Assumption of the risk.

Practice point: A sports participant does not assume the risk of intentional or reckless conduct.

Students should note that the doctrine cannot be invoked when there is evidence of a flagrant rules violation unrelated to the way the game is played, and without a competitive purpose.

Case: Filippazzo v. Kormoski, NY Slip Op 06228 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: An affidavit of service constitutes prima facie evidence of proper service.

Students should note, while the sworn denial of receipt generally necessitates an evidentiary hearing, no hearing is required if defendant's affidavit is nothing more than a bare and conclusory denial.

Case: Associates First Capital Corp. v. Wiggins, NY Slip Op 06225 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Assumption of the risk.

Ethics.

Practice point: A felony conviction in another State triggers automatic disbarment if the offense would constitute a felony under New York's Penal Law, pursuant to Judiciary Law § 90[4][e].

Students should note that the foreign felony need not be a mirror image of the New York felony, but must be essentially similar.

Case: Matter of Mahler, NY Slip Op 06152 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: There is a presumption that the public is entitled to access to judicial proceedings and court records.

Students should note that a court is empowered to seal court records, pursuant to section 216.1(a) of the Uniform Rules for Trial Courts.

Case: Mosallem v. Berenson, NY Slip Op 06150 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Ethics.

Motion practice.

Practice point: An issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action, if there is an identity of issue and if there was a full and fair opportunity to contest the decision.

Students should note that the imposition of a constructive trust requires a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment.

Case: Abacus Fed. Savings Bank v. Lim, NY Slip Op 06143 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: To disqualify counsel, movant must prove, among other things, a prior attorney-client relationship with opposing counsel.

Students should note that representation of a business entity does not make the firm counsel to an individual member, absent the assumption of an affirmative duty to represent.

Case: Campbell v. McKeon, NY Slip Op 06148 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Real Estate Law.

Practice point: There is no liability for a seller's failing to disclose information, in an arms length transaction, absent active concealment of a defective condition.

Students should note that even proof of active concealment is ineffective if the buyer should have known of the defect.

Case: Laxer v. Edelman, NY Slip Opinion 06159 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Property.

Practice point: The possession of land without any claim of right, no matter how long it may be continued, gives no title.

Students should note that reliance on the doctrine of "practical location" requires proof of a clear demarcation of a boundary line.

Case: Estate of Becker v. Murtagh, NY Slip Op 06157 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Real Estate Law.

Motion practice.

Practice point: On a party's death, the court no longer has jurisdiction to conduct proceedings, and the action is stayed as to decedent pending substitution of a legal representative.

Students should note that any determination rendered absent that substitution is a nullity, pursuant to CPLR 1015, 1021.

Case: Stancu v. Oh, NY Slip 05754 (2d Dept. 2010)

Here is the opinion.

Monday’s issue: Property.

Torts.

Practice point: A libel action must allege statements of fact, not opinion.

Students should note that an opinion statement is not actionable even if it is accompanied by a recitation of facts on which it is based.

Case: Halstead v. Strauss, NY Slip Op 05731 (2d Dept. 2010)

Here is the opinion.

Tomorrow’s issue: Motion practice.