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.

Real Estate Law.

Practice point: There is no liability for a seller's failing to disclose information, in an arms length transaction, absent active concealment of a defective condition.

Students should note that even proof of active concealment is ineffective if the buyer should have known of the defect.

Case: Laxer v. Edelman, NY Slip Opinion 06159 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Property.

Practice point: The possession of land without any claim of right, no matter how long it may be continued, gives no title.

Students should note that reliance on the doctrine of "practical location" requires proof of a clear demarcation of a boundary line.

Case: Estate of Becker v. Murtagh, NY Slip Op 06157 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Motion practice.

Practice point: On a party's death, the court no longer has jurisdiction to conduct proceedings, and the action is stayed as to decedent pending substitution of a legal representative.

Students should note that any determination rendered absent that substitution is a nullity, pursuant to CPLR 1015, 1021.

Case: Stancu v. Oh, NY Slip 05754 (2d Dept. 2010)

Here is the opinion.

Monday’s issue: Property.

Torts.

Practice point: A libel action must allege statements of fact, not opinion.

Students should note that an opinion statement is not actionable even if it is accompanied by a recitation of facts on which it is based.

Case: Halstead v. Strauss, NY Slip Op 05731 (2d Dept. 2010)

Here is the opinion.

Tomorrow’s issue: Motion practice.

Motion practice.

Practice point: A motion to dismiss based on CPLR 3211(a)(1) requires documentary evidence refuting plaintiff's factual allegations, establishing a defense as a matter of law.

Students should note that to be considered documentary, evidence must be unambiguous and of undisputed authenticity.

Case: Springer v. Almontaser, NY Slip Op 06081 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Labor Law.

Practice point: A separate prime contractor is not liable under for injuries to the employees of other contractors where there is no privity of contract.

Students should note, however that where that contractor has been delegated authority to supervise and control the work, the contractor becomes a statutory agent of the owner or general contractor.

Case: Barrios v. City of New York, NY Slip Op 06072 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A defendant looking to amend the answer to allege a counterclaim is not required to submit evidentiary proof.

Students should note that the tort of trade libel or injurious falsehood requires the knowing publication of false and derogatory statements calculated to prevent others from dealing with the plaintiff

Case: Banco Popular N. Am. v. Lieberman, NY Slip Op 06067 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.