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NY Bar Questions


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How to determine whether a negotiable instrument is duly negotiated?
BEARER INSTRUMENTS: Negotiation requires delivery of the instrument to the transferee, who then becomes the "holder."

ORDER INSTRUMENTS: Negotiation requires delivery to the payee named on the instrument, & any further negotiation requires indorsement & delivery.
Does a person who receives cash has good title to it?
Anyone with possession of cash has good title to it.
What are some characteristics of bearer paper?
⬢ Payable to anyone in possession of the bearer instrument
⬢ Freely negotiable like cash
⬢ UCC allows bank to honor bearer paper & charge drawer's account
Duty on drawee banks under UCC
Honor check "as drawn"
How does one determine whether a shareholder holds and is entitled to exercise preemptive rights?
Under BCL:

HOLDS: In certificate, or where certificate silent,
• <2/22/98 = yes
• ≥2/22/98 = no

EXERCISE: If <2/22/98, does not attach where (1) shares auth in the orig cert & sold w/in 2 yrs of filing; or (2) shares offered for consideration other than cash
Liability for breaching bylaws restricting transfer of shares
RULE: Reasonable restrictions on the sale of stock are valid.
• Rt of 1st refusal = reasonable
• Unanimous consent ≠ reasonable
Against whom are restrictions on alienation of shares binding?
Anyone with actual notice. NOT binding on a BFP w/o actual knowledge, UNLESS noted conspicuously on the shares itself.
What is the standard in deciding a motion to dismiss for failure to state a cause of action?
In determining whether there is a claim, Court take all opponent's allegations as true.
What may be recovered under a wrongful death c/a?
EPRL limits damages for wrongful death to pecuniary & punitive damages. NO compensation for grief, sorro & heartache, nor loss of consortium.
What is required for a federal district court to exercise jurisdiction?
Must have both SMJ & PJ

SMJ = (1) FQ or (2) diversity: (a) matter in controversy ≥$75K & (b) diversity across the v.

PJ = D must be properly served. FRCP: proper if either made within the state OR made under state's long arm statute. (exceptions: bulge rule & statutory interpleader)
What is the liability of a non-contributing and/or a retired general partner?
Personal liability for ALL DEBTS of a partnership, whether or not P contributed servies.

A retiring partner remains liable on all partnership debts until he withdraws from the partnership & proper notice is given of withdrawal to potential creditors.
What is the liability of a person who holds themselves out to be a general partner?
"Partnership by estoppel": Personal liability to third persons who extend credit to the partnership in reliance on the representation.
What is the liability of deceased general partners?
A deceased partner is not liable for new partnership debts.
What is the effect on co-∆s for contribution or indemnification when a π executes a release to one of the ∆s?
(1) Under NY GOL Releases the ∆ from any claims of contribution.

(2) Does NOT extinguish indemnification claims, as long as there is a basis for indemnification (VL or KL)
What is the admissibility of a post-accident design modification?
Generally, no evidence of subsequent remedial measures, except for control/feasibility (if contested).

EXCEPTION: NY allows in mfg defect/prod liability case ONLY.
What is required to maintain an action in strict products liability in tort?
Ϭ must show that either (i) the mfr produced a product that was dangerous beyond the expectation of the ordinary consumer; or (ii) a safer alternative modification was economically feasible.
When may summary judgment be granted?
(1) SJ motion may be made by any party after issue has been joined w/in 120 days of all interlocutory papers filed.

(2) Ground for SJ: Upon affidavits, docs, depos & other proofs, court MUST conclude as a MOL that there is NO MATERIAL ISSUE OF FACT requiring trial.
May a court grant SJ to a nonmoving party?
GEN RULE: Only a party who has made a motion or cross-motion may be accorded relief.

BUT--CPLR provides that if the court concludes that someone other than the moving party entitled to a SH, court may grant such relief in absence of a cross-motion.
When can S/F be asserted?
S/F is an affirmative defense, must be asserted in 1st responsible pleading or is WAIVED.
What is the NY standard for duty owed by land owner/occupier to people on the land?
RPP standard--regardless of legal status (trespasser, invitee, licensee) OR what harmed you.
What is required for emotional distress claim in NY?
π must be (1) immediate family member to someone who is seriously injured by ∆'s negligence; (2) exposed to immediate harm; & (3) suffer physical injury.
Requirements for assumption of risk.
(1) Ϭ knew of the risk & (2) voluntarily proceeded in the face of the risk. NB: Falls w/in comparative negligence doctrine, NOT absolute bar to recovery.
Admissibility of evidence in a family court proceeding.
Family Court Act = onyl competent, material & relevant evidence may be admitted in a fact-finding hearing.
Ability of a judge to take unsworn testimony in a family law proceeding
Family Court Act = judge can take unsworn testimony of child in camera. REQ: must make include stenographic record as part of the record on appeal.
Required showing for termination of parental rights.
NB: B/c dealing with parents' rather than child's rights, NOT "best interests of the child."

Soc Serv Law grounds for termination: (1) abandonment (i.e., failure to visit/communicate >6mos); (2) inability to care due to mental illness/retardation; (3) permanent neglect; or (4) severe or repeated child abuse.

Judicial Standard: Clear & convincing evidence.
Standard for denial of custody to a parent with current custody.
Requires showing of some unfitness or extraordinary circumstnace + application of "best interests of the child" test.
What is the liability of a parent for negligent supervision?
NY case law: NO claim for negligent supervision of a child, neither by the child nor by a 3rd party.
Effect of settlement btn π ∆ on liability of remaining co-∆s.
Generally doesn't affect liabiltiy. BUT, under GOL: when π settles with 1 tortfeasor, ultimate recovery agaist other(s) will be reduced by the greater of (1) the settlement amount; or (2) amount actually paid by settling ∆; or (3) settling ∆'s apportioned share of dgs.
What are the requirements to show cruel & inhaman treatment in a divorce action?
DEFN: Conduct by ∆ spouse which so endangers the π's physical or mental well-being as to render it unsafe or improper for the π to cohabit with ∆.

STANDARD: "serious misconduct"
In divorce action, what is required in the Ϭ's complaint?
Must plead the nature of circumstnaces of ∆ spouse's alleged misconduct, and the time & place of each act complained of must be specified.
Is cohabitation or condonation a defense in divorce actionf or cruel & inhuman treatment?
COHABITATION: No in itself a defense, depends on circumstances.

CONDONATION: NO--only defense to adultery.
Are personal injury claims earned during marriage marital prop subject to "equitable distribution"?
DRL: NO--compensation for personal injuries is a statutory exception to the marital property rule.
What is the general equitable distribution rule?
Under DRL, marital property is distributed equally between parties to a divorce action considering the circumstances of the particular case--but NOT fault.
Define marital property
All property acquired during marriage by either or both spouses and before either the execution of a separationa greement or the commencement of a matrimonial action.
Are $$ advances received during marraige marital property?
YES--acquired as a result of work performed during the marriage, and t/f w/in the EDL defn of marital prop.
Who may maintain an action to enjoin an illegal transfer of corporate assets?
BCL auth officer, director or shareholder to maintain an action to enjoin an illegal transfer or corproate assets.

While shareholder must sue in the name of the corp (SDS), dir/off can sue in own name.
3 factors for enforceability of a covenants not to comepete?
(1) Necessary for protection of the purchaser (e.g., unique services);
(2) Reasonable in time, distance or extent (nb: lack of geo scope=unenforceable on its face); &
(3) Represents part of a bargained-for exchange.

NB: NCCs have been enforced for periods as long as 10 yrs in the absence of showing enforcement would preclude party from pursuing its business.
When may a losing party recover costs?
GEN RULE RE COSTS: Winning party gets costs unless inequitable to do so.

COSTS TO LOSING PARTY: Only if losing party won some part of suit--i.e., won in part & lost in part. NB: In div case in fed court, maybe if final judgment <$75K.
How to analyze choice of law in NY.
When faced with conflict of law, NY rejects vested rights for govt int analysis in order to ensure that the jurisdiction w/the greatest interest has its law apply. Looks at factual contacts, differing laws & the underlying policies; apply the facts to the policies; & apply the greater govt interest.
Additional analysis for choice of law in loss distribuition cases in NY.
For tort cases, NY has refined the interest analysis in Neumeier. #1: if all parties from a particular jurisdiction, the law of that jurisdiction will apply. #2: if parties from different jur, & the injury occurred in 1 of them, the jur with the greatest interest will apply. #3: all other situations, apply the law of the forum.
Factors for forum non conveniens
CPLR: if in the interests of justice, action shd be stayed or dismissed so may be heard in more appropraite forum, court may do so in whole or in part.

Timeliness: reasonable time (no definite limit)

Standard for Review: abuse of discretion
When can collateral estoppel be applied?
(1) Party against whom it is asserted is the same as in a prior case;
(2) All issues are identical to the prior case;
(3) All issues were necessarily decided; &
(4) Opposing party had full & fair opportunity to litigate each issue.
Whether an incriminating statement by a suspect in custody before receiving Miranda warnings is admissible.
RULE: For confession to be admissible under A5 priv against self-incrimination, person in custody must be informed of his Miranda rights prior to interrogation. ∆ can waive Miranda if waiver is knowing, voluntary & intelligent.

EXCEPTION: Where, prior to questioning or Miranda, ∆ makes a spontaneous statement, it is not conisdered to be a product of interrogation & is therefore admissible.
Whether waiver of Miranda rights is revocable
YES--even after waiving, if ∆ requests presence of counsel, all questioning must cease.
What is required for an effective renunciation of a bequest?
(1) File irrevocable, notarized renunciation w/in 9 mos of T's death.
(2) File affidavit that you received no consideration for the renunciation.
What is the rule about challenging testamentary gifts to charity?
The limitation on testamentary gifts to charity has been abolished.
What constitutes a breach vs. material breach of a K, & what is the remedy?
Breach = absolute duty to perform which is not performed.

Material breach = deemed to have occurred when nonbreaching party does not received the substantial benefit of his bargain. At that point, no further performance of nonbreaching party is due & nbp has immediate rt to all remedies available for breach of entire K, including damages.
Determining whether a nonbreaching party to an employment K has a duty to mitigate damages.
Where employer breaches, the nonbreaching employee has duty to mitigate by using "reasonable care" in finding similar position in the same area, even if it doesn't pay as much (tho would be able to get damages).

BUT where employment K was the basis for the sale of party's interest in the company, no more duty to mitigate bn/c the employment K was part of a "bargained for exchange" & interest is greater than simply compensation for personal services.

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