Motion practice.

Practice point: Pursuant to CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just.

Students should note that a claim of financial distress is likely insufficient to justify the exercise of this discretionary power.

Case: Katz v. Marra, NY Slip Op 04957 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Corporations.

Practice point: A limited liability company's organizer is a fiduciary of the investors it solicits to become members, pursuant to Limited Liability Company Law § 203[a][iii]).

Students should note that the fiduciary duty includes the obligation to disclose any interests that might affect the company and its members, including profits that the promoter makes from organizing the company.

Case: Roni LLC v. Arfa, NY Slip Op 04700 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A plaintiff may seek leave to enter a default judgment when a defendant has failed to appear within the time required, pursuant to CPLR 3215(a).

Students should note that there is no requirement, statutory or otherwise, that an answer must be filed with the clerk in order for a defendant to appear in an action.

Case: Goonan v. New York City Transit Authority, NY Slip Op 04742 (2d Dept. 2010)

Here is the opinion

Tomorrow's issue: Corporations.

Conracts.

Practice point: Generally, a contractual provision absolving a party from its own negligence or limiting its liability is enforceable.

Students should note, however, that, as a matter of public policy, a contracting party may not insulate itself from damages caused by grossly negligent conduct.

Case: Goldstein v. Carnell Associates, Inc., NY Slip Op 04741 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Trusts and Estates.

Practice point: If the signature on a power of attorney is forged, the document executed by the purported attorney-in-fact is void.

Students should note that if a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser receives nothing.

Case: First Natl. Bank of Nev. v. Williams, NY Slip Op 04737 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Contracts.

Motion practice.

Practice point: Pursuant to CPLR 3211(b), a party may move to dismiss a defense on the ground that a defense is not stated, or that it has no merit..

Students should note that an agent who signs on behalf of a principal, without disclosing the principal's identity or legal status, may be held individually liable on the contract.

Case: Courthouse Corporate Ctr. LLC v. Schulman, NY Slip Op 04728 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Trusts and Estates.

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.