LJN Newsletters

In commercial leases, the mutual waiver of claims for damage to property and its corollary, the waiver of subrogation by property insurers, continue to be the source of substantial confusion. Much of the confusion appears to spring from a lack of understanding of just what the waivers are intended to achieve and how they achieve it. The hypothetical below and the discussion that follows examine the rationale for these waivers, how they work and how certain other standard lease provisions should be brought into conformity with them.

Increasingly today more prime locations for tenants are situated on land that was previously used for industrial or commercial uses and now has real or perceived environmental contamination. As these often called "brownfield" sites are redeveloped, they become attractive locations for leased space. These sites can be in urban centers where available space for development is scarce. The location can be convenient for a developed market of customers which a tenant can capture from absent competitors. Where once a tenant might not consider an investment in such a tainted location, now a tenant must avoid the temptation to overlook the risks. These risks do not apply only to industrial tenants or ground lessees. How a tenant evaluates and manages the risk will determine if a lease of brownfield property is a smart decision.

Last month, we presented the first two of nine models for parental access for the regular, non-holiday, non-vacation 28-day period. These charts can be used to guide you and your client in setting up the complex parental access plans that are so often demanded these days. The attached two charts encompass what we call a "10-18" plan, with variations on Monday mornings. Next month, we present the final four charts; collectively, the charts can be used to organize various parenting-time options for your clients and the courts.

The Fugitive Disentitlement doctrine is a new remedy in the effort to enforce child support and custody orders. It emanates from the inherent power of courts to enforce their judgments and protect their dignity. It provides that "a fugitive from justice may not seek relief from the judicial system whose authority he or she evades." The doctrine, adopted by the U.S. Supreme Court in Smith v. U.S., 94 U.S. 97 (1876), is based on criminal law and has been applied in cases involving criminal appeals by defendants who have become or remain fugitives from justice. It may not be immediately obvious that the fugitive disentitlement doctrine can be invoked with relation to custody and child support issues, but it can, and it may be useful weapon for the matrimonial attorney in certain fact situations.

Recent rulings of interest to you and your practice.

On Dec. 7, an Albany judge ruled that 13 same-sex couples had not been unlawfully denied their right to marry in New York, finding instead that those couples had no fundamental right to marry. The lawsuit was filed by the American Civil Liberties Union on behalf of the couples.

In the enhanced earnings area, there is yet another burning issue -- namely nexus -- that has undeservedly received little commentary in case decisions. So what is nexus, and what role does it play in valuing the enhanced earnings of an attainment?

Highlights of the latest product liability cases from around the country.