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MAY 1999 |
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| Overview
of topics...
Lead Note:
WHO HAS BURDEN OF PLEADING AND PROOF ON
ARTICLE 16 ISSUES? CAN UNINTENTIONAL TORTFEASOR WITH "NON-DELEGABLE"
DUTY PLEAD FAULT OF INTENTIONAL TORTFEASOR IN MITIGATION?
General Practice:
- Measuring Civil Assault Claim
from Defendant's Criminal Conviction
- Acceptance of Unauthorized Pleading
Waives Objection
- Need P Sign Stipulation Discontinuing
D's Third-Party Action Against T?
- The Elusive Standard for Determining
the Conduct That Invokes a Sanction for Nondisclosure
- D's Delay in Moving for Want of
Prosecution Dismissal Is No Excuse for P's Delaying Case
- Nullifying Arbitration Award by
Not Including 20- Day Notice in Initial Arbitration Demand
- Notice of Claim Failures May Free
Not Only Municipality, but Tortfeasor Employee as Well
Backlog Items:
- Okay to Serve Receptionist Even
If She Says She May Not Accept Service
- "Expert" in Med Mal Case Need
Not Be Licensed Practitioner to Justify Withholding Name
- CPLR Procedures Don't Apply in
Court of Claims, Where Filing and Service Mark "Commencement"
Open Citations:
- Miller (Issue 80:Page 1): 179
Misc.2d 471, 685 N.Y.S.2d 393.
- Pierno (79:2): 179 Misc.2d 381,
684 N.Y.S.2d 863 (Jan. 8, 1999).
- DiNardo (79:3): 252 A.D.2d 69,
684 N.Y.S.2d 736.
- Rossi (75:3): 252 A.D.2d 778,
676 N.Y.S.2d 699.
- Rankin (74:3): 252 A.D.2d 865,
675 N.Y.S.2d 717.
- Wade (62:3, affirmance): 250 A.D.2d
323, 681 N.Y.S.2d 355.
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ARTICLE HEADLINES |
FEATURE ARTICLE:
WHO HAS BURDEN OF PLEADING AND PROOF ON ARTICLE
16 ISSUES? CAN UNINTENTIONAL TORTFEASOR WITH "NON-DELEGABLE" DUTY
PLEAD FAULT OF INTENTIONAL TORTFEASOR IN MITIGATION?
THE PLEADING ISSUE
 GENERAL
PRACTICE
EXTENDED TIME FOR ASSAULT ACTION:
Statute Giving Crime Victim 7 Years for Civil
Claim, Measured from Conviction, Applies Also to Federal Conviction
AMENDED PLEADING:
If Party Serves Amended Pleading Without Required
Leave, Acceptance by Other Side Without Protest Waives Objection
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WHO MUST SIGN DISCONTINUANCE?:
Stipulation Discontinuing Third-Party Action
Need Not Be Signed by Plaintiff
PUNISHING DISCLOSURE FAILURES:
Failing to Show for Deposition "Rescheduled
Specifically" by N.Y.C. Costs It $1500
NEGLECT TO PROSECUTE:
D, Having Served CPLR 3216 Demand on P, Doesn't
Forfeit Right to Move to Dismiss by Waiting Three Years Before Moving
DEFECT IN ARBITRATION DEMAND:
P's Failure, in Arbitration Demand, to Include
Notice That D Has Only 20 Days to Contest Arbitrability Preserves
D's Right to Contest Award
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WHEN DO NOTICE OF CLAIM AND LIKE DEFECTS AGAINST
A MUNICIPALITY ALSO BAR THE CLAIM AGAINST ITS EMPLOYEE, THE INDIVIDUAL
TORTFEASOR?
BACKLOG
ITEMS
SERVING RECEPTIONIST:
In Substituted Service, Leaving Process with
Receptionist Okay Even If She Says She's Not Allowed to Accept It
QUALIFYING AS MEDICAL EXPERT:
To Qualify as Medical Expert in Med Mal Case,
So As to Permit Concealing His Name, MD Need Not Be Licensed to Practice
COMMENCEMENT IN COURT OF CLAIMS:
Filing System Doesn't Change Rule That Commencement
in Court of Claims Requires Both Filing and Service
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