Motion practice.

Practice point: Determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable, pursuant to CPLR 3212(f).

Students should note that the delay requires a showing that discovery may lead to relevant evidence.

Case: Anne Koplick Designs, Inc. v. Lite, NY Slip OP 06356 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Generally, estoppel is unavailable as against a governmental agency.

Students should note that the exception is when the agency's actions would defeat a legal or properly obtained right.

Case: Brad H. v. City of New York, NY Slip Op 06355 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: A driver is bound to see what is there to be seen with the proper use of his senses.

Students should note that there can be more than one proximate cause of an accident.

Case: Topalis v. Zowalski, NY Slip Op 06305 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: A court may sanction a party for willfully failing to comply with discovery, pursuant to CPLR 3216.

Students should note that sanctions include precluding the party from producing in evidence designated things or items of testimony.

Case: Raville v. Elnomany, NY Slip Op 06302 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Torts.

Motion practice.

Practice point: Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, if they are material and pertinent to the issue.

Students should note that proceedings before a Grievance Committee are quasi-judicial.

Case: Kilkenny v. Law Off. of Cushner & Garvey, LLP, NY Slip Op 06295 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court must clearly define for the jury exactly what it has to determine in order to find negligence.

Students should note that the charge, among other things, must state separately the disputed issues.

Case: Altamirano v. Door Automation Corp., NY Slip Op 06283 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court may grant a forum non conviens motion on any condition that may be just, pursuant to CPLR 327(a).

Students should note that dismissal could properly be conditioned on a waiver of the foreign forum's advantageous statute of limitations.

Case: Patriot Exploration v. Thompson & Knight, NY Slip Op 06217 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: The court can grant relief not dramatically unlike what was sought in plaintiff's prayer, if there is supporting proof, and if it will not prejudice any party.

Students should note that, under Labor Law § 241(6), liability does not attach to alleged violations of Occupational Safety and Health Administration regulations.

Case: Shaw v RPA Assoc., LLC, NY Slip Op 06238 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: There is no mandatory ministerial duty to enter a default judgment against a defaulting party.

Students should note that, instead, the court must determine whether the supporting facts are sufficient to establish a viable cause of action.

Case: McGee v. Dunn, NY Slip Op 06233 (2d Dept. 2010)



Monday's issue: Motion practice.

Torts.

Practice point: The Transit Authority owes no duty to protect against a third-person assault, absent a special relationship between Transit and the person assaulted.

Students should note that, to establish a special relationship, there must be evidence of justifiable reliance on Transit's affirmative undertaking to act on plaintiff's behalf.

Case: Frazier v. MABSTOA, NY Slip Op 06229 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.