Supplemental Ny Bar Exam Review

Front 1

How soon must a notice of claim be served on a municipality?

Back 1

• P must serve a Notice of Claim within 90 DAYS upon a municipal defendant (but not a municipal employer) from when the cause of action (CoA) accrues.

Front 2

How long does the legal represenative of a decedent's estate have for the decedent's survival claims?

Back 2

• Under the CPLR, the legal representative of the decedent’s estate will have either:
o the applicable Statute of Limitations
or
o 1 year from date of death

Front 3

SoL for a wrongful death award?

Back 3

• Under the EPTL, the SoL for a Wrongful Death Award is 2 years from the date of death (provided the Sol has not expired on decedent’s underlying action as of the date of death).

Front 4

Who can recover from a wrongful death action?

Back 4

 Under the EPTL, only distributees (those who are entitled to inherit under intestacy) can recover under a Wrongful Death cause of action.

Front 5

Under the NY Penal Law, when is a defendant guilty of solicitation?

Back 5

Under NY Penal law, a person is guilty of criminal solicitation when he requests or commands another person to engage in conduct with intent that the person commit a felony.

Front 6

What is an inchoate crime?

Back 6

Crime committed in contemplation of another

Front 7

What is a specific intent crime?

Back 7

a particular state of mind that seeks to accomplish the precise act that the law prohibits

Front 8

Under NY Penal Law, does solicitation merge with the underlying offense?

Back 8

No.
However, at common law, solicitation merged with the underlying offense.

Front 9

Under NY Penal law, what is a conspiracy?

Back 9

Under NY law, conspiracy is an agreement between 2 or more persons, intending to agree to achieve some unlawful/lawful objective though unlawful means.
Conspiracy is an inchoate and a specific intent crime. under NY penal law, a co-conspirator can be convicted even if another co-conspirator is not convicted or was pretending to agree. Also, under NY penal law, some overt act in furtherance of the conspiracy is required

Front 10

What are the five degrees of larceny under New York law?

Back 10

 Under NY law, there are 5 degrees of larceny
• 1st Degree Grand Larceny: amount/value stolen > $1M
• 2nd Degree Grand Larceny: amount/value stolen > $50K
• 3rd Degree Grand Larceny: amount/value stolen > $3K
• 4th Degree Grand Larceny: amount/value stolen > $1K
• Petit Larceny: amount/value < $1K

Front 11

What is the criminal liability of an accessory before the fact (a.k.a. aider and abettor)?

Back 11

 An Accessory Before the Fact (or an Aider and Abettor to a crime) has the same liability as the Principal actor in the crime.

Front 12

In NY, can an option contract be enforceable without consideration?

Back 12

o Under New York GOL, an irrevocable offer (option contract) is enforceable, despite the absence of consideration, for the time stated (no maximum period limitation) OR if no time is stated, for a reasonable time – If and only if the option k (irrevocable offer) is in writing and signed by the party to be charged with its breach (or their lawful agent).

Front 13

Under the UCC (for a sale of goods contract), can an option be supported without consideration?

Back 13

o Under Article 2 of UCC, a firm offer made by a merchant to sell goods, in a signed writing is enforceable, despite the absence of consideration, for the time stated OR (if no time is stated) for a reasonable time. However, the maximum time period of the irrevocable offer is 3 months.

Front 14

In NY, when must the SoF be raised? What happens if the SoF is not raised by then?

Back 14

SoF is AFFIRMATIVE DEFENSE, which may be raised by defendant in either:
 Pre-answer 3211 motion to dismiss plaintiff’s complaint
 Defendant’s Answer as an affirmative Defense.
o If Defendant does NOT raise SoF in the answer or in preanswer 3211 motion, D cannot raise SoF ever again as a defense (“once waived, forever waived”)!!!

Front 15

Does a lease agreement have to be in writing?

Back 15

A lease of real property longer than 1 year, must be in writing and signed by the party to be charged with its breach (or their lawful agent) in order to be enforceable. o The lease agreement is enforceable. An oral lease of property for exactly 1 year is ENFORCEABLE.

Front 16

Does a lifetime contract have to be in writing?

Back 16

• MBE Rule: Under the common law, an oral lifetime contract is enforceable.
• NY Distinction Rule: Under the NY GOL, a contract which cannot be performed before the end of a lifetime (a lifetime contract) must be in writing and signed by the party to be charged with its breach (or their lawful agent) in order to be enforceable.

Front 17

Under NY law, is an oral real property contract enforceable?

Back 17

• Under the NY General Obligations law, a contract to buy, sell or exchange real property, must be in writing and signed by the party to be charged with its breach (or their lawful agent) in order to be enforceable.
o Note: Regardless of $ amount, the rule applies.
• Exceptions: (oral k will suffice in following)
o NY EXCEPTION to real property SoF requirement:
 (1) Buyer must give Seller a Deposit ( a penny $.01 is sufficient).
 (2) Buyer must take possession of the real property with the seller’s consent
 (3) Buyer must make “SUBSTANTIAL IMPROVEMENTS” to the real property.

Front 18

Does a compensated surety have the same liability as a compensated surety?

Back 18

Yes. A compensated surety has the SAME LIABILITY as a non-compensated surety.

Front 19

When may a plaintiff file a notice of Pendency?

Back 19

 Under the CPLR A Notice of Pendency may be properly filed in any action where the judgment demanded by the plaintiff will affect use, possession, enjoyment or title of real property situated in NY.
 NOP must be properly filed in the county where the property is situated.

Front 20

When may P obtain an order of attachment

Back 20

 Under the CPLR, plaintiff may properly obtain an Order of Attachment (OaA) by motion, on notice or by ex parte motion, in any action except a matrimonial action in which the plaintiff is seeking a money judgment, in whole or in part.

Order of attachment may attach any personal property (tangible or intangible) that is in the possession of a third party called a (they are known as garnishees) as well as real property that is situated in NY.

Front 21

When must plaintiff obtain an OoA by?

Back 21

• A plaintiff may obtain an OoA at any time up until the date of judgment but not at any time thereafter.

Front 22

Must plaintiff post a bond for an OoA?

Back 22

o In an amount set by the court to indemnify the defendant for his cost and damages (including reasonable attorney fees) in the event that the OoA is vacated or D prevails on the merits

Front 23

If P obtains an OoA by ex parte motion before service of process, what is the deadline for service of process?

Back 23

 60 days from the date that the OoA was granted by the court.
 If P doesn’t serve, D can move and court must grant motion to vacate the OoA

Front 24

o If Plaintiff obtains that OoA by ex parte motion, plaintiff must make motion to confirm the OoA:

Back 24

 1) no later than 10 days from the date that the sheriff has levied on the personal property (or real property) of the non-domiciliary defendant or unlicensed foreign corporation.
 2) no later than 5 days from the date the sheriff has levied on the personal/real property in NYS on a NY domiciliary.

Front 25

What is the default rule in NY regarding quorum at Board of Directors meeting for a corporation?

Back 25

Under the BCL, a quorum at a BoD meeting is a majority of the ENTIRE Board of Directors, in the absence of any contrary provision in the Certificate of Incorporation (CoI) only, requiring a greater number or a contrary provision in either the CoI or bylaws requiring less than a majority but not less than 1/3 of outstanding shares.

Front 26

What if there is no quorum present at the Board of Directors meeting?

Back 26

If no quorum is present, any action taken at the BoD, even if unanimous, is ULTRA VIRES.
o Ultra Vires: beyond the powers as those powers are defined in the CoI, the bylaws and the BCL

Front 27

What are the quorum requirements for a shareholder meeting?

Back 27

o Under the BCL, a quorum at a SH meeting consists of the majority of outstanding shares that are entitled to vote in the absence of any greater number either the CI or the Bylaws, requiring that less than 1/3.

Front 28

What is the SoL to commence an shareholder derivative suit?

Back 28

 Under the CPLR, the SoL for an SDS is 6 years from the date of the alleged wrongdoing (not 6 years from the date of discovery). But, the court may bar the SDS if plaintiff is guilty of laches because the Court of Appeals says that SDS is equitable in nature. If the remedy is equitable, plaintiff should run to the court house, because that plaintiff must not be guilty of laches

Front 29

• What is SoL for contribution

Back 29

6 years

Front 30

What does Article 16 of the CPLR do for certain tortfeasors?

Back 30

• Under Article 16 of the CPLR, when a tortfeasor’s equitable share of fault is 50% or less:
o NON-ECONOMIC DAMAGES: The tortfeasor’s liability for non-economic damages will be only his equitable share.
o ECONOMIC DAMAGES: But that tortfeasor (who is less than 50% at fault) will still be liable for 100% of the plaintiff’s economic damages.

Front 31

When will ARTICLE 16 (Limitation on Liability for Non-Economic Damages for Defendants who are less than 50% at fault) NOT apply?

Back 31

o 1) Wrongful Death Actions:
 If P died, Article 16 exception don’t apply.
o 2) Tortfeasor who commits INTENTIONAL TORT
o 3) Tortfeasor who recklessly disregards the safety of others (GROSSLY NEGLIGENT).
o 4) Tortfeasor releases HAZARDOUS SUBSTANCES into <missed>
o 5) Tortfeasor commits a TORT WITH A MOTOR VEHICLE (exception for firefighter/police/EMS ambulance who use motor vehicles in the course of their job)

Front 32

Under the MBE and common law, who bears the risk of loss of real property after a contract is signed but before closing?

Back 32

• Under the doctrine of equitable conversion, the buyer has the RoL, the moment that the seller signs the contract for sale. Therefore, the buyer has the Risk of Loss, in the absence of any contrary agreement. Risk of Loss means that the buyer must pay the full purchase price even though the house was destroyed through no fault of either parties

Front 33

Under NY Law, who bears the risk of loss of real property after a contract is signed but before closing?

Back 33

• Under the Uniform Vendor and Purchaser Risk Act (UVPRA), the seller has the risk of loss between contract date and closing date, if the real property is materially damaged/destroyed, without fault of the buyer, unless, the buyer had either title or possession of the real property on the date of the loss, in the absence of any contrary agreement.

o 1) Buyer can rescind the contract and recover the down payment.
o 2) Or, Buyer can purchase with an ABATEMENT in the purchase price equal to the value of the destroyed property

Front 34

What are the three ways for a defendant to appear in any action?

Back 34

1) D serves an answer.
 2) D makes a CPLR 3211 motion to dismiss plaintiff’s complaint or makes a corrective motion.
 3) D serves a notice of appearance.