has been committed and that the person before him committed the crime.
Whether there is a lawful warrantless search and seizure?
The general rule is that an officer must have a warrant to conduct a search or seizure, unless the search and seizure fall within one of several exceptions.

Exception: consent, plain view, incident to a lawful arrest, hot pursuit, evidence evanescent, automobile exception

Incident to a lawful arrest
Absent a lawful search warrant, when a police office has made a lawful arrest, the officer may search the D’s person and grab area as long as the search is contemporaneous in time and place with the arrest. Therefore, when a police officer lawfully arrests the occupant of a car, he may search the vehicle. The officer, however, must have full probable cause to believe the car contains evidence of a crime before stopping and searching it.
A police officer can stop a car for inspection if he has a reason to believe that a traffic violation has occurred based on his own observation. If the officer has no reason to fear the occupant of the car, he may not conduct a full search of the vehicle.
Who has the standing under the 4th amendment to challenge the lawfulness of search?
Show ownership or possession of, or residence. Expectation of the privacy.
Issue: whether the securities were found during an illegal search
Evidence found during a search incident to a lawful arrest is admissible. The police may search one in custody in order to ensure their safety and to protect evidence from being destroyed. The facts indicated that P made a valid warrantless arrest of D, since all that was necessary was a reasonable belief that D was the one robbing the drugstore. The facts that the police found evidence of a crime different form the one that occasioned the arrest is irrelevant. The search and seizure were proper, and the evidence is therefore admissible.
Whether the photo obtained (whether obscene) in violation of D.’s 4th amendment rights?
(state general rule, lawful arrest, or warrantless lawful arrest exception)

Articles seized supporting an obscenity charge are to be distinguished from other contraband, such as knives or guns, in considering the reasonableness of their seizure.

A determination of what is obscene cannot be made by a police officer alone. A judicial determination is necessary before the material may be seized. This rule is to protect persons possessing non-obscene material form unwarranted and unlawful restraints.

Exigent circumstances may justify seizure without such a procedure.
Whether the warrant for video surveillance was properly issued by the judge
To be valid, a search warrant must be issued by a neutral and detached magistrate; on a showing of probable cause; and based on an affidavit establishing the veracity and reliability of the person supplying the information. More importantly, to obtain a warrant for a wiretap, or in this case video and audio surveillance, the affidavit must also name the suspects expected to be overheard; describe with particularity the conversations to be targeted; and include a time limit.

New York does not allow the fruits of a warrant to be admitted into evidence if they are the result of an illegally issued warrant; there is no good faith exception.

Supreme court judge is clearly neutral and detached.
Arson in First Degree (New York)
Under New York Penal Law, a person commits arson in the first degree if he intentionally damages a building or motor vehicle, by intentionally starting a fire by using an incendiary or explosive device, with the knowledge that a non-participant is present in the building or motor vehicle or if circumstance are such that a person’s presence is a reasonably possibility. The non-participant need not be injured.
Second Degree Murder (Felony Murder)
Under New York law, a person is guilty of felony murder when he commits any of certain enumerated felonies and a non-participant is killed in the course of commission of the felony or in the defendant’s immediate flight therefrom. The death of the non-participant must be independent of the felony committed. (BARRK is included among the felonies enumerated in the felony murder statue.)

The defendant need not be convict of the underlying felony, there need only be sufficient evidence to support the conclusion that the defendant committed the crime.
First Degree Murder
NY felony murder rule applies to first degree murder as well as second degree murder, for first degree murder, the victim must have been intentionally killed by the defendant during the course of the robbery or immediate flight therefrom (police officer is not killed by D, but by the other police officer.)

An accomplice in underlying felony would not be guilty of murder in the 1st degree unless the accomplice also shared the requisite intent to kill the victim.
Manslaughter in First Degree
With intent to cause serious physical injury to another person, he causes the death of such person.
A person commits extortion when he obtains property from another by means of threats to physically harm the victim or his property.
Criminal Facilitation
Under the New York Penal law, a person commits criminal facilitation when he knowingly aids the commission of a crime by his culpability does not reach accomplice level. The facilitator need only believe that it was probably that he was rendering aid, and the conduct alleged must have aided in the commission of the object felony. The facilitator may not be convicted on uncorroborated testimony of the person facilitated. The facilitator has an affirmative defense if he takes steps to prevent the felony.
Criminal Negligent Homicide
Arise where one person causes the death of another due to the failure to perceive a substantial and unjustifiable risk of death. The defendant’s conduct must have been culpable and the death producing event foreseeable.
Specific intent to encourage the crime.
Robbery (1st Degree Robbery in NY)
Consists of a taking of personal property of another; from the other’s person or presence; by force or threats of immediate death or physical injury to the victim, a member of the victim’s family, or some person in the victim’s presence; with the intent to permanently deprive the victim of it. In NY, a defendant is guilty of 1st degree robbery if she cause a non-participant serious physical injury or was armed, threatened the use of dangerous instrument, or displayed what appeared to be a firearm.
Burglary in Third Degree
Knowingly entering or remaining unlawfully in a building with intent to commit a crime therein.
Burglary in Second Degree
When a person knowingly enters a building with intent to commit a crime, and when he or another participant is armed with a deadly weapon or causes physical injury to any person who is not a participant in the crime.
Burglary in First Degree
Knowingly entered a dwelling with intent to commit a crime therein, and while in the dwelling or on flight therefrom he caused physical injury to any person who is not participant in the crime.
One person solicits another to engage in criminal conduct. Under NY Peanl law, a person is not guilty of solicitation if the solicitation constitutes conduct that is necessarily incidential to the commission of the substantive crime.
A person with intent to deprive another of property, wrongfully takes such property from an owner. When the property is worth less than $1000, the individual is guilty of petit larceny.
Occurs when an act is done with the intention of committing a crime, but the act falls short of completing the crime. Attempt requires an overt act beyond mere preparation for the offense. Factual impossibility is not a defense to attempt.
Whether the elements of conspiracy have been met. (with police)?
The elements of conspiracy are intent, agreement, and an overt act in furtherance of the conspiracy.

D’s intent can be shown by his statement of agreement and his arrival at the store at the time the robbery was supposed to take place. Here is also the overt act. D may argue that there could have been no agreement, as P was a police officer and thus could not agree to the conspiracy. However, New York has held that lack of intent or capacity on the party of a co-conspirator is no defense to the charge of conspiracy, including the situation where the sole co-conspirator is a public officer.

D may attempt to raise the defense of entrapment. Under New York law, entrapment is an affirmative defense that must be affirmatively pleaded and proved by the defendant. The defendant must prove by a preponderance of the evidence that he lacked the predisposition to commit the crime, and was induce to commit the crime solely by the acts of a police officer or other public servant. Since conduct by the police that affords the defendant the opportunity to commit the crime is not entrapment by itself, and since once the defendant raises the defense, the prosecution may introduce evidence to show the defendant’s past criminal acts, D has very little chance to prevail. Thus, D maybe convicted of conspiracy.
Whether F properly withdrew from the conspiracy?
The elements of conspiracy are intent, agreement, and an overt act in furtherance of the conspiracy.

The crime of conspiracy does not merger into the completed offense. Thus, the actual commission of the crime does not free F of for conspiracy. The conspiracy charge change stands apart form the underlying crime. However, F can be found guilty only if D’s evidence against F is corroborated. The uncorroborated evidence of a co-conspirator alone is insufficient to support a finding guilty.

F has no defense to the charge of conspiracy. Once the crime contemplated by the conspiracy takes place, no defense of renunciation or withdrawal is available to the conspirators. Under New York law, the affirmative defense of renunciation is available only to a defendant who shows that he renounced the criminal scheme and prevented the commission of the crime. He must how that he actually prevented the crime by his actions, not simply that the crime did not take place. Note also that the affirmative defense must be pleaded by the defendant and then proved by a preponderance of the evidence.
Whether a defendant may be convicted of conspiracy when the alleged co-conspirators have been acquitted?
State the elements of conspiracy (see above), NY requires overt act, which can include an act of mere preparation.

Under traditional view, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. However, in NY, a conviction of conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a separate.
Defense to felony murder charge committed by co-conspirators?
A participant can successfully assert a defense a felony murder charge if he can establish that he did not commit or aid in the commission of the homicidal act, was not armed with a deadly weapon, did not reasonably believe any of the other participants to be armed with a deadly weapon and did not reasonably believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
Whether the interest rate agreed upon was usurious?
In New York, it is a felony to loan money at an annual rate exceeding 25% provided the lender is not a bank.
What the liabilities are of a person who knowingly issues a check for which he has insufficient funds?
The giving of a no-account or insufficient funds check with the intent to defraud is similar to the common law crime of false pretenses and the statutory crime of issuing a bad check, both of which are considered larceny in New York. In this regard, the crime consists of obtaining title to the property of another by an intentional false statement of a past or existing fact with intent to defraud the other.
Whether a person can be convicted of felony murder when the death was caused by the co-felon?
Under New York law, liability for felony murder will extend to co-felons unless they have a defense.

To defeat, the D. must show that he did not commit, cause, or aid in the killing; he reasonably believed that his accomplice was not armed with a deadly weapon; he reasonably believed that his accomplice had no intent to engage in conduct likely to result in death or serious physical injury and he was not armed with a deadly weapon.
Whether the grand jury may indict on testimony?
To indict, the grand jury must have legally sufficient evidence presented before it. Thus, all the evidence must be able to testify as to each element of the offenses.
Whether the state or the defendant bears the burden of proving the sanity of the defendant?
In NY, all defendants are presumed sane; the defendant must raise the insanity issue. The claim of insanity is considered an affirmative defense, and the defendant bears the burden of proving his mental disabilities. The defendant must furthermore give the prosecution advance notice of an insanity defense.
Standard for determining the defendant’s sanity?
NY’s insanity defense is based on a combination of two rules: the M’ Naghten rule and the Model Penal Code test. The M’ Naghten rule states that a defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either not know hat his act would be wrong or not understand the nature and quality of the his action. Under MPC test, a D is insane if he had a mental disease or defect, and, as a result, lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law. 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 and consequence of his conduct or that his conduct was wrong
(NY does not follow irresistible impulse test).
Whether an accused is entitled to a preliminary hearing when indicted by a grand jury?
NY Criminal Procedure law provides a defendant charged with a felony the right to a preliminary hearing. The purpose of a preliminary hearing is to determine whether there is probable cause to prosecute the D. for the crime charged. At the preliminary hearing both the D and prosecutor may present evidence. The right to a preliminary hearing, however, dissipates if a grand jury finds that there is probable cause to prosecute, thereby indicting the defendant. The D, although not afforded an opportunity to produce evidence, is not deprived of his due process right because the underlying purpose of the right to a preliminary hearing has been satisfied by the grand jury indictment. Additionally, a defense does not have a due process right to the discovery opportunity otherwise provided by the preliminary hearing.
Whether the judge, at the request of the defense, must inquire into the prosecutor’s motivations for exercising her peremptory challenges?
The racial motivation of prosecutor is deemed to be state action for the purpose of the 14th amendment’s equal protection clause. Such use of a peremptory challenge is subject to strict scrutiny and will only be held constitutional if it is necessary to achieve a compelling or overriding state interest. In order to make an equal protection based attack on the prosecutor’s use of peremptory strikes, a defendant must show facts or circumstances that raise an inference that the exclusion was based on race. After such a showing, the burden shifts to the prosecutor to provide a race-neutral explanation for the strike, and the judge must then determine whether the prosecutor’s explanation was the genuine reason for exercising the peremptory challenge.
Can the case be remanded to the New York supreme court?
United States Code provides that where complete diversity exists between parties, and the amount in question exceeds $75,000, then an action begun in state court may be removed to the appropriate United States district court, unless one of the defendant is a citizen of the state in the courts of which the action was originally brought.
Whether the action can be removed to federal court?
First, check Diversity +$75,000, or federal question

Second, removal can also be accomplished when all defendant join in the petition for removal. If some defendants cannot so join or simply choose not to, removal is not authorized.

Note: however, that whenever a separate and independent claim, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims, the entire case may be removed and the federal court may remand all matters not otherwise within its original jurisdiction.
Whether a transfer of deed without intent to create a conveyance automatically conveys real property?
Real Property law provides that a legal mortgage exists of there is a transfer of deed “intend only as a security in the nature of mortgage.” The fact that mortgagee records the deed will give him no advantage unless he can show the intent of transferor to transfer the title.In addition, even without other written instruments, an equitable mortgage can be created upon a showing by parol evidence of such an intention.

In this case, A transfer the deed to B in order to secure B’s loan to A. B’s letter to A is a written instrument which is evidence of the parties’ intention. B’s record of deed has no value. In order to prevail against other potential right owner of the property, B had to record the deed together other instruments to create a legal mortgage. A does not need record the letter, only ‘the person for whose benefit the deed is made” has the burden.
Which party prevails when several parties claim against the same real property?
New York is a race-notice jurisdiction. In N.Y when a subsequent bona fide purchaser purchase the property without notice, he would prevail if he records first.

In this case, X purchase Blackacre for value. X has no actual notice of mortgage right owned by B because he has never been given any notice, nor does X have any constructive notice because B had never record the mortgage. Had the deed make a reference to another document, X will be deem to have inquiry notice because he is inquired into the nature of the unrecorded instrument. However, in this case, the deed made no statement of the mortgage.

Therefore, A can not recover the property because X, as a BFP for value without notice of unrecorded transaction, takes the property free and clear of all claims.
When a broker is entitled to a commission?
As a general rule, a broker is entitled to commission if he could find a buyer who is ready, willing and able to purchase the premises, subject to the restriction in the agency agreement. Under N.Y real property law, in an Exclusive Agency Contract, if the seller procures the buyer, the agent is not entitled to a commission; however, in an “exclusive right to sell”, the agent is entitled to commission even if the seller procures the buyer on its own.
Whether a lease is assignable if the lease is silent?
New York court will construe covenants restricting the free alienation of property strictly. A lease can be assigned or subleased unless the lease expressly restricted it otherwise, or it can be shown that the covenant was material to the landlord’s bargain and expectations.
Whether an option of first refusal run with the land?
In New York, a legitimate assignee is entitled to the benefit of all terms of the lease that run with the land- that is, which touch and concern the land. The option clause run with the land, for it concerns ownership.
The issue is what rights and obligation s Y has with regard to the purchase of Blackacre (D - Seller; X - has the right of first refusal; Y - buyer)
Under the New York law, if the contract is silent as to risk of loss, the risk of loss passes to the purchaser only when legal title passes or the purchaser takes actual possession of the land. (N.Y D) Since neither of these happens, the seller bears the risk.

P may not obtain specific performance of the contract against Y, since a material part of Blackacre was damaged. Thus, Y may avoid the contact or choose to perform and set off the value which is damaged.

In addition, Y must be advised that he has no rights to Blackacre if x exercises the option, In such a case, Y is entitled only to incidental damages from P.
Whether the buyer obtained an easement over the owner’s land?
An easement by prescription may be acquired by one who use the property of another for the required period, the use must be open, hostile, notorious, continuous and under claim of right. The necessary period to acquire real property by adverse possession in New York is 10 years.

An easement by necessity arises when the seller conveys a tract of land which has no outlet to a public road except over the remaining land of the seller, in which case an easement by implied grant is created. Since Don has access to the state highway via Avenue A. Thus no easement by necessity is created.
Whether a seller of land can obtain a specific performance against buyer where there is a defect in title?
Generally, a seller is entitled to specific performance when the defect in title is curable, provided he cures the defect within a reasonable time. However, when the defect is such that “buyer may be obligated to defend it by litigation”, the defect will not be considered to by curable. Thus seller may not compel buyer to perform, and buyer is entitled to down payment.

In addition, seller is entitled to specific performance only when the title of the land is marketable. A significant encroachment on the land constitutes a defect in title. An adverse possession is significant encroachment on the land. Since seller can not compel X to remove the garage due to adverse possession. Thus, seller can not compel buyer to perform, and buyer is entitled to his down payment.
Whether X gained title on which his garage sits through adverse?
In general, land is deemed to be possessed and occupied where the property has been usually cultivated or improved, or where the property has been protected by a substantial enclosure. Furthermore, to constitute an effective adverse possession, the possession must also be …

In this case, X’s garage extended 10 feet onto S’s property for more than period of 10 years. The fact that neither X not O was aware of the encroachment does not defeat X’s claim. Furthermore, possession by mistake may be “hostile and under claim of right” if it consists of use and improvement of land.

The conveyance of the property from O to S has no effect on X’s acquisition through adverse possession. Once adverse possession has begun to run against an owner, it runs against that owner and all successors in interest.
Whether and when does son have the title to land through his father’s delivery in escrow?
Under the law of real property in New York, no delivery is effective unless title has been both delivered and accepted. The grantor must give up all control over the deed. But it is not necessary that the deed be delivered to the grantee, as long as it is delivered to a third person for the grantee’s exclusive use and benefit. Here, Father gives up all control over the deed when he delivered it in escrow to L, and L had a duty to deliver the deed only to S. Therefore the conveyance is effective.

The next question is when Son becomes the owner of the land. When title passes automatically upon the death of the grantor, it is presumed to relate back to the time when the deed was absolutely given over to escrow. On the other hand, courts generally refuse to “relate back’ an acceptance where it would defeat the rights of intervening third parties, including attaching creditors of the grantor. However, a judgment creditor is not included. A judgment creditor may only execute the judgment against real property owned by the debtor on the date when judgment is docketed. Since the father died on November 1st, and X docketed his deed on November 4th, X has no right to execute against land which belonged to Son on that date.
Finally, it should be noted that the recording act does not affect either Son or X. The recording system only applies to subsequent BFP for value. Neither donee or judgment creditor qualifies BFP.
Whether B assumed A’s mortgage?
If property subject to a mortgage is transferred to someone who assumes the mortgage, the transferee becomes the primary obligor, and the original mortgagor is only secondarily liable. Assumption of the mortgage requires that the transferee sign a written acknowledgment that the assumed the debt or that he sign the deed reciting assumption of the debt.

In this case, B made no written acknowledgment that he assumed the debt. Although the deed contains an “assumption of mortgage” clause, B never signed the deed. Thus, B did not assume the mortgage. A is preliminarily liable for on the loan. The court should grant O’s motion to dismiss.
Whether an unrecorded mortgage on Blackacre is enforceable against subsequent purchaser?
New York is a race-notice jurisdiction. In New York, a subsequent bona fide purchaser who purchased for value prevails if he has neither actual or inquiry notice of the prior transaction, provided he records first. The failure of a mortgagee to record the mortgage does not invalidate the mortgage, but it will be prevail when a subsequent BFP purchase it for value without notice.

B is not protected under recording system. The deed from A to B clearly states that the conveyance is subject to O’s mortgage, thus B has actual knowledge despite O’s failure to record. B can not avoid the lien on the Blackacre, O’s motion to dismiss should be granted.

As to B’s liability to the underlying debt, as stated above, the original mortgagor would be liable for the bond, the transferee is not personally liable on the bond. But the real property he purchased will be subject to foreclose if the original mortgagor fails to pay.

In this case, since B never agree to assume the debt, he is not liable for any deficiency. However, the mortgage may be foreclosed, and this would effectively wipe out B’s interest in the land. The court should deny O’s motion to dismiss.
Whether O retained an implied easement?
When a landlord sells part of his land, the existence of a use of the land prior to the sale may give rise to an easement by implication, even if no reference is made in the deed. To determine whether there is an implied easement, the court will consider the following factors: (i) whether the prior use is apparent; (ii) whether the parties expected that the use would survive, because it is reasonably necessary to the dominant land’s use and enjoyment.

In this case, O’s use of the paved road after the sale of land to A was the same as his prior use. The prior use of the land is continuous; the fact it was paved, maintained and running across the land would put someone who inspected the land on notice. However, since there is an alternative dirt road running to the county highway on O’s land, the prior use is not reasonably necessary, despite it would be less convenient. O has no implied easement.
Whether failure to comply with the renewal clause of a lease will be excused?
Failure of a tenant to give timely notice of her option to renew will be excused if (1) it is the result of an honest mistake; (2) the landlord was not unfairly prejudiced by the lateness, and (3) substantial forfeiture would result to the tenant as a result of the loss of here leasehold.
Whether an equitable property distribution on divorce may be modified?
Bruce and Patty tool title to Fairacre as husband and wife, which means that they took title as tenants by the entirety. Tenants by the entirety may not partition the land unless both agree. The exception is divorce would converts tenants by the entirety to tenants in common. Therefore, generally, after a divorce and absent a contrary court order, a spouse would be entitled to partition.

In light of the court order, however, the issue then ecomes whether Patty is entitled to partition when that action is contrary to a court decree which sets forth a property distribution.

In a divorce action, the court may make any award concerning the possession of property (including exclusive possession of marital residence) as, in the court’s discretion, justice so requires. Property acquired during marriage is considered marital property and may be distributed in a divorce decree according to the guidelines for equitable distribution set forth in New York domestic Relations Law section. The facts taken into consideration includes financial circumstances, age, health, duration of the marriage; maintenance awards and contribution to acquisition of marital property.

In addition, since the court has granted exclusive use and possession of the property, the other spouse will have no standing to partition the property.
Whether an oral retainer agreement in matrimonial actions is valid and whether an attorney is entitled to retain the full amount of a paid retainer fee?
Under New York Code of Professional Responsibility and Court Rules, an attorney who undertakes to represent a client in any matrimonial action must obtain a written retainer agreement signed by the attorney and client setting forth in plain language the nature of the relationship and the details of the fee arrangement. The agreement may not include a nonrefundable fee clause. Additionally, in domestic relations matter, a lawyer must provide a prospective client with a statement of the client’s rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement.

Failure to abide by these rules results in an attorney’s preclusion from collecting and recovering a legal fee for services rendered and not paid. However, where a retainer fee has already been paid, an attorney may deduct reasonable fees for services rendered and must return the balance.
Whether a bequest made in a testamentary instrument to an attorney draftsman is valid (attorney ask for gifts)?

ref: wills—undue influence, Putnam doctrine
Under New York’s Code of Professional Responsibility, a lawyer should not suggest to the client that a gift be made to the lawyer for the lawyer’s benefit. If a lawyer accepts a gift from a client, the lawyer is peculiarly susceptible to the charge that he unduly influenced or overreached the client.

Generally, if the attorney is a relative or friend of he decedent with a long-standing relationship or friendship, the objective, rational basis of the gift is explained and the bequest allowed to stand.

(may be subject to professional discipline for violating an ethical consideration)
Whether compliance with ethical standards is an implied term in legal employment contracts?
In New York, courts will imply missing terms into contracts when they are necessary to make the contract complete. Attorneys in New York are bound by the Code of Professional Responsibility. Any employment contract for legal employment contains an implied term that lawyers will comply with the rules of professional responsibility. An attorney in New York has a duty to report a violation of the disciplinary rules by another attorney.

B correctly informed M that she would not participate in the practice of law with a suspended attorney. M had his right to practice law temporarily revoked and should not have been coming into the office and meeting with client. By practicing law, M was violating the Rules of Professional Conduct. Ma was supervisory attorney whose responsibility was to make sure that other attorneys made reasonable efforts to conform to the disciplinary rules. A law firm must make reasonable efforts to ensure that all attorneys conform to the rules as well. The PC continues to allow M to work with clients, even though this did not conform to the rules of professional conduct. B even though she is a subordinate attorney, was putting herself at risk of penalty by continuing to work with M during his suspension. In fact she had a obligation to report M to the New York State Bar Association. Since B’s employment was terminated because she complained about M’s unlawful activity, M and PC breached the contract because the maintenance of ethical standards is an implied term of the contract.
Whether an attorney may bind a client to a settlement agreement with neither notice to the client nor approval by the client, and whether a third party may then hold the client liable (principal and agent analysis)?
In general, an agent can bind a principal provided that such a relationship exists and there is authority for the agent to act on behalf of the principal. Authority can be actual, apparent or inherent. Actual authority can be express or implied an exists when the agent reasonably believes that he has authority to act. Apparent authority exists when a third party reasonably believes that the agent has authority to act through the third party’s dealings with the principal. Inherent authority is created by courts to protect innocent third parties. The court will not find an inherent authority if there is no harm on the innocent third party.
Whether a defendant is denied the effective assistance of counsel when the attorney violates a rule of professional responsibility by engaging in an improper fee arrangement?
Under New York Code of Professional Responsibility, contingency fees are prohibited in criminal cases. The sixth amendment right to counsel includes the rights to effective counsel. Effective assistance of counsel is presumption. A D who claims ineffective assistance of counsel must prove deficient performance by counsel, and that but for such deficiency, the result of the trial would have been different. Typically, such claims can be made out only by specifying particular errors of trial counsel, not by showing that the attorney implemented an improper fee arrangement.
whether a defendant is denied the effective assistance of counsel when the attorney violates a rule of professional responsibility by engaging in an improper fee arrangement?
The NY code of professional responsibility states that any decision affecting the merits of a case must be made by the client. The attorney has an ethical obligation to ensure that the client is fully informed regarding the matter before making any such decision. Settlement offers affect the merits of the case and therefore fall within the rule.

As attorney, A had an ethical obligation to inform client that the opposite party had made a settlement offer. A was also obligated to make sure that Client understand the term of the offer and how client’s decision would affect his right and obligation. The decision whether to accept this offer should have been made by the client.

A breached his duty by failing to notify client of the offer and its specifies, and by accepting the offer without client’s approval. The fact that A believes that the offer was in Clint’s best interests is irrelevant. A still had an obligation to discuss the proposed settlement with client.

Thus, because client did not accept the offer and A did not have authority to act as his agent when accepted, client is not bound by the terms of settlement. Furthermore, if the court binds client to the stipulation of settlement, he may have grounds to file a malpractice claim against A for damages incurred.
Statute of Limitation: Negligence and Strict Liability
3 years for causes of action arising out of negligence
Statute of Limitation: International Tort
1 year, battery, assault; defamation
Statute of Limitation: Wrongful death
2 years of the date of death
Statute of Limitation: Medical Malpractice
2 years 6 months, from the complained act occurs or if there is a continuous course of treatment of the patient by the physician, from the last date of such treatment.
Statute of Limitation: Action for Indemnification
6 years form the date of payment
Victim dies before he commences an action?
CPLR provides that where a people entitled to commence an action dies before the expiration of the time within which the action must be commenced and the cause of action survives, an action may be commenced by his representative within one year of the date of death.
What constitute a valid claim?
In determine whether P made a valid claim, the court must look at EACH cause of action. Take all of P’s allegations as true, and determine whether P has stated a claim upon which relief may be granted.
What are the damage to wrongful death?
In New York, the damages for wrongful death are limited to pecuniary and punitive damages. Grief, sorrow, and heartache, as well as loss of consortium are not compensated in a wrongful death action.
Federal Court Subject Matter Jurisdiction?
The court must have both subject matter jurisdiction and personal jurisdiction. District court has jurisdiction of all civil cases where (i) the matter of controversy exceeds $75,000, exclusive of interest and cost; and (ii) there is COMPLETE DIVERSITY among the parties. (domiciled in different states).
Federal court personal jurisdiction, N.Y long arm statute?
This turns on whether the defendant is properly served. The federal rules of civil procedure provides that service is proper if made either (i) within the state in which the district court is located; or (ii) if made under the long arm statute of the state in which the district court sits. New York’s long arm statute does not subject out-of-state residents to the jurisdiction when the (i) accident occurred outside of New York; (ii) defendant is resident and domiciliary of a state other than New York, and (iii) there is no showing that D could reasonably expect that his acts to have consequences in New York.
Whether the other co-defendant may seek contribution or indemnification from the released party?
A party released by P may neither seek nor subject to a claim for contribution from any other party defendant. Also, the other co-defendant may not seek contribution or indemnification from the released in comparative negligence cases. Exception: the other party may seek indemnification in contractual or vicarious liability case.
When to grant a summary judgment? Motion dismiss? Motion granted?
A motion for summary judgment may be made by any party after issue has been joined. To grant a summary judgment, the court must conclude as a matter of law that there is no material issue requires a trial, upon all evidences. (i) motion dismiss - In this case, P is alleging …, D made the defense based on …, thus the conflicting positions regarding … create a material issue of fact. Court properly denied the motion.; (ii) motion granted - P is alleging …, P submitted . . (evidences), the witnesses are credible. It appears that all documentation and pleading were submitted, and the facts appeared straight forward and undisputed. D was then required to establish either there is a trialable issue, or P is not entitled to a summary judgment. D failed to do so, motion granted.
Summary Judgment for non-compete clause?
In order to enforce a non-compete clause, the employer must show that (i) the services to be performed under the contract are unique, thus rendering any legal remedy inadequate; (ii) reasonable geographic scope and duration; (iii) reasonably necessary to protect the employer.
When to raise the statute of fraud defense?
Under CPLR, a D is required to affirmatively plead the Statute of Frauds defense in his first responsive pleading. If he fails to do so, the defense is waived.
When a court may dismiss a case?
To dismiss P’s claim, the court must take all the allegations of the claim as true and determine that P has stated no cause of action upon which relief may be granted.
Whether parents can be sued for their negligent supervision of the child?
It has been held in New York that a child may not recover from hi parent for negligent supervision. And a party may not maintain a claim based upon a parent’s negligent supervision of the child.
Effect of settlement upon the remaining co-defendant?
When P settles within one of the tortfeasor, recovery against the remaining tortfeasor will be reduced by the highest of the following figures: (i) the amount stipulated in the release; (ii) the amount actually to P; (iii) the apportioned share of damages that the settling tortfeasor would have paid but for the settlement. Exception: Though release may bar contribution suit from the remaining defendant, Under CPLR, the release statue does not apply to the release of a party who is entitled to complete indemnification from another. (thus, it should be distinguished whether P’s claim is based on contribution (i.e comparative negligence) or strict liability (seller may 100% indemnify from manufacture)
Recovery cost by losing party?
Generally, the costs are awarded to the prevailing party, unless to do so would be inequitable. Costs may be awarded to the losing party only when he wins part of the suit.
Conflict of law regarding loss distribution?
New York court has rejected the old vested rights approach, which would mandate the automatic application of the law of the state of the tort. Now New York apply the governmental interest analysis. This is to insure that the jurisdiction with the greatest interest in the suit has its law apply. In order to make the determination, the court will look at the factual contacts of each jurisdiction, the differing laws, and the underlying policies for each law. In this case, Canadian laws should apply because both P and D are from Ontario. Thus, New York will have very little interest in the litigation because no N.Y party is involved.
Motion to dismiss on the grounds of forum non-convenience?
A motion to dismiss is timely even though made after service of the answer, the court only applies a reasonable basis to review. The court may stay or dismiss the action on any conditions that may be just. The things to consider include stage of proceeding, witnesses’ residency …
Summary judgment based on collateral estoppel?
For the court to make such a determination here, it is necessary for the court to determine (i) all issues in the P2 v. D action are identical to the P1 v. D action; (ii) all issues have been decided in P1 v. D; (iii) D had a full and fair opportunity to litigate each issue in P1 v. D, so that precluding D from litigating the same issue as in P1 v. D will not deprive D of due process.
How to establish a prima facie case?
To establish a prima facie case, P must provide undisputed evidence that (discuss the requirements to prove liability substantively)
Service on out-of-state defendant?
Under CPLR, a defendant may be served out-of-state by any manner in which service may properly be made within the state.
Defendant’s absence from jurisdiction?
The CPLR provides that when a D is absent from the state for 4 months under circumstances preventing the exercise of jurisdiction over the defendant, the statute of limitation will be tolled during the absent period. Need to review whether D may be obtained under long-arm statute when absent.
Long arm statute jurisdiction based on transacting business?
Under long-arm statute, personal jurisdiction may be obtained through D’s transacting of business within the state, either through presence, partnership, or agent.
Relief from judgment after trial upon “newly discovered evidence”?
A party may obtains relief from judgment upon application to the court that rendered the judgment “upon such terms as may be just”, provided there is newly discovered evidence which “probably” would leads to a different result if introduced at trial. The party must prove that the evidence can not discovered in time to move for a new trial when the verdict was entered. Known but “not available evidence” does not qualify.
When can a case be removed from state court to federal court?
A case begun in state court may only be moved to federal court if it could be originally brought in an federal court. Thus, complete diversity must exist among parties (none of the defendants come from the same state where P domiciles); the amount in question exceeds $75,000. Exception: supplemental jurisdiction : if the original P and D satisfies the complete diversity, while a 3rd party is joined during the proceeding, complete diversity is not required.
When New York court will have personal jurisdiction upon tortious act?
When the cause of action is grounded in tort, New York court may have personal jurisdiction where (i) the tortious act is committed within the state; or (ii) the tortious act was committed out of state but the injury was cased in the state, and D expects or should reasonably expect the act to have consequences in the state and derives revenue from it.
How does a court in New York treat ex parte matrimonial action in foreign state?
New York will give full faith and credit to a divorce decree issue by another state, if the state has a statutory basis for jurisdiction and if the defendant has been properly served. In an ex parte matrimonial action, the defendant must be served in accordance with the laws of the forum state.

Under N.Y law, a defendant in divorce case must be personally served upon himself, the appointed attorney or by court order. Service upon an acquaintance attorney of defendant was improper.
Can a plaintiff serve a defendant out-of-state by himself?
Service outside of the state may be made in the same manner as service within the state. Service in the state can not be made by the party of the action. Case should be dismissed.
New York court's jurisdiction in a divorce action?
For the court to have jurisdiction, the defendant must have properly been served and there must be a statutory basis for jurisdiction, meaning compliance with the durational residency requirement. A New York court may have jurisdiction upon a non-resident if (i) the party seeking divorce is a resident in New York; and (ii) New York is the matrimonial domicile of the parties “at or about” they separated.
Notice of pendency?
The notice of pendency can be filed in any action in which the judgment demanded would affect the title to, or possession, use, enjoyment of a real property (i.e. specific performance, foreclosure of mortgage) The basic function of a notice of pendency is the placing of a record impediment on the tile to the realty involved in the action, thus preventing acquisition of a title free and clear of the claim being asserted in a lawsuit. Any purchaser or subsequent lienor is bound by all proceedings taken in the action after such filing. The notice of pendency can be filed automatically without a court order. Notice of pendency may be filed prior to suit. However under CPLR, service of the suit must be accomplished within 30 days of the filing, otherwise, notice of pendency will be void.
Statute of limitation tolled by infancy?
In New York, when the case is accrued in favor of an infant, the statute of limitation is tolled until the infant’s 18th birthday. The infant may then commence the action within 3 years of his 18th birthday or the statutory statute of limitation, which ever is shorter.
Infancy does not toll the statute of limitation for wrongful death action
The statute of limitation for wrongful death is 2 years, it runs from the date of death, not from the appointment of the representative. The infancy of a potential beneficiary can not toll the running of statute of limitation, since a representative could be timely appointed.
Indemnification for vicarious liability (owner of a vehicle)?
Under New York Law, the owner of a vehicle is vicariously liable for the injuries resulted from negligence in the use of operation of such vehicle by a 3rd party, if the use is permitted by the owner. The owner’s liability is derivative. As a result, the operator owes the owner an implied duty of indemnity.
How to establish personal jurisdiction over out-of-state Defendant for separation?
(i) P is a resident of or domiciled in New York at the time the claim is made; (ii) D at sometime in the recent past has certain connection with New York. Connection includes (i) New York was the matrimonial domicile of the parties at or about the time of their separation; (ii) the defendant abandoned the plaintiff in New York; or (iii) the claim accrued under the laws of New York or under an agreement executed in New York.
Subject matter Jurisdiction over the marital res status?
The marriage itself is regarded as a res and, for jurisdictional purposes, is deemed located in the state where either party to the marriage is domiciled. Thus, if P is domiciled within New York, and has served D out of State, it will provide the court with a jurisdictional basis to hear the case. The court may not dismiss P’s case based on subject matter Jurisdiction.
Residency requirements for P to maintain a cause of action for Separation?
To allow a marital action to be heard, a plaintiff must be a resident of New York for one year prior to commencement of the proceeding. Failure to satisfy this requirement is sufficient for the court to grant D’s motion to dismiss on the ground of failure to state a cause of action.
Motion for change of venue?
Venue rules only concerns convenience rather than competency to hear the case. Wherever P chooses venue will deem to be proper unless D makes a motion alleging improper. A venue would be improper when the county is neither P’s or D’s residence. Under CPLR, a defendant may make a motion for change of venue by serving prior to or contemporaneously with the answer. If P does no respond within 5 days, D may make a motion to the court for change of venue. The motion must be made in the original county, but if P made no objection to the demand, the motion may be made in the county to which transfer is sought.
Motion to dismiss cause of action based upon negligence?
Motion to dismiss on the ground of failure to state a cause of action requires that even if all of the allegations of the complaint are taken as true, there are no grounds for any relief to the pleader. In this case, P’s cause of action is negligence, which requires a showing: (i)D owed a duty of care to P, (ii) d breached the duty; (iii) the breach is a cause in fact and proximate cause; (iv) P’s injury.
Cause of action survived victim’s death?
(i) personal injury: under EPTL, no cause of action for personal or property injury is lost because of the death of the person in whose favor the cause of action existed. The estate of the victim may maintains a cause of action for his pain and suffering before his death; or

(ii) wrongful death: The estate of the decedent may also bring an action for wrongful death against persons who would have been liable to the decedent if he survives. In wrongful death action, damages are limited to the pecuniary losses of the distributees; in the personal injury action, the damages are the decedent’s damages.

(iii) different distribution: for damages recovered under personal injury cause of action, they belong to the estate and are distributed according to the decedent’s will or by intestacy. Damages recovered under wrongful death action does not belong to decedent, rather, they are distributed among those who have sustained pecuniary loss as a result of the decedent’s death in proportion to the amount of loss sustained by each other. They are not subject to estate tax.
Supreme Court v. Court of Claims's Jurisdiction?
The Supreme Court, New York’s court of general jurisdiction, has jurisdiction over all actions, except those where New York State is a defendant.

The Court of Claims has jurisdiction over all claims against the state. As a prerequisite to maintaining the action, executor of the decedent must file a notice of claim within 90 days from his appointment.
Jurisdiction over a foreign corporation?
For a New York court to have personal jurisdiction over a defendant foreign corporation, the corporation must have minimum contacts with the state, an opportunity to be heard, and proper service. Personal jurisdiction can be obtained over a corporation if the corporation (i) is domiciled in the state; (ii) does “sufficiently substantial” business in the state; (iii) performs an act falling under New York’s long arm statute; or (iv) consents to jurisdiction.
Long-arm statue requirements?
The defendant must (i) transacted business in the state in New York and the claim must arise out of that transaction; (ii) engage in tortuous activity in the state ; (iii) engage in tortuous activity outside of the state which causes injury in New York; (iv) own or lease real estate in New York. Transacting business includes supplying good or service in New York.
Due process requirement based on reasonable anticipation?
Due process will be satisfied if the defendant could “reasonably anticipate being haled” before a New York court and purposefully availed itself of the state. (i.e by soliciting business in New York).
Immunities of municipalities?
The state and its municipalities are immune from claims arising out of functions that are governmental in nature. The rational is the without this immunity, the government, which is under a duty to all, would be liable for all. The immunity will not apply when (i) business or non-governmental functions; (ii) there is a special relationship between the class of persons protected by the statute and the municipality.
Statute of limitation for a medical malpractice?
In New York, the statute of limitations for a medical malpractice claim is two and a half years from the date of the procedure, or in case of continuous treatment, from the date of last treatment. To apply this continuous treatment theory, the treatment must be related to the surgery.
“Foreign Object” Theory?
For situations where a “foreign object” is left in a patient’s body by a doctor, the statute of limitation could be extended to one after the patient knew or should have known about it in order to file his claim, if the 2 year and half period has expired before that date.
Claim against an Employer?
In New York, if an employee sustains an injury arising out of or in the course of his employment, or if he dies because of this injury, his exclusive remedy against his employer and third parties is the New York Compensation Law. In other words, the employee does not have a common law tort claim against the employer. Accordingly, wrongful death action may not be maintained against an employer by the family of decedent. However, the injured employee may bring a tort claim against 3rd party that is fault for the accident (i.e. product defect). Under WCL, the estate may claim for death benefits according to statutory schedules and funeral expenses.
Claim for contribution from an injured party’s employer for an injury arising out of and in the course of employment.
Under WCL, the general rule is that a 3rd party will be barred from seeking contribution from the injured party’s employer for damages. The exception would be when employee sustains a grave injury, which includes death of the employee.

Note: Under WCL, when the injured employee accepts benefits under the WCL, and institutes a common law action for the same injuries against such a third party, any compensation must first go to reimburse the insurance carrier fro the worker’s compensation it paid out to the employee.
Damages in a wrongful death action?
A wrongful death action may be brought by the personal representative of the decedent’s estate within 2 years of the decedent’s death. The personal representative can recover punitive damages and allocate these damages to the distributees who have sustained pecuniary loss upon proportion of loss each distributee sustains (distributee includes only spouse, children and parents). Recovery is allowed only to the extent that the deceased could have recovered in an action has he lived. Loss of consortium is not compensable in a wrongful death action (the damages includes economic support for any specific item, parental support for minor children).
Whether land owner or occupier’s failure to do was negligent?
The elements of negligence are (i) duty, (ii) breach of the duty, (iii) the breach is the actual cause of injury/ death, (iv) the breach is the proximate cause of injury/ death, and (v) damages. (analysis the facts according to each elements)

Moreover, in New York, the plaintiff’s legal status no longer determines the duty owed him. The single standard of reasonable care under the circumstances governs all injuries on land. The plaintiff’s status, while no longer determinative, remains relevant in connection with the foreseeability of his presence and the amount and nature of precautions required to meet the standard of reasonable care under the circumstances.
Whether there is a prima facie case of assault?
To make out a prima facie case for the tort of assault, the plaintiff must allege: (i) an act by the defendant which created a reasonable apprehension of immediate harm or offensive contract to the person of the plaintiff (ii) intent by the defendant, and (iii) causation (the defendant’s act was the actual and proximate cause of the plaintiff’s reasonable apprehension). Damages need not be proved to assert a prima facie case for the intentional tort of assault.
Whether P. suffered emotional distress?
Generally, there is a duty to avoid causing emotional distress to another, and this duty is breached when the defendant creates a foreseeable risk of injury to the plaintiff through physical impact or threat thereof and the plaintiff suffers a physical injury from the distress. In New York, recovery is limited to a plaintiff who is an immediate family member, exposed to immediate harm, who suffers physical injury. Plaintiff can state a prima facie case for negligent infliction of emotional distress only if a physical injury is established.

To have a cause of action for negligent infliction of emotional distress under New York Law, it is necessary that plaintiff had actually been within the impact zone or zone of danger at the time of injury, and that plaintiff also viewed injury to an immediate member of her family.
What defenses against negligence case?
Contributory negligent: New York is a pure comparative negligence state, in which each party is liable for the damage caused by his conduct, and a plaintiff may recover even if his conduct is more culpable than the defendant’s.

Minors: the standard of care applied is that of a reasonable child of age, intelligence, and experience. (NY is a pure comparative negligence state, some damages will be recovered, but they will be reduced by the amount the victim contributed to his own injury.)

Resume risk: generally, a plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant’s act. The plaintiff must have (i) known of the risk, and (ii) voluntarily proceeded in the face of the risk. this is not an absolute bar to recovery and falls within the doctrine of comparative negligence to reduce any damage award.
What defenses against negligence case?
The plaintiff must prove the elements of defamation: (i) defamatory language by the defendant, (ii) that the defamation was of or concerning the plaintiff, (iii) publication to a third party, (iv) damage to the plaintiff’s reputation, and probably (v) fault on the part of the defendant, whether intentional or negligent.

If plaintiff can sustain proof of libel per se, that statement was libelous on its face and thus damages need not be proved by extrinsic means. Otherwise, plaintiff need prove general damages.

If plaintiff is not public figure, he would be recover at least his actual damages by proving negligence on the part of defendant.

Qualified privilege as defense: a qualified privilege is recognized in New York whenever one person makes a confidential communication to another concerning a third party in which both have a legitimate interest. The privilege extends only to defamatory statements made negligently, not maliciously.

The burden is on the defendant to prove the qualified privilege, then the burden shifts to the plaintiff to show that the privilege was exceeded.
Who is entitled to wrongful death proceeds?
In a wrongful death action, the recovery is based on pecuniary loss by the distributes for whose benefit the action has been brought, 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 premature death. The proceeds should be distributed proportionately, based on the pecuniary loss to the beneficiaries.
Whether the distribution of any awards from personal injury action included in decedent’s estate?
Any damages recovered in the action for pain and suffering is included in decedent’s estate.
Whether a parent can be sue for his child’s injuries allegedly caused by the negligence of the parent.(whether the claim against parent’s negligently supervision should be dismissed)?
To dismiss the claim, the court must take all the allegations of the claim as true and determine that plaintiff has stated no cause of action upon which relief may be granted.

Although New York has eliminated the defense of intrafamily immunity for negligent torts, it has been held that a child may not recover against his parent for negligent supervision. The court also disallowed a counterclaim or third party complaint against a parent for negligent supervision of his child. Accordingly, a party may not maintain a claim based upon a parent’s negligent supervision of the child.

Since New York does not have parent-child immunity, this defense will not help defendant.
Whether a third party with no privity can sue a manufacturer for injuries caused by its product using strict liability theory. (negligence theory also available, see elements above)
Elements of strict liability: a strict duty owed by the commercial suppliers to the user, breach of this duty, actual and proximate causation from the breach of duty and harm.
The effect of a settlement between a plaintiff and defendant on the remaining co-defendants?
General obligation law provides that when the plaintiff settles with one tortfeasor, recovery against a remaining tortfeasor will be reduced by the highest of the following figures: (i) the amount stipulated in the release, (ii) the amount actually paid for the release, or (iii) the apportioned share of damages that the settling tortfeasor would have paid but for the settlement.
Whether the party has a cause of action for indemnity or contribution against the third party?
A basis of impleader exists against third party on the theory that third party may be liable to D. for all or part of P.’s claim against D. Such liability on the part of third party and D. could be grounded on either indemnity or contribution. Any tortfeasor may seek indemnification or contribution from joint tortfeasors who participated in the tort. Contribution involves a sharing of responsibility based on relative degrees exposed defendant to liability. If D. is held liable to P. for D’s own negligence, third party would have a statutory duty to make contribution to D. for third party’s relative share of culpability if third party’s conduct was a contributing factor. Such contribution could be based on strict products liability, negligence, or breach of warranty.

If D’s liability to P. turns solely on the third party and in the absence of D’s negligence, D’s claim over against third party would lie in indemnity, an implied in law obligation.

As to timeliness, regardless of whether P’s impleader claim is based on indemnity or contribution, the statue of limitation is six years form the date of payment of a judgment or settlement by D. to P. the underlying theory of liability for contribution or indemnity, whether based on negligence, strict products liability, or breach of warranty, becomes irrelevant.
Whether D’s settlement with P bars third party form bringing an action against third party for contribution or indemnity?
General obligation law provides that when a tortfeasor such as D. settles an action prior to trial, he thereby relinquished any right to contribution from any other joint tortfeasor, such as third party. Thus, to the extent D’s impleader claim third party is based on contribution for shared responsibility, it is now barred as a matter of law because of the settlement.

However, above law does not apply to claims for 100% indemnification. Such a 100% shifting of responsibility to third party constitutes indemnification, a settlement, therefore, would have no effect on D’s right against third party. D. could seek full reimbursement of the full settlement from third party.
How to establish a prima facie case in products liability based on the strict liability theory?
It must be proven that there was a strict duty owed by a commercial supplier who breached that duty and that his breach was the actual or proximate cause of the damages suffered. This theory of recovery was originally designed to protect persons injured by products sold by distributors and manufacturers of defective products despite the absence of privity, in part, because merchants and manufacturers can spread their losses for harm from injury-causing products through pricing and insurance. The same rationale should apply to persons in the business of leasing a particular product. At the same time, however, strict products liability should not apply to the casual or isolated lease.
whether a trustee may assign trust income to a creditor on direction from the beneficiary?
New York statutory spendthrift protection prohibits the assignment of trust income interest absent an express provision in the trust document. Beneficiary had no authority to direct trustee to pay the creditor, and trustee had no authority to make any such payment on beneficiary’s order.

Although CPLR would allow creditor to levy up to 10% of beneficiary’s trust income after judgment, in such a case trustee would have received an order of execution from the sheriff and not a mere copy of the judgment sent by creditor himself.

While EPTL provides that creditor could reach beneficiary’s income interest if the income was excess income to beneficiary, creditor would first have to prove that the income was indeed excess, and that creditor had exhausted all other remedies.

(other exception of spendthrift protection: creditor furnishes necessary to beneficiary, child support and alimony claims, federal tax lien)
whether the testamentary power of appointment violates the Rule Against Perpetuities(RAP)?

“exercising the power of the appointment granted to me by my father, A, in his will, I (B)” appointed T to hold the trust principal n trust and to pay the income to my three sons in amounts that seem suitable in T’s sole discretion, then on the death of the survivor of may son, to pay to the issue of my sons.”
At B’s death, he left three sons D (15), E(12) F(2)
New York follows the common law rule that the validity of the interests created by the exercise of a testamentary power of appointment (POA) is determined by the date of the instrument creating the power and not from the date that power is exercise. (presently exercisable special POA—date of the instrument creating the power; presently exercisable general POA—date of exercise)B is treated as though he merely filled in the blanks of settler’s will. New York also applies “the second look doctrine” to an interest that appears to fail at its inception. This doctrine allows review of a gift after both the initial grantor and the first grantee pass away. If a gift that would have otherwise failed for perpetuity reasons at the time it was made will satisfy all future interest requirements at the time the first grantee passes away, the gift will stand.

D, E, F have life estates, and their issues have contingent remainders, since the issue were unborn at the time the interest was created. B holds a reversion in fee.

DEF’s life estate violates Rule against Suspension of the Power of Alienation and RAP.
RAP: life in being measure is B, D, E who alive at the death of A. F could outlive D and E by more than 21 years, and the trustee could then exercise his discretionary power by appointing and distributing the income to F. Such a distribution would be violative of the RAP

RASPA: F could not join in a conveyance of his interest in the trust within lives in beings plus 21 years since he could outlive D and E by more than 21 years.
what are the rules regarding appointments -- “mama may appoint anyone to be the beneficiary of the trust principal during her life or by her will”

Mama held a general, presently exercisable power of appointment. A general power of appointment can be exercised wholly in favor of the donee, her estate, her creditors, or the creditors of her estate. A power is deemed presently exercisable if it can be effected during the holder’s life or by her will. In New York, trust income interests are given spendthrift protection by statue. Thus, any income beneficiary cannot sell or otherwise transfer her trust interest, and the beneficiary’s creditor can not reach that interest. However, because the donee of a presently exercisable general power of appointment can appoint to herself at any time, property covered by this power is subject to the payments of the claims of the donee’s creditors or her estate. Statutory spendthrift protection is therefore not afforded to the property covered by the presently exercisable appointment.
RAP: all interests must be vested within life being time plus 21 years. (facts: because Jake may still have children and a child not yet born may reach age 35 more than 21 years after the death of all lives in being at the time the interest was created, the gift might not vest within the perpetuities period.) the fact that the power is presently exercisable, and thus the perpetuities period begins to run on the effective date the power is exercised does not eliminate the perpetuities problem. At common law, this defect would have voided Mama’ exercise of the power with respect to the trust principal. However, the New York perpetuities reform statute automatically reduces all age contingencies to 21 years, there the appointment is saved.

RASPA: every present or future interest is void in its creation if it suspends the absolute power of alienation for a period longer than lives in being plus 21 years. The power of alienation is suspended where there are no persons in being who can transfer a fee simple absolute. Thus the suspension rule is violated if the trust beneficiaries are a class that may include unborn children, because even if there is a child alive (in being) at the trust’s creation, that child could not convey a fee simple for possibly longer than lives in being plus 21 years. However, the “wait and see” doctrine, generally rejected in New York except when applied to powers of appointment, permits a look at the facts as they exist on the date the donee exercises the power to determine the validity of the appointed interests under the suspension rule.
whether creditors of the decedent’s estate can reach the property covered by a power of appointment.
Property by a presently exercisable general power of appointment is subject to the claims of creditors of the donee or her estate, since the donee of such a power of appointment can appoint to herself at any time.
The Scope of Spendthrift protection?
Only apply to income interests, not principal of trusts.
Whether creditors of a creator of a trust can reach the trust to satisfy claims against the creator?
A person cannot frustrate the claims of her creditors by placing her property in trust for herself. EPTL expressly provides that a disposition in trust for the use of the creator is void as against existing or subsequent creditors of the creator. The limitations on a creditor to 10% of the income of a trust and to the excess income over the amount necessary for the education and support of the beneficiary are not applicable here. They apply only when the beneficiary and the creator are not the same person.
Whether the trust was properly revoked?
If a trust agreement is silent as to revocability, it is deemed irrevocable. However, upon the written consent of all persons beneficially interested in the trust, the creator of the trust may revoke it. The consent must be acknowledge or proved in the manner required for recording of real property instrument. A disposition in favor of a class of persons described only as heirs, next of kin, or distributes of the creator of the trust does not create a beneficial interest in such persons.
Issue: inter vivos trust does not assign an executor
A trust may be created ruing the settlor’s life time (inter vivo) or by will (testamentary trust). If the settler has clearly established a trust, but failed to name a trustee, the trust will not fail. Rather, the court will appoint a trustee, because the settlor’s primary intention was to create a trust to carry out the specified objectives; the naming of the specific trustee was incidential to this primary objective. Also, the EPTL sets forth statutory fiduciary powers, and thus it is not necessary for the settler to specify the trustee’s powers.
Issue: future interests
EPTL provides that future interest may be devised, alienated, or passed by descent in the same manner as estates in possession. N had a remainder interest in the trust, which is future interest. Thus, he could properly bequeath it to anyone.
Issue: whether the May will was revoked by the July will or the December Codicil
A will or any part thereof may be revoked by another will, by writing of the testator clearly indicating an intention to effect the revocation, or by an alteration executed with the formalities prescribed for the execution and attestation of a will. (7 points test, including two witness)

Also, under NY law, a document cannot be incorporate by reference into a testamentary instrument unless the document was executed with testamentary formalities. (exception: pull-over trust, POA)

May will is duly executed. That will should be given effect unless it was later revoked. July will was not validly executed because of lack of two witness and the problem could not be fixed by the December codicil.
What the SOL is for an injury occurring outside New York in an action brought in New York under a strict products liability theory. Since the cause of action here accrued in State A and the action is being brought in New York, the first issue to be resolved in which state’s limitations period will be applied?
New York will apply its own SOL under the facts. As a general rule, SOL are procedural and states generally apply their own procedural rules. However, New York, like many other states, has a borrowing statue that provides that in actions involving more than one state, the shortest limitations period shall apply. However, the borrowing statue also provides that if the cause of action accrued in favor of a New York resident, the borrowing statue does not apply and the appropriate New York statute of limitations will be applied.
Whether one transacting business n New York through an agent is subject to New York jurisdiction?
Under long arm statue, personal jurisdiction can arise out of certain actions by the defendant. One qualifying action is that the defendant transacts any business within the state and the suit arises out of that in-state transaction. Further more, a court may exercise personal jurisdiction over a non-domiciliary who, in person or through an agent, is involved in conduct falling under the long arm statute. Transacting business includes not only the personal transaction of business, but also transaction of business through an agent.

The Uniform Partnership Act defines a partnership as a voluntary association of two or more competent persons to carry on a business as co-owners for profit. Partners are agents of one another.

The business relationship between O and C is a partnership. This can be demonstrated by the fact that they executed a contract and agreed to share in the profits of their enterprise. Therefore, New York may exercise jurisdiction over the person of O base upon the fact that the alleged defamation arises out of business transacted in New York by O through her agent C.

Note P could not base his assertion of jurisdiction over C and O on the commission of a tort in New York since causes of action for defamation are specifically excepted form coverage under that statue.
Effect of a partner’s death on partnership contracts?
Under New York law, a partnership dissolves on the death of any partners, unless the partnership agreement provide to the contrary. The facts show that there was no written partnership agreement, therefore, the partnership was dissolved by P’s death.

Generally, all partners are liable for debts of the partnership incurred by any partner in the course of partnership business. However, once the partnership dissolves, a partnership may not bind the partnership to new business; he may only wind up old business. An exception exists, however, when the partner does not have notice of the dissolution, in which case he may continue to bind the partnership until he receives notice of the facts requiring dissolution.

The notified partner lacked actual authority, also lacked apparent authority. Although the contract apparently was for partnership purposes, the partnership was dissolved, so the partner lack even apparent authority. A third party may not rely on representation as to agency form an agent without prior course of dealing and without seeking acknowledgment from principal. Where the third party does so, and the agent lack authority, the third party may look only to the agent to recover.
Whether judge is allowed to interview a minor without put the conference on the record?
A judge may interview a minor in chambers without putting the conference on the record.
Family Court Act empowers a judge to take the unsworn testimony of a minor. Because the best interests of the child are at stake, the judge may take the child’s testimony in camera, even over the objection of both parties. The only record that needs to be made is a stenographic record of the interview. This record should be produced upon appeal to the appellate division. Failure to enter other record does not amount to reversible error.
Divorce grounded on cruel and inhuman treatment?
In a divorce action, P’s claimant is required to plead the nature of circumstances of Defendant spouse’s misconduct, time and place of each act must be specified. Cruel and inhuman treatment is defined as conducts by defendant spouse which endangers the P’s physical or mental well being, rendering it unsafe or improper for D to cohabit with D. New York court applies standard of serious misconduct, which distinguish from minor incidents, in determining whether cruel and inhuman treatment exists.
Defense based on cohabitation?
Cohabitation itself is not a defense to an action of divorce based on cruel and inhuman treatment. Cohabitation after the alleged beating may be weighed in determining whether the alleged cruel and inhuman treatment actually occurred.

Cohabitation may be used in a condonation defense, which is only available on a cause of action based on adultery.
Whether the personal injury claims is not subject to equitable distribution?
Under equitable distribution system, marital property is distributed equitably between the parties to a divorce action considering the circumstances of the particular case. Marital property is defined as all property acquired during marriage by either or both spouse, before the execution of a separation agreement or the commencement of a matrimonial action. Statutory exceptions includes “compensation for personal injuries”.
Whether advances are subject to the equitable distribution.
Advances, which is acquired as a result of work performed during the marriage and before the execution of the separation agreement, are marital property and therefore are subject to equitable distribution.
Jurisdiction to award a divorce?
The state where either party to marriage is domiciled has the power to grant judgment of divorce.
Jurisdiction to terminate support?
Right to support, which is a personal right issue, is personal to each party under “divisible incidents of divorce”. It cannot be affected unless the court has jurisdiction over the person entitled to the support.
Effect of separation agreement after divorce?
A separation agreement is presumed to be incorporated and survives a divorce decree unless the agreement specifically provides otherwise. This means that the agreement can stand by itself notwithstanding that it is read with the divorce decree. Under Domestic Relations Law, the court may modify the provision relating to maintenance only if the petitioning party makes a showing of extreme hardship.

Moreover, as to arrears due under an separation agreement, unless P could prove fraud, duress etc., and thus set the provision aside completely, court could not reduce the amount merely based on P’s changing circumstances or inability to pay. The arrears judgment must be entered unless there is a good cause for the supporting party’s failure to seek a modification prior to the application for enforcement.
Whether D’s adultery could be a cause to modify P’s supporting obligation?
Under New York Domestic Relations Law, if a party is habitually living with another person and they are holding themselves out as husband and wife, the court may then modify supporting obligations. However, mere adultery is not enough to warrant modification of support.
Right to counsel fees?
Under Domestic Relations Law, counsel fee may be awarded in an action to compel payment to any sum of money required to be paid under a matrimonial judgment.
What is the conversion divorce under the NY law.
Under New York Law, a conversion divorce may be granted on the ground that a husband and wife have lived apart for one year or more pursuant to a written, properly acknowledged separation agreement, if the plaintiff submits proof that he has performed all of its terms. The agreement must be filed, at anytime, in the office of the county clerk where either party resides.

After establishing a duly executed separation agreement, a spouse can obtain a “conversion divorce” (i.e a separation agreement “converted” into a divorce decree) if can be shown that the parties actually lived apart continuously for one for more years. Occasional cohabitation during the period of separation is insufficient to rescind the agreement and defeat a conversion divorce claim. It must be shown that the parties cohabited together with the intention to reconcile and abandon the agreement.

Once a separation agreement is nullified by an intended reconciliation, the agreement is not revived when the parties separate again.
Whether a party is entitled to a maintenance award when the divorce decree granted in another state does not provide for support and the party is not in danger of becoming a public charge?
New York court may decide a case of maintenance even if the divorce decree is granted in another state and it did not provide for support. The court will decide the case in light of equitable distribution doctrine, and will award maintenance according to the reasonable needs of each party. Since P is not asking for modification of a previous decree or agreement, she does not need to show that she is in danger to become public charge. The only restriction is that court must have personal jurisdiction over D.
Counter claim for divorce based on adultery after the execution of separation agreement?
Claim of adultery based on acts committed after execution of separation agreement is improper for a divorce, unless the agreement is nullified by an intended reconciliation. To state a claim for divorce on grounds of adultery, it is necessary to allege opportunity, inclination, and intent to commit adultery.
Family court jurisdiction v. supreme court jurisdiction
The Family court does not have jurisdiction over divorces, separation, or annulments. These matters must be brought in the supreme court. The family court generally has concurrent jurisdiction with the supreme court in support proceedings. Exception will be when the original divorce decree was issued by supreme court which contains a clause specifying that the decree be enforced or modified only in supreme court, family court will have no jurisdiction.
Under what circumstance may a court modify child support orders?
A court may modify a child support order when (i) there is a change of circumstance; and (ii) the modification is in the best interest of the child. Courts will consider increased needs of the child due to special circumstances or additional activities, and a parent’s (P) loss of income or (D’s) improved financial condition.
Course of action for an annulment, SOL?
Course of action for an annulment is a claim that the marriage is voidable because of some fundamental defects. If P is successful, the marriage will be void from the time a decree is entered. Under CPLR, there is a 3 year statute of limitation for cause of action for annulment based on fraud. The statute starts to run from the date of discovery of fraud.

A marriage may be annulled for fraud if the misrepresentation is material or relates to something bital to the marriage. The fraud must be of the type that would deceive an ordinary person (i.e conversion of religion). However, the cause of action for annulment based on fraud is waive if the parties cohabits as husband and wife after the spouse learn of the fraud.

A cause of action of annulment cannot be sustained merely by the unsupported declarations of parties. Other satisfactory evidence must be produced.
Course of action based on abandonment?
To file a cause of action based upon abandonment, P must show (i) willfully and voluntarily abandoned P; (ii) without justification; (iii) without intent to return; (iv) for a period of one year before the commencement of the suit. The intent element may be inferred form the length of the absent period.
Marital Property v. Separate Property?
Unless otherwise provided by an agreement of the parties, the property acquired by either spouse during the marriage are marital property. Separate property includes all property acquired before marriage, property acquired by bequest, devise, descent, or as a gift to one spouse, compensation for personal injury, property acquired in exchange for or by increase in value of separate property, and property described as separate by an mutual agreement.
New York Equitable Distribution Law provides that property acquired by bequest is separate property not subject to equitable distribution.
How to conveyance of separate property to marital property?
Under New York law, one spouse may directly convey a land, which is her separate property, to her and her spouse as tenants by entirety without conveyance to a 3rd party. The property thus becomes marital property.
Who is entitled to the increase in the value of separate property
In general, a spouse retains her separate property and value increased. However, if the increased value is due to direct or indirect contribution of the other spouse, it will become marital property.
Basic element to have a separation agreement to be valid?
Separation agreement is valid if is freely made, does not violate statutory public policy provisions, and the parties are separated before entering into agreement or immediately thereafter. Separation agreement are governed by ordinary contract principle. Thus there must be (i) mutual assent; (ii) consideration.

Fraud is a defense to modify a separation agreement. Once a spouse fails to make full disclosure to another spouse before execution of agreement, and the another spouse would not agree on the terms had she been aware of it, she is entitled to modify the related provision.
Whether lump sum settlement of support obligation is allowed in NY?
There is no general ban on lump sum settlements of support obligation in New York. Any contract that would abrogate the support obligation of any spouse is prohibited in New York. However, merely providing a lump sum settlement does not violate this provision. The court will invalidate the lump sum agreement and enforce the duty to support only when the spouse has dissipated the lump sum and is in danger of becoming a public charge.

In addition, separation agreement is governed under general contract principle in New York , to the extent that it does not contradict public policy. While court may review the contract to prevent one party from “overreaching” by the other party, court will not order rescission when the separation agreement is freely entered by the parties.
Child’s testimony in deciding custody?
In deciding issues related to the rights of the child, the New York court will apply “the best interest of the child” principle. The court may take the testimony of the child over the objections of both parents. However, the preference of the child can not be the sole basis for making the decision of custody.
Under what circumstance may custody be changed?
The custody of child may be changed if the interest of child so requires. An agreement between parents is given due regard, but it is not controlling. However, absent a compelling reason, the court will not alter custody arrangement.
Crediting divorce decree of another jurisdiction?
A divorce decree may be given full faith and credit if the rendering court had jurisdiction to grant the decree. A court has jurisdiction if (i) it has jurisdiction over either spouse; and (ii) the other spouse is properly served.
Under what circumstance may a NY court modify the custody order of a sister state?
New York applies Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In general, if a court of another state has made a custody decree, another court may not modify that decree unless (i) the rendering court does not now have jurisdiction or has declined to assume 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 six months prior to the proceeding. If no state has home state jurisdiction, the state may exercise jurisdiction if the child and at least one parent has significant connection with that state. In addition, a court may exercise emergency jurisdiction if (i) the child presents in the state; and (ii) the child is abandoned or in an emergency.
The consequence of the breach of separation agreement?
A married person is chargeable with the support of his spouse. The neglect or refusal to pay support upon a separation agreement is ground for separation.

Furthermore, failure to pay support entitles the other spouse to the option of either (i) affirming the agreement and bring an action on the agreement; or (ii) treated as repudiation of agreement, which terminates the agreement, and reasserting statutory rights (to claim for more supporting regardless the amount set in the separation agreement).
Living separate and apart for one year under a separation decree v. living separate and apart for one year under under a separation agreement?
A reconciliation (although not a mere cohabitation) will vitiate a separation agreement and thus preclude a conversion divorce; but it will be revoke a separation decree, which can only be altered or revoked by the court.
Motion to award temporary maintenance?
Domestic Relations Law provides that the court may order temporary maintenance to meet the reasonable needs of a party to a matrimonial action in such amount as justice requires. This is to ensure the applicant party is provided with sufficient funds to meet her needs pending the disposition of the matrimonial action. The primary factor the court will consider is the financial need of the applicant. She must prove her inability to support herself while the action is pending. The applicant does not need to show a probability of success, as it is required in a motion to obtain temporary alimony. The applicant needs only to present pleadings and affidavits from which they can infer a substantive cause of action.
Whether provision in the decree terminating child support upon emancipation was self-executing?
Support for a minor child until they become emancipated (i.e. reach age of 21, or working and living on his own income?) is not self-executing. The supporting parent must make a prompt motion for reduction based upon claimed emancipation of minor. Failure to do so without reason will bar the parent from reducing maintenance from the date of such emancipation. The rational is to allow the court to re-valuate the needs of the children and financial ability of the parents.
Whether adultery is a ground that may be considered when determining maintenance or properly distributions?
The Domestic Relations Law sets a list of circumstances that court may take into account to award maintenance. There is also one “catch all” provision which enables the court to consider any factors that it deems “just and proper” with regard to maintenance and property distribution.
Whether the verbal abuse will qualify “cruel and inhuman treatment” as cause of action for divorce?
A divorce will be granted against the other spouse if his conduct is “cruel and inhuman treatment”, which is defined as endanger the physical, emotional or mental well being of the abused spouse. In determine so, the court will apply a subjective standard as to the impact over a particular spouse. The sensibility and weakness of the abused spouse will be taken into account.
Whether the adultery committed by another party is a defense to a claim of adultery?
Under New York Law, adultery is one of the causes of the five grounds for divorce. Adultery is the commission of an act of sexual intercourse, voluntarily performed by the defendant with a person other than the plaintiff after the marriage. The defenses to adultery includes (i) recrimination, i.e the accusing party is also guilty of adultery; (ii) condonation , i.e cohabitation with knowledge of adultery ; (iii) entrapment, i.e one spouse hired someone to induce the other spouse to commit adultery; (iv) the plaintiff fails to file an action within 5 years after the discovery of offenses.
When a post-accident design modification may be admissible as evidence?
Under New York law, evidence of a post-accident design modification is admissible in a manufacturing defect/ products liability case, but not in a design defect/ products liability case.
Whether hearsay evidence is admissible in a judicial hearing covered by the Family Court Act?
The Family Court Act provides that only competent, material and relevant evidence may be admitted in a fact-finding hearing.

The Family Court Act provides that only competent, material and relevant evidence may be admitted in a fact-finding hearing.

The problem here is that the case file is heresay. That is, it is a record of out-of-court statements offered for the truth of the statements contained therein. It will be inadmissible unless it falls within a recognized exception to hearsay. The only possible exception under which the case file may gain entry into the record is the business records exception. The business records exception in New York is grounded in statute, which states that the record will be admissible if it was made in the regular course of business. But NY case law has limited the statute insofar as statements in the business records are admissible only if made by somebody in the ordinary course of business. In other words, it is necessary that the statements in the case file have been made by witness whose job it was …
Whether a judge may interview a minor in chambers without putting the conference on the record?
Family Court Act specifically empowers a judge to take the un-sworn testimony of a minor. Because the best interests of the child are at stake, the judge may take the child’s testimony in camera, even over the objection of both parties. The only record that need be made is a stenographic record of the interview.
Whether an out of court statement made immediately prior to death is admissible (dying declaration?
State hearsay rule. Hearsay evidence must be exclude upon appropriate objection unless the statement falls under one of the recognized exception to the hearsay rule

There is a recognized exception for dying declaration. To qualify as a dying declaration, the statement must meet the following test: statement was made by the victim of a homicide; the declarant was dying when he made the statement and knew that he was dying; the declarant would have been a competent witness, and the statement is pertinent to the action; and the action in which the testimony is offered is a prosecution for the homicide.
Whether an out of court statement made immediately prior to death is admissible (dying declaration)?
The problem here is that the declaration is hearsay. That is, it is a record of out-of-court statements offered for the truth of the statements contained therein. Hearsay evidence must be excluded upon appropriate objection unless the statement falls under one of the recognized exception to the hearsay rule.

There is a recognized exception for dying declaration. To qualify as a dying declaration, the statement must meet the following test: statement was made by the victim of a homicide; the declarant was dying when he made the statement and knew that he was dying; the declarant would have been a competent witness, and the statement is pertinent to the action; and the action in which the testimony is offered is a prosecution for the homicide.
Whether a accident report made by highway patrolman in police report about the accident falls in the exception of hearsay?
Hearsay is a record of out-of-court statements offered for the truth of the statements contained therein. Hearsay evidence must be excluded upon appropriate objection unless the statement falls under one of the recognized exception to the hearsay rule.

Business Record is any writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, if made in the regular course of business, and it was the regular course of such business to make it at the time or within a reasonable time thereafter. [Facts: highway patrolman made the report. A foundation for satisfaction of his hearsay exception is lacking. The reports must be established by a person in the police department who is knowledgeable about the record keeping practice.] Mere conclusions stated in the report are not covered by the business record exception. Opinion is not admissible under the business record exception to the hearsay rule. Generally, for opinions to be admissible, they must come form expert testimony. It must first be established that expert testimony is necessary to draw useful conclusions about the facts. It seems likely that such testimony would be helpful to the trier of fact in this case.

Public documents (records) exception NY requirement: the record be made by a public officer; the record be in the form of a certificate or affidavit; the record be authorized or required by special provision of law; the record be made in the course of the officer’s official duty; the record be of a fact ascertained or act performed by the officer; and the record be filed with a public records division. If the document satisfies these requirements, the entire document will be admitted, without the need for foundation testimony.
Issue: hearsay—guilty plea (ref: withdraw guilty plea above)
State hearsay rule, guilty plea is admissible because it is an admission by a party, and therefore is within an exception to the hearsay rule.
Whether the photograph is relevant and whether it has been properly authenticated?
Photographs are admissible if they are identified by a witness as a portrayal of the facts relevant to the issue in question and they are verified by the witness as a correct representation of those facts

(Relevant evidence is evidence that makes a fact more or less probable than it would have been without the evidence — whether the photographs is relevant) (facts: issue is defect tie at the time of accident; only photo of ties at the time of accident is relevant, the picture showing defective tie after accident is irrelevant.) (cf. when a person can identify the picture of tie is the defect tie at the accident, the photo is authenticated.)
Whether a defendant who takes the stand in his own defense may claim 5th amendment protection (D. refuse to answer the question “how fast he was driving at the accident”)(same in civil case, see above)?
Only ground is his 5th amendment right against self-incrimination. However, D. takes the stand as a witness in his own defense in support his case. the 5th amendment may not be used as both a shield and as a sword. Having voluntarily taken the stand, D. has waived his 5th amendment protection and may be compelled to answer questions on cross-examination.
When may prior bad acts of a defendant be used to impeach the defendant by cross examination?
Subject to the discretion of the trial judge, a defendant may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of her life that may affect her character and show her to be unworthy of belief. Inquiry into bad acts is permitted even though the defendant was never convicted. Counsel must inquire in good faith, that is, have some reasonable belief that the witness committed the bad act inquired about. In addition, the use of extrinsic evidence is not permitted. The specific act of misconduct can be elicited only on cross-examination. If the defendant denies the act, the use of extrinsic evidence, whether by additional witness or otherwise is prohibited.
Whether the lay witness opinion testimony can be admissible?
Although a lay witness cannot generally give opinion testimony, exception is made when, as a result of the nature of the subject matter, no better evidence can be obtained. In New York, a lay witness may give opinion testimony as to whether a person was intoxicated.
Whether proof of payment by an insurance company of plaintiff’s medical expenses is admissible when offered by the defendant?
Under NY law, to be admissible, evidence must be relevant. That is, it must tend to prove or disprove a material issue. To be relevant, the evidence must relate to the time, event, or person involved in the trial.

Here, the material issues at trial relate to liability. The payment by a collateral source, such as an insurance company, of a plaintiff’s medical expenses does not tend to prove or disprove the defendant’s liability, nor does it relate to the amount damages suffered by P. as a general rule, damages are not reduced or mitigated by reason of benefits received by a plaintiff from collateral sources, and defendants may not introduce at trial any evidence relating to any such financial aid.

(Note: level of insurance proceeds is only relevant in connection with subtracting the amount from the jury’s award for P.’s damages.)
When a prior criminal conviction can be used at a later civil trial associated with the same sequence of events?
The threshold question in determining the admissibility of evidence is the relevance of that evidence to the case being tried. Relevant evidence is evidence that makes a fact more or less probable than it would have been without the evidence. Generally, if the evidence relates to the time, event, or person involved in the present litigation, it is deemed relevant.

However, relevant evidence may still be excluded if its probative value is outweighed by its prejudicial effect. Generally, prior convictions are only permitted to impeach a defendant or witness in criminal cases or when the conviction is being offered solely to attack the credibility of the defendant or witness (facts: traffic violation is being offered to prove fact alleged in civil case)

Furthermore, because criminal trials have a higher burden of proof than civil trials, the court will, in the interest of judicial economy, be inclined to allow evidence of the conviction rather than making the P. to reprove what the prosecution has already shown.
Whether B has preemptive rights and, if so, whether he can exercise them so as to block the issuance of the share to O?
(preemptive rights: the option of an existing shareholders to maintain her percentage of ownership by buying stock whenever there is new issuance)

For corporations formed before February 22, 1998, the rule is that a shareholder who holds shares with either an unlimited dividend right or voting rights is entitled to maintain his relative rights by the use of preemptive rights, unless the preemptive rights are limited or denied by the certificate of incorporation. For corporation formed on or after February 22, 1998, a shareholder is entitled to preemptive rights only if provided for in the certificate of incorporation. (facts of the date of form)

Regardless of whether B is entitled to preemptive rights, B is not entitled to exercise preemptive rights. the BCL limits preemptive rights in several situation, (1) preemptive rights do not attach to shares authorized in the original certificate of incorporation and sold or optioned within two years of the filing of the certificate; (2) preemptive rights do not attach to shares offered for consideration other than cash; and (3) preemptive rights do not attach to the treasury shares.

Finally, B may object to the issuance of shares to O on the ground that the shares are worth far more than the value of the land. This fails, however, because BCL provides that where the board issues shares of no par stock in exchange for real property, there is a conclusive presumption that the shares were exchanged for goods value, absent to showing of fraud, and the facts indicate no fraud on O’s part. Therefore, B may not challenge the issue to O on the basis of lack of adequate consideration.
Whether B is liable for breaching the bylaws restricting the transfer of shares (first refusal rights -- must be a reasonable restriction on the alienation)?
New York has held that reasonable restrictions on the sale of shares of stock are valid and will be upheld by the courts. A restriction requiring the selling shareholder to first offer his shares to the corporation or other shareholders is a reasonable restriction on alienation and not prohibitive, provided that there is no restriction on price. However, a restriction requiring unanimous consent before sale is a prohibition on sale, for it allows the sale of shares to be restricted for any reason or no reason at all, and thus is unreasonable. These restrictions may be in the bylaws, the certificates of incorporation, of in a separate agreement.
whether the bona fide buyer of the shares are bound to the original restrictions?
Restriction on alienation of shares is binding on all persons with actual notice and is binding universally if noted conspicuously on the shares themselves. However, restriction imposed by the issuer is not binding on a bona fide purchaser without actual knowledge, unless the restrictions are noted on the shares.
Whether B has any grounds to bring an action against the corporation and, if so, what may B recover.
(transfer or sale of substantial assets of the corporation)?
When the defendant’s motion is to dismiss on the ground of the plaintiff’s failure to state a claim upon which relief may be granted, the court, must determine the adequacy of the claim stated in the compliant. If the court finds that the grounds for dismissal are established, it will order dismissal of the claim.

At the threshold, it bust be determined whether B has standing to maintain the suit. BCL authorize an officer, a director, or a shareholder of a corporation to maintain an action to enjoin the illegal transfer of corporate assets. While a shareholder must sue in the name of the corporation, an officer or director may sue in his own name and in his capacity as officer or director. Thus, B was entitled to bring suit in his own name, without complying with the requirements of a shareholder’s derivative suit. (demand upon the board, posting a bond, or minimum stock ownership, etc.)

Since B’s complaint passed the threshold inquiry, the complaint must next be analyzed to determine whether B has stated a valid claim upon which relief may be grated. For a corporation formed on or before February 22, 1998, BCL sets out specific procedures that a corporation must follow before it can sell all or substantially all of its assets, if such sale is not within the usual course of business. First, the sale must be approved by the board of director. Then the sale must be submitted to the shareholders and approved by a vote of at least tow-thirds of the shares in order for the sale to be valid. In this case, only 55% of the outstanding shares approved the deal. Thus the sale is invalid, and B may block it. Consequently, B has stated a claim upon which relief may be granted, and the court should deny the motion of defendant.

(Corporation formed after February 22, 1998, the sale would be valid. Under revised BCL, there need only be a simple majority of the shareholders, not a two-thirds vote.)
Whether a corporation president has standing to bring an action under the corporate opportunity doctrine?
Under BCL, an action may be brought against an officer or director to compel and accounting for neglect or violation of duties in management and disposition of assets or for waste or misappropriation of corporate assets, due to neglect or other violation of duty. The action may be brought by, among others, the corporation itself, an officer, or director of the corporation, or a shareholder.

Under corporate opportunity doctrine, neither director, officers, not controlling shareholders may acquire or divert property or opportunities to themselves which the corporation needs or is seeking, or s to which it has a tangible expectancy, without first offering the opportunity to the corporation.
Whether a director and a shareholder was required to make a demand upon the board prior to commencing a suit?
Under BCL, a director is entitle to sue on behalf of a corporation to compel an accounting for neglect or other violation of duty in management. It does not require any demand to be made on the board of directors in order for the suit to proceed.

Under BCL, a shareholder’s derivative action requires the shareholder to make a demand on the board to take action before the lawsuit may be commenced. However, a demand requirement may be excused if such a demand would be futile. The reasons for futility must be set forth with particularity in the pleading.
Whether the requirement of the shareholder’s agreement will be specifically enforced?
For corporations found after February 22, 1998, absent a provision to the contrary in the certificate of incorporation, the number of directors authorized can be amended by a majority vote of the shareholders. Here, a majority of the shares were voted in favor of the increase, so the increase was properly adopted.

The voting agreement among shareholders does not change the above result. Even though the voting agreement requires increase in the board to be unanimously agreed upon, such a requirement must be in the certificate of incorporation or bylaws to be enforceable. The requirement in voting agreement that a bylaw shall not be adopted without approval of two-thirds of the outstanding stock is similarly unenforceable, which will be enforceable only at law, and the only remedy available is damages.
Whether the directors and officers breach their fiduciary duty of care by process the deal?
Directors and officers of a corporation must exercise the diligence, care, and skill that an ordinarily prudent person would exercise under similar circumstances in like positions.—duty of care (facts)

D&O will argue that business judgment rule protects them form this breach since courts will not second-guess the business judgments of directors if exercised in good faith on available information.
Whether the directors and officers breach their fiduciary duty of care by process the deal?
The certificate of incorporation may limit the liability of directors to shareholders for breaches of duty where the breach is not found to (i) be in bad faith, (ii) be due to intentional misconduct or knowing violation of the law, (iii) result in a financial profit or other advantage to which the director was not legally entitled or (iv) violate statutory liabilities of directors.

It is important to note that there is no evidence of bad faith by D&O merely because they failed to exercise good faith, as stated above issue. Therefore, the shareholder can not successfully hold D&O liable for the losses resulting from the deal.
The priority of claims when a corporation dissolves?
After dissolution, the corporation must wind up its affairs and liquidate al of its assets. The first to get paid from the liquidation funds are the outside creditors of the dissolved corporation. Then the remaining money, if any, is distributed to shareholders according to their respective rights. Since the bylaws are merely an agreement between the corporation and its shareholders, outsiders, dealing with the corporation are not charged with knowledge of the bylaws. Therefore, shareholders take after the outsider creditors, although bylaw provisions say they receive first. After all the outsider creditor take the money, then the shareholders specified in bylaws get the money first than other shareholders.
Whether S’s interest in L Corp. renders D Inc.’s contract with L corp. void or voidable under the interested directors doctrine. (self dealing)?
All corporate directors owe a duty of loyalty to corporation. The BCL specifically requires that directors act in goods faith. Where a director has a personal stake in the outcome of corporate business, the BCL provides specific criteria that must be met for the corporation to be bound by a contract involving the interested director. The stature provides that interested director transactions are voidable unless the director shares all the material facts of his extracorporate interest before any corporate action is taken. Unless such material facts are made known to the corporation before the directors vote on the transaction, the corporation can not approve the transaction within the criteria of the BCL. However, where the terms of the statue are not met, the parties to the transaction may still enforce the contract if they affirmatively establish that the transaction was fair and reasonable to the corporation at the time it was made, notwithstanding the failure to comply with the statutory requirement concerning interested director transactions.
Whether a director may compete with his corporation (corp. opportunity)?
In New York, a corporation is entitled to free from competition by those charged with the promotion of the corporation’s interests. This prohibition extends to directors. While the non-competition duty is owed to the corporation, the shareholders would be allowed to recover here because if the interested party paid damages to the corporation, as the majority shareholder, he would primarily be benefiting himself. Thus, the corporation’s shareholders will be permitted to recover the damages.
Whether the prevention of a takeover constitutes valid ground of the denial of inspection rights, whether G corp. as the shareholder have the right to inspect the books of Inc?
Under BCL, any shareholder may demand inspection for any purpose reasonably related to such person’s interests as a shareholder. This right of inspection may not be denied even if the purpose of the inspection is to solicit shareholders of tender offers. Under this statute, a corporation must deliver to such shareholder information in written form or in any form to such extent information is kept by the corporation. G. corp. as a shareholder, is entitle to inspect the record.
Whether there is a fiduciary duty of promoter to outside investors of the corporation (secret profits)?
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. Promoters owe fiduciary duties to the corporation to be formed and to any contemplated outsider investors. Thus, promoters must account to the corporation for profits from self-dealing before outsiders come in if sale to outsiders was contemplated unless the outsiders had notice of these profits.
Whether a promoter has right to be compensated for his services to the corporation (consideration)?
Under the BCL, stock may be issued as consideration for labor or services performed for the corporation, including forming the corporation. In the absence of fraud in the transaction, the judgment of the board or shareholders as to the value of the consideration receive for shares is conclusive (although might be excessive compensation for the formation for the corporation).
Whether controlling shareholders in a corp. who also constitute management have a fiduciary duty?
Controlling shareholders in a corporation who also constitute management have a fiduciary duty to refrain from benefiting themselves at the expense of minority shareholders. in the instant case, the controlling shareholders succeeded in negotiating a deal whereby buyer modified its original offer from buying all outstanding shared of corp. stock for $500 per share to buying only the director’s controlling interests at the higher price of $550 per share. This is indicative of a violation of their fiduciary duty to the other shareholders. the directors were unjustly enriched and must disgorge the $50 per share profit they made over what Buyer would have paid them for their shares if they had not diverted a corporate opportunity from the rest of the shareholders.

Arguably, the profit to be disgorged could be the difference between $500 per share that was initially paid to the directors and the $450 that was offered to buy the minority share when the merger was completed. However, if that transaction were to be upheld in court, and the minority share were worth more than $450, the minority shareholders could also obtain relief by initiating an appraisal proceeding. Any shareholder of a New York Corp. entitled to vote who does not assent to the merger or the consolidation is entitled to exercise her appraisal rights, which require that the shareholder be paid the fair market value of her shares.
Whether a corporation can redeem its stock?
A corporation may repurchase its stock from shareholders. Repurchase of stock, however, is subject to certain limitation: the corporation may not be rendered insolvent by the repurchase, nor may the repurchase be effected for an improper purpose.
What are the requirements for shareholders approval of a merger?
A merger of two corporations formed after February 22, 1998, must be approved by a majority of each corporation. Here, the shareholders of the buyer corp. unanimously approved the merger, and in the target, the requisite number of vote was received in favor of the merger. Thus, the merger was properly approved.
Whether a merger must have a legitimate purpose?
A merger must have a legitimate purpose, even if approved by the requisite number of shares. A freeze-out minority voters is not a legitimate purpose. Since the stated purpose for the merger of Buyer and controlling directors was to reduce the number of shareholders in the target, the merger was unlawful. Additionally, even if the merger were lawful, all shareholders must be treated fairly (consider minority shareholders).
Whether a partner is a professional corporation is personally liable for a breach of contract action against the professional corporation?
In New York, the designation as a professional corporation limits liability against its partners. Although partners, for public reasons, remain liable on tort claims, they are not liable on contract claims.
Whether the wasting of corporate assets will produce irreparable harm such that equity would require the issuance of a preliminary injunction (N.Y. practice)?
A preliminary injunction is a form of equitable relief which is used to preserve the status quo until the underlying judicial proceeding is completed. In order to obtain a preliminary injunction, the moving party must show that irreparable harm would result if the preliminary injunction is not granted, there is a likelihood of prevailing ate the later trail. Available legal remedies and monetary damages would not be sufficient. And such party has clean hands (applying facts).
Whether a minority shareholder may petition for voluntary dissolution of a corporation?
Under NY law, a shareholder may move for voluntary dissolution if the shareholder holds at least 20% of the voting shares and the directors or those in control of the corporation have acted to defraud or oppress that shareholder, or if the assets of the corporation are being wasted or diverted by those in control. The court will consider liquidation if it is the only feasible way to achieve a fair return on the petitioner’s investment and it is reasonably necessary to protect petitioner or any substantial number of shareholders (apply facts).

(Alternatively, the court can allow major to purchase the petitioner’s shares at their fair market value and on terms approved by the court, rather than effecting a liquidation of the company.)
Whether the checks were duly negotiated?
Negotiation of bearer instruments (the check made payable to cash for $100) is accomplished by delivery of the instrument to the transferee. Once the transferee has possession, he qualifies as holder. Under the facts, the check made out to “cash” never reached S, and so it was not negotiated to him.

For order instruments (the check made payable to S for $200), negotiation is accomplished by delivery of instrument to payee named on the instrument. Any further negotiation requires that the payee indorse and deliver the instrument to the transferee. Here, the check made out to S also failed to reach him, and so it was not negotiated to him.

Consequently, W would have no defense to an action by S for the $300, and W still owes that sum to S.
whether a person who receives cash has good title (which comes from a forgery indorsement of cash)?
Anyone with possession of cash has good title to it.
Whether a bank is liable to honor bearer paper and charge the drawer’s account with a non-rightful possessor?
Bearer paper is payable to anyone in possession of the instrument. Unlike cash, this does not mean that anyone with possession has good title to it; but bearer paper is freely negotiable, like cash. The UCC specifically allows a bank to honor bearer paper and charge the drawer’s account, whether or not the person who negotiated the paper to the bank had rightful possession of it. Bank is protected from liability with respect to check made out to “cash” to a non-rightful possessor.
Whether a bank is liable to honor bearer paper and charge the drawer’s account with a non-rightful possessor?
Bearer paper is payable to anyone in possession of the instrument. Unlike cash, this does not mean that anyone with possession has good title to it; but bearer paper is freely negotiable, like cash. The UCC specifically allows a bank to honor bearer paper and charge the drawer’s account, whether or not the person who negotiated the paper to the bank had rightful possession of it. Bank is protected from liability with respect to check made out to “cash” to a non-rightful possessor.
Whether a bank shall be responsible when it honors an instrument with a forged endorsement?
The UCC imposes upon drawee banks the duty to honor a check as drawn. As drawn refers to the original draft as written by the drawer, as distinguished from any changes made by one other than the drawer. Specifically, a bank is not allowed to charge the account of its customer where the bank pays the wrong person (the forger of payee’s or indorser’s signature.) If bank improperly payout over forged indorsement, it breach the contractual relationship between the bank and drawer. Drawer is entitled to a chargeback on her account in the amount of wrong payout by bank.

Bank’s only defense is to claim that drawer failed to notify Bank of the theft of the checks within a reasonable time. The UCC imposes on the drawee the duty to notify the bank of such unauthorized use with “reasonable promptness.”
Whether a bank must honor a stop payment order on a cashier’s check?
It is necessary to characterize the negotiable instrument at issue here. A cashier’s check is a draft drawn on the bank, where the drawer is also the bank. The payee is Mike. He has indorsed the draft to Sam. In other words, Mike’s bank account is not involved at all. Mike holds a paper representing an unconditional promise to pay from the bank to him. Thus, the normal contractual relationship between drawer (depositor) and the drawee (bank) does not exist in the case of cashier’s check.

Consequently, the bank is under no obligation to honor Mike’s stop payment order.

(NOTICE: a bank may be compelled to stop payment on an uncollected cashier’s check either on order of a court, or upon posting of an indemnity bond. The Bank might be liable where it to cash the check for a thief, or improperly to cash it over a restrictive endorsement.)
Whether a drawer can recover from the drawee bank when the drawee bank pays out on an instrument containing an unauthorized drawer’s signature?
As a general rule, a drawee bank may pay out on a customer’s account only according to the customer’s order. Thus, if the bank pays out on an unauthorized drawer’s signature, under the general rule the bank must recredit the customer’s account because the code provides that unauthorized signature are ineffective as the signature of the drawer, and so the payment order was not made by the customer. However, there is an exception to his general rule where the drawer’s negligence has contributed to the unauthorized signature. In such a case, the bank is not required to recredit its customer’s account. while what constitutes drawer negligence is not defined in the code but instead is left as a question of fact for the jury, it is relatively safe to assume that a jury would find it negligent to give an agent the authority to write checks of up to $20,000 without having a second person at least review the checks that are being written.

Under the UCC, a bank is not liable to the maker of a check when the bank makes payment on a check which was duly presented for payment, appeared valid on its face and had an authorized signature (regardless whether the signer is defrauded into signing)

Under UCC, a bank is liable when it makes payment on a check that is duly presented for payment but which contains the forged signature of the maker.

Under the UCC, after receiving the periodic statement, a customer must use reasonable care to promptly examine that statement for unauthorized signings of the customer’s own name and any alterations in amount payable. A failure to examine this statement, and report any resulting discrepancies within a reasonable time, is a form of negligence that may preclude the defense of forgery and alteration.
What elements for issuing a bad check (larceny)?
Issuing a bad check is a specific intent crime. Under New York law, the elements for issuing a bad check are (i) the drawer puts a check into circulation; (ii) knowing that there are insufficient funds to cover it; (iii) with the belief that payment will be refused by the drawee, and ( iv) payment is in fact refused by the drawee.
Whether a person has committed a forgery when, without authorization, he drafts a check payable from the account of another and signs the name of party authorized to draw checks on that account?
Under New York law, forgery consists of the making or alteration of a writing, with apparent legal significance, so that it is false, with the intent to defraud.
Whether a person who falsely prepares a check and obtains a valid signature by fraud can be convicted of forgery?
If the third party realize that he is signing a document, forgery has not been committed even if the third party was induce by fraud to sign it.
When purchase money security interests (PMSI) arise?
A PMSI arises where the vendor of the collateral sells it to the debtor-purchaser on credit. For a security interest to be valid it must attach, and for it to give maximum protection against other third party creditors of the debtor, it must be perfected (attached by written security agreement; PMSI was not automatically perfected when equipment, which requires filing for perfection)

Upon default of a debtor, the secured party has a right to take possession of the collateral, either by self-help or by an action for replevin. Self-help may be used only where it will no involve a breach of the peace. Upon repossession, the secured party may keep the goods if the debtor makes no objection within 20 days, or resell the goods and obtain a deficiency judgment if the amount recovered in the sale is insufficient to cover the amount owed plus the cost of replevin and sale.
Whether his objection to probate of the will may bring the no-contest clause into play?
Most states hold that if the beneficiary had reasonable cause for bring the contest, the non-contest forfeiture clause is not given effect. However, NY EPTL specifically provides that such clauses shall be given full effect.

Challenges based upon improper execution are not excepted from the operation of a no-contest clause.
Whether the money given to the beneficiary two years before testator’s death will reduce B’s bequest under the will?
EPTL states that an advancement made to donee under a will may reduce the gift to the donee, but only where the advancement can be proven by a contemporaneous writing signed by either the donor or the donee which demonstrates the donor’s intent.
Whether B’s bequest is affected by her statue as a witness to will?
Under EPTL while an interested witness does not invalidate the will, a disposition to an interested witness may be void. But if the interested witness is also an intestate distribute, the witness will take the lesser of the legacy and her intestate share.
The effect of the clause below in proving a will?

“On the above date, testator declared to us that the foregoing instrument was her Will and she asked us to serve as witnesses thereto. She then signed the Will in our presence, we being present at the same time. We then signed the Will as attesting witnesses in testator’s presence and in the presence of each other.”
The person offering a will for probate has the burden of proving that it was duly executed. The paragraph quoted in the question is an attestation clause; as such, it is prima facie evidence of the valid execution of the will. But unlike a self proving affidavit, it is not a substitute for formal proof of the will. The proponent of the will must bring witness to prove the signatures of the witness and the testator.
Whether the will was properly proved?
It is well settled that a will that contains a completed attestation clause may be admitted to probate even though the witness cannot remember or are actively hostile, if the occur is otherwise satisfied from all the evidence that the will was properly executed. An attestation clause that recites the facts of due execution establishes a prima facie case for probate. The combination of proof of the signature, plus the attestation clause, is sufficient. In addition, failure of the witness to sign the will twice, once as witnesses and again to the attestation clause, will not bar admission of the will to probate.
Whether handwritten addition appearing after the testator’s signature in a will are valid?
Testamentary dispositions must be executed with testamentary formalities, which include (i) a signature (ii) at the end (iii) in the presence of witness (iv) that the testator publishes the disposition, and (v) that she obtain the signature of two witnesses. Holographic wills, which are not executed with such formalities, are not valid in New York.
Whether the codicil was validly revoked by crossing out the signature?
Crossing out the signature revoked through physical act. Such revocation is recognized in New York. Wills or codicils may be revoked by changed circumstances, subsequent writing, or physical act. Striking out a signature is a valid revocation by physical act.
The effect of revocation of a codicil partially revoking an existing will?
New York applies the “no revival of revoked wills” doctrine, and this applies to parts of wills. The first clause was validly revoked by the codicil when the codicil was validly executed. Subsequent cancellation of the codicil does not revive the clause. There is an exception where a later codicil incorporates the prior-revoked terms by reference, but the hand written clause here was ineffective to revive the first clause, because it was improperly executed.
Under what circumstances New York recognizes revocation by physical act?
Under EPTL, if the testator has the intent to revoke, a will may be revoked by an act of burning, tearing, cutting, canceling, obliterating, muliating, or other destruction by the testator or another person in the presence of, and by direction of, the testator. Accidental destruction or partial revocation of a will does not revoke it. The presumption of revocation may be overcome by proof that the will was revoked by accident. However, declarations of the decedent designed to show that the will had not been revoked are not admissible unless they are made in connection with the act, under circumstance was to become part to the res gestae.

(Facts: wrote the word “revoked” on the will is sufficient act of revocation if coupled with the intent to revoke.)
How to determine who dies first?
A will should contain a simultaneous death clause that instructs what to do if it cannot be determined who dies first. In New York, if such a clause is not included, the Uniform Simultaneous Death Act governs. The act applies to the distribution of property by any means and specifies that the property of each person is disposed of as if each survived the other.

In the case of property held in tenancy by the entirety, the Act provides that one half of the property passes as though one party survived and the other half passes as though the other party survived. The property interests are converted into tenancies in common.
Whether a copy of a will can be probated when the original will has been lost?
In NY, a lost or destroyed will may be admitted to probate only it is established that the will has not been revoked, execution of the will is proved in a manner required for the probate of an existing will, and all of the provisions of the will proved to be true and complete. The proof submitted must be sufficient to overcome the presumption that the reason the will cannot be found is that the testator destroyed the will intent to revoke.
Whether a spouse is disqualified from exercising the surviving spouse’s right of election when the spouses are not divorced but living separate and apart from each other at the time of the decedent’s death?
Under EPTL, a surviving spouse of a decedent can relinquish rights under the decedent’s will and take a statutory share instead. However, for purpose of this right of election, a spouse is not considered as a surviving spouse if: a final decree of divorce or annulment recognized as valid in New York has been issued; the marriage was bigamous, incestuous, or a prohibited marriage; the surviving spouse procured an invalid divorce or annulment; a valid final decree of separation was rendered against the surviving spouse; the surviving spouse abandoned the deceased spouse; the surviving spouse failed or refused to support the deceased spouse; or the surviving spouse openly and notoriously cohabitated with another. The burden of establishing that the surviving spouse is disqualified lies with whomever is opposing the right of election.
How to effectively revoke Totten trust by will?
To revoke, modify, or alter a Totten trust by will, the will must refer to the particular trust account as being in trust for a named beneficiary in the named financial institution. There requirements are strictly construed and the courts require full compliance. Assuming the trust is not revoked, modified, or altered, the named beneficiary’s rights vest at the time of the depositor’s death if the trustee survives the depositor.
Whether the testator made a valid inter vivos of the specific gift?
Under New York law, an inter vivos gift is made if the donor manifests an intent to make an immediate gift; the gift was actually or constructively delivered to the donee, and the donee accepted the gift. Each of these elements must be proved by clear and convincing evidence.
The effect of a stock split and stock dividend on stock given as a general legacy?
For purpose of ademption, a gift of stock in a publicly traded corporation is classified as a general legacy absent language indicating a contrary intention. However, such a gift is treated as a specific bequest in the case of stock splits. Therefore, upon the death of the testator, a devise of stock will include not only the original shares, but also any all stock acquired through stock splits occurring after the will is executed. However, a bequest of stock does not include stock acquired through stock dividends absent evidence of testamentary intent indicating otherwise. Stock dividends are considered capitalization of accumulated profits.
Whether a child born out of wedlock has an inheritance right from nature father’s estates?
A child born out of wedlock has no inheritance right in the natural father’s estate unless paternity can be established. Inheritance rights can be established after the father’s death if in probate proceedings paternity is established by clear and convincing evidence and the father of the child openly and notoriously acknowledges the child as his own.
(a letter “I know you are my daughter, … I am sorry you are raised without father”)

The letter might be enough to prove paternity if it was witnessed, acknowledged before a notary public, and filed with the Putative Father Registry.