Motion practice.

Practice point: The court may determine that a pattern of noncompliance with discovery orders is so significant that the severe sanction of striking the answer is appropriate.

Students should note that a court need not issue a "last chance" warning or order before exercising its discretion to strike a pleading.

Case: Fish & Richardson, P.C. v. Schindler, NY Slip Op 04465 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Products liability.

Motion practice.

Practice point: The court will deny leave to amend an answer to assert counterclaims that are merely restatements of previously dismissed counterclaims, or that allege conclusory, speculative or time-barred claims.

Students should note that the business judgment rule can only be defeated by nonconclusory allegations of bad faith, a conflict of interest or self-dealing.

Case: Kassover v. PVP-GCC Holdingco II LLC, NY Slip Op 04453 (1st Dept. 2010).

Here is the opinion.

Tomorrow's issue: Motion practice.

Administrative Law.

Practice point: A person who objects to an agency's action must exhaust the administrative remedies before litigating.

Students should note that this rule does not apply if the action is challenged as unconstitutional, unless the claim relies on factual issues that are reviewable administratively.

Case: Sumner v. Hogan, NY Slip Op 04446 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court may require plaintiff to post an undertaking when granting a preliminary injunction to permit the parties to engage in mediation.

Students should note that defendant may claim legal fees even if there is a stipulation that each party will bear its own costs and expenses.

Case: Golub v. Board of Mgrs.of Greentree at Murray Hill, NY Slip Op 04247 (1st Dept. 2010)

The opinion is here.

Tomorrow's issue: Administrative Law.

Happy Memorial Day.

Today is a court holiday, and so there is no post.

To our veterans of every time and stripe, thank you for your service.

Tomorrow's issue: Motion practice.

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.