Motion practice.

Practice point: Notice of motion to compel the turnover of personal property is served in the same way as a summons, or by registered or certified mail, return receipt requested, pursuant to CPLR 5225(a).

Practitioners should note that improper notice deprives the court of jurisdiction to hear the motion.

Case: Buckeye Retirement Co., LLC, Ltd. v. Quattrocchi, NY Slip Op 08576 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Torts.

School Law.

Practice point: In order to find that a school has breached its duty to supervise when one student is injured by another, a plaintiff must show that the school had sufficiently specific knowledge or notice of the dangerous conduct, such that it reasonably could have been anticipated.

Practitioners should note that notice of prior similar conduct is generally required because school personnel cannot reasonably be expected to guard against all of the spontaneous acts that take place among students daily.

Case: Andrew T. B. v. Brewster Cent. School Dist., NY Slip Op 08571 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Evidence.

Practice point: A police accident report is inadmissible if it was made by an officer who did not witness the accident and it contains the hearsay statements of plaintiff's decedent as to the ultimate issue of fact.

Practitioners should note that the officer's affidavit vouching for the report’s truth does not make the report admissible.

Case: Fay v. Vargas, NY Slip Op 08510 (1st Dept. 2009)

The opinion is here.

Monday’s issue: School Law.

Arbitration.

Practice point: When a replacement arbitrator makes an award based on a review of the record, petitioner is not denied due process.

Practitioners should note that when the replacement was assigned because petitioner issued threats to the original arbitrator, petitioner will not be given a de novo hearing.

Case: Matter of Smith v. New York City Dept. of Educ., NY Slip Op 08493 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Evidence.

Motion practice.

Practice point: CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned.

Practitioners should note that the court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired.

Case: Kahgan v. Alwi, NY Slip Op 08183 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Arbitration.

Motion practice.

Practice point: When defendant files an answer only after the court denies the motion to dismiss for lack of personal jurisdiction, defendant does not waive that defense by asserting unrelated counterclaims.

Practitioners should note that affidavits may be used to preserve potentially meritorious claims, even if inartfully pleaded.

Case: Finkelstein Newman Ferrara LLP v. Manning, NY Slip Op 08470 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: While lack of subject matter jurisdiction can be raised at any time, it is within a New York court's power to entertain the case before it.

Practitioners should note that the objection will likely be waived where, after judgment, it is argued that the court did not have power to act as to a particular question.

Case: Miraglia v. H & L Holding Corp., NY Slip Op 08453 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: A New York resident cannot bring a proceeding under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) against a foreign corporation for alleged discrimination that occurred outside New York.

Practitioners should note that the Americans with Disabilities Act (ADA) does not require an employer to grant the employee an indefinite leave of absence or to transfer the employee to a position in another department that is occupied by another employee.

Case: Esposito v. Altria Group, Inc., NY Slip Op 08151 (1st Dept. 2009)

The opinion is here.

Monday's issue: Motion practice.

Corporations.

Practice point: A corporation’s sole shareholder is the equitable owner and, in the absence of an adverse effect upon creditors’ rights, the corporation's property may be used in payment of or as security for personal debt.

Practitioners should note that a corporation may authorize its president to use corporate checks to pay personal debt.

Case: Masek v. Wichelman, NY Slip Op 08050 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action.

Practitioners should note that dismissal requires that both suits arise out of the same subject matter or series of alleged wrongs.

Case: Cherico, Cherico & Assoc. v. Midollo, NY Slip Op 07972 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Corporations

Arbitration.

Practice point: An award can be vacated on the basis of "manifest disregard of the law" but this is a doctrine of last resort limited to rare instances of extreme impropriety on the part of the arbitrator.

Practitioners should note that a court must find that (1) the arbitrator knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the ignored law was well defined, explicit, and clearly applicable.

Case: McLaughlin, Piven, Vogel Sec., Inc. v. Ferrucci, NY Slip Op 07926 (1st Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.