«New York State Bar Examination Essay Questions QUESTION 1 Bob and Ann were married in 2000 in State X. In 2001, the couple moved to New York, and Bob ...»
New York State
Bob and Ann were married in 2000 in State X. In 2001, the couple moved to New
York, and Bob started as an associate with Law Firm.
On May 30, 2008, Bob and Ann separated. Prior to separating, the couple
executed a properly acknowledged separation agreement which stated that they would
now live separate and apart. In June 2008, the agreement was duly filed in the county
clerk’s office of the county where they then resided. Bob has continued to live in New York, where they had lived for over seven years. In July 2008, Ann moved to State Y, where she continues to reside. One evening in January 2009, Bob and Ann happened to encounter one another and engaged in sexual relations. They have had no other contact since their separation.
In July 2009, Bob filed for divorce against Ann in New York. The summons and complaint pled the foregoing relevant facts and were duly personally served on Ann in State Y. In defending the action, Ann has (a) contested jurisdiction because of the residence of the parties and (b) claimed that Bob failed to comply with the parties’ separation agreement, because he and Ann had sexual relations in January of that year.
Upon becoming a partner in Law Firm on January 1, 2010, Bob signed a partnership agreement which required him to pay a $30,000 capital contribution to the partnership to become a member of the firm. He subsequently learned that Creditor, a former client, had obtained a $500,000 final judgment against the firm in July 2009 on a malpractice claim with which Bob was not involved. Law Firm used Bob’s partnership capital contribution money to help partially satisfy the judgment. Creditor now seeks to recover directly from Bob personally on the unsatisfied portion of the judgment.
After Ann moved out of the couple’s New York home, Bob purchased a new bedroom set from Magic Circle Furniture Store. Pursuant to a retail credit installment agreement, Magic Circle extended Bob $6,000 in credit to enable him to purchase the bedroom set. Magic Circle did not file a financing statement. After paying $1,000 toward the furniture, Bob defaulted on his payments.
1. Will Bob be successful in his action for divorce?
2. (a) Did Law Firm properly use Bob’s partnership capital contribution to partially satisfy the malpractice judgment against the firm?
(b) Assuming the partnership agreement is silent on the issue, can Creditor recover from Bob individually for any unpaid portion of the malpractice judgment?
3. Does Magic Circle have an enforceable security interest in the bedroom set?
QUESTION 2 In January 2009, Tina retained Lawyer to draft a will. Tina was 90 years old, unmarried and had no children. Tina directed Lawyer to draft a will which named Fran
as executor and included the following provisions:
In March, Tina arrived at Lawyer’s office to execute the will. Lawyer asked his secretary, Sara, and Jack, a plumber who was in the office fixing the sink, to act as witnesses. Under Lawyer’s supervision, Tina read the will and told everyone it was exactly what she wanted. Tina signed the will, which was witnessed by Sara and Jack.
In April, Ana died, survived only by her daughter, Jen.
Blackacre was encumbered by a mortgage and note held by Lender. Tina contracted a serious illness, and as a result, fell behind in her mortgage payments. In June, Lender duly commenced a foreclosure action against Tina, and Lawyer timely served an answer on her behalf. In July, Lender served and filed a motion for summary judgment, but before the motion was heard, Tina died. On the return date of Lender’s motion, Lawyer signed a stipulation of settlement prepared by Lender stating that Tina owed Lender $250,000 and would pay Lender that amount.
At the time of her death, Tina’s estate consisted solely of Blackacre valued at $500,000, $75,000 in Tina’s Brokerage account, and $50,000 in a bank account. Fran promptly offered Tina’s will for probate, and Brother filed objections, claiming that Tina had lacked testamentary capacity when the will was executed, thus rendering the will inadmissible to probate.
At the probate proceeding, Jack the plumber testified that he was a subscribing witness and that he observed Tina before she signed her will. Fran’s attorney asked Jack whether, in his opinion, Tina was mentally competent when she executed the will.
Brother objected on the ground that Jack was not an expert qualified to give opinion testimony. The court overruled the objection and allowed Jack to testify that in his opinion Tina was mentally competent when she executed her will. At the conclusion of the proceeding, the court admitted the will to probate and issued letters testamentary to Fran as executor of Tina’s estate.
1. Was the court’s ruling permitting Jack to testify correct?
2. What effect, if any, did Tina’s death have on Lender’s foreclosure action including the stipulation?
3. What, if anything, will Jen, Niece, and Brother receive under Tina’s will?
QUESTION 3 Dan bought a dog for his child, Son, age ten. The dog was a large pedigree, bred as a guard dog. The dog has always been docile and well-behaved at home, but has occasionally displayed defensive and aggressive behavior to strangers on the street.
Every afternoon, Dan and Son walked the dog through their neighborhood streets. Thea, Dan’s next door neighbor, often complained to Dan when Dan walked the dog because Dan let Son hold the leash, and at times the dog got away from Son who was not strong enough to hold the leash. Thea was afraid that the dog would injure her five year old niece, Child. Thea felt like a second mother to her niece for whom she baby sat in her home five days a week.
One year ago, while Dan and Son were walking the dog in front of Thea’s house, the dog broke loose from Son and tried to bite Child. Dan was able to grab the leash and restrain the dog. After the incident, Dan apologized and assured Thea, “This will never happen again.” Six months ago, while Dan and Son were walking the dog in front of Thea's house, Son was holding the leash and was again unable to control the dog, which broke free.
The dog ran towards Thea and Child who were walking hand in hand. The dog attacked Child and, despite Thea’s best efforts to protect her niece, Child was seriously injured.
The dog made no contact with Thea. Immediately after the attack, Thea sought psychiatric counseling for depression and anxiety due to witnessing the attack on Child, and she has been continuously treated and on medication since the attack on Child.
Thea duly commenced an action against Dan for negligent infliction of emotional distress seeking to recover for her emotional injuries. Dan has moved to dismiss Thea’s complaint on the grounds that she did not sustain physical injuries and lacked standing to assert a claim.
Mom, Child’s mother, duly commenced an action on Child’s behalf against Dan seeking to recover for Child’s personal injuries and to obtain a permanent injunction forbidding Dan from walking the dog in front of Thea's house without proper restraint.
The complaint sets forth the above pertinent facts and alleges that Dan is liable for Child’s injuries on the ground of strict liability in tort.
During the past two weeks, Mom observed Dan walking the dog in front of Thea's house, with Son holding the leash. Yesterday, Mom moved on notice to Dan for a preliminary injunction. The motion asks the court to enjoin Dan from walking the dog in front of Thea's house without proper restraint.
QUESTION 4 In 1990, the owner of a parcel of land in Albany County subdivided it into two residential lots, ServAcre, which had frontage on a pond, and DomAcre, which had no such frontage. Al purchased DomAcre, and Bob purchased ServAcre. Al’s deed contained a grant of an easement over ServAcre for purposes of launching a boat on the pond, and Bob’s deed was expressly subject to that easement. Both deeds were duly recorded. Al used the easement several times every summer.
In 1995, Al conveyed DomAcre to Cal, who also purchased ServAcre from Bob the next year. In 2001, Cal sold DomAcre to Dan. In 2002, Cal sold ServAcre to Ed.
The deeds to Dan and Ed were duly recorded, and although both deeds contained the language, “Together with the appurtenances and all of the estate and right of the Grantor in and to said premises,” neither contained any mention of the easement. Nevertheless, Dan crossed ServAcre to launch a boat several times each summer, without objection from Cal or Ed, until 2008 when Dan sold his boat.
Two months ago, Ed orally agreed to pay Broker, a real estate broker licensed in New York, a commission of 5% of the sale price if Broker located a purchaser for ServAcre. They did not discuss whether or not a closing was required for the commission to be earned.
Broker located Buyer, who entered into a written contract with Ed to purchase ServAcre. The contract contained all terms essential for a real property sales contract but was silent regarding the quality of title to be conveyed and did not state whether or not the conveyance would be subject to any easement or restrictions.
After the contract was signed, while Buyer was inspecting ServAcre, Dan approached Buyer, introduced himself, and informed Buyer that Dan had just purchased a boat and that, although for two summers he had not used the easement over ServAcre, he again planned to use it. When Buyer said he was unaware of any easement, Dan replied that both the language of his and the prior deeds, as well as his prior use, created his right which he would enforce in court if necessary.
Buyer then contacted Broker and Ed, advising them that he was cancelling the purchase contract based on the title being unmarketable because of Dan’s claim of an easement.
QUESTION 5 Smith owns 10% of the common shares of Omega, Inc., a closely held corporation. Baker and Jones each own 45% of Omega’s common shares. Baker and Jones also serve on Omega’s board of directors and are paid corporate officers.
Omega has not paid a dividend on its common shares for several years. Smith, who is not an officer of the corporation and has never received a salary from the corporation, is very unhappy that no dividends are being paid.
When Smith complained to Baker and Jones about nonpayment of dividends, they said that while Omega could legally pay dividends, it has not done so in order to retain the corporation’s earnings for expansion of the business. They also pointed to data showing that Omega’s business has expanded considerably in the past several years, financed entirely through undistributed earnings, and told Smith that he should “go away and let us run the show.” Smith complained that “only you are enjoying the fruits of Omega’s success.” In response to an inquiry from Smith, Baker and Jones refused to reveal the amounts of their salaries, even though those salaries are within industry range.
Baker and Jones each offered to purchase all of Smith’s shares for $35 per share.
Smith suspects that the shares are worth more than $35 per share. Smith has asked to inspect Omega’s corporate books and records in order to determine the value of his shares, but Jones and Baker have refused to give Smith access to any corporate records.
Smith has asked your law firm the following questions:
1. Does Smith have a right to inspect Omega’s corporate books and records to determine whether $35 per share is a fair price for his shares? Explain.
2. If Smith brings a suit to compel the payment of a dividend, must Smith first make a demand on the corporation? Explain.
3. If Smith brings a suit to compel the payment of a dividend, is that suit likely to be successful? Explain.
QUESTION MPTState of Franklin v. McLain The client, Brian McLain, has been charged with violating various sections of the Franklin Criminal Code dealing with methamphetamine, a controlled substance. The charges are based on evidence seized from McLain after police stopped him for investigatory purposes, acting on an anonymous tip that an individual matching McLain’s description had been seen purchasing items at a convenience store that, while entirely legal, are known ingredients of methamphetamine production. The officers searched his car, finding the goods described in the tip, together with a small plastic bag containing what appeared to be a marijuana cigarette. McLain was arrested and booked. After questioning, McLain directed the police to a “meth lab” where they found chemicals and equipment used to manufacture methamphetamine, as well as the drug itself. McLain was charged with possession of methamphetamine with intent to distribute, possession of laboratory equipment and supplies with the intent to manufacture methamphetamine, and manufacture of methamphetamine. He has moved to suppress all evidence seized by police on grounds that the officer lacked reasonable suspicion to stop him. He has also moved to dismiss the possession of equipment with the intent to manufacture methamphetamine charge on the ground that it is a lesser-included offense of manufacture of methamphetamine.
Applicants’ task is to draft the arguments in support of both motions. The File consists of a memorandum from the supervising attorney describing the assignment, guidelines for drafting persuasive briefs, the criminal complaint, the motion to suppress evidence and to dismiss Count 2, the transcript of the anonymous call to the crime hotline, and an excerpt of the transcript of the evidentiary hearing. The Library contains the relevant Franklin statutes and three cases—two relating to investigatory stops, and one dealing with lesser-included offenses.
February 2010 New York State Bar Examination Sample Essay Answers