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.

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.