1

IPJ

Q1) How the out of state company A to be subject to Minimum Contact with NY state?

Q2) How about when a former employee X (now in Comp A) of NY company B uses a trade secret of Comp B to make goods and ships the goods to NY state?

Q3) May the NY court enjoin Comp A from employing a former employee X of Comp B?

A1) An out of state company A is subject to Minimum contact with the NY state when A ships goods to NY; when A provides a service in NY.

A2) Under CPLR 302(a)(3), IPJ in NY will be established when (i) a non-domiciliary (Comp A) commits a tortious act outside of NY (ii) which causes an injury within NY (iii) if the non-domiciliary expects or should reasonably expect the consequence of the act and the non-domiciliary derives revenue from interstate commerce. 

In this case, Comp A uses the trade secret (tortious act) which results an injury to NY Comp B in NY state (commercial advantages lost) and Comp A could easily expect the consequence (injury to NY Comp B) of its act (uses the trade secret and shipping goods to NY).

A3) Ordinarily, equity will not enjoin a former ordinary employee (No TISUE employee) from earning a living and using the skill acquired from the former employer.  However, future employment may be enjoined when its sole purpose is to obtain trade secrets or other confidential information.  In this case only apparent reason for Comp A to hire X (former employee of NY Comp B) is to obtain confidential information of Comp B, thus in the court’s discretion, Comp A may be enjoined from employing X.

2

K

Q1) P’s 5 Yr employment “K” with Publishing Comp B was breached by B after 2^nd year term, then P sues Comp B for monetary damages ($200K: non-paid salary).  P moves for (i) attachment of and (ii) receivership for the accounts receivable ($200K).

Both motions denied.  Are the court decisions correct?

A1) The motion for attachment was properly denied because P had no ground for attachment under CPLR6201.  For the attachment, P must prove one of FIND CJ grounds.

The motion for receivership was also properly denied because receivership is not available in actions where the only relief sought is money damages.  In order to obtain use of the device of receivership, P would have to seek equitable relief and would also have to show that a danger exists that Comp B will be removed from NY or otherwise hidden or destroyed. 

Receiver is an impartial person appointed by the court to oversee, manage, and preserve property that is subject matter of a legal dispute. (Ex) à Dissolution of company, people may ruin the company.

3

Sales

K

Q1) What are the Buyer’s remedies when B received a defective machine from Seller S?

A1) Buyer’s remedies are: CIDS WAR:

Ø       Cover;

  - sue for a diff b/w higher cost of cover and ‘k’ price;

Ø       Incidental & Consequential Damages;

Ø       Sue for Damages;

  - in case no cover;

Ø       Breach of Warrantees;

-          General warrantee of merchantability;

-          Fitness to particular purpose;

Ø       Accepting the good rejected;

Ø       Revoking the accepted good;

4

Sales

X

Q1) What are the Seller’s remedies?

Q2:  In case B accepts 5 of Grade A watches (supposed to be Grade A+ watches), can B still sue damages arising from none-accepted 5 C-Grade watches?

Assume a commercial unit is 10 items by trade usage.

A1) Seller’s remedies are: SPARKLE

Ø       Stop goods in transit;

Ø       Sue for K Price;

Ø       Demand assurance – no reply from B within 30 days assume repudiation of ‘K’;

Ø       Reselling goods to another Buyer;

Ø       Keep part of B’s deposit (lesser of $500 or 20%)

Ø       Exercise right to reclaim goods

-          S can demand RTN of goods within 10 days of delivery if B receives those goods while insolvent;

A2) Once B accepts part of the commercial unit (10 watches), it is assumed that B accepted the goods delivered.

Unit Rule:

A commercial unit means that unit of goods which by trade usage is a single whole for purposes of a sale and where the division of that whole materially impairs its use, character, or value in the market.

5

Sales

Q1) How can B revoke acceptance of the goods delivered?

A1) To Revoke Acceptance in whole or in part, the following elements must be satisfied under U.C.C. 2-608:

Ø       B may revoke his acceptance of good if the non-conformity substantially impairs its value to him if he has accepted it;

-          on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or

-          the difficulty of discovery before acceptance or acceptance was reasonably induced by the seller’s assurances.

Ø       Revocation of acceptance must occur within a reasonable time after B discovers or should have discovered the found it.  à It is NOT effective until B notifies S of it.

6

Sales

Q1) In case B doubts the quality of next shipment of goods (turkeys’ grade), what can B do to Seller (turkey)?

Q2) What will happen in case B just refused to accept the defective goods (lower grade turkey) without notifying to Seller the reason for the rejection?

Q3) Can S send right goods on K date (3/10) when the earlier shipment on 3/5 was defective?

A1) B can Demand Assurance of the Future Performance to Seller.

A2) If B failed to specify the reason for non-acceptance, it is deemed failure of making an effective rejection, resulting in assumption of acceptance of goods (though refused by B).

A3) Under UCC 2-508, if a nonconforming good was delivered and rejected before the time of performance, S is entitled to ‘cure’ by making a conforming delivery within the time specified by ‘K’.

7

Sales

Q1) how to defend yourself under “Unconscionability”?

A1) An unconscionable K is the one that is both (i) substantively and (ii) procedurally unconscionable.

Procedural Unconscionability occurs when one party is at a superior bargaining position.

Substantive Unconscionability occurs when the K’s terms are obviously unfair and one-sided in favor of the party w/ the superior bargaining power.

8

corp

Q1) Bylaws v. None mentioned in C of I:

A, B, C, and D (having equal shares: 50 shares per director), all agreed to adopt bylaws stating (i) all had to be present for quorum purpose; (ii) all actions by the BDs had to be approved by a unanimous vote.

A proposed to buy all coffee from B’s son’s Company Y (B is also a BD at Company Y).  A and B agreed to it but D dissented (C was not present at the BD meeting).

What would happen to A’s proposal?

Q2) A and B are planning to issue remaining 200 SHs to each of 4 Directors at $100/share (original price) although a fair market value of the share is $1500.  A and B knew that C was financially dead-beat so by selling new shares, then A and B could be majority.

Any problems?  Can you advise C and D?

A1) Although PVT MC LAWS matters must be stated in C of I to be valid.  For the new Corp (after 2/22/98 ), it only requires the majority of outstanding shares to repeal or amend the BD’s maxi-majority voting or “quorum requirement” in C of I.

Here in this case, C of I is silent regarding the maxi-majority vote by BD or “quorum requirement”.  However, there is agreed upon bylaws despite the fact that said (i) and (ii), aforementioned requirements, are not in the C of I, thus what the Bylaws say will rule to determined the quorum or voting by BDs.

Since C was absent, no “quorum” is met, thus A’s proposal is deemed to have been dissented.

A2) Under BCL, absence of fraud or self-dealing, a price set for no-par share stock by BDs is conclusive.  However, the Court of Appeals in the Zion case held that the price was not reasonable and fair ($100 v. $1500).  Moreover, there is no business justification for offering these shares, other than altering the balance of powers.

If the legitimate business object arises to obtain new funds for the corporation, then BDs could have sold these shares for $1500 per share rather than $100 per share.

Since there is no legitimate business need for issuing new shares and the issuance of which would upset the balance of power among the DRs, thus if A and B purchased the shares already, they must return those back to the corporation.

9

Corp

Q1) Who can commence an action to remove a director who withdrew more than he was authorized to do from the corporate account?

Q2) What are the conditions that are outside of scope of indemnification of the director’s liability?  In other words, what would be the unforgivable acts by director even if a company is super lenient to director’s action?

Q1) SH of 10% share (outstanding shares) or Attorney General may commence an action to remove a director.  The court, then, has authority to remove director who withdraw unauthorized expenses from a corporate account (which is sufficient cause to remove directors).

A2) The following acts by director are outside of the scope of indemnification of director’s act:  BAD GIRL

Ø       Committed acts in Bad faith;

Ø       Assets distributed before creditors;

Ø       Improperly declared Dividend;

Ø       Acts for Personal Gain;

Ø       Intentional Misconduct;

Ø       Improper Redemption (buy back)

Ø       Not dissenting an improper Loan to a fellow director;

10

Q1) A & B hold shares in aggregate 45K out of 100K, A & B decided to buy back minority SH, C’s share 11K so that C can retire as SH and A&B would gain majority power. 

A & B agreed to merge their company to Mic Co for their profits and A&B called the SHs meeting and voted for the merger.  51% votes by A & B prevailed though C&D voted against the merger plan (49% votes in total) and the merge was approved by the SH’s meeting.

D & E hold shares in total 44K (now 49%) and they brought an action against A &B to nullify the merger.

Can D & E prevail the action?

Q2) The special meeting (SHs) was called (but no mentioning of merger plan was given).  Does this fact has some impact on the derivative action?

A1) SHs, D&E’s, derivative action will prevail because as directors and controlling SHs, A & B are fiduciary to the minority SHs and company.  A & B owe fiduciary duty and loyalty to the company and the minority SHs.  That duty was breached.  A&B’s buying back 11K shares has nothing to do with the legitimate business purpose for the benefit of the company but sorely to gain control over the company for their personal profits.

Since their act was in bad faith and placed themselves in a conflict of interest, No BJR applies to help justify their act.

For the derivative action, DA Plaintiff must prove that they had shares at the time of wrongdoing committed by A&B.

Under BCL, the merger proposal would have been approved by the majority votes of the outstanding shares (for the corp formed after 2/22/98 ), A&B’s votes would not be valid because all the necessary prior steps to vote were not taken.

A2) Because no notice in the SH’s meeting about the merger was given, the merger will likely be enjoined.  In addition, the merger plan serves no lawful or legitimate corporate purpose, besides benefiting A&B only, then the approval is improper. 

Because of (a) the illegality of buying back 11K shares, (b) the illegality of the business transaction at the special SH’s meeting, and (3) the lack of lawful and legitimate purpose of the merger plan, a suit to nullify the merger approval will win.

11

Q1) O is the owner of Lot ＃1 and adjoining Lot #2. 

O à X à Y (land sale)

O sold Lot #1 to X with covenant (Lot #1 shall be used as a gas station and NO more than 4 pumps in Lot #1 AND a grantor O will NOT sell or cause to erect another gas station on his property: this is CRWL). 

X, then, sold Lot #1 to Y w/o no express mention of the Covenant in the deed.

Can Y expand the gas station in Lot #1?

Q2) O sold Lot #2 to A with a full covenant and warrantee deed.  7 years later A sold Lot #2 to B by way of a quitclaim deed.  B sought to build a gas station on Lot #2.

Can B build a gas station on Lot #2?

A1) The covenant created on Lot #1 touched and concerned the land and was intended to run with the land, and there was privity of estate. 

The deed with the Covenant was properly recorded (gives a constructive notice to all subsequent purchasers), thus the land cannot be sold w/o the covenant.

Although this restrictive covenant was not in the deed between X and Y, it was in the chain of title (constructive notice). 

Unless there has been a drastic change of the neighborhood, equity will enforce this covenant by an injunction against Y’s intention to expand the gas station.

A2) O’s covenant on Lot #2 was held to be a personal covenant because there was no intention that it run with the land.

Even if the covenant on Lot #2 was determined to run with the land, it would NOT be enforceable against B because it was not in the chain of title to Lot #2 (no constructive notice).

B, being a BFP, who paid value without CIA notices of “the restriction” (C: constructive notice, actual notice, or inquiry notice).  Thus, O’s restrictive covenance (not to build a gas station) would cut off as to Lot #2.

Thus, B could construct a gas station on Lot #2.

12

Q1) H & W owned BA as TE.  Divorced in 1998.

In 2001, W died, leaving G, her Great-Grand-Pa as sole living heir.

What will happen to the rights in BA?

Q2) H executed a deed to B, his brother, and delivered it to A (H’s attorney) with instructions to delivery the deed to B on his 30^th BD.

H died in Jan 2004 and B turned to 30 in July 2004 and received the deed from H’s attorney A.

Does B own BA when he received the deed from A?

Q3) An owner of an upper land (WA), which is adjacent to BA, regarded WA to built a tennis court.  When it rained, the surface waters now diverted onto BA, flooding the cellar (chika-sitsu) of BA.

What can the owner of BA do about it?

A1) Upon divorce, H & W will turn to TC for BA w/o rights of survivorship. Thus, H and W had an undivided half interest in BA.

Under intestacy law, great grand parent cannot inherit any interests (intestacy law allows the inheritance only up the grand parent level), thus undivided 1/2 interests on BA are now owned by H and NY state as TC.

A2) Upon H’s death, A’s agency elapses thus A cannot act on H’s behalf.  Since, the gift from H to B was not yet completed because AID elements for gift, in particular, Delivery element was not satisfied.  (Delivery of the gift to H’s attorney A will not satisfy the delivery element of the gift)

Since A delivered the gift to B after H’s death, B has no rights on BA.

A3) The owner of BA cannot sue the owner of WA unless his act on regarding the WA is negligent which causes the flood in the cellar.

The Com Law rule involving surface waters (from heavy rains or meting snow) now is in two theories: (1) the common enemy theory; and (2) reasonable use theory.

NY adopts the reasonable use theory where a landowner (a) cannot use drains, ditches or pipes to discharge surface waters onto the lower land; and (b) cannot accumulate the water and then discharge it in a flow of greater force than previously and naturally existed.

Under the “common enemy” rule, surface waters were considered as a common enemy and each landowner is permitted to repel, expel or channel the surface waters regardless of the effect on a neighbor’s land (This is a minority view).

13

Trust

Q1) Bill created a $100K testamentary trust with Tom as trustee under which Pam was beneficiary for life with General Power of Appointment.

Tom invested $40K of the trust money into his own company. $40K to IBM stocks and $20K to junk bonds.

All investments except junk bonds lost the values substantially.

What is the problem?

Q2) Bill’s investments mostly failed but Bill and his lawyer agreed to submit the affidavit to the Surrogate Court (to show junk bonds’ increase hides other losses) in the accounting action commenced by Pam.

What is the problem?

Q3) What are the factors the Surrogate Court will weigh in determination of prudence of a trustee’s investment strategy?

Q4) Does trustee’s exoneration clause given in a will of a trust settler has actual power to exonerate the trustee’s poor investments?

Q5) Does Tom have to place (file) a bond?

A1) Tom as a trustee, who owes the fiduciary duty to the beneficiary Pam, cannot place himself in a position where he can benefit personally from the trust investment.  In other words, self-dealing is NOT permitted!  At least, Tom must have obtained the Surrogate’s approval to do such thing beforehand.

A2) The accounting information by a trustee must be accompanied by a verified statement setting forth a true account of all receipts and disbursements of property.  He must further state under oath that he does not know of any errors or omissions in the account.  Thus, Tom’s conduct was improper. 

Knowing it to be untrue, he intentionally made a false statement and thus committed perjury.

A3) The following factors, inter alia, will be evaluated:

Ø       a value of entire portfolio;

Ø       diversification of the portfolio (trustee should not put all trust eggs in one basket;

Ø       terms of the trust (i.e., government AAA trust bonds; safety of the trust)

Ø       the risk;

Ø       the present and future needs for the beneficiary;

Ø       duration of the trust;

Under the Prudent Investor Act, the key factor appears to be “diversification” and also an investment plan that provides reasonable income for the present income beneficiary, yet also providing protection for future beneficiaries.

A4) EPTL states that attempted exoneration of an executor or testamentary trustee from liability for failure to exercise reasonable care, diligence, and prudence is against public policy.  Thus, Bill’s inclusion of such an exoneration clause is a toothless tiger.

A5) An executor is not required to file a bond unless the will specifically demanded to do so, whereas a testamentary trustee must file a bond unless the will specifically exempts this requirement.

14

Q1) C, a reputable independent contractor, entered into a written K with O, owner of 5 story office bldg in Albany to steam-clean the exterior of the bldg.  “K” is silent regarding the obligations of any damages inflicted upon a 3^rd party.

C’s employee C1 negligently released the steam pipe and it fell down and injured C2 (C’s another employee) and P (pedestrian on the street next to the bldg.

Is O liable for C2 or P’s injuries?

Q2) Is C liable for P’s injuries?

A1) O is liable under NY law. 

In general, employer of the independent contractor is not liable for the contractor’s negligent act expect: (i) O controls the C’s act; (ii) delegable duty, however, it endangers the public way; or poses danger to the O’s business invitee(s); or (iii) non-delegable duty such as O providing a safe work place for construction workers.

Here O is responsible for providing the safe work place for the construction workers.

A2) C is liable for C1’s negligent act under respondeat superior. C1’s act was negligent because C1 owes the duty to safely handle the job; C1 breached its duty; and C1’s breach of duty proximately causes P and C2’s injuries.  In addition, C1’s act was within the scope of his employment; in furtherance of the employer’s business purpose, thus C is vicariously liable for C1’s negligent act, which causes the injuries to P and C2.

15

Q1) O obtained insurance policy when O’s 3 Bldgs burnt down (by O).  O, thereafter, tried to obtain the insurance policy on his warehouse.  O was invited to come to the police station and O voluntary came to the station where O was vigorously questioned.  O asked his attorney but the police refused.  Finally, O signed the confession.  As a result, O was indicted.

Is O’s confession admissible at trial in the criminal case?

Q2) O went to see an attorney X with O’s son S and there O admitted that he burned the warehouse down.

O then retained attorney Y to subsequently sued Insurance Company to obtain the insurance policy.  Attorney Z for the Insurance company called O’s former attorney X to ask him about O’s statement made to him.

Attorney Z also called O’s son S to ask about the statement made by O at the attorney X’s office.

Does each of X and S have to testify about the O’s statement?

Q3) On the cross-examination on O, Z asked over an objection, “Didn’t you confess to the police of your burning down the warehouse?”

How should the court react?

Q4) Is MIMIC evidence rule applicable to civil and criminal cases?

A1) O’s confession is not admissible at the trail court in a criminal case.  When O requested the assistance of counsel, all further questioning should cease.  Any further questioning by police violates the 6^th Amendment right to counsel and the 5^th amendment right against self-incrimination.

Any resulting admission or confession cannot be used by the state at a subsequent criminal trial against O, unless it is used to impeach O’s prior inconsistent statement (under Harris impeachment).

A2) Since O was present with his son S at the attorney X’s office and S is not assisting the attorney X, the A-C privilege does not attach to the O’s statement made to X.

Therefore, the conversation between X and O was NOT deemed confidential and thus S and X could be compelled to testify.

Note that, no privilege attachés to the communications intended either to prolong a fraud or to have the attorney assist the client in committing a crime.

A3) The police’s denial of O’s counsel upon O’s request will result in O’s statement being inadmissible in a criminal trial, but not necessarily in a subsequent civil trial, if the confession was “voluntary”.

In a civil trial, it would make no sense to exclude a confession violating the 5^th amendment, especially when D is attempting to gain financial benefit.

Whether the exclusionary evidence rule applies in civil or administrative cases is determined by balancing the foreseeable deterrent effect weighed against the adverse impact of suppression upon the truth-finding process in a subsequent civil proceeding.

In the present case, the party responsible for the illegal search (police) is not the same party offering the evidence, thus the deterrent factor is not nearly as compelling.

A4) MIMIC evidence rule applies to both civil and criminal cases.  However, in a criminal case, prosecution must give a pretrial notice of intent to introduce MIMIC evidence.

For both cases, court must weigh probative value v. prejudice.

Motive; Intent; Absence of Mistake; Identity; Common Scheme or Plan.

16

0603

Q1) After the traffic accident at the intersection, injured Pedestrian (P) was taken to the hospital and P told Doc that P had been crossing the street against the red light. 

The Doc kept P’s statement in the hospital record in the regular course of the hospital business.

Assume that P had already waived the Doc-Patient privilege, then can the hospital record come into at the trial court?

Q2) The driver (D) appeared w/o counsel and pled guilty in Albany court where the ticket was answerable (speeding ticket).  On the same day, D returned with counsel to withdraw the guilty plea.

In the later civil action, can the withdrawn guilty plea be admissible?

Q3) Is the criminal verdict if not guilty admissible in a subsequent civil suit?

Q4) P cross-examines D and asks if in the last 3 months he has been in any similar accidents.  Can P introduce the evidences of D’s similar accidents?

A1) This is a multiple HS Question. 

Multiple HS most frequently occurs in records of regularly conducted activities, which may contain information provided by persons not routinely involved in the activity.  For instance, a hospital record may include BOTH (i) a statement given by the patient for purposes of medical diagnosis and (ii) a statement that is NOT relevant to the information for the medical diagnosis.

If the above (ii), however, falls under one of HS exception (in this case is “admission”), then the statement (ii) is admissible.

Thus, one exception to HS (“Admission” by P) included in another HS exception (“Business Record”) is admissible as HS exception.

A2) In NY, a withdrawn guilty plea is not admissible in a criminal case but is admissible against Def as “admission” in a subsequent civil case.

A3) The fact that D was not found guilty of speeding does not mean that he cannot be found guilty in a subsequent civil trial because in the civil trial the standard for prove in the civil trial is a proof by preponderous evidence, however, in a criminal trial, the applicable standard of proof to find Def guilty is by the evidence beyond the reasonable doubt.

A4) P’s proposal to introduce evidence of similar accidents is not granted to prove that D acted in conformity therewith on the date of accident.  NY law follows FRE 404 (Character Evidence) in excluding such evidence though it may have some probative value.

17

0603

Q1) In a civil trial for a breach of K between P (bldg contractor) and C-city, P took a stand and testified. On X-exam by C-city’s lawyer L, P was asked if P had given a bribe to obtain the K.

P relied on the 5^th Amendment and refused to answer.  Can P invoke the 5^th Amendment rights?

Q2) On C city’s direct case, L called S (C-city official’s secretary) to testify that S overheard that P said to D “Give me the C-City K, and I will make you rich”.  Can S’s testimony come into the trial?

Q3) L then called X (C City investigator) who testified over an objection that D had told him about 10K bribe for which he would probably have to go to jail.  D is now dead.  Is the court right to have allowed to let X testify?

A1) P cannot invoke the 5^th Amendment in a civil trial.

A2) Yes, it can come in as “admission” by a party because it is an out of court statement by a party, which is inconsistent with his position in the court.

A3) X’s statement was HS, however, it would come in as a declaration against interest because (1) the declarant was unavailable (dead); (2) the statement was against the declarant’s interest; and (3) the declarant had competent knowledge of the facts when he made the statement.

18

Crim

Laws

Q1) D1 entered J.C. Penny and put items, worth $10.00, into a large JCP bag and D1 was called immediately after he exited the shop by Mike, Mgr of the shop, then D1 threw the bar at Mike and took out a knife from D1’s pocket and swung it against Mike.

What crime did D1 commit?

Q2) D1 jumped into a gold Cadillac and escaped from the JC Penny but the police later on found the car and stopped the car based on Mike’s description.  The police requested D1 and other occupants of the vehicle to get out of the car.  The police found the back seat of the vehicle full of clothes and bags from J.C. Penny, then police arrested them.

Was the police’s investigatory stop of the vehicle proper?

Q3) What are the exceptions to the warrant requirement for the search under 4^th Amendment?

A1) D1 committed a petit larceny at a moment he put the item into the his bag.  However, when he tried to escape from Mike and began using the knife, then this act would constitute a robbery in the 1^st degree despite the fact that he had already thrown away his bag before using his knife because he was armed with a deadly weapon and he was using the deadly-weapon.

Q2) The investigatory stop of the Cadillac was proper since the police had “reasonable suspicion” that the criminal activity was afoot.  “Reasonable Suspicion” is a lesser STD than the Probable Cause, which is required to justify a full-blown arrest.  – Police stops in this state are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists a reasonable suspicion (RS) that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime.

Once the vehicle was lawfully stopped and the evidence in the back seat was spotted in plain view in the back seat, then level of suspicion rose to probable cause (PC) which permits a search of the automobile without a search warrant.  U.S. Sup Ct. has held that probable cause means a “fair probability” that contraband or evidence of a crime will be found.

A3) BACH’S PIE

Ø       border searches;

Ø       automobile searches;

Ø       consent searches;

Ø       hot pursuit searches;

Ø       school searches;

Ø       plain view searches;

Ø       searches incident to a lawful arrest;

Ø       emergency searches; and

Ø       stop and request information, inquire, frisk or arrest.

19

Q1) D1 who was fired by Acme Corp as a truck driver, approached to D2 for stealing goods from the trailer of Acme.  D1 kept a key for the trailer.  D2 told D1 that he would not go if any violence.  D1 told D2 no weapons or no injuries. D1 & D2 went into the trailer and searched it but could not find any valuables. 

While D1 and D2 were leaving the site, a guard G found them and tried to freeze them, but D1 took out the gun and shot G, G died instantaneously. 

What crimes did D1 and D2 commit? 

Q2) Police came to D1’s home and requested entry and asked questions about D2 (police did not yet suspect D1 yet).  D1 confessed everything about the crimes they committed.  Is D1’s confession admissible in court?

Q3) While D1 was confessing the crimes, another police officer found a key to the trailer in the kitchen drawer.  Is the key admissible in court?

A1) D1 and D2 may be charged with a conspiracy to commit larceny, attempt of crime of larceny, burglary, and felony murder.

D1 may be individually charged with a larceny of his former employer’s key and an attempted robbery because he carried a gun that indicates that he intended to commit larceny by force of violence.

D1 may also be charged with first degree assault with a deadly weapon in the shooting of the guard.  D1’s assault of the guard will not be imputed to D2 if D2 did not agree to cause any injuries and did not believe D1 carried the gun.

D2 may raise affirmative defense against the felony murder upon CUB elements; (i) did not Commit the killing; (ii) was Unarmed; and (iii) did not Believe D1 carried a dangerous weapon.

A2) D1’s confession is admissible in court because the confession was not the product of custodian interrogation, which would violates D1’s 5^th Amendment rights.

Note that D1, however, will not be convicted by his confession alone. It is the jury’s job to determine the credibility of D1’s confession based on the evidences provided by D.A.

A3) The key found I the kitchen drawer is not admissible in court because it is the fruit of illegal warrantless search, which violates D1’s 4^th Amendment.

Because D1 had a REP in his home, D1 did not consent to search his home; there exists no exigent circumstance (dangers to police), no plain view search.

The police officer must have obtain the warrant a warrant based on PC that D1 had committed the crime he confessed.

23

Fed Juris

Q1) What are the conditions for D(s) to remove the case from the State Ct to the Fed Court ?

Q2) By when the removal to Fed Court by Defs occur?  What do a multiple Defs must do for the removal?

Q3) Can D (NY citizen) remove the NY state court to the Fed Ct when P commenced the action at the NY State Court?

Q4) Can P oppose to D’s demand of removal from NY state Ct to Fed Ct ?

Q5) In DJ case, where can P sue B(s)?

A1) D can remove the case to Fed Ct in any civil action that would have been commenced in Fed Ct : (note only D has a right for the removal)

-          P’s complaints filed in the State Ct involves Fed Issue;

-          There exists DJ b/w P and Ds and controversy exceeds $75K;

A2) Removal must occur within 30 days from the Def’s receipt of the initial pleading and all Defs must sign the removal notice.

A3) Removal from the NY state Ct is NOT permitted if any one of Defs is a citizen of NY state.

A4) P can oppose to D’s removal:

Ø       based on the procedural matter

-          P must make a motion w/in 30days from D’s first filed notice of removal.

Ø       based on substantive matter (no DJ exists or no more than 75K case of controversy exists)

A5) P can sue D for DJ case in:

Ø       a district ct where a cause of action arose;

Ø       a district ct where ALL Ds reside;

Ø       Not a district court where P resides.

24

Will

Q1) An ink line drawn through A’s bequest…what will happen?

Q2) How about an ink line drawn through T’s signature?

Q3) Assuming there remains some amount after the distribution according to T’s will, how the remainders will be distributed?

A1) A partial revocation of the will cannot be done by drawing the ink line there through.  The will won’t be affected.

A2) An ink line drawn through a T’s signature can invoke the will.

A3) If there is no residuary clause in the will, the remainders are subject to intestacy distribution.

However, if there is a residuary clause in the will, then remainders will be distributed in accordance with the residuary clause.

25

Will

Q1) T delivered a deed of B.A. to A but T retained the possession of it until his death.  A recorded the deed and A died before (predeceased) T.  Thereafter, T executed a will stating that BA is to be given to B, who will receive BA?

A1) Although T retained the BA till his death, the gift of BA was made because AID elements all were met; (Intention + Acceptance + Delivery).  Thus, A is entitled to BA.

26

Will

Q1) Can a guardian (ad litem) for a son (minor child of T) contest a will provided there was a NCC (no contest clause) in the T’s will?

A1) A guardian of infant child (will beneficiary) can contest the will and such contest falls under the NCC exception (I FACED SIR), i.e., an infant can contest w/o violation of NCC.

27

Q1) Will 1 was validly executed; Will 2, however, was not validly executed due to a lack of 2 Witnesses; and Codicil was property executed with modifications of the terms in the Will 2.  What will happen?

Q2) Mother M of H (son) renounced her bequest 8 months after H’s death but in one week later, M revoked the renunciation.  What will happen to M’s bequest under H’s will?

A1) All the provisions in Will 2 will be disregarded.  However, the will bequest will be determined in light of Will 1 and Codicil.

A2) Once the will bequest was properly renounced ( i. renunciation is done within 9 months from the death; and ii. affidavit stating that no consideration is and will be given for the renunciation), then revocation of that proper renunciation is invalid.

28

Q1) H delivered a deed to Green Acre (value of $150K) to his adult son A in Feb 2004.

A died intestate in May 2004, survived by his wife G.

H died in July 2004.  Before his death, H executed a Will in Jan 2004:

(i) 100K to A;

(ii) 1/3 of H’s estate be transferred to T trust with income thereof payable to W, then upon W’s death, the principal be paid to S, H’s sister;

(iii) The reminder to B, H’s brother.

What are rights of W G, B, and S?

Q2) If judgment of separation was granted in favor of W, does this change the W’s inheritable property upon H’s death?

A1)

W can exercise her right of election against H’s net estate.

For calculation of H’s net estate, BRAG IT JP factors are all brought back first; thus an inter-vivo gift exceeding $10K will be brought back to the H’s estate.

Since A predeceased H, though after the execution of the H’s will, A’s bequest will not be given to his wife G because Anti-lapse statute does not apply.  If A had a child, then anti-lapse statute would have saved A’s bequest.

By exercising the right of election, W is deemed to forfeits the trust income, thus the principal of the trust goes directly to S upon W’s exercising the right of election.

Since A died intestate, all A’s estate goes to his surviving spouse G.  Thus BA goes to G, however, G owes the ratable share corresponding to W’s right of election (thus G may need to take out 1/3 of $150K mortgage on the property.

A2) In case, the surviving spouse was Def in the separation judgment and the judgment was against SS, then SS’s DIE rights will elapse (W-D proceeds, Intestate bequest, Right of Election), however, in this case the SS (W) was in favor of the Sep Judgment, thus W can exercise the right of election.

29

Q1) W executed a Will which contained:

(i) change the beneficiary of my insurance policy from S to H;

(ii) the money from my joint account with S goes to H;

(iii) the money held in “in trust for” H at 2^nd bank goes to S;

(iv) my jewelry shall be distributed by the executor in accordance with a letter which shall be found with this will;

(v) The residue of my estate goes to S;

What are H’s rights under the Will?

Q2) The real estate, which was bought by inheritance money of W, held in TE with H, what will happen to this real estate upon W’s death?

A1)

(i) Will cannot change the beneficiary of the insurance;

(ii) a joint banc held with S, upon death of W, goes directly to S by the right of survivorship by operation of law; thus it cannot be changed in the Will to go to H;

(iii) A Totten trust is terminated, thus this goes to S;

(iv) The will cannot allow an incorporation of reference unless the document to be incorporated was attested and thus instructions in the note are not valid, thus all instructions on the note will simply be ignored and thus jewelry all goes to S as deemed residue;

A2) How the real estate was purchased does not affect the will provision, but it only affects ED because SP is not subject to Equal Distribution upon divorce.

Here the property was held in TE with right of survivorship thus by operation of law, the property will pass to the surviving spouse, H.

30

Q1) T’s Will left his entire estate in trust with income to W (30 Ys old) for her life and upon her death the corpus (principal) to pass to T’s issue.

T’s net worth is about $3 Million. 

Can W reach the corpus of the trust created under T’s Will?

Q2) F, T’s father, was given a GPA (General Power of Appointment) from predeceased M, F drew a Will which directed that the corpus continued in trust with T and NY Trust Co as trustees; T receives the income for life, upon T’s death, NY Trust Co as sole trustee, and the principal to be distributed equally to T’s issue.

Did F validly exercise his power of appointment?

Q3) Can T serve as trustee?

A1) As of Sep 1994, a life income trust no longer satisfies a SS’s right of election.  The SS is entitled to $50K or 1/3 of the deceased spouse’s net estate, whichever is greater.

However, by electing to take the elective share in lieu of the trust income for life, this would accelerate the remainders interest in the trust.  Since W is 30 years old, she should consult with an accountant on whether she would receive more from a $3 Million trust or taking $1 Million outright.

A2) F, H’s father, validly exercised his Power of Appointment because his power of appointment was a general one.  Thus, there were no restrictions in naming appointees of the power.  GPA is presently exercisable during his life time or upon death in favor of F, his estate, his creditors or the creditors of his estate.

A3) In general, one person cannot be sole trustee and sole beneficiary because the legal and equitable interests merge and the trust fails.  However, one of two or more co-trustees may be a beneficiary of the trust.

Since NY Trust Co is a co-trustee, naming T (beneficiary) as co-trustee is proper.

31

Q1) H, trust settler, established the trust, naming Trust Co as a trustee,  his sons A & B as income beneficiaries without recitation of the revocability thereof.  Upon H’s business needs, H wanted to revoke the trust to invade the trust principal.

Can H invade the trust principal? 

Q2) After the series of disagreements, H & W voluntarily separated and duly executed and acknowledged a separation agreement (in 2003) which provides any rights to share in such estate which exists at the time of execution of this agreement or which may hereinafter arise by operation of law, including a right of election and the right to share in the other’s intestate estate.

H left a will, which was duly executed in 2002 (naming W as an executrix, giving W $100K out of net estate of $500K).

Can W serve as an executrix?

Can W exercise her right of election?

A1) An inter vivos trust is irrevocable unless the settler expressly reserves the right of revoke.  H did not reserve the power.  However, H could still revoke the trust if he could obtain the written and acknowledged consent of all the beneficiaries.  Here A and B are minors, though represented by George, they cannot give their consent to revocation.  Thus the trust is not revocable.

A2) The separation agreement does not affect the will bequest or service of executrix unless the agreement specifically renounce the will bequest or the service of executrix in writing.

Thus, W’s status as executrix and beneficiary under the will are intact.

However, W has no right to elect to take against the will since she waived in a signed and acknowledged writing in the separation agreement with respect to said right.

32

Q1)  P was among a tourist group escorted by a guide U in NYC.  P asked U to check her suitcase while P would be in the statute of liberty.  U said he would watch it.  However, when P returned, the suitcase was gone.

Can P sue U and/or his employer?

Q2) Under what theory can P sue U and his employer?

Q3) Assume that the suitcase contained $50K worth jewelry, does this change the legal analysis?

A1) This is a bailment K which is the delivery of possession from one person to another to be returned on demand.  The bailment is classified into 3 categories: (1) for the sole benefit of the bailor; (2) for the sole benefit of bailee; or (3) for mutual benefit.

The standard (duty) of care owed by bailee to bailor are (1) only liable for gross negligence; (2) liable for slight negligence; (3) liable for ordinary negligence.

Here, the bailment is for the mutual benefit for both parties.  Under the respondeat superior an employer is liable for acts of its employee undertaken at directions of the employee and for any acts which are reasonably deemed an ordinary and natural incident of the work, even if disregard of his employer’s instruction.  Thus, U could be found by a jury to have acted within the scope of his employment, for this reason, the employer is liable for U’s breach of duty (the bailment ‘K’).

A2) P can sue both U and Employer based on negligence or conversion theory.

A3) Since the acceptance of property is essential to form a bailment K, it is jury’s task to find out if U would have accepted the suitcase had he known that fact.

33

Q1) W & H married in NY and moved to NY and lived there till Jan 2001, because of W’s adultery while H was away for business trip, H left NY and moved to OH and thereafter W moved to Albany NY (Feb 2001).

In June 2001, W brought an action against H in Sup Court ( Albany ) for divorce based on ground of abandonment and support of $1K a month.

H, timely, moved to dismiss W’s complaint on the grounds (i) no IPJ over H; (ii) no subject matter jurisdiction; (iii) the complaint failed to state a cause of action.

How the court should decide H’s motion to dismiss?

Q2) In Jan 2004, W lives in Albany and H moved to Suffolk County in NY, then W filed a suit against H for support in court of Queens County where W’s lawyer has an office.

H served an answer with a demand to move the trial from Queen to Suffolk because Queen County is not a proper venue.  Is H’s motion granted?

A1)  Regarding IPJ over H, NY requires DADA elements:

Ø       D: NY was a recent marital domicile place for W&H;

Ø       A: Abandonment took place in NY;

Ø       D: Claim for support accrued under NY decree or under NY law;

Ø       A: Sep Agreement was executed in NY

Since none of the above elements is met, there is no IPJ over H.

For divorce action, mere existence of In rem jurisdiction is sufficient (thus W living in Albany gives a In rem jurisdiction because marital status is deemed “res”), however, duration requirements are not satisfied (TDOMAR).  Thus, in any event, divorce action is not decided in Albany court. 

For support (alimony), IPJ is required.

Regarding the subject matter jurisdiction, Sup Ct in Albany certainly has subject matter jurisdiction on all matrimonial cause of actions.

Regarding (iii), since (i) is to be granted, that is, IPJ cannot be established over H and thus W’s complaint is deemed to lack a cause of action.

A2) In general, any county in which one of the parties resides may be designated as the place of trial. 

Since neither H nor W resides in Queen County , the court is correct in granting H’s motion for a change of the place of trial.  H’s serving a written demand with his answer for an improper venue is proper.  If H hears nothing from W within 5 days after the service of H’s demand, then H can make a motion for a change of venue in Suffolk County .

34

Family

Law

& K

A1) SA was incorporated in Divorce Decree, which states H was to pay the premiums on a $50K life insurance policy on his life for Wife.

However, H let the policy elapsed by non-payment of the premiums and entered “k” for a new life ins. Policy for his GF (as a new benef.).

Can W enforce her $50K insu. Policy from GF?

A2) If GF leaves a will stating 1/2 of her estate should be distributed to F to establish her memory in a charitable institution, how can the executor of GF’s estate handle the distribution?

A1) W is entitled to receive the 50K insu. Policy because SP survives and the provisions of which are enforceable.  W already acquired a vested interest in the policy as it was established by the K between H (insured) and W (beneficiary).  Even if H had changed the beneficiary named in the policy, W’s vested interest would not have been destroyed and W has a claim to the proceeds.

NY court of appeals held that W could impress a CT (const. trust) on the proceeds of the second policy to the extent of $50K. 

TCUP elements are: (i) GF furnished no consideration to receive the proceeds and would be unjustly enriched; (ii) W surrendered her rights in exchange of H’s promise to maintain insurance; and (iii) H & W were in a fiduciary relationship.

A2) F will be treated as a trustee of the charitable trust created by GF’s will.  The trust created by a will was a valid charitable trust because GF had a capacity and intent to create a trust for charitable purposes and the trust res (corpus) existed.  Under NY law, a person may leave all or part of her estate in trust for charitable purposes. A surviving family member (except SS’s right of elections) has no statutory ground to contest the charitable disposition.

AG (Attorney General) has a duty to enforce the proper application of the trust funds if a valid charitable trust purpose is being thwarted. (frustrated; disturbed).

35

Q1) In the child custody action, a losing P (who was monetary poor) found a reliable article that shows the devastating effect on the child who was separated from the biological parent after the trial was completed.  Can this article be submitted to reopen the trial?

Q2) C paid money for a special bed at a shop D and told the shop owner to pick up tomorrow.  A power thunderstorm hit the area and damaged the special bed.  Can C recover damages from the shop D?

A1) A new trial based on the newly discovered evidence that was not earlier submitted during the trial and is material to the issue determined at the trial may be granted.  Here the article was published several years before the trial and could have been submitted at the commencement of the trial and the article was not material to the issue determined at the trial. 

Because the trial was in error with or without this article.  The custody issue was between the biological parent and the foster family so the standard to decide the custody is MA & PA (mental sickness; abandonment; permanent neglect, and Abuse), here the biological parent P was just a financially poor but was willing to maintain the custody over his child. 

n        Note between the biological parents, the standard is FLIPDADS (financial, Life style, how Initial custody began, Desire of a Child, Availability, arrangement, & Sexual orientation, and siblings not separated).

A2) Under UCC 2-509(3), merchant has control of the good contained in the place of business and therefore the merchant is expected to insure the good.  C could recover damages from D because the risk of loss remained on the shop D until C could take delivery of the good at D’s place of business.

36

Q1) How does W who has inherited some from W’s parent prove to obtain a temporary maintenance before the court ruling on divorce?

Q2) Can H counterclaim against W for retroactive modification of support payment to W who began cohabiting with another male M?

Q3) Can H terminate the maintenance payment to W?

A1) W needs to show that despite her inheritance and any other resources she was unable to maintain the standard of living established by the parties during the marriage or provide for her reasonable needs.

A2) If there was a substantial change in financial situation either to W or H, then the court may grant the retroactive modification of the support payment.  Here, W began in quasi-marital relation with M so the court may grant the retroactive modification of the support.

Note, however, the child support payment cannot be modified retroactively due to the W’s cohabitation even W had held herself out as M’s wife.  For the modification of the child support, it requires to prove unexpected and unpredictable change in the financial circumstance, almost impossible standard of proof.

A3) H, however, cannot terminate the maintenance payment because W had not hold herself out as M’s wife.  For the termination of the maintenance, H needs to show (i) W cohabit with another M, and (ii) W holds herself out as M’s wife.

37

Q1) H humiliated W in front of others at many occasions.  W wanted to divorce him and file an action based on cruel and inhuman treatment.  W and H have married for 3 years.

Can she prevail?

Q2) H has been having affair with X and W obtained the circumferential evidence.  H did not raise defense against it.

Q3) H requested a jury trial for the divorce issue and equitable distribution issue.  Can J get a jury for the issues?

Q4) The court decided the issue of ED in favor of W because H’s adultery lasted over years.  Is the court reasoning and decision correct?

Q5) The court awarded 50-50 ED to each of W&H.  The court also awarded 100% of the marital residence that was inherited by H from his mother by will to W. Were the court decisions correct?

A1) Unless H’s act harmed W’s physical or emotional well-being, she cannot prevail the action over H.  W’s physical or mental health must be endangered for W’s to win divorce based on H’s cruel and inhuman treatment.  Even though the marriage is deemed short, thus the lesser degree of harshness (severality) of H’s action would qualify as inhuman treatment, it still requires more than the humiliations in front of others.

A2) W can win the divorce action based on H’s adultery if W’s proof meets a clear and convincing standard.  H could have defended himself based on CRAP; condonation (forgiveness), recrimination, SL = 5 Ys; or procurement by W, but H did not defend so W is likely the winner of the divorce action.

A3) H can get a jury trial for the divorce issue but cannot get a jury trial for an equitable distribution.  H has no rights of jury for the issue of equitable distribution.

A4) For determination of the equitable distribution, the court will not take into account the fault of the parties except the fault is deemed the most egregious.  H’s act of adultery having been continued over years does not rise to the level of “egregious”.  Thus, the court was wrong to increase the W’s appropriation of ED based on H’s adultery.

A5) “ED” does NOT mean “Equal Division”.  The court will take into account the following elements for determination of ED:  PAID SEAT (Property owned by each spouse; Age & Health, Duration of marriage, Marital STD of living, Earning capacity of spouse, Any other factors, and Tax consequences). 

In addition, Separate Property is NOT subject to ED but a marital property is subject to ED.  Here the marital house inherited by H from his mother by will is considered a separate property thus it is not subject to ED unless the property value was increased by the other spouse’s effort.  If the value appreciation was caused by W’s effort, then the increased value is subject to ED.

38A

Q1) L gave N (17 Ys) a check of $250 as BD present.  N went to O to buy goods and gave the check and endorsed the check “to the order of O/signed N.  O, no knowledge of N being a miner, brought it to B-bank and deposited it. 

B bank dishonored the check on the ground L died. E was appointed as an executor of L’s estate. B bank notified E of its intention to dishonor the check.

What are the rights and obligations of B bank?

Q2) Is N’s endorsement effective to transfer the check though she was a minor?

A1) B bank may dishonor the check because the bank has actual knowledge of L’s death (however, the bank may also pay the check w/in 10 days following L’s death if the bank does not receive notice from one with an interest in the account to stop payment.

Since B bank notified E of its intention to dishonor the check, B bank can simply wait to hear from E as to how the check to be treated.

A2) N’s transfer is effective, however, N is not secondary liable to O on the NI as N can rely on the defense (DAFFIDIL: infancy) against O, if O insisted.  – The defense of infancy is a “real defense” effective even against a HDC.  – The drawer L remains liable and must pay the amount of the check upon presentment, dishonor, and notice of dishonor by B-bank.

E, as an executor of L’s estate, may either order B bank to pay the NI or to withhold payment.  However, L intended the check to be paid, there is no reason for E to take any action other than to notify the ban to honor the check.

38B

L (NY driver) with P (passenger: state X) collided with S’s car (S: NY) in state X.

L died and P got injured.  And

P sued both L’s estate and S for negligence. – L and S were only negligent not grossly negligent.

State X = guest statute;

Which law to be applied?

A1) Since P (state X) does not share the same domiciles with L and S (NY state) and the accident occurred in the state X, under Gov Interest Rule, state X has more significant interest so for a substantive tort law, the state X’s law will apply.

For a loss allocation rule, under Nuemier rule, since P does not share the same domicile with Def, however, P’s domicile = where the accident occurred, so the state X’s guest statute will apply.  Thus, P’s recovery would be denied because both L and S were not grossly negligent (but merely negligent).

39

Q1) How can P enforce a sister state judgment of monetary damages against D (NY domicile) who owns a real property in Nassau county in NY?

Q2) P (passenger of D’s car) and D (driver) at all times NY residents got traffic accident on the streets (intersection) in State X.  P got injured and brought an action against D in the NY Supreme Court, Nassau County to recover damages for his injuries.

D was not grossly negligent.

D’s answer pleaded as an affirmative defense, that P’s action was barred by the guest statute of State X.

Can P move to dismiss D’s affirmative defense?

Q3) Then, D duly cross-moved for judgment dismissing P’s complaint on the ground of forum non-convenience based on the reason mentioned in D’s affidavit that D now spends 8 months a year going to law school in the State X.  Does the court grant D’s cross-motion?

A1) Once it is found out that the sister state had IPJ over D (NY domicile), then NY court must honor the sister state judgment under full faith and credit clause in US Constitution. 

Under CPLR Art 54, P may enforce the sister state judgment by filing it in the office of any county clerk in NY. Before filing, the judgment must be authenticated in the sister state and the filing must take place within 90 days from the authentication.  – An affidavit must also state that the judgment has not been fully satisfied.  Once filed, the judgment becomes, for enforcement purpose, the equivalent of one rendered by the NY Sup Court and thus P would be entitled to levy execution against D’s real property in Nassau County by filing a notice of levy (sashi-osae*) in the Nassau County Clerk.

* attachment (One of PR) = FIND CJ grounds (J = default judgment)

In addition, P may file a motion for SJ in lieu of complaint under CPLR 3213.

A2) Under Government interest analysis, the laws of the jurisdiction that has most significant interest apply for the substantive tort issue.  Here, both P and D are NY residents and the D’s car is registered in NY thus despite the fact that the accident occurred in state X, NY laws apply.

For a loss allocation rule, under Nuemier rule, the NY law applies because P and D share the same domicile (NY).  NY does not adapt the guest statute, thus P can recover from D for the damages.

A3) The application of the doc, of forum non-convenience, the court will take into consideration, justice, fairness, convenience, and burden of the court.  Here, X’s convenience and X’s witnesses (state X residences) may suffer inconvenience going to NY, however, P would be seriously inconvenienced if P could not have tried at the Sup Ct in NY state.

It may be possible that the court exercises its discretion to grant the D’s cross-motion based on forum non-convenience under the condition that D does not rely on the guest statute because it would seriously jeopardize P’s recovery.

40

Conflict

Of Laws

Q1) In a wrongful death action, commenced by NY P’s estate arising out of an auto accident in Alabama, driven by NY Def, which law does NY Sup Court apply?

Q2) To whom the damages recovered from W-D action goes?

Q3) Who is entitled to the damages for pain and suffering occurring before P’s death?

A1) Under Governmental Interest Analysis, (conflicting laws, underlying policies, applying the factual matters to the underlying policies), in light of the fact that P & D share the same domicile, P’s estates are also NY domiciles, NY law will apply.

As to loss allocation, under Nuemier, since P & D share the same domicile, NY laws will apply thus NY wrongful death laws will apply.

A2) W-D proceeds do NOT go to P’s estate, but go directly to P’s (decedent’s) beneficiaries (usually P’s dependents; wife, kids).

A3) Pain & Suffering damages go to P’s estate and will be subject to P’s creditors.