NY BAR REVIEW 11

Question 1

Tenancy for years

Notice of option to renew

Answer 1

Failure of tenant to give timely notice of exercise of option to renew is excused if is the result of honest mistake, landlord isnt prejudiced by lateness, tenant would incur substantial forfeiture as result of loss of leasehold.

Question 2

Severance

Answer 2

Tenancy by the Entirety terminates by
VOLUNTARY PARTITION
CONVEYANCE SIGNED BY BOTH PARTIES
DIVORCE
dissolution of marriage based on 5 year absence doesnt terminate tenancy by entirety.
NO severance if 1 spouse mortgages their interest.
Purchaser takes as tenant in common, subject to remaining tenant’s right of survivorship, obtains only right to use or possess premises.
Property reached only by joint creditors.
Either spouse may sue for waste.

Question 3

Negligent infliction of emotional distress

Plaintiff must suffer physical symptoms from distress

Answer 3

it is NOT required that plaintiff’s distress manifest itself in physical symptoms where defendant’s negligence creates great likelihood of distress

Question 4

Assumption of duty to act by acting

GOOD SAMARITAN STATUTES

Answer 4

Person voluntarily and gratuitously rendering emergency treatment at scene of accident is subject to liability only for GROSS NEGLIGENCE

Question 5

Punitive damages

Answer 5

may be awarded in GROSS NEGLIGENCE cases

Question 6

duty to mitigate damages

Answer 6

In motor vehicle accidents where plaintiff failed to make use of available seatbelt, trier of fact MAY consider non use in mitigation of damages but NOT as evidence on liability.
Failure to use seatbelt is affirmative defense.

Question 7

Collateral Source Rule

Answer 7

In all actions for peronal injury or property damage, wrongful death, court is required to REDUCE successful plaintiff’s damage award by amount of any benefits plaintiff received or will receive from collateral sources, proceed from own insurance policy.
NO reduction made for life insurance benefits, social security benefits, other benefits, for which alien maybe imposed against plaintiff’s award.

Question 8

Collateral source RULE 2

Answer 8

All damages in excess of a quarter mil
allocated for compensation for future pain and suffering MUST be reduced to present day value by court, then paid out over 10 YEARS or length of time determined by jury, whichever shorter.

Question 9

Corporation

Answer 9

a citizen of state of incorporation and a citizen of state where has principal place of business

Question 10

Principal place of business

Answer 10

where corporation's high level officers 
direct
control
coordinate activities
NERVE CENTER

Question 11

Diversity Jurisdiction

Answer 11

amount in controversy MORE than 75k
exclusive of cost and interest
AND
parties are citizens of different states

Question 12

Federal court

Answer 12

MUST have at least one of three for subject matter jurisdiction
Federal Statutory grant
Federal Question
Diversity Jurisdiction

Question 13

Express assumption of risk

Answer 13

Groups of persons who are precluded by statute from using contract clauses to deny liability.
Lessor, building contractor, amusement park, recreation facility

Question 14

Comparative negligence

Answer 14

Plaintiff may recover even if his culpable conduct exceeds defendant’s.
May not recover for injuries under comparative fault statute if was injured as direct result of engaging in action entirely prohibited by law involving risk of physical harm.
Injury while constructing pipebomb.

Question 15

Implied assumption of risk

effect on other doctrines

Answer 15

organized sports
recreational activities
when defendant has only limited duty to plaintiff because plaintiff’s knowledge of risks or primary assumption of risk

Question 16

scaffolding statute

Answer 16

NY LABOR LAW STATUTE
contractors, building owners, liable for failure to comply with mandated workplace safety precautions, scaffolding
NONDELEGABLE obligation for building owner.
Noncompliance makes owner STRICTLY LIABLE if worker injured as result.
FAILURE OF WORKER to use available safety measures is a defense.
Protection ONLY to construction workers.
NOT to others lawfully on premises.

Question 17

General Warranty deed

Answer 17

Warranty of title runs with the land.
can be enforced by any subsequent purchaser.
Damages limited to purchase price received by warrantor.

Question 18

Boundary lines

Answer 18

De minimis nonstructural
encroachment
fence, hedge, shed, nonstructural wall
deemed permissive and NON adverse

Question 19

HOSTILE

Answer 19

POSSESSION without claim of right, without reasonable belief that property belongs to adverse possessor is TRESPASS

Question 20

Bad check

Answer 20

Presumption is KNOWLEDGE and INTENT of drawer are presumed if no account exists with drawee or has insufficient funds on account at time of issuance and presentation.
check MUST be presented within 30 DAYS of issuance.
AFFIRMATIVE DEFENSE if defendant or another makes good the check within 10 DAYS of dishonored or was an employee acting at direction of employer and NOT for own benefit.

Question 21

Larceny degrees

Answer 21

Larceny is graded by VALUE of property taken and in some instances by MANNER in which acquired. CLASS A MISDEMEANOR - petit larceny.
ANY property.
CLASS E FELONY - grand larceny, fourth degree.
property valued over one thousand, public records, secret scientific material, property taken from person, but NOT robbery, property taken by extortion, credit or debit cards, firearm, motor vehicle valued more than one hundred, property used for or kept at place of worship valued at least at one hundred.

Question 22

sublease

Answer 22

Tenant in residential building having 4 OR MORE units has RIGHT to sublease SUBJECT TO WRITTEN CONSENT of landlord.
consent CANNOT BE UNREASONABLY withheld and if it is, deemed as a consent.
Failure to respond to tenant’s notice constitutes consent.
Commercial leases follow multi-state rule.

Question 23

Legal duty to repair

Answer 23

by statute, LANDLORD of multiple dwelling 3 AND OVER apartments is REQUIRED to keep dwelling in good repair

Question 24

Tenant liability

Answer 24

Tenant may be held liable if condition of disrepair caused by tenant’s act or negligence or by any 3rd party under his control

Question 25

Insufficient
Intent
State of Mind

Answer 25

Defense to Larceny if defendant appropriated property under CLAIM OF RIGHT made IN GOOD FAITH.