NY BAR REVIEW 10 Flashcards
Rule Against perpetuities
Unborn Widow or Widower
When interest would otherwise be invalid because will or trust refers to someone’s spouse, widow, widower, PRESUMPTION that reference is to a person in being at the effective date of instrument.
Rule against perpetuities
Miracle child
Determination of validity or invalidity of disposition by application of statute is not affected by later occurence of facts that contradict facts presumed under statute.
Afterborn or Afteradopted child who actually appears is INCLUDED in gift and disposition is STILL VALID.
Tenancy at will
Termination
Landlord must give written notice at least 30 DAYS, personally served on tenant. If tenant hasnt vacated in accordance with notice, landlord may reenter and maintain action to recover possession without further notice.
Rule against suspension of alienation
Absolute power of alienation is suspended when no persons in being by whom absolute fee or estate in possession can be conveyed / transferred.
MUST be persons in being who could join together in a conveyance of full fee simple title within lives in being plus 21 YEARS.
All pieces of fee simple title MUST be held by ascertainable persons in being within lives in being plus 21 YEARS.
Rule against suspension of alienation 2
Interest can be VALID under suspension rule and INVALID under RAP.
Interest can be INVALID under suspension rule and VALID under RAP.
Statutory spendthrift exception
Allows creator of Trust to give income beneficiary the power to transfer his interest.
If income beneficiaries are given power to transfer beneficial interests, trust can last BEYOND lives in being plus 21 YEARS, provided all interests vest within that period.
Rule against perpetuities 21 YEARS OLD
Age contingency
Where estate would be invalid because depends on person attaining or failing to attain age in excess of 21, age contingency reduced to 21.
Rule against perpetuities
Wait and see
NO wait and see theory in NY except when applied to powers of appointment.
NY Perpetuities Reform Statute.
Survival of Tort Action
Action involving harm to intangible interests.
libel, slander, survive
Distribution of damages when injury causes death
Cause of action owned by decedent in his lifetime survives and injury causes death, damages recovered in action are part of his estate and will be distributed according to his will or by intestacy.
Damages limited to those accruing before death.
Damages for death itself are recovered in wrongful death action.
Decedent’s debts must be paid so damages are reachable by decedent’s creditors.
Wrongful death
Bring an action
Decedent survived by distributees, personal representative of decedent’s estate may maintain action for wrongful death.
Wrongful Death
Recovery
Loss of consortium is NOT compensable.
Punitive damages are recoverable by personal representative of decedent.
Damages recovered allocated by personal representative among distributees who have sustained pecuniary loss in proportion to amount of loss sustained by each
Wrongful death
Procedure
Statute of limitations
MUST be brought within 2 YEARS from time of death.
Action usually consolidated with surviving action for decedent’s pre-death injuries. Burden of proof on plaintiff, except as to decedent’s culpable conduct. Beneficiary’s death does NOT discharge action.
Pecuniary damages to beneficiary are computed ONLY up to date of beneficiary’s death.
Intra family
Tort immunity
Injury to person
NONE in NY
Parent does NOT owe duty to child to exercise due care in supervising child’s day to day activities.
Child CANNOT sue parents for negligent supervision.
Governmental
Tort immunity
State and municipal governments
governmental functions
immunity applies to discretionary acts.
Also applies to ministerial acts unless special relationship exists between plaintiff and state or municipality, creating a special duty.
Governmental
Tort immunity
Proprietary functions
When proprietary function liability may be imposed according to ordinary tort principles.
Whether state or municipal activity is government OR proprietary may be a close question.
3rd DEGREE ROBBERY
forcibly stealing property
2nd DEGREE ROBBERY
Defendant AIDED by another who is present.
Defendant or another participant PHYSICALLY INJURED NONPARTICIPANT.
There is a threat of immediate use of physical force, such as display of weapon.
CARJACKING- forcibly taking a car.
IMPERSONATING a police officer, restraining victim, conveying impression that disobeying directives will result in IMMINENT PHYSICAL INJURY, FRISK victim, REMOVE items from victim’s pocket.
President’s pardon power
President has exclusive power to pardon.
Art 2 Sec 2
grant reprieves and pardons for offenses against U.S, except in impeachment.
NOT subject to congress’ control. President can commute sentence on any conditions he chooses, as long as doesnt offend other constitutional provision.
Summary Judgment
Granted only if pleading depositions answers to interrogatories admissions on file affidavits all show that there's NO genuine issue as to any MATERIAL FACT and moving party is entitled to judgment as MATTER OF FACT.
Crossclaim RULE 13G
Against co-party
Allows pleading to state as crossclaim.
any claim by one party against coparty if claim arises out of transaction or occurence that is subject matter of original action or of counterclaim, or if claim relates to property that is subject matter of original action.
Right to amend
FORMAN V. DAVIS 1962
Should be unimpeded in certain cases.
Court commits abuse of discretion when fails to consider and grant right to amend at early stage in process.
EMINENCE CAPITAL V. ASPEON 2003
Federal Rule 14A1
Requires that third party plaintiff (original defendant) obtain leave of court if files 3rd party complaint more than 14 DAYS after filing answer. If not, subject to motion to dismiss by 3rd party defendant (benefactor).
Logical Relationship test
Whether essential facts of various claims are so logically connected that considerations of judicial economy and fairness dictate that all issues be resolved in one lawsuit
