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NOVEMBER 1995
 
Overview of topics...

Lead Note:

PROCEDURE FOR TAXING AND CHALLENGING COSTS AND DISBURSEMENTS GETS RARE JUDICIAL REVIEW

The Filing System:

 

  • Divorce Nullified by 3-Day Lateness in Filing
  • Does Belatedly Joining New Parties Require New Filing Fee?
  • Should Federal Court Be Used When Service in Foreign Country Creates Filing Delays?

General Practice:

 

  • Collateral Estoppel Appends to Damages Inquest
  • "But For" Rule Saves Lawyer from Malpractice Claim
  • Plaintiff's Disclosure Abuse Brings Ultimate Remedy of Dismissal
  • Dismissal for Foreign Corporation's Licensing Failure Earns 6 Months Extension

Backlog Items:

 

  • May Affidavit of Unrevealed Expert Be Used to Oppose Summary Judgment?
  • Notices of Defect and Claim Both Required in Small Claims Cases

Open Citations:

 

  • Kosovsky (Issue 33/Page 2): 165 Misc.2d 164, 627 N.Y.S.2d 523.
  • Shorten (34/1): 631 N.Y.S.2d 519.
  • Brawer (34/3): 164 Misc.2d 1018.

 ARTICLE HEADLINES

FEATURE ARTICLE:
PROCEDURE FOR TAXING AND CHALLENGING COSTS AND DISBURSEMENTS GETS RARE JUDICIAL REVIEW


 THE FILING SYSTEM

DIVORCE JUDGMENT NULLIFIED:
Three-Day Delay in Filing Proof of Service Voids Divorce; Court Can Do Nothing But Declare Action DIsmissed

JOINDER OF NEW PARTIES:
Court Grants Extension of 120-Day Period to Add New Parties, and Requires No New Filing Fee

 
SERVICE IN FOREIGN COUNTRY:
Court Suggests Using Federal Court When Problem of Service in Foreign Country Prevents Satisfying N.Y.'s 120-Day Period


 GENERAL PRACTICE

COLLATERAL ESTOPPEL:
If Damages Hearing After Default Necessarily Determines Issue That Goes to Liability, Then It, Too, Gets Estoppel Effect

LEGAL MALPRACTICE "BUT FOR" RULE:
If, Despite Lawyer's Malpractice, Proof Shows Client Would Still Have Lost Case, No Malpractice Claim Lies

DISCLOSURE ABUSE:
Plaintiff's "Outrageous Behavior", Including Conduct at Deposition, Brings Dismissal of Complaint

 
UNQUALIFIED PLAINTIFF CORPORATION:
Plaintiff Foreign Corporation Dismissed for Not Filing Certificate of Doing Business Gets 6 Months for New Action


 BACKLOG ITEMS

DISLOSURE OF EXPERT DATA:
May Party, Not Yet Having Responded to Demand for Expert Data, Use Expert's Affidavit to Oppose Summary Judgment Motion?

SMALL CLAIMS CASES:
Notice of Defect and Notice of Claim Are Both Required Even in Small Claim Against City

         
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