Court holiday.

The courts are closed today to mark Columbus Day.

Tomorrow's issue is general contractors' and owners' liability for accidents.

Awarding possession of the marital residence.

Practice point: Exclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage.

Student note: In making the determination, the court will weigh the need of the custodial parent to occupy the marital residence against the financial need of the parties.

Case: Greisman v. Greisman, NY Slip Op 06280 (2d Dept. 2012).

Here is the decision.

Tuesday’s issue: General contractors’ and owners’ liability for accidents.

A landowner's liability for criminal conduct.

Practice point: Owners of residential developments have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct.

Student note: There is foreseeable danger when past experience alerts the landlord to the likelihood of criminal conduct on the part of third persons

Case: Diaz v. Sea Gate Assn., Inc., NY Slip Op 06276 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Awarding possession of the marital residence.

Appellate practice.

Practice point: No appeal lies from a judgment made upon the default of the appealing party, pursuant to CPLR 5511.

Student note: As a general rule, the Appellate Division does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so.

Case: Asman v. Durst, NY Slip Op 06272(2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A landowner’s liability for criminal conduct.

Agreements to waive claims.

Practice point: Parties to arm's-length transactions may agree to waive claims based on personal liability.

Student note: Contractual provisions that absolve a party of its own negligence are enforceable, absent evidence of gross negligence.

Case: 261 E. 78th Realty Corp. v. Bernstein, NY Slip Op 06260 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appellate practice.

Enforcing a forum selection clause.

Practice point: As a general rule, only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement.

Student note: There are three sets of circumstances under which a nonparty may invoke a forum selection clause: (1) a third-party beneficiary of the agreement may enforce a forum selection clause; (2) parties to a global transaction who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause; and (3) a nonparty that is closely related to one of the signatories can enforce a forum selection clause.

Case: May v. US HIFU, LLC, NY Slip Op 06194 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Agreements to waive claims.

A police officer's use of force.

Practice point: Under a theory of respondeat superior, a municipality may be vicariously liable for a common-law assault, premised upon an assault by a police officer.

Student note:  An officer executing a search warrant is privileged to use reasonable force to effectuate the detention of the occupants of the place to be searched. The reasonableness of the use of force should be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Case: Linson v. City of New York, NY Slip Op 06193 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Enforcing a forum selection clause.

A referee's powers and compensation.

Practice point: A referee appointed to hear and determine an issue has all the powers of the court in performing a like function, including entertaining the post-trial motions, pursuant to CPLR 4301 and 4318.

Student note: A referee may be compensated at the rate fixed by the Supreme Court in the order of reference for the performance of those duties authorized by that order, pursuant to CPLR 8003[a]

Case: Gamman v. Silverman, NY Slip Op 06188 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: A police officer’s use of force.

Contract interpretation.

Practice point: The fundamental rule of contract interpretation is that agreements are construed in accord with the parties' intent, and the best evidence of their intention is what they say in their writing.

Student note: Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous.

Case: Banco Espírito Santo, S.A. v. Concessionária Do Rodoanel Oeste S.A., NY 06186 (1st Dept. 2012.

Here is the decision. 

Tomorrow’s issue: A referee’s powers and compensation.

Arbitration awards.

Practice point: An arbitration award will not be overturned unless it is violative of a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitral panel's power.

Student note: Pursuant to CPLR 7510, the court shall confirm an arbitration award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511.

Case: Wiederhorn v. J. Ezra Merkin, NY Slip Op 06181 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Contract interpretation.

Motion to dismiss based on a failure to state a cause of action.

Practice point:  In reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

Case: Rozell v. Milby, NY Slip Op 06133 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Arbitration awards.