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«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 ...»

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In this case, the courts will need to consider the potential non-quantifiable harm to niece if the injunction is not granted and weigh that against the harm to Dan and his dog if the injunction is granted. The injunction seeks to prevent Dan from continuing to walk his dog outside the home of niece. It is unlikely that Dan will suffer a great loss if he is forced to find a different route to walk his dog. The harm to niece could be substantial, evidently the dog is keen on attacking niece as he has attempted to attack her on two occasions. Further, niece may be suffering psychological harm as a result of the last attack and this harm is not repairable through damages. It is likely that when the court balances the equities, the court is likely to consider the preliminary injunction while the pending case is finalized.

ANSWER TO QUESTION 3

1. The issue is whether Thea has stated a valid cause of action for negligent infliction of emotional distress All people are under a duty not to cause emotional distress to foreseeable plaintiffs. Under New York Law, a valid claim of negligent infliction of emotional distress (NIED) may arise under two separate circumstances. The first is a breach of a duty of care which comes dangerously close to directly causing an injury to the plaintiff.

Under that claim the plaintiff must show the defendant owed a duty, breached that duty there was actual and proximate causation and as a result, the plaintiff manifested a physical injury because of their emotional distress. Under such a claim the plaintiff must show that they themselves were the party almost injured by the negligent act.

Here, under the first form of NIED, the plaintiff, Thea, must show that Dan owed her a duty of care and that he breached that duty. This may be demonstrated because Dan owed all foreseeable plaintiffs a duty not to cause them emotional distress. Furthermore, Thea may show he breached this by allowing his dog to almost attack her. Additionally, Thea can show that this was the cause in fact of her injuries by showing, but for Dan walking his dog by her house, she would not have sustained any injury. Furthermore, she can show this was the proximate cause because his dog getting free from his son's hand was foreseeable. Thea's problem will be in showing the appropriate damages required for NIED. Under NIED, Thea must show that she suffered a serious physical manifestation of the injuries. Because Thea only suffered depression and anxiety as a result of the attack, she will not be able to show the physical manifestation required under the first form of NIED. Therefore, a claim arising for NIED alleged by Thea for her "near attack" will not be sustained.

However, New York does recognize a "bystander" claim of NIED. Under the bystander claim of NIED, the elements are the same as above, except it requires showing the plaintiff witnessed the attack upon a close family relative and suffered severe emotional distress as a result. Under the common law, a plaintiff under a "bystander" NIED claim need only show they were in proximity to the injury of a close relative and watched in happen in real time. New York does not recognize this standard. New York requires the plaintiff bystander also be in the immediate zone of danger. Because it is clear that Dan breached his duty, and there was causation and emotional damages, a bystander NIED claim should be established, for a close family member. Here, Thea is the Aunt of the victim. Although Thea has an extremely close relationship with Child, a niece-aunt relationship is not sufficient to make a NIED bystander claim in New York.

Because the relationship between the bystander-plaintiff was not "close," Thea will not be able to sustain a bystander NIED claim against Dan.

Therefore, the court should rule to dismiss Thea's claim for negligent infliction of emotional distress against Dan.

2. The issue is whether Dan may be held liable for strict liability A plaintiff may make a claim of Strict liability in tort under three may circumstances. Strict products liability, ultra hazardous activity, and wild or vicious animals. Generally strict liability for animals is reserved for "wild animals," however, if an owner is aware that his animal's breed is vicious, or the specific animal has demonstrated a vicious propensity, he may be held strictly liable.

Here, Mom suing Dan on behalf of Child will need to show that Dan owed a strict duty of care, that he breached it and that the breach was the cause of the sustained damages. Here, it appears that Dan's dog was bred as a guard dog, which itself is not dispositive. A guard dog may not be inherently vicious. However, it appears that Dan and his family noticed on many occasions the dog was defensive and aggressive.

Because Dan recognized that his dog was vicious or had vicious propensities, he should be strictly liable for the damages and injuries caused by his dog.

One issue that is not entirely clear is whether or not Dan himself was negligent at the moment the dog pulled from the son. New York does not recognize claims based upon the "negligent supervision of a parent." Here however, Dan does not appear to be "negligently supervising" the son. He is walking with the son and the dog together and should be directly liable to Mom.

Therefore, Dan should be held liable in Mom's negligence action on behalf of Child.





3. The issue is whether Mom may obtain a preliminary injunction forbidding Dan to Walk the Dog in front of Thea's house Under New York Law, a preliminary injunction is a form of equitable relief which may be granted in New York Supreme Court. A party seeking a preliminary injunction must show the likelihood of success on their underlying action (here the permanent injunction), and they must show that without obtaining the preliminary injunction they are likely to sustain immediate and irreparable harm. Furthermore, because a preliminary injunction is equitable in nature, the party seeking it may be required to show they are not guilty of laches, unclean hands, and have no adequate remedy at law. Additionally, for Mom's permanent injunction, the court will look to ensure the enforceability of the injunction and will seek to balance the equities involved Here, Mom will be required to show that she is likely to succeed in her underlying action against Dan. Additionally, Mom will need to show that absent obtaining the preliminary injunction, during the pendency of her permanent injunction claim, she is likely to suffer irreparable harm. First, Mom will likely be able to show she has a meritorious underlying claim for her preliminary injunction. Additionally, she can show that absent this preliminary injunction, Dan will continue to walk his dog past her house and continually endanger her and her loved ones. It also appears that Mom is moving on notice for her preliminary injunction immediately after Dan walked past her house with the son walking the dog. She did this rapidly and will not be found guilty of laches.

There also does not appear to be any grounds for finding her guilty of unclean hands.

Lastly, money damages will not be sufficient to protect her child. Only equitable relief will stop Dan from allowing the dog to be walked past her house.

Therefore, the court should grant Mom's motion for preliminary injunction.

It should be noted that a preliminary injunction is a provisional remedy and Mom may be required to post a bond to indemnify Dan from any losses caused by the injunction.

ANSWER TO QUESTION 4

1. The first issue is whether an easement may be automatically revived after its termination by operation of law.

In New York, if the dominant and servient parcels of land are purchased by the same owner, the parcels are thereby merged and by operation of law the easement that the dominant tenement had over the servient estate is terminated.

In New York, once an easement has been terminated by a merger of the dominant and servient lands, it is not automatically revived if the parcels are subsequently conveyed to different individual buyers or if the owner conveys one parcel to another person without mention of the easement in the new deed.

A dominant tenement is the parcel of land that is benefitted by the easement and the servient tenement is the parcel of land that is burdened by the easement. An affirmative easement appurtenant involves two parcels of land and can be created by express grant, by prescription, by implication or by necessity. An easement by grant is an easement expressly created by the grantor and expressly stated in the deed to the dominant and servient parcels pursuant to whatever lawful terms the grantor may determine.

In this case, the original owner of the land subdivided his land into a dominant tenement (DomAcre) and servient tenement (ServAcre) in 1990 in which the deed to the dominant parcel contained a grant of an easement over the servient land and the deed to the servient land stated that the land was expressly subject to that easement. Thus, the owner of DomAcre was given an easement by grant.

However, in this case, DomAcre and ServeAcre were eventually conveyed to the same person; the dominant parcel in 2001 and the servient parcel in 2002. Therefore, in 2002, the easement by grant was terminated by operation of law due to the merger of the two parcels. When that person subsequently redivided the parcels the language of the deed said "together with the appurtenances and all of the estate and right of the Grantor in and to said premises." However, at the time of the conveyance, the grantor did not have the right to any easement because he owned both parcels and therefore when he transferred the two parcels pursuant to "all of the estate and rights of the grantor" he was not conveying a right to an easement. Furthermore, neither deed contained any mention of the easement.

In this case, the owner of the DomAcre ended up using the terminated easement for a number of years without complaint. However, simply because he used ServAcre without objection by the owner of ServAcre does not entitle him to the revival of the easement that was terminated by the merger of 2002.

Therefore, although the party seeking to enforce the original 1990 easement used ServAcre to get his boat into the pond, he has no right to enforce the 1990 easement declared in the first deed because there was no subsequent revival of the easement.

2. The second issue is whether a potential subsequent purchaser of the servient tenement cancels a contract to purchase the servient parcel based on failure to convey marketable title based on the possible existence of an easement before the court determines whether an easement exists.

In New York, a contract for the sale of land includes an implied warranty of marketable title and the buyer of land has an implied right to cancel a contract for sale if the seller cannot convey marketable title at the closing despite a contract being silent on the issue of quality of title. An easement is a claim to land that would impede a seller's ability to convey marketable title and would entitle a buyer to cancel a contract to purchase the land burdened by the easement.

An easement by necessity is an easement that is created in the servient tenement because the dominant tenement is landlocked and has no reasonable access to a way in and out of the property. An easement by implication is an easement that is created not because the dominant tenement is landlocked but because it assists the dominant tenement in some way other than access. An easement by implication does not arise because an owner of a parcel not on the water wants to be on the water and therefore decides he will create a roadway to access the water through another person's property.

An easement by prescription arises when the owner of a parcel openly, hostily and continuously uses a portion of another's adjacent land.

In New York, a buyer has the duty to inspect the land and a duty to inspect the record for any notice of mortgages, liens, encumbrances or any other claim to the property that would impede the seller's conveyance of marketable title. A buyer has a duty to act as a reasonable buyer and make reasonable inspections.

A seller has a duty to convey marketable title at the closing. If a seller cannot convey such title, the buyer has the right to cancel the contract and sue the seller for damages, if any. On the other hand, if the seller conveys marketable title and yet the buyer refuses to go through with the closing, the seller has the right to sue the buyer for specific performance.

In this case, the seller and buyer entered into a written contract for the sale of the servient parcel. While the buyer was inspecting the premises he spoke with the owner of the dominant parcel who informed buyer that although he had not used the "easement" to access the pond for his boat for the last two summers, he intended on purchasing a boat and resuming his use of the "easement." The owner of the dominant parcel stated that the easement was in the language of his deed and in the prior deeds and claimed that in any event, his prior use entitled him to use of the easement.

In this case, the owner of the once dominant tenement is not entitled to an easement under any of the four methods of achieving an easement. Furthermore, because the prior deed concerning the two parcels was duly recorded, the potential buyer would see that the two parcels were merged and thereafter the easement was not effectively revived.

Therefore, because the easement was not validly revived and the owner of the dominant parcel has no right to an easement over the land the potential buyer contracted to purchase, the buyer cannot cancel the contract to purchase the land because the seller can convey marketable title.

3. The third issue is whether a broker can enforce his oral agreement for commission even in the event the buyer validly rescinds the contract to purchase the land.

In New York, under the Statute of Frauds, an agreement for the commission regarding finding a buyer for a parcel of land must be in writing unless the broker is a licensed real estate broker.



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