Motion practice.

Practice point: A process server's successive attempts to serve defendant personally at various times of the day when it could be reasonably expected that he would be at home satisfies the due diligence requirement of CPLR 308(4), allowing nail-and-mail service.

Students should note that, if the front door of defendant's apartment is accessible from the street, service on the building's doorman is not required.

Case: Farias v. Simon, NY Slip Op 04246 (1st Dept. 2010)

Here is the opinion.

Tuesday's issue: Motion practice.

Torts.

Practice point: With the exception of a Dram Shop Act violation, the standard of care for a nightclub operator is the same as for any premises operator.

Students should note that, under the Dram Shop Acts, codified at General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65, liability requires a commercial sale of alcohol.

Case: Zamore v. Bar None Holding Co., NY Slip Op 04275 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion Practice.

Employment Law.

Practice point: A retaliatory firing claim will be dismissed if plaintiff does not rebut defendants' showing of a legitimate, nondiscriminatory reason for the termination.

Students should note that a hostile work environment claim will be dismissed if plaintiff does not establish that the firm did not take remedial action, or, if there was such action, does not raise factual issues regarding its efficacy.

Case: Clark v. Morelli Ratner PC, NY Slip Op 04264 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: As distinguished from issue preclusion and claim preclusion, the law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment.

Students should note that, absent a showing of subsequent evidence or change of law, an appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court.

Case: Roddy v. Nederlander Producing Co. of Am., Inc., NY Slip Op 04261 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

School Law.

Practice point: During school hours, the supervisory standard is that of the reasonably prudent parent, but the lesser standard of a reasonable and prudent person applies to a student's voluntary participation in an intramural or extracurricular school sport.

Students should note that the duty to protect is a function of the school's physical custody and control over its students, and so once a student leaves the school's orbit of authority, the custodial duty ceases.

Case: Hansen v. Bath & Tennis Marina Corp., NY Slip Op 03872 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Contracts.

Practice point: General principles governing option agreements require strict compliance with the terms setting forth the time and manner of the option's exercise.

Students should note that waiver of an established contractual right requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable.

Case: Matter of Lamberti v. Angiolillo, NY Slip Op 03846 (1st Dept. 2010)

Here is the opinion.

Monday's issue: School Law.

Trusts and Estates.

Practice point: In order for assets to become part of a trust, pursuant to EPTL 7-1.18, the grantor must actually transfer the assets.

Students should note that the mere recital of assignment, holding or receipt is insufficient for transferring the assets.

Case: Matter of Bishop v. Maurer, NY Slip Op 03840 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Contracts.

Torts.

Practice point: Failure to read the owner's manual severs the causal connection between an alleged failure to warn and the accident.

Students should note that a manufacturer who sells a product in a defective condition is liable for injuries resulting from its intended use or from its unintended but reasonably foreseeable use.

Case: Reis v. Volvo Cars of North America, Inc., NY Slip Op 03779 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Trusts and Estates.

Family Law.

Practice point: A spousal agreement that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability.

Students should note that the agreement will not be overturned merely because some of its provisions were one-sided, and simply alleging an unequal division of assets does not establish unconscionability.

Case: Cioffi-Petrakis v. Petrakis, NY Slip Op 03266 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

School Law.

Practice point: Schools are not liable for every thoughtless or careless act by one pupil might injure another.

Students should note that there likely is no liability for an injury caused by an impulsive, unanticipated act, absent prior conduct that would have put a reasonable person on notice to protect.

Case: Armellino v.Thomase, NY Slip Op 03256 (2d Dept. 2010)

The opinion is here.

Tomorrow's issue: Family Law.

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.