Employment Law.

Practice point: Without a legitimate employer interest to protect, restrictive covenants are unenforceable.

Students should note that, in such a circumstance, the issue of partial enforcement does not arise.

Case: Allways Elec. Corp. v. Abrams, NY Slip Op 05346 (2d Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: An order denying a motion to preclude testimony of plaintiff's expert witness or to direct that witness to submit to a Frye hearing is an evidentiary ruling and an advisory opinion.

Students should note that the order is not appealable, either as of right or by leave.

Case: Fontana v. LaRosa, NY Slip Op 05357 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Employment Law.

Torts.

Practice point: A company which agrees to maintain an elevator in safe operating condition may be liable for injuries resulting from a failure to correct a condition of which it knew or should have known.

Students should note that the property owner continues to owe a nondelegable duty to maintain its buildings' elevators in a reasonably safe manner.

Case: Dykes v. Starrett City, Inc., NY Slip Op 05356 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Motion practice.

Practice point: Pursuant to CPLR 3001, the supreme court may render a declaratory judgment as to the rights of the parties to a justiciable controversy.

Students should note that a justiciable controversy requires a real dispute, involving substantial legal interests for which a declaration of rights will have some practical effect.

Case: Chanos v. Madac, LLC, NY Slip Op 05350 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

Motion practice.

Practice point: The construction of foreign law is a legal question appropriate for summary resolution.

Students should note that such a motion can be based on expert affidavits interpreting the relevant legal provisions.

Case: Gusinsky v. Genger, NY Slip Op 04931 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Motion practice.

Torts.

Practice point: In the case of a rear-end collision, the owner and operator of the front vehicle are entitled to summary judgment on liability unless the following vehicle's driver offers a non-negligent explanation.

Students should note that depositions are not needed since the opponents of the motion had personal knowledge of the facts, pursuant to CPLR 3212[f]).

Case: Avant v. Cepin Livery Corp., NY Slip Op 04924 (1st Dept. 2010)

Here is the opinion.

Monday's issue: Motion practice.

Motion practice.

Practice point: Once a medical malpractice defendant has established the absence of any departure from good and accepted practice, plaintiff must submit a physician's affidavit attesting to such a departure and opining that it was a causal competent in the injury.

Students should note that an expert's affidavit containing bare conclusory assertions is insufficient to defeat summary judgment.

Case: Bacani v. Rosenberg, NY Slip Op 04919 (1st Dept. 2010)

Here is the opinion.

Tomorrow's issue: Torts.

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.