Torts.

Practice point: A driver is bound to see what is there to be seen with the proper use of his senses.

Students should note that there can be more than one proximate cause of an accident.

Case: Topalis v. Zowalski, NY Slip Op 06305 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A court may sanction a party for willfully failing to comply with discovery, pursuant to CPLR 3216.

Students should note that sanctions include precluding the party from producing in evidence designated things or items of testimony.

Case: Raville v. Elnomany, NY Slip Op 06302 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Motion practice.

Practice point: Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, if they are material and pertinent to the issue.

Students should note that proceedings before a Grievance Committee are quasi-judicial.

Case: Kilkenny v. Law Off. of Cushner & Garvey, LLP, NY Slip Op 06295 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court must clearly define for the jury exactly what it has to determine in order to find negligence.

Students should note that the charge, among other things, must state separately the disputed issues.

Case: Altamirano v. Door Automation Corp., NY Slip Op 06283 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court may grant a forum non conviens motion on any condition that may be just, pursuant to CPLR 327(a).

Students should note that dismissal could properly be conditioned on a waiver of the foreign forum's advantageous statute of limitations.

Case: Patriot Exploration v. Thompson & Knight, NY Slip Op 06217 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

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.