Legal malpractice.

Practice point: A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement was effectively compelled by counsel's mistakes.

Students should note if plaintiff's claim of breach of fiduciary duty is essentially a claim of malpractice, it is governed by the malpractice standard, namely, that, but for counsel's action, plaintiff would have prevailed in the underlying action.

Case: Boone v. Bender, NY Slip Op 05497 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Labor Law.

Family Law.

Practice point: New York does not recognize common-law marriages contracted within the state, pursuant to Domestic Relations Law § 11.

Students should note that a common-law marriage contracted in another state will be recognized as valid here if it is valid there.

Case: Baron v. Suissa, NY Slip Op 05495 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Legal malpractice.

Motion practice.

Practice point: To vacate a default, defendant must demonstrate a reasonable excuse and a potentially meritorious defense, pursuant to CPLR 5015[a][1].

Students should note that it is a reasonable excuse if defendant had a good faith belief that its interests were being protected by the insurer that had defended in a related matter.

Case: Gerdes v. Canales, NY Slip Op 05358 (2d Dept. 2010)

Here is the opinion.

Tomorrow's issue: Family Law.

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.