BarBri - NY Exam - July 2014 Forum

[thetashster]

How are you all studying for NY Practice? I just did the NYMC questions on it (I know they were assigned a long time ago) and wanted to throw the book across the room. I did horribly. The lecture was entirely too long and still left out a huge chunk of material that is covered in the CMR. I am at a total loss for how to learn this. (And also pissed off because I'm going into transactional work).

I looked at study smart and learned the basics and most tested/obvious S/L and procedures. Way too much detail to give a fuck about it. It looks like its rarely ever a huge issue that makes up most of an essay--usually it's only tangentially part of a question that you can miss and still get the majority and substantive part of a question right anyway (and most of the time it's a summary judgment/motion to dismiss/or obvious S/L trigger (like medical malpractice, tort, UCC, etc.), and I'll just allot them to my 30-35/50 (or even 40-45 (lol) out of 50 if you do very strongly on the MBE) MC questions we can basically miss on NY exam if we do reasonably well on the MBE. Gladly surrendering points to MC questions that ask about random filing requirements, arcane procedural points, and arbitrary S/L because no1curr.

i would know the basics for long arm jurisdiction, SOL for negligence/strict liability/med mal/govt-muni/summary judgment (this comes up a lot in the essays if you go through them/ contribution and jointseveral liability (also comes up in other subjects)/ and injunctions as it comes up in contracts torts and here.

i feel like those things overlap the most with the highly tested stuff in other areas.

EDIT: but what the hell? i could be talking out of my butthole. if we all just write LOL on essay we could all pass with the curve.

[anon919]

Schechter OWNS. Wish this guy did the Wills lecture. Too many quotables from today's DR lecture.

[waytoplant]

Does anyone know where the MPQ2 questions are? I only have one book of MPQ. Are the MPQ2 ones the ones that are online in the "Practice Questions" section?

[StillNDC]

Does anyone know if the "practice questions" questions (the ones marked practice questions, not included in the books and just in the practice questions link on the barbri website) are included in studysmart?

I think they are, but I wanted to know if anyone knew this for sure! Thanks!

[turquoiseturtle]

Does anyone know if the "practice questions" questions (the ones marked practice questions, not included in the books and just in the practice questions link on the barbri website) are included in studysmart?

I think they are, but I wanted to know if anyone knew this for sure! Thanks!

I haven't been doing any of them in study smart. Do you mean if you go into the study mode and just do random sets of questions? I feel like that would really drastically start to change my % of questions answered right in each subject and my percent because I find the mixed sets of questions much much easier than the question sets in the MPQ books.

Why do they only get us the "goal" number for the mixed sets? Why can't they give us percentile for that too? It would be SO easy to do.

[peanut123]

I'm embarrassed to ask this but what is the "standard" for a motion to dismiss? SmartBarPrep lists that as a bolded item, but neither CMR nor the lecture handout has a standard the way they do for motions for summary judgment. The materials have the affirmative defenses that can be raised in a motion to dismiss, but no mention of a single standard. I also looked up the statute and didn't see anything general. Does SmartBarPrep just mean the affirmative defenses that can be raised? ("DOWNFALL"?)

[thetashster]

I'm embarrassed to ask this but what is the "standard" for a motion to dismiss? SmartBarPrep lists that as a bolded item, but neither CMR nor the lecture handout has a standard the way they do for motions for summary judgment. The materials have the affirmative defenses that can be raised in a motion to dismiss, but no mention of a single standard. I also looked up the statute and didn't see anything general. Does SmartBarPrep just mean the affirmative defenses that can be raised? ("DOWNFALL"?)

i think i remember in the lecture that when we talked about motion to dismiss it was mostly for SMJ/PJ and failure to state a cause of action. does that sound right?

i read through the smartbarprep thing too, and that's what i thought it referred to.

[Guchster]

I'm embarrassed to ask this but what is the "standard" for a motion to dismiss? SmartBarPrep lists that as a bolded item, but neither CMR nor the lecture handout has a standard the way they do for motions for summary judgment. The materials have the affirmative defenses that can be raised in a motion to dismiss, but no mention of a single standard. I also looked up the statute and didn't see anything general. Does SmartBarPrep just mean the affirmative defenses that can be raised? ("DOWNFALL"?)

i think i remember in the lecture that when we talked about motion to dismiss it was mostly for SMJ/PJ and failure to state a cause of action. does that sound right?

i read through the smartbarprep thing too, and that's what i thought it referred to.

Yeah this looks right. I think the standard depends on which grounds you're looking to dismiss on (i.e., SJM/PJ/no legal capacity to sue/another action pending etc.). But in all cases you look at the facts in a light more favorable to a non moving party, and if the pleadings fail to state a cause of action (or any other of the motion to dismiss grounds are present), relief will be granted.

Based on looking at some of the essay, it usually comes in the form of "failure to state a cause of action) as warm up Q usually to getting to the heart of meaty substantive law where your'e going to have to go through each element to see if it exists (i.e., motion to dismiss on an action for a tort or contract claim)--to see if all elements are there or if one is missing. If one is missing then obviously there is no cause of action and a motion to dismiss will be granted.

In terms of a standard, it looks like a P may rest on their allegations (and aren't required to afford admissible evidence (like affidavits) that evidence a genuine issue of material fact like in a SJ motion).

[thetashster]

This will definitely be a stupid question... but I haven't taken contracts in 5 years so I'm hopelessly lost.

Can somebody PLEASE help me understand novation, delegation, and assignments and the differences between them? I just got owned on set 6 of contracts questions and none of the explanations makes sense.

[Scarletlady]

This will definitely be a stupid question... but I haven't taken contracts in 5 years so I'm hopelessly lost.

Can somebody PLEASE help me understand novation, delegation, and assignments and the differences between them? I just got owned on set 6 of contracts questions and none of the explanations makes sense.

Take this with a grain of salt, but this is my understanding of how they work:

Think of novation as a substitution of a party to a contract. For me, this is most easily understood in the corps context, where, for example a promoter enters into a K on behalf of the corporation with a 3rd party. The promoter remains personally liable on that K until the corporation is substituted, which is done via novation. A valid novation must be based on an existing valid contract, the agreement must be between all parties to that contract plus the new party (parties) to the new contract, the agreement must also extinguish the duties between the original contracting parties, and the agreement must be a new and valid contract. (Contracts CMR 56, 81 and Corps CMR 2)

And assignment occurs when two parties make a valid contract, then later on, one party transfers all his rights to another. My understanding is that you can assign pretty much any of the rights and obligations under a K (right to payment, duty to perform, etc), so long as the contract language does not void them ("assignments under the K are void") or it doesn't substantially change the duties of the obligor (like the assignment of a requirements K, where the volume increases substantially as a result of the assignment to a 3rd party). I would recommend revisiting the lecture notes on this, Sokolow did a whole series of examples with Batman. I can't read an assignment Q without thinking of Batman at this point.

Delegation occurs when one party promises to perform, then delegates their duty to another. Like an assignment, you can pretty much delegate anything, with a few exceptions. (ex. You are Picasso, you can't delegate the duty to paint a portrait to someone else). Delegation does not extinguish the first party's duty to perform. The obligee (the one receiving the performance) is a third-party beneficiary of the delegation. Compare this to an assignment, which extinguished privty of contract between the original contracting parties.

[AJS30]

Um, I took NY Practice last fall, so I remember most of the SOL rules. But, it literally just took me over 4 hours to go through the lecture notes and I couldn't even read the last few pages because it was making me so tired. I kind of hate that people say this is a minimal competency test because as of now I'm starting to think I lack any competency.

[thetashster]

Um, I took NY Practice last fall, so I remember most of the SOL rules. But, it literally just took me over 4 hours to go through the lecture notes and I couldn't even read the last few pages because it was making me so tired. I kind of hate that people say this is a minimal competency test because as of now I'm starting to think I lack any competency.

Here's how I think of NYP

You wanna sue?
Can you sue me or my company?
Can you sue me or my company here?
Go ahead n serve
Did you serve on time?
I'm gonna tell the court to tell you to eff off b/c you suck or there's no case or both
Can you take my stuff in the mean time?
Can I sue somebody for you suing me?

But basically I imagine this whole scenario between Tony and Carmela Soprano, a lotta jersey accents, and a lot of hand gestures.

[pizzasodafries]

Um, I took NY Practice last fall, so I remember most of the SOL rules. But, it literally just took me over 4 hours to go through the lecture notes and I couldn't even read the last few pages because it was making me so tired. I kind of hate that people say this is a minimal competency test because as of now I'm starting to think I lack any competency.

Here's how I think of NYP

You wanna sue?
Can you sue me or my company?
Can you sue me or my company here?
Go ahead n serve
Did you serve on time?
I'm gonna tell the court to tell you to eff off b/c you suck or there's no case or both
Can you take my stuff in the mean time?
Can I sue somebody for you suing me?

But basically I imagine this whole scenario between Tony and Carmela Soprano, a lotta jersey accents, and a lot of hand gestures.

Here is how I think of NY Practice....

zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

[Guchster]

Hi guys. Question on Answer 36 NYT Essay that was assigned today.

I know the S/L for contracts under the UCC Art. 2 is normally 4 years that begins to accrue upon tender of delivery. And I know there is an exception for express warranties that extend to future performance (where the cause of action accrues when the breach is discovered).

In the question, tender of delivery happened in 06/1998 but there was an express warranty for the goods for 3 years. A breach was discovered on 03/2001.

The model answer says that the S/L began to run on 06/1998, but I don't understand. There was an express warranty, so shouldn't it have begun to run on 03/2011?

HALP

[belowthelaw57]

Schechter OWNS. Wish this guy did the Wills lecture. Too many quotables from today's DR lecture.

I think while entertaining he has a stunningly good ability to tell us not to worry about something only to have that material come up in essays we're assigned. And to entirely skip over a topic that appears in an essay that we have no idea how to answer.

[turquoiseturtle]

Hi guys. Question on Answer 36 NYT Essay that was assigned today.

I know the S/L for contracts under the UCC Art. 2 is normally 4 years that begins to accrue upon tender of delivery. And I know there is an exception for express warranties that extend to future performance (where the cause of action accrues when the breach is discovered).

In the question, tender of delivery happened in 06/1998 but there was an express warranty for the goods for 3 years. A breach was discovered on 03/2001.

The model answer says that the S/L began to run on 06/1998, but I don't understand. There was an express warranty, so shouldn't it have begun to run on 03/2011?

HALP

I am confused by this too.

Usually, the S/L is for four years, and starts running as soon as delivery because breach of the warranty happens as soon as tender happens. So there are two ways I could think of reading a 3 year express warranty. Either (1) the 3 year warranty is more like a "3 years to discover the breach rule" and the S/L is still four years (i.e. if you discover the breach of warranty at the end of the third year, you still have the fourth to bring an action)? Or (2) the 3 year warranty just changes the S/L to 3 years. I read it as more like (1) than (2), but in either circumstance the breach still happens when there is tender, because on tender is when the actual breaching goods were handed over.

[Guchster]

Hi guys. Question on Answer 36 NYT Essay that was assigned today.

I know the S/L for contracts under the UCC Art. 2 is normally 4 years that begins to accrue upon tender of delivery. And I know there is an exception for express warranties that extend to future performance (where the cause of action accrues when the breach is discovered).

In the question, tender of delivery happened in 06/1998 but there was an express warranty for the goods for 3 years. A breach was discovered on 03/2001.

The model answer says that the S/L began to run on 06/1998, but I don't understand. There was an express warranty, so shouldn't it have begun to run on 03/2011?

HALP

I am confused by this too.

Usually, the S/L is for four years, and starts running as soon as delivery because breach of the warranty happens as soon as tender happens. So there are two ways I could think of reading a 3 year express warranty. Either (1) the 3 year warranty is more like a "3 years to discover the breach rule" and the S/L is still four years (i.e. if you discover the breach of warranty at the end of the third year, you still have the fourth to bring an action)? Or (2) the 3 year warranty just changes the S/L to 3 years. I read it as more like (1) than (2), but in either circumstance the breach still happens when there is tender, because on tender is when the actual breaching goods were handed over.

The S/L is always 4 years under Art. 2 (UCC 2-725). The only thing that changes is the event that triggers accrual--either tender of delivery (normally) or breach of warranty if one exists for future performance.

I don't understand why the latter (breach of warranty) didn't apply to this question.

[peanut123]

re essay 36 - email Barbri. I've found they're good about getting back with answers fairly quickly. Most of the time the answers are helpful. On occasion they just seem to be copying and pasting from the CMR. But worth a shot.

[turquoiseturtle]

Hi guys. Question on Answer 36 NYT Essay that was assigned today.

I know the S/L for contracts under the UCC Art. 2 is normally 4 years that begins to accrue upon tender of delivery. And I know there is an exception for express warranties that extend to future performance (where the cause of action accrues when the breach is discovered).

In the question, tender of delivery happened in 06/1998 but there was an express warranty for the goods for 3 years. A breach was discovered on 03/2001.

The model answer says that the S/L began to run on 06/1998, but I don't understand. There was an express warranty, so shouldn't it have begun to run on 03/2011?

HALP

I am confused by this too.

Usually, the S/L is for four years, and starts running as soon as delivery because breach of the warranty happens as soon as tender happens. So there are two ways I could think of reading a 3 year express warranty. Either (1) the 3 year warranty is more like a "3 years to discover the breach rule" and the S/L is still four years (i.e. if you discover the breach of warranty at the end of the third year, you still have the fourth to bring an action)? Or (2) the 3 year warranty just changes the S/L to 3 years. I read it as more like (1) than (2), but in either circumstance the breach still happens when there is tender, because on tender is when the actual breaching goods were handed over.

The S/L is always 4 years under Art. 2 (UCC 2-725). The only thing that changes is the event that triggers accrual--either tender of delivery (normally) or breach of warranty if one exists for future performance.

I don't understand why the latter (breach of warranty) didn't apply to this question.

The rest of 2-725 though says "and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered."

So I think that breach of warranty accruing at a time other than tender would be a very specific warranty/breach. I think the must await language is the important part. In this case, there is no reason that the breach couldn't have been discovered immediately. Bob could've seen instantly there wasn't any lead lining if he'd checked. I can't think of a good example off the top of my head where it would have to wait though?

Edit: Maybe an example. I buy tires. Express warranty that three years from now the tread on the tires will not have decreased by any more than 10%. That would have to wait until three years had actually passed to determine whether there was a breach.

[peanut123]

Hi guys. Question on Answer 36 NYT Essay that was assigned today.

I know the S/L for contracts under the UCC Art. 2 is normally 4 years that begins to accrue upon tender of delivery. And I know there is an exception for express warranties that extend to future performance (where the cause of action accrues when the breach is discovered).

In the question, tender of delivery happened in 06/1998 but there was an express warranty for the goods for 3 years. A breach was discovered on 03/2001.

The model answer says that the S/L began to run on 06/1998, but I don't understand. There was an express warranty, so shouldn't it have begun to run on 03/2011?

HALP

I am confused by this too.

Usually, the S/L is for four years, and starts running as soon as delivery because breach of the warranty happens as soon as tender happens. So there are two ways I could think of reading a 3 year express warranty. Either (1) the 3 year warranty is more like a "3 years to discover the breach rule" and the S/L is still four years (i.e. if you discover the breach of warranty at the end of the third year, you still have the fourth to bring an action)? Or (2) the 3 year warranty just changes the S/L to 3 years. I read it as more like (1) than (2), but in either circumstance the breach still happens when there is tender, because on tender is when the actual breaching goods were handed over.

The S/L is always 4 years under Art. 2 (UCC 2-725). The only thing that changes is the event that triggers accrual--either tender of delivery (normally) or breach of warranty if one exists for future performance.

I don't understand why the latter (breach of warranty) didn't apply to this question.

The rest of 2-725 though says "and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered."

So I think that breach of warranty accruing at a time other than tender would be a very specific warranty/breach. I think the must await language is the important part. In this case, there is no reason that the breach couldn't have been discovered immediately. Bob could've seen instantly there wasn't any lead lining if he'd checked. I can't think of a good example off the top of my head where it would have to wait though?

Edit: Maybe an example. I buy tires. Express warranty that three years from now the tread on the tires will not have decreased by any more than 10%. That would have to wait until three years had actually passed to determine whether there was a breach.

I think this is exactly right. I'm going back to my notes from my Article 2 class but it was very theory-based and highly nuanced and I can't find a good example of such a warranty. I think, maybe, an easy example might be an express warranty to change the oil for free every year, and the seller refuses to do it on the first year you go in?

But now I have a question...why does the answer say "The claim is based upon a breach of an express warranty, but it is only for four years." The warranty is for three years, according to the facts. Right? And the parties can reduce the SoL period by agreement? So wouldn't it be three years?

[turquoiseturtle]

But now I have a question...why does the answer say "The claim is based upon a breach of an express warranty, but it is only for four years." The warranty is for three years, according to the facts. Right? And the parties can reduce the SoL period by agreement? So wouldn't it be three years?

No, that's what Guchster was saying, the S/L under the UCC is always four years. Basically the express warranty was "against leakage for three years." So if it leaked at any time during the three years, you could sue, and you had four years from the tender to sue. But the S/L started running on tender and not when the leak occurring because the express warranty was a result of the lead lining to prevent leaks, which wasn't there, and could have been discovered immediately. You didn't have to await the leak to discover the breach (or alternatively you could think about this as the fact that as soon as the window was installed it could have leaked, there was no specific reason why you had to await to determine breach).

So, as mentioned in my first comment, I think that if windows had leaked between years 3 and 4, Bob could not have sued. Because the express warranty was that they wouldn't leak during a 3 year period, even though the breach wasn't the leaking but the actual tender.

That's just my reading though, I could be way off.

[AJS30]

There are from the superior candidate answers:

3) The issue is whether the statute of limitations has expired such that the action is not timely.
The general rule is that a warranty of merchantability will be good for four years. A warranty of merchantability is on behalf of a merchant who deals in goods of the kind who warrants that the goods will be fit for their ordinary purpose. A warranty of fitness for a particular purpose, however, warrants that the goods will be fit for the specific purpose to which the buyer is putting the goods.
In this case, however, the contract had an express warranty against leakage for three years. Despite the fact that there was an express warranty for only three years, it must be noted that in this case John had specific knowledge of what use Bob was going to have for the windows. John knew that Bob wanted hand-made stained glass windows for his home that were to have a special lead lining to prevent leakage. For this reason, the statute of limitations on the warranty of fitness for a particular purpose has not yet run. The statute of limitations would begin to run from the time that Bob learned of the defect which was in March 2001. Bob brought suit in January 2005 which was within the four year period.
Thus, summary judgment dismissing the claim on statute of limitations grounds would be improper



3) At issue is whether Bob’s claims against John and Hand-Crafted Windows are timely.
Under the CPLR, the statute of limitations for a breach of warranty claim is four years from the date of sale. The sale contract between Bob and John was executed in January 1998, and Bob commenced his suit against John in January 2005 (seven years later). Thus, the breach of warranty claim against John is not timely.
The statute of limitations for a breach of contract claim is six years from the date of breach. John and Bob had a valid contract with an express warranty against leakage for three years. Bob discovered the leakage problem within the three year period, measured from the date of installation and he requested that John repair the windows. John refused, thereby breaching his contract with Bob. Bob thus timely filed his claim for breach of contract on January 2005.
The claim for breach of contract is similarly timely against Hand-Crafted Windows because it adopted the contract between Bob and John with the same terms agreed to by them. Thus it was similarly liable under the same statute of limitations period.

[AJS30]

Schechter OWNS. Wish this guy did the Wills lecture. Too many quotables from today's DR lecture.

I think while entertaining he has a stunningly good ability to tell us not to worry about something only to have that material come up in essays we're assigned. And to entirely skip over a topic that appears in an essay that we have no idea how to answer.

I'm glad I wasn't the only one thinking that. All I have to say is that this thing is 12 days away and these were the essay issues we get, I think I'd have to walk out and come back in Feb.

[Stringer6]

Hi guys. Question on Answer 36 NYT Essay that was assigned today.

I know the S/L for contracts under the UCC Art. 2 is normally 4 years that begins to accrue upon tender of delivery. And I know there is an exception for express warranties that extend to future performance (where the cause of action accrues when the breach is discovered).

In the question, tender of delivery happened in 06/1998 but there was an express warranty for the goods for 3 years. A breach was discovered on 03/2001.

The model answer says that the S/L began to run on 06/1998, but I don't understand. There was an express warranty, so shouldn't it have begun to run on 03/2011?

HALP

Was that S/L in the ny practice lecture?

Edit: yes it was

[Stringer6]

Schechter OWNS. Wish this guy did the Wills lecture. Too many quotables from today's DR lecture.

I think while entertaining he has a stunningly good ability to tell us not to worry about something only to have that material come up in essays we're assigned. And to entirely skip over a topic that appears in an essay that we have no idea how to answer.

I'm glad I wasn't the only one thinking that. All I have to say is that this thing is 12 days away and these were the essay issues we get, I think I'd have to walk out and come back in Feb.

I felt the same way after today's essays

That adoption revocation rule...