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.

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.