NY BAR REVIEW 10

Question 1

Rule Against perpetuities

Unborn Widow or Widower

Answer 1

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.

Question 2

Rule against perpetuities

Miracle child

Answer 2

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.

Question 3

Tenancy at will

Termination

Answer 3

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.

Question 4

Rule against suspension of alienation

Answer 4

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.

Question 5

Rule against suspension of alienation 2

Answer 5

Interest can be VALID under suspension rule and INVALID under RAP.
Interest can be INVALID under suspension rule and VALID under RAP.

Question 6

Statutory spendthrift exception

Answer 6

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.

Question 7

Rule against perpetuities 21 YEARS OLD

Answer 7

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.

Question 8

Rule against perpetuities

Wait and see

Answer 8

NO wait and see theory in NY except when applied to powers of appointment.
NY Perpetuities Reform Statute.

Question 9

Survival of Tort Action

Answer 9

Action involving harm to intangible interests.

libel, slander, survive

Question 10

Distribution of damages when injury causes death

Answer 10

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.

Question 11

Wrongful death

Bring an action

Answer 11

Decedent survived by distributees, personal representative of decedent’s estate may maintain action for wrongful death.

Question 12

Wrongful Death

Recovery

Answer 12

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

Question 13

Wrongful death
Procedure
Statute of limitations

Answer 13

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.

Question 14

Intra family
Tort immunity
Injury to person

Answer 14

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.

Question 15

Governmental
Tort immunity
State and municipal governments

Answer 15

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.

Question 16

Governmental
Tort immunity
Proprietary functions

Answer 16

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.

Question 17

3rd DEGREE ROBBERY

Answer 17

forcibly stealing property

Question 18

2nd DEGREE ROBBERY

Answer 18

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.

Question 19

President’s pardon power

Answer 19

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.

Question 20

Summary Judgment

Answer 20

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.

Question 21

Crossclaim RULE 13G

Answer 21

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.

Question 22

Right to amend

Answer 22

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

Question 23

Federal Rule 14A1

Answer 23

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).

Question 24

Logical Relationship test

Answer 24

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

Question 25

RULE 13A

compulsory counterclaim

Answer 25

Pleading must include counterclaim arising out of transaction or occurrence that is subject matter of opposing party’s claim.
If not, FOREVER BARRED.
Cut out duplicate litigation.