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.

Attorney-client relationships.

Practice point: There is a fiduciary relationship between an employer-client and its in-house attorney who is at-will employee.

Practitioners should note that the duty to maintain a client’s confidences continues after representation ends.

Case: Keller v. Loews Corp., NY Slip Op 00203 (1st Dept. 2010)

The opinion is here.

Tomorrow’s issue: Privileged communications.

Employment Law.

Practice point: Plaintiff's allegation that defendant terminated her employment because of a disability and in retaliation for her having filed a Workers' Compensation claim does not state a cause of action for retaliatory discharge under the New York City Human Rights Law.

Practitioners should note that plaintiff’ sole remedy for retaliatory discharge in violation of Workers' Compensation Law § 120 is to file a complaint with the Workers' Compensation Board.

Case: Brook v. Overseas Media, Inc., NY Slip Op 00197 (1st Dept. 2010)

The opinion is here.

Monday’s issue: Attorney-client relationships.

Motion practice.

Practice point: Conduct during litigation is frivolous and subject to sanction and/or the award of costs, including an attorney's fee, when: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false, pursuant to 22 NYCRR 130-1.1[c].

Practitioners should note that, to avoid sanctions, at the least, the conduct must have a good faith basis.

Case: Dank v. Sears Holding Mgt. Corp., NY Slip Op 00093 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Employment Law.

Contracts.

Practice point: As a general rule, a party who enters into a contract to render services does not assume a duty of care to parties outside the contract.

Practitioners should note that a recognized exception to this rule exists where a defendant who undertakes to render services negligently creates or exacerbates a dangerous condition.

Case: Cooper v. American Carpet & Restoration Servs., Inc., NY Slip Op 00091 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Motion practice.

Legal malpractice.

Practice point: There was no malpractice if, in a prior action, fees were awarded for services which plaintiff now alleges were performed negligently.

Practitioners should note that failure to raise a malpractice claim when fee applications are considered by a Bankruptcy Court bars raising the claim later.

Case: Breslin Realty Dev. Corp. v. Shaw, NY Slip Op 00087 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Contracts.

Labor Law.

Practice point: 12 NYCRR 23-1.7(b)(1), which provides, among other things, that every hazardous opening into which a person may step or fall must be guarded by a substantial cover fastened in place or by a safety railing, is sufficiently specific to support a § 241(6) claim.

Practitioners should note that a 11/2 to 2 feet-deep trench is not a hazardous opening within the meaning of the Code.

Case: Barillaro v. Beechwood RB Shorehaven, LLC, NY Slip Op 00085 (2d Dept. 2010)

The opinion is here.

Tomorrow’s issue: Legal malpractice.

Motion practice.

Practice point: A default resulting from law office failure may be excused, pursuant to CPLR 2005, but defendant's denial of receipt of the papers and a letter referring to the pending motion, standing alone, is insufficient to rebut proof that the motion papers were properly mailed and the presumption of receipt.

Practitioners should note that defendant's noncompliance with court-ordered disclosure over a period of over two years will create an inference of willful and contumacious conduct warranting the striking of the answer.

Case: Bryant v. New York City Hous. Auth., NY Slip Op 00383 (1st Dept. 2010)

The opinion is here.

Monday’s issue: Labor Law.

Employment Law.

Practice point: Where an employment is for an indefinite term, it is presumed to be at will, and it may be freely terminated by either party at any time, for any reason or for no reason.

Practitioners should note that a plaintiff cannot use a different cause of action to recover damages for an entirely lawful termination.

Case: Peterec-Tolino v. Harap, NY Slip Op 09637 (2d Dept. 2009)

The opinion is here.

Tomorrow’s issue: Motion practice.