Statutes of limitations.

Practice point: The time period for fraud is the greater of six years from the cause of action's accrual, or two years from the time the plaintiff discovered, or could have discovered, the fraud, pursuant to CPLR 213[8].

Students should note that an action alleging unjust enrichment and seeking a constructive trust must be commenced within six years of the wrongful act giving rise to a duty of restitution.

Case: Coombs v. Jervier, NY Slip Op 04727 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Products liability.

Practice point: A party injured as a result of a defective product may seek relief against the product manufacturer or others in the chain of distribution.

Students should note that a product may be defective because of a mistake in the manufacturing process; because of a defective design; or because the manufacturer failed to provide adequate warnings regarding the product's use.

Case: Rabon-Willimack v. Robert Mondavi Corp., NY Slip Op 04354 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Statutes of limitation.

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.