NY July 2015 Support Group

errmsg
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Re: NY July 2015 Support Group

Postby errmsg » Fri Jul 24, 2015 8:34 pm

Is it just me or is Crim the hardest subject to prepare for in terms of the essay portion? Just seems like there is so much material to choose from...

Maybe they'll be topical and do something related to police conduct...

freestallion
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Re: NY July 2015 Support Group

Postby freestallion » Fri Jul 24, 2015 8:40 pm

orangecup wrote:^ I'm not sure I would've spotted that issue either, but I think that's absolutely correct. The last paragraph is illuminating since it discusses the injuries Peter sustained, none of which are "serious" under the No Fault statute to allow him to circumvent it (not death, dismemberment, severe disfigurement, or inability to do material acts of daily life for 3+ months).


Well, the no-fault insurance policy won't cover people who are intoxicated while driving. It also won't cover a fleeing felon, drag racers, etc. So he wouldn't be able to go to his insurance company is my understanding.

orangecup
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Re: NY July 2015 Support Group

Postby orangecup » Fri Jul 24, 2015 8:41 pm

freestallion wrote:
orangecup wrote:^ I'm not sure I would've spotted that issue either, but I think that's absolutely correct. The last paragraph is illuminating since it discusses the injuries Peter sustained, none of which are "serious" under the No Fault statute to allow him to circumvent it (not death, dismemberment, severe disfigurement, or inability to do material acts of daily life for 3+ months).


Well, the no-fault insurance policy won't cover people who are intoxicated while driving. It also won't cover a fleeing felon, drag racers, etc. So he wouldn't be able to go to his insurance company is my understanding.


Oh really? Dumb nuances that I never learned. Whatever, spot that it's no-fault, write the general rule and you'll still rack up some points.

xlawschoolhopefulx
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Re: NY July 2015 Support Group

Postby xlawschoolhopefulx » Fri Jul 24, 2015 8:57 pm

orangecup wrote:
freestallion wrote:
orangecup wrote:^ I'm not sure I would've spotted that issue either, but I think that's absolutely correct. The last paragraph is illuminating since it discusses the injuries Peter sustained, none of which are "serious" under the No Fault statute to allow him to circumvent it (not death, dismemberment, severe disfigurement, or inability to do material acts of daily life for 3+ months).


Well, the no-fault insurance policy won't cover people who are intoxicated while driving. It also won't cover a fleeing felon, drag racers, etc. So he wouldn't be able to go to his insurance company is my understanding.


Oh really? Dumb nuances that I never learned. Whatever, spot that it's no-fault, write the general rule and you'll still rack up some points.


Yea, my first thought is he can't collect under no-fault because he was drunk.

My second thought is that even if he hadn't been drunk, his fracture would be serious under the no-fault statute, no?

orangecup
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Re: NY July 2015 Support Group

Postby orangecup » Fri Jul 24, 2015 8:59 pm

xlawschoolhopefulx wrote:
orangecup wrote:
freestallion wrote:
orangecup wrote:^ I'm not sure I would've spotted that issue either, but I think that's absolutely correct. The last paragraph is illuminating since it discusses the injuries Peter sustained, none of which are "serious" under the No Fault statute to allow him to circumvent it (not death, dismemberment, severe disfigurement, or inability to do material acts of daily life for 3+ months).


Well, the no-fault insurance policy won't cover people who are intoxicated while driving. It also won't cover a fleeing felon, drag racers, etc. So he wouldn't be able to go to his insurance company is my understanding.


Oh really? Dumb nuances that I never learned. Whatever, spot that it's no-fault, write the general rule and you'll still rack up some points.


Yea, my first thought is he can't collect under no-fault because he was drunk.

My second thought is that even if he hadn't been drunk, his fracture would be serious under the no-fault statute, no?


I actually just looked at the Kaplan model answer.

His intoxication didn't contribute to the injury, so that's actually an irrelevant fact. He would be able to recover for the fracture outside of the no-fault statute, you're correct.

freestallion
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Re: NY July 2015 Support Group

Postby freestallion » Fri Jul 24, 2015 9:01 pm

orangecup wrote:
xlawschoolhopefulx wrote:
orangecup wrote:
freestallion wrote:
orangecup wrote:^ I'm not sure I would've spotted that issue either, but I think that's absolutely correct. The last paragraph is illuminating since it discusses the injuries Peter sustained, none of which are "serious" under the No Fault statute to allow him to circumvent it (not death, dismemberment, severe disfigurement, or inability to do material acts of daily life for 3+ months).


Well, the no-fault insurance policy won't cover people who are intoxicated while driving. It also won't cover a fleeing felon, drag racers, etc. So he wouldn't be able to go to his insurance company is my understanding.


Oh really? Dumb nuances that I never learned. Whatever, spot that it's no-fault, write the general rule and you'll still rack up some points.


Yea, my first thought is he can't collect under no-fault because he was drunk.

My second thought is that even if he hadn't been drunk, his fracture would be serious under the no-fault statute, no?


I actually just looked at the Kaplan model answer.

His intoxication didn't contribute to the injury, so that's actually an irrelevant fact. He would be able to recover for the fracture outside of the no-fault statute, you're correct.


Ah OK, so the intoxication or whatever has to contribute to the injury. That's helpful to know, thank you!

jamesm722
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Re: NY July 2015 Support Group

Postby jamesm722 » Fri Jul 24, 2015 9:03 pm

orangecup wrote:
freestallion wrote:
orangecup wrote:^ I'm not sure I would've spotted that issue either, but I think that's absolutely correct. The last paragraph is illuminating since it discusses the injuries Peter sustained, none of which are "serious" under the No Fault statute to allow him to circumvent it (not death, dismemberment, severe disfigurement, or inability to do material acts of daily life for 3+ months).


Well, the no-fault insurance policy won't cover people who are intoxicated while driving. It also won't cover a fleeing felon, drag racers, etc. So he wouldn't be able to go to his insurance company is my understanding.


Oh really? Dumb nuances that I never learned. Whatever, spot that it's no-fault, write the general rule and you'll still rack up some points.


Insurance doesn't have to pay no-fault benefits to person's injured by:

1. Fleeing from a lawful arrest
2. Injured person who intentionally causes the accident
3. Intoxicated operator, but the intoxication must be causally connected (if they're not the one who crosses the lane they're fine)
4. Operating/occupying stolen vehicles
5. Motorcycles, but pedestrians hit by motorcycles are
6. Drag racing

You can still recover for these. No-fault just means that fault doesn't have to be determined in order to pay out the first $50,000 to each party. Intoxication can be a red-herring.

myrtlewinston
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Re: NY July 2015 Support Group

Postby myrtlewinston » Fri Jul 24, 2015 9:06 pm

Confused7 wrote:
bluewin888 wrote:Does new york require 2 of 3 or 3 of 3? any link to actually New York code? thanks

Part performance in real estate contracts requires 2 of 3 things:
Some payment
Buyer makes permanent improvements.
Buyer is in possession of the property.


2/3, though I think it's "substantial improvements" and not "permanent improvements."


3/3. NYGOL

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sd5289
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Re: NY July 2015 Support Group

Postby sd5289 » Fri Jul 24, 2015 9:09 pm

freestallion wrote:
orangecup wrote:
xlawschoolhopefulx wrote:
orangecup wrote:
freestallion wrote:
orangecup wrote:^ I'm not sure I would've spotted that issue either, but I think that's absolutely correct. The last paragraph is illuminating since it discusses the injuries Peter sustained, none of which are "serious" under the No Fault statute to allow him to circumvent it (not death, dismemberment, severe disfigurement, or inability to do material acts of daily life for 3+ months).


Well, the no-fault insurance policy won't cover people who are intoxicated while driving. It also won't cover a fleeing felon, drag racers, etc. So he wouldn't be able to go to his insurance company is my understanding.


Oh really? Dumb nuances that I never learned. Whatever, spot that it's no-fault, write the general rule and you'll still rack up some points.


Yea, my first thought is he can't collect under no-fault because he was drunk.

My second thought is that even if he hadn't been drunk, his fracture would be serious under the no-fault statute, no?


I actually just looked at the Kaplan model answer.

His intoxication didn't contribute to the injury, so that's actually an irrelevant fact. He would be able to recover for the fracture outside of the no-fault statute, you're correct.


Ah OK, so the intoxication or whatever has to contribute to the injury. That's helpful to know, thank you!


For what it's worth, the intoxication part went to a different question later on (whether he could be prosecuted for DWI, which required knowing that a BAC above 0.08 was over the legal limit) Answer was yes.

And yes, the fracture is what enabled him to sue outside of the no fault statute. I just didn't see the no fault statute at all because the fact pattern never mentioned it. I now know better.

As for the comparative negligence, I went into how driving drunk is certainly negligence, but that causation was missing because his being drunk wasn't what caused the accident (had, in fact, been stopped at a red traffic light like he was supposed to be doing). Even if the court could somehow find that some part of his negligence in being drunk was a causal factor, in a pure comparative negligence state all that does is decrease his damages. Also that rear-ending someone in NY is a prima facie case of negligence that the D had to rebut, which would be hard cause he told the cop that he took his eyes of the road to mess with his stereo.

orangecup
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Re: NY July 2015 Support Group

Postby orangecup » Fri Jul 24, 2015 9:13 pm

sd5289 wrote:For what it's worth, the intoxication part went to a different question later on (whether he could be prosecuted for DWI, which required knowing that a BAC above 0.08 was over the legal limit) Answer was yes.

And yes, the fracture is what enabled him to sue outside of the no fault statute. I just didn't see the no fault statute at all because the fact pattern never mentioned it. I now know better.

As for the comparative negligence, I went into how driving drunk is certainly negligence, but that causation was missing because his being drunk wasn't what caused the accident (had, in fact, been stopped at a red traffic light like he was supposed to be doing). Even if the court could somehow find that some part of his negligence in being drunk was a causal factor, in a pure comparative negligence state all that does is decrease his damages. Also that rear-ending someone in NY is a prima facie case of negligence that the D had to rebut, which would be hard cause he told the cop that he took his eyes of the road to mess with his stereo.


When I quickly did that problem in my head, I made up a rule (assumed .10 was the correct limit), and said that a chemical test was conclusive proof so therefore he could be properly prosecuted. Guess that worked out (not 100%, but close enough) :lol:

Confused7
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Re: NY July 2015 Support Group

Postby Confused7 » Fri Jul 24, 2015 9:22 pm

myrtlewinston wrote:
Confused7 wrote:
bluewin888 wrote:Does new york require 2 of 3 or 3 of 3? any link to actually New York code? thanks

Part performance in real estate contracts requires 2 of 3 things:
Some payment
Buyer makes permanent improvements.
Buyer is in possession of the property.


2/3, though I think it's "substantial improvements" and not "permanent improvements."


3/3. NYGOL


Can you link me? I'm taking Themis and the only thing I see is 2/3 though maybe I'm looking in the wrong place.

orangecup
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Re: NY July 2015 Support Group

Postby orangecup » Fri Jul 24, 2015 9:26 pm

Confused7 wrote:Can you link me? I'm taking Themis and the only thing I see is 2/3 though maybe I'm looking in the wrong place.


I thought it was 2/3 as well (taking Kaplan), just like the MBE rule. Neither the short OL nor the long OL note any distinctions for me

myrtlewinston
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Re: NY July 2015 Support Group

Postby myrtlewinston » Fri Jul 24, 2015 9:35 pm

I don't have a link. I learnt it in a tutoring session with a Leonard Lakin (for what it's worth, he used to do a Barbri review course and used to write NY Essay questions).

xlawschoolhopefulx
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Re: NY July 2015 Support Group

Postby xlawschoolhopefulx » Fri Jul 24, 2015 9:58 pm

myrtlewinston wrote:I don't have a link. I learnt it in a tutoring session with a Leonard Lakin (for what it's worth, he used to do a Barbri review course and used to write NY Essay questions).


I want to believe you, but my notes from Barbri also say 2/3. So we have themis, kaplan, and barbri say 2/3 and your tutor saying 3. Sadly google is failing me now. Anyone want to break the tie?

starryski
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Re: NY July 2015 Support Group

Postby starryski » Fri Jul 24, 2015 10:20 pm

..
Last edited by starryski on Sun Jul 26, 2015 11:19 pm, edited 3 times in total.

victortsoi
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Re: NY July 2015 Support Group

Postby victortsoi » Fri Jul 24, 2015 10:20 pm

xlawschoolhopefulx wrote:
myrtlewinston wrote:I don't have a link. I learnt it in a tutoring session with a Leonard Lakin (for what it's worth, he used to do a Barbri review course and used to write NY Essay questions).


I want to believe you, but my notes from Barbri also say 2/3. So we have themis, kaplan, and barbri say 2/3 and your tutor saying 3. Sadly google is failing me now. Anyone want to break the tie?



im looking over my smartbar outline, and it also says 2 out of 3. Everything I've heard says 2 out of 3. The only new york difference in SoF that I've noticed is that it doenst recognize main purpose exception to a surety.

myrtlewinston
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Re: NY July 2015 Support Group

Postby myrtlewinston » Fri Jul 24, 2015 10:54 pm

starryski wrote:
xlawschoolhopefulx wrote:
myrtlewinston wrote:I don't have a link. I learnt it in a tutoring session with a Leonard Lakin (for what it's worth, he used to do a Barbri review course and used to write NY Essay questions).


I want to believe you, but my notes from Barbri also say 2/3. So we have themis, kaplan, and barbri say 2/3 and your tutor saying 3. Sadly google is failing me now. Anyone want to break the tie?


straight from Pieper's NY-multistate dsitinctions section of the NY book

"New York: requires a much stronger showing of PIP (payment of purchase price, valuable improvements, and possession) performance without resort to oral testimony, "unequivocally" refers to a realty k to purchase. in NY it is almost impossible to prove an oral k by part performance.

MBE: payment and possession or payment and improvements are sufficient to take an oral k out of the SOF requirement."


That sounds like a 3/3. Let's compromise: 2.5/3! Or someone could just check the NYGOL.

HLBE689
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Re: NY July 2015 Support Group

Postby HLBE689 » Fri Jul 24, 2015 11:17 pm

myrtlewinston wrote:
starryski wrote:
xlawschoolhopefulx wrote:
myrtlewinston wrote:I don't have a link. I learnt it in a tutoring session with a Leonard Lakin (for what it's worth, he used to do a Barbri review course and used to write NY Essay questions).


I want to believe you, but my notes from Barbri also say 2/3. So we have themis, kaplan, and barbri say 2/3 and your tutor saying 3. Sadly google is failing me now. Anyone want to break the tie?


straight from Pieper's NY-multistate dsitinctions section of the NY book

"New York: requires a much stronger showing of PIP (payment of purchase price, valuable improvements, and possession) performance without resort to oral testimony, "unequivocally" refers to a realty k to purchase. in NY it is almost impossible to prove an oral k by part performance.

MBE: payment and possession or payment and improvements are sufficient to take an oral k out of the SOF requirement."


That sounds like a 3/3. Let's compromise: 2.5/3! Or someone could just check the NYGOL.



NYGOL 5-703(4) Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.

So basically - there is no hard and fast 2/3, 3/3, w/e - a court of equity can just do what it wants lol

throwawayusername93
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Re: NY July 2015 Support Group

Postby throwawayusername93 » Fri Jul 24, 2015 11:35 pm

HLBE689 wrote:
myrtlewinston wrote:
starryski wrote:
xlawschoolhopefulx wrote:
myrtlewinston wrote:I don't have a link. I learnt it in a tutoring session with a Leonard Lakin (for what it's worth, he used to do a Barbri review course and used to write NY Essay questions).


I want to believe you, but my notes from Barbri also say 2/3. So we have themis, kaplan, and barbri say 2/3 and your tutor saying 3. Sadly google is failing me now. Anyone want to break the tie?


straight from Pieper's NY-multistate dsitinctions section of the NY book

"New York: requires a much stronger showing of PIP (payment of purchase price, valuable improvements, and possession) performance without resort to oral testimony, "unequivocally" refers to a realty k to purchase. in NY it is almost impossible to prove an oral k by part performance.

MBE: payment and possession or payment and improvements are sufficient to take an oral k out of the SOF requirement."


That sounds like a 3/3. Let's compromise: 2.5/3! Or someone could just check the NYGOL.



NYGOL 5-703(4) Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.

So basically - there is no hard and fast 2/3, 3/3, w/e - a court of equity can just do what it wants lol


and the cases at equity appear to focus much more on whether the acts of part performance are "unequivocally referable" to the oral contract than on whether they are 2 or 3 out of a set of 3 (that is, whether the payments or improvements are being made because there's a contract to sell the house, or for some other reason like to appease a family member). LexisNexis annotations on 5-703 are extensive but unhelpful in figuring out the 2/3 vs. 3/3 problem.

stronitsing
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Re: NY July 2015 Support Group

Postby stronitsing » Fri Jul 24, 2015 11:40 pm

throwawayusername93 wrote:
HLBE689 wrote:
myrtlewinston wrote:
starryski wrote:
xlawschoolhopefulx wrote:
myrtlewinston wrote:I don't have a link. I learnt it in a tutoring session with a Leonard Lakin (for what it's worth, he used to do a Barbri review course and used to write NY Essay questions).


I want to believe you, but my notes from Barbri also say 2/3. So we have themis, kaplan, and barbri say 2/3 and your tutor saying 3. Sadly google is failing me now. Anyone want to break the tie?


straight from Pieper's NY-multistate dsitinctions section of the NY book

"New York: requires a much stronger showing of PIP (payment of purchase price, valuable improvements, and possession) performance without resort to oral testimony, "unequivocally" refers to a realty k to purchase. in NY it is almost impossible to prove an oral k by part performance.

MBE: payment and possession or payment and improvements are sufficient to take an oral k out of the SOF requirement."


That sounds like a 3/3. Let's compromise: 2.5/3! Or someone could just check the NYGOL.



NYGOL 5-703(4) Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.

So basically - there is no hard and fast 2/3, 3/3, w/e - a court of equity can just do what it wants lol


and the cases at equity appear to focus much more on whether the acts of part performance are "unequivocally referable" to the oral contract than on whether they are 2 or 3 out of a set of 3 (that is, whether the payments or improvements are being made because there's a contract to sell the house, or for some other reason like to appease a family member). LexisNexis annotations on 5-703 are extensive but unhelpful in figuring out the 2/3 vs. 3/3 problem.



Gilgoff v. Maldonado, 8 Misc. 3d 1016(A) (1st Dept. 2005):

"While "other acts, such as possession or improvements, when combined with the payment of rent, may be sufficient" to establish part performance, Club Chain v. Gourmet, Ltd, 74 A.D.2d 277, 283, 427 N.Y.S.2d 627 (1st Dept. 1980), courts have recognized possession or improvements of the premises as constituting partial performance only where the acts involved were extraordinary or otherwise inexplicable." (references rent, but it's a sale of land case)

myrtlewinston
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Re: NY July 2015 Support Group

Postby myrtlewinston » Fri Jul 24, 2015 11:52 pm

Do we state that "the cases indicate that 3/3 are required, but do not establish a bright-line rule"?

stronitsing
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Re: NY July 2015 Support Group

Postby stronitsing » Fri Jul 24, 2015 11:56 pm

myrtlewinston wrote:Do we state that "the cases indicate that 3/3 are required, but do not establish a bright-line rule"?


I read that as only requiring 2/3. But given that it seems to be the brightest line that exists right now, I can't see it coming up. Who knows though

throwawayusername93
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Re: NY July 2015 Support Group

Postby throwawayusername93 » Sat Jul 25, 2015 12:23 am

stronitsing wrote:Gilgoff v. Maldonado, 8 Misc. 3d 1016(A) (1st Dept. 2005):

"While "other acts, such as possession or improvements, when combined with the payment of rent, may be sufficient" to establish part performance, Club Chain v. Gourmet, Ltd, 74 A.D.2d 277, 283, 427 N.Y.S.2d 627 (1st Dept. 1980), courts have recognized possession or improvements of the premises as constituting partial performance only where the acts involved were extraordinary or otherwise inexplicable." (references rent, but it's a sale of land case)


Honestly if that "or" means "or" then the implication to me is that 1/3 could be enough under the right (extraordinary) circumstances. Based on the other notes, I read extraordinary as there's no way to explain the possession or the improvements at all other than as evidencing the contract for the sale of the real property. I'm gonna go with stating the 2/3 rule if it comes up though.

toplawnerd
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Re: NY July 2015 Support Group

Postby toplawnerd » Sat Jul 25, 2015 1:11 pm

Question about statute of limitations for claims against the State of New York:

- Claims against a municipality have a 1 year, 90 day SOL. Also necessary to file a notice of claim.
- Is there a special rule for the State of New York? Other than the fact that State of New York claims are filed in the Court of Claims, what other requirements are there?

I've looked through my Barbri notes and the CMR and can't find anything, but I could easily just be overlooking it.

Thanks

xlawschoolhopefulx
Posts: 108
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Re: NY July 2015 Support Group

Postby xlawschoolhopefulx » Sat Jul 25, 2015 1:20 pm

toplawnerd wrote:Question about statute of limitations for claims against the State of New York:

- Claims against a municipality have a 1 year, 90 day SOL. Also necessary to file a notice of claim.
- Is there a special rule for the State of New York? Other than the fact that State of New York claims are filed in the Court of Claims, what other requirements are there?

I've looked through my Barbri notes and the CMR and can't find anything, but I could easily just be overlooking it.

Thanks


Um. The only thing I can think of is immunity. Not looking at my notes, but the gist of what I have remembered is that NY has waived immunity for functions that could be performed by private entities but continue to be performed by the state, but retains immunity for purely state functions.

ETA: that is obviously not about SOL, this was just the only thing I could think of relating to claims against the state.




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