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.

Motion to dismiss based on documentary evidence.

Practice point: A motion to dismiss based on documentary evidence, pursuant to CPLR 3211(a)(1), may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note: In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable.

Case: Norment v. Interfaith Ctr. of N.Y., N.Y. Slip Op 06130 (2d. Dept. 2012).

Here is the decision.

Monday’s issue: Motion to dismiss based on a failure to state a cause of action.

Collateral estoppel.

Practice point: Collateral estoppel preserves party and judicial resources by preventing relitigation of matters that have already been resolved. It prevents inconsistent results, and it can be asserted in a new case by a nonparty to the original proceeding.

Student note: Moreover, collateral estoppel principles apply as well to awards in arbitration as they do to adjudications in judicial proceedings.

Case: Feinberg v. Boros, NY Slip Op 06114 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss based on documentary evidence.

Stating a 241(6) Labor Law claim.

Practice Point: To state a claim under § 241(6), a plaintiff must identify a specific Industrial Code provision mandating compliance with concrete specifications.

Student note: The statute imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation, or demolition work is being performed.

Case:  Capuano v. Tishman Constr. Corp., NY Slip Op 06109 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Collateral estoppel