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.

Motion practice.

Practice point: If there are common questions of law or fact, a motion to consolidate or for a joint trial, pursuant to CPLR 602(a), will be granted, absent a showing of prejudice to a substantial right of the opposing party.

Students should note that where the actions have been commenced in different counties, the trial will be in the county where venue of the first-commenced action currently lies.

Case: Whiteman v. Parsons Transp. Group of N.Y., Inc., NY Slip Op 02944 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Corporations.

Practice point: A corporation is independent of its owners, who are not personally liable for its obligations.

Students should note that persons may incorporate for the express purpose of limiting their liability.

Case:  Superior Transcribing Serv., LLC v. Paul, NY Slip Op 02942 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Attorney-client relations.

Practice point: The attorney-client privilege extends to communications of an agent of either attorney or client, such as defense counsel's forensic accounting consultant.

Students should note that the attorney work product privilege extends to experts retained as consultants to assist with the case.

Case: Hudson Ins. Co. v. Oppenheim, NY Slip Op 02871 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Corporations.

Motion practice.

Practice point: A motion to renew is intended to bring to the court's attention new or additional facts that were unknown to movant at the time of the original motion.

Students should note that renewal may be granted at the court's discretion, in the interest of justice, even on facts that were known to movant.

Case:  Eddine v. Federated Dept. Stores, Inc., NY Slip Op 02868 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Attorney-client relations.

Employment Law.

Practice point:  When an employee is acting within the scope of employment, the employer is liable for the employee's negligence under a theory of respondeat superior.

Students should note that plaintiff may not proceed with a cause of action sounding in negligent hiring and retention.

Case: Neiger v. City of New York, NY Slip Op 02934 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: To establish a relationship between an illness and a toxin, plaintiff must establish (1) the level of exposure; (2) that the toxin could cause the illness; and (3) the likelihood that this toxin caused the injury.

Students should note that the distributor of a defective product has an implied right of indemnification as against the manufacturer.

Case:  Martins v. Little 40 Worth Assoc., Inc., NY Slip Op 02866 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Employment Law.

Practice point:  Military Law § 243(7) preserves the rights of potential employees on civil service eligible lists while they are in military service.

Students should note that the statute does not extend the time to satisfy the minimum educational requirements for eligibility.

Case: Matter of Woods v. New York City Dept. of Citywide Admin. Servs., NY Slip Op 02863 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Torts.

Practice point: A motorist always has a duty to operate the vehicle with reasonable care, which encompasses the duty to see what is there to be seen.

Students should note that the duty is necessarily owed to everyone else on the roads.

Case: Ohlhausen v. City of New York, NY Slip Op 02729 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Motion practice.

Practice point: Leave to file a late claim will not be granted with respect to a false imprisonment claim if it accrued more than one year prior to the motion, pursuant to CPLR 215[3], and  Court of Claims Act § 10[6].

Students should note that the fact that claimant's medical records may be at a State facility does not mean that the State had an opportunity to investigate the circumstances giving rise to the claim.

Case: Lerner v. State of New York, NY Slip Op 02723 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.