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.

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)

Here is the opinion.

Tomorrow's issue: Motion practice.

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

Here is the opinion.

Monday's issue: Corporations.

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)

Here is the opinion.

Tomorrow's issue: Municipalities Law.

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)

Here is the opinion.

Tomorrow's issue: Corporations.

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)

Here is the opinion.

Tomorrow's issue: Motion practice.

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)

Here is the opinion.

Tomorrow's issue: Torts.

Family Law.

Practice point: When a judgment of divorce is granted on a party's default, there should be an inquest on the economic issues.

Students should note that if the defaulting party has appeared, the inquest should be scheduled with notice to the defaulting party in the manner directed by the court.

Case: Hwang v. Tam, NY Slip Op 03069 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: The method of service provided for in an order to show cause is jurisdictional, and strict compliance is required.

Students should note that if a party has not appeared by an attorney, service must be on the party, pursuant to CPLR 2103(c).

Case: City of New York v. Miller, NY Slip Op 03059 (2d Dept. 2010)

Here is the opionion.

Tomorrow's issue: Family Law.

Motion practice.

Practice point: A defendant may forfeit the right to arbitrate by participating in discovery  without asserting the right to arbitration.

Students should note that defendant does not waive arbitration by serving an answer if it  includes an affirmative defense that the dispute should be determined by arbitration.

Case:  Byrnes v. Castaldi, NY Slip Op 03055 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A party's time to move to renew or reargue an order pursuant to CPLR 2221 does not begin to run until it is served with notice of entry of the order.

Students should note that where an order affects a party's rights, the successful moving party must serve it on the adverse party.

Case: Garcia v. City of New York, NY Slip Op 03033 (1st Dept. 2010)

Here is the opinion.

 Tomorrow's issue: Motion practice.