Motion practice.

Practice point: The court can grant relief not dramatically unlike what was sought in plaintiff's prayer, if there is supporting proof, and if it will not prejudice any party.

Students should note that, under Labor Law § 241(6), liability does not attach to alleged violations of Occupational Safety and Health Administration regulations.

Case: Shaw v RPA Assoc., LLC, NY Slip Op 06238 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)



Monday's issue: Motion practice.

Torts.

Practice point: The Transit Authority owes no duty to protect against a third-person assault, absent a special relationship between Transit and the person assaulted.

Students should note that, to establish a special relationship, there must be evidence of justifiable reliance on Transit's affirmative undertaking to act on plaintiff's behalf.

Case: Frazier v. MABSTOA, NY Slip Op 06229 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Assumption of the risk.

Practice point: A sports participant does not assume the risk of intentional or reckless conduct.

Students should note that the doctrine cannot be invoked when there is evidence of a flagrant rules violation unrelated to the way the game is played, and without a competitive purpose.

Case: Filippazzo v. Kormoski, NY Slip Op 06228 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: An affidavit of service constitutes prima facie evidence of proper service.

Students should note, while the sworn denial of receipt generally necessitates an evidentiary hearing, no hearing is required if defendant's affidavit is nothing more than a bare and conclusory denial.

Case: Associates First Capital Corp. v. Wiggins, NY Slip Op 06225 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Assumption of the risk.

Ethics.

Practice point: A felony conviction in another State triggers automatic disbarment if the offense would constitute a felony under New York's Penal Law, pursuant to Judiciary Law § 90[4][e].

Students should note that the foreign felony need not be a mirror image of the New York felony, but must be essentially similar.

Case: Matter of Mahler, NY Slip Op 06152 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: There is a presumption that the public is entitled to access to judicial proceedings and court records.

Students should note that a court is empowered to seal court records, pursuant to section 216.1(a) of the Uniform Rules for Trial Courts.

Case: Mosallem v. Berenson, NY Slip Op 06150 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Ethics.

Motion practice.

Practice point: An issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action, if there is an identity of issue and if there was a full and fair opportunity to contest the decision.

Students should note that the imposition of a constructive trust requires a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment.

Case: Abacus Fed. Savings Bank v. Lim, NY Slip Op 06143 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.