Monday, May 31, 2010

Happy Memorial Day.

Today is a court holiday, and so there is no post.

To our veterans of every time and stripe, thank you for your service.

Tomorrow's issue: Motion practice.

Friday, May 28, 2010

Motion practice.

Practice point: A process server's successive attempts to serve defendant personally at various times of the day when it could be reasonably expected that he would be at home satisfies the due diligence requirement of CPLR 308(4), allowing nail-and-mail service.

Students should note that, if the front door of defendant's apartment is accessible from the street, service on the building's doorman is not required.

Case: Farias v. Simon, NY Slip Op 04246 (1st Dept. 2010)

Here is the opinion.

Tuesday's issue: Motion practice.

Thursday, May 27, 2010

Torts.

Practice point: With the exception of a Dram Shop Act violation, the standard of care for a nightclub operator is the same as for any premises operator.

Students should note that, under the Dram Shop Acts, codified at General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65, liability requires a commercial sale of alcohol.

Case: Zamore v. Bar None Holding Co., NY Slip Op 04275 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion Practice.

Wednesday, May 26, 2010

Employment Law.

Practice point: A retaliatory firing claim will be dismissed if plaintiff does not rebut defendants' showing of a legitimate, nondiscriminatory reason for the termination.

Students should note that a hostile work environment claim will be dismissed if plaintiff does not establish that the firm did not take remedial action, or, if there was such action, does not raise factual issues regarding its efficacy.

Case: Clark v. Morelli Ratner PC, NY Slip Op 04264 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Tuesday, May 25, 2010

Motion practice.

Practice point: As distinguished from issue preclusion and claim preclusion, the law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment.

Students should note that, absent a showing of subsequent evidence or change of law, an appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court.

Case: Roddy v. Nederlander Producing Co. of Am., Inc., NY Slip Op 04261 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Monday, May 24, 2010

School Law.

Practice point: During school hours, the supervisory standard is that of the reasonably prudent parent, but the lesser standard of a reasonable and prudent person applies to a student's voluntary participation in an intramural or extracurricular school sport.

Students should note that the duty to protect is a function of the school's physical custody and control over its students, and so once a student leaves the school's orbit of authority, the custodial duty ceases.

Case: Hansen v. Bath & Tennis Marina Corp., NY Slip Op 03872 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Friday, May 21, 2010

Contracts.

Practice point: General principles governing option agreements require strict compliance with the terms setting forth the time and manner of the option's exercise.

Students should note that waiver of an established contractual right requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable.

Case: Matter of Lamberti v. Angiolillo, NY Slip Op 03846 (1st Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Thursday, May 20, 2010

Trusts and Estates.

Practice point: In order for assets to become part of a trust, pursuant to EPTL 7-1.18, the grantor must actually transfer the assets.

Students should note that the mere recital of assignment, holding or receipt is insufficient for transferring the assets.

Case: Matter of Bishop v. Maurer, NY Slip Op 03840 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Wednesday, May 19, 2010

Torts.

Practice point: Failure to read the owner's manual severs the causal connection between an alleged failure to warn and the accident.

Students should note that a manufacturer who sells a product in a defective condition is liable for injuries resulting from its intended use or from its unintended but reasonably foreseeable use.

Case: Reis v. Volvo Cars of North America, Inc., NY Slip Op 03779 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Trusts and Estates.

Tuesday, May 18, 2010

Family Law.

Practice point: A spousal agreement that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability.

Students should note that the agreement will not be overturned merely because some of its provisions were one-sided, and simply alleging an unequal division of assets does not establish unconscionability.

Case: Cioffi-Petrakis v. Petrakis, NY Slip Op 03266 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Monday, May 17, 2010

School Law.

Practice point: Schools are not liable for every thoughtless or careless act by one pupil might injure another.

Students should note that there likely is no liability for an injury caused by an impulsive, unanticipated act, absent prior conduct that would have put a reasonable person on notice to protect.

Case: Armellino v.Thomase, NY Slip Op 03256 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Family Law.

Friday, May 14, 2010

Motion practice.

Practice point: A cause of action sounding in conversion requires a showing of ownership or a superior right of possession, and of defendant's exercise of dominion, to the exclusion of plaintiff's rights.

Students should note that to recover on an alleged personal guarantee, pursuant to General Obligations Law § 5-701(a)(2), there must be a subscribed writing promising to answer for the debt or default.

Case: Schwartz v. Sayah, NY Slip Op 03103 (2d Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Thursday, May 13, 2010

Motion practice.

Practice point: In a legal malpractice action, an attorney's affirmation may suffice as expert opinion as to the adequacy of professional services.

Students should note that to succeed on a motion to dismiss, defendant must establish that plaintiff cannot prove at least one essential element of the cause of action.

Case: Scartozzi v. Potruch, NY Slip Op 03102 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Wednesday, May 12, 2010

Motion practice.

Practice point: A certification order warning that dismissal will result from failure to file a note of issue within 90 days is of the same effect as a 90-day notice pursuant to CPLR 3216.

Students should note that plaintiff must either timely file or move to extend the time.

Case: Polizzi v. Burke, NY Slip Op 03096 (2d Dept. 2010)

The opinion is here .

Tomorrow's issue: Motion practice.

Tuesday, May 11, 2010

Motion practice.

Practice point: An Article 78 proceeding is summary in nature, and so a summary judgment motion going to the petition's merit is unnecessary.

Students should note that, pursuant to Civil Service Law § 75(3), an employee may be suspended without pay for a period of not more than thirty days, pending a hearing on a charge of incompetency or misconduct.

Case:  Nabors v. Town of Somers, NY Slip Op 03089 (2d Dept. 2010

Here is the opinion.

Tomorrow's issue: Motion practice.

Monday, May 10, 2010

Corporations.

Practice point: Directors and officers, in the performance of their duties, have a fiduciary relationship to the corporation, and owe the corporation their undivided loyalty.

Students should note that, without consent, an officer or director may not divert and exploit for personal benefit an opportunity that should be deemed an asset of the corporation.

Case: Morales v. Galeazzi, NY Slip Op 03086 (2d Dept. 2010)


Tomorrow's issue: Motion practice.

Friday, May 7, 2010

Municipalities Law.

Practice point: A municipality is obligated to keep the streets in a reasonably safe condition for travel.

Students should note that, under the storm in progress rule, the City generally is not liable for injuries resulting from slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter.

Case: Mazzella v. City of New York, NY Slip Op 03078 (2d Dept. 2010


Monday's issue: Corporations.

Thursday, May 6, 2010

Corporations.

Practice point: The compulsory redemption requirement of Business Corporation Law § 1510 does not extend to a shareholder's involuntary termination of employment from a professional corporation.

Students should note that public policy will be determined by reference to statutes and legal precedents, and not from a consideration of supposed public interests.

Case: Lubov v. Horing & Welikson, P.C., NY Slip Op 03076 (2d Dept. 2010)


Tomorrow's issue: Municipalities Law.

Wednesday, May 5, 2010

Motion practice.

Practice point: Collateral estoppel bars relitigation in a state action an issue that has been decided  in a federal action in which there was a full and fair opportunity to litigate.

Students should note that the doctrine does not apply if the federal court's determination was based on the adequacy of the pleadings and did not go to the merits.

Case: Lexjac, LLC  v. Beckerman, NY Slip Op 03074 (2d Dept. 2010)
Tomorrow's issue: Corporations.

Tuesday, May 4, 2010

Motion practice.

Practice point: In New York there is no wrongful life cause of action.

Students should note that there is a cause of action alleging a breach of a duty owed to prospective parents, based on the expense of raising a child born with a disability.

Case: Klein v. Bialer, NY Slip Op 03072 (2d Dept. 2010)


Tomorrow's issue: Motion practice.

Monday, May 3, 2010

Motion practice.

Practice point: A process server's affidavit is prima facie evidence of proper service, pursuant to CPLR 308(4).

Students should note that the unsubstantiated denial of receipt does not rebut that showing.

Case: Irwin Mtge. Corp. v. Devis, NY Slip Op 03070(2d Dept. 2010)


Tomorrow's issue: Torts.