Motion practice.

Practice point: A cause of action sounding in conversion requires a showing of ownership or a superior right of possession, and of defendant's exercise of dominion, to the exclusion of plaintiff's rights.

Students should note that to recover on an alleged personal guarantee, pursuant to General Obligations Law § 5-701(a)(2), there must be a subscribed writing promising to answer for the debt or default.

Case: Schwartz v. Sayah, NY Slip Op 03103 (2d Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Motion practice.

Practice point: In a legal malpractice action, an attorney's affirmation may suffice as expert opinion as to the adequacy of professional services.

Students should note that to succeed on a motion to dismiss, defendant must establish that plaintiff cannot prove at least one essential element of the cause of action.

Case: Scartozzi v. Potruch, NY Slip Op 03102 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A certification order warning that dismissal will result from failure to file a note of issue within 90 days is of the same effect as a 90-day notice pursuant to CPLR 3216.

Students should note that plaintiff must either timely file or move to extend the time.

Case: Polizzi v. Burke, NY Slip Op 03096 (2d Dept. 2010)

The opinion is here .

Tomorrow's issue: Motion practice.

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.