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SAMPLE CHART: Dissolution of Corporation
NEW YORK CORPORATIONS LAW: DISSOLUTION OF CORPORATION 
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SAMPLE GRID: Defenses to Inchoate Crimes CRIMINAL LAW AND PROCEDURE
DEFENSES TO INCHOATE CRIMES
AND ACCOMPLICE LIABILITY SAMPLE ESSAY AND ANSWER: Real Property Essay No. 2 and Sample Answer | INCHOATE CRIMES | NOT DEFENSES
IN NEW YORK | DEFENSES IN
NEW YORK | | SOLICITATION | Person solicited was insane, an infant, otherwise legally incapacitated, or did not know that his conduct was criminal. Sec. 100.15. | Withdrawal and actual prevention. A defendant has an affirmative defense to solicitation only if he (a) voluntarily and completely renounced* the plan, and (b) prevented commission of the crime. | | CONSPIRACY | As above, for solicitation. | Withdrawal and actual prevention. As above, for solicitation. | | | | NB. One who conspires to commit an offense, without participating in it, is not vicariously liable for the criminal acts of his co-conspirators. | | ATTEMPT | Under the circumstances, the crime could not have been committed--as long as the crime could have been committed, had the circumstances been as the defendant believed them to be. | Abandonment. A defendant has an affirmative defense to attempt if he exhibits a voluntary and complete renunciation* of his actions, and (a) avoids the commission of the crime by abandoning bis criminal effort and, if that is not enough to avoid it, takes affirmative steps to prevent the commission of the crime. | | FACILITATION | | Substantial effort to prevent. A defendant has a defense if he establishes that prior to the commission of the felony he facilitated, he "made a substantial effort" to prevent it. NYPL sec. 40.10(2). "Earnest and vigorous action" is required. |
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REAL PROPERTY
SAMPLE ESSAY & ANSWER: Real Property Essay No. 2 Question Owner, a film writer, owned a 24-foot-wide piece of property in Greenwich Village, in New York City, with two houses on it. The old front house, Whiteacre, which had eight rooms, was in dilapidated condition. The front door opened right onto the public sidewalk on Hudson Street. Next to the front house was a three-foot-wide walkway connecting the public sidewalk with the backhouse, Greenacre. Next to Greenacre, which had been renovated by an interior designer who lived there for six years in the eighties, there was a grape arbor producing superb grapes, which Owner harvested every year and sold to neighborhood stores.
On July 15, 1991, Owner sold the front house and the entire 24-foot-wide front part of the lot to Buyer, for $800,000.00. Although Owner retained title to Greenacre and the back part of the lot, he left for a long vacation immediately upon passage of the deed. When Ovtoer returned, it was the grape-harvesting season, and he and a number of workmen from the neighborhood started carrying ladders and equipment along the passageway from Hudson Street to the grape arbor. Buyer, who had moved into Whiteacre, grew angry at the noise and commotion. He began to build an iron fence across the passageway, with a locked gate, to which only he had a key.
Owner went to court to obtain an order to show cause why building of the fence and iron gate should not be stopped, together with a temporary restraining order stopping the construction. These papers, together with a motion for preliminary injunction and a summons and complaint for a permanent injunction, were served upon Buyer. After a hearing, the court granted the preliminary injunction. After the court's decision, Buyer and Seller arrived at a settlement whereby the hours during which Owner was entitled to have workmen move through the passageway and harvest grapes were limited.
(a) Was the court correct in granting the temporary restraining order and the preliminary injunction?
The next summer, Owner sold a movie script to Paramount Pictures and decided to move to California. He agreed to sell Greenacre to Buyer, for $950,000.00. One month before the closing date, Owner allowed Buyer to move his wife's parents into Greenacre and take possession of the premises. Ten days before the closing, a fire which was not due to the fault of either Owner or Buyer caused $10,000.00 in damage to Greenacre. Owner, who had had insurance on Greenacre from the day he bought it, recovered $10,000.00. Buyer had no insurance on Greenacre. On the closing day, Owner demanded $950,000.00, pursuant to the contract. Buyer refused, but offered a certified check for $940,000.00. The contract of sale did not require either party to insure Greenacre.
(b) What are the rights and liabilities of Owner and Buyer?  |
REAL PROPERTY ESSAY NO. 2 ANSWER 1. Under the CPLR, there are four provisional remedies: - lis pendens;
- injunction;
- attachment;
- receivership.
Under CPLR sec. 6301, the purpose of a preliminary injunction is to prevent harm to the subject matter of litigation during pendency of a lawsuit. It is only available where the lawsuit itself has a specific subject matter, or where the relief sought in the lawsuit is a permanent injunction. The plaintiff must show: - lack of an adequate remedy at law;
- clean hands;
- probability of success on the merits;
- immediate and irreparable harm if the injunction is not granted.
Here, the relief Owner's lawsuit regarding the fence and gate seeks is a permanent injunction, (i) Owner cannot harvest his grapes, let alone move back into the backhouse on Greenacre, if Buyer erects a fence with a gate to which only Buyer has the key. (ii) The facts do not tell us about any act of Owner's that would constitute unclean hands, (iii) Owner can prove that he will prevail (see below), v) Owner's immediate and irreparable harm is the threatened destruction of his grapes.
Therefore, the court will grant the preliminary injunction to Owner.
2. Under New York law, an easement by implication arises where one party sells to another a part of his land the crossing of which is necessary for access to land that the seller has retained.
Here, Owner must use the passageway across Whiteacre, which he sold to Buyer, in order to obtain access to Greenacre. Owner has no other route between Hudson Street and the land he retained, namely, Greenacre.
Therefore, Owner has an easement by implication.
3. Under the CPLR, the court properly grants a temporary restraining order ("TRO") where the plaintiff makes the showing required for a preliminary injunction and the plaintiff also shows that the harm he is seeking to avoid will occur before he has a chance to be heard in a proper adversarial hearing. The plaintiff submits the TRO with a motion ex parte for an order to show cause, so that plaintiff may both compel the defendant to refrain from the conduct he objects to, and give defendant notice of a full adversarial hearing on the motion for a preliminary injunction.
Here, Owner makes a proper showing that he will lose his crop of grapes if he has to wait for a proper hearing. And in the meantime, he is denied both access to his grape harvest and access to his own house.
Therefore, the court properly granted a temporary restraining order, while at the same time requiring a full adversarial hearing, so as to preserve Buyer's rights.
4. Under the common law doctrine of equitable conversion, when the contract for sale of the property was signed, the buyer took equitable title, and he assumed the risk of loss. Under the Uniform Vendor and Purchaser Risk Act ("UVPRA"), as adopted in New York, however, the risk of loss remains on the seller until either (i) the buyer takes possession, or (ii) the deed is transferred, and legal title passes to the buyer.
Here, Buyer has already taken possession of the premises.
Therefore, the risk of loss has passed to Buyer. Accordingly, the loss provides him with neither an opportunity for rescission of the contract nor an opportunity for abatement of the price.
5. Under New York law, where the contract of sale is silent as to insurance, insurance taken out by either party will be considered personal to him, and will not protect the other party. Only where the contract of sale requires the seller to insure the property until closing can the buyer compel the seller to apply the proceeds to the purchase price.
Here, the facts tell us that the contract of sale did not require Owner to insure the property until closing. Owner's insurance is personal to him.
Therefore, Owner can both (i) obtain specific performance from Buyer in the amount of $950,000.00, and (ii) keep the $10,000.00 he received as proceeds of the insurance. Learn More About How We Can Help You Pass The Bar Exam: |
