Court holiday.

The courts are closed again today, and so the next post will be tomorrow.

Tomorrow's issue: Motion practice.

Court holiday.

Today and Monday are court holidays, and so the next post will be on Tuesday, February 16.

Tuesday's issue: Motion practice.

Motion practice.

Practice point: Where a party makes a timely summary judgment motion, the court may consider an untimely motion, provided it is based on nearly identical grounds.

Practitioners should note that, in deciding the timely motion, the court may search the record and award summary judgment to a nonmoving party.

Case: Lennard v. Khan, NY Slip Op 00482 (2d Dept. 2010)

The opinion is here.

Tuesday’s issue: Motion practice.

Motion practice.

Practice point: Where a party makes a timely summary judgment motion, the court may consider an untimely motion, provided it is based on nearly identical grounds.

Practitioners should note that, in deciding the timely motion, the court may search the record and award summary judgment to a nonmoving party.

Case: Lennard v. Khan, NY Slip Op 00482 (2d Dept. 2010)

The opinion is here.

Tuesday’s issue: Motion practice.

Contracts.

Practice point: Reformation restates an agreement's intended terms when the writing is at variance with the intent of the parties.

Practitioners should note that the reformation's proponent must establish cause by clear and convincing evidence.

Case: Kaliontzakis v. Papadakos, NY Slip Op 00478 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Employment Law.

Practice point: A cause of action sounding in negligent hiring or supervision requires a showing that the employer knew or should have known of the employee's propensity for the injury-causing conduct.

Practitioners should note that there is no common-law duty regarding hiring procedures unless the employer knows something that a reasonably prudent person would investigate.

Case: Jackson v. New York Univ. Downtown Hosp., NY Slip Op 00476 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Contracts.

Landlord-Tenant Law.

Practice point: While landlords are not insurers of their tenants’ safety, they have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including criminal conduct by third-parties.

Practitioners should note that third-party criminal conduct is foreseeable as a matter of law if it is reasonably predictable based on the prior occurrence of the same or similar activity at a sufficiently proximate location.

Case: Beato v. Cosmopolitan Assoc., LLC, NY Slip Op 00458 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Employment Law.

Motion practice.

Practice point: A court may stay or dismiss an action that, although jurisdictionally sound, would be better adjudicated elsewhere.

Practitioners should note that relevant factors are the burden on New York courts; potential hardship to the defendant; the availability of another forum; the parties' residency; the forum in which the cause of action arose; and the extent to which plaintiff's interests may be properly served in New York.

Case: Rabinowitz v. Devereux Conn. Glenholme, NY Slip Op 00378 (1st Dept. 2010)

The opinion is here.

Monday’s issue: Landlord-Tenant Law.

Torts.

Practice point: A claim against an employer based on an employee's actions committed within the scope of employment sounds in respondeat superior, not negligent hiring or supervision.

Practitioners should note that a defendant cannot argue assumption of the risk if its papers do not establish that the alleged injury was an inherent risk of the sport.

Case: Segal v. St. John’s University, NY Slip Op 00243 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Fraud.

Practice point: To make out a prima facie case, the complaint must allege a misrepresentation of material fact, scienter, reliance and injury.

Practitioners should note that CPLR 3016(b) further requires that the pleadings must allege the circumstances in detail.

Case: Morales v. AMS Mtge. Servs., Inc., NY Slip Op 00234 (2d Dept 2010)

The opinion is here.

Tomorrow’s issue: Torts.

Privileged communications.

Practice point: In asserting that attorney-client emails are privileged, the attorney must establish that they are of a legal, and not a business, nature.

Practitioners should note that the claim, if found to be without merit in law, is sanctionable.

Case: Delta Fin. Corp. v. Morrison, NY Slip Op 00216 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Fraud.