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October 2001
 
Overview of topics...

Lead Note:

IN ANOTHER EXTENSIVE OPINION ON CPLR 3404, SECOND DEPARTMENT HOLDS THAT JUDGE'S ACTION AT TIME OF CALENDAR STRIKING DETERMINES WHETHER AND HOW RESTORATION IS TO FOLLOW LATER

New Law:

 

  • Amendment Requires Copy of Trial Subpoena Duces Tecum to Accompany Materials Produced

General Practice:

 

  • Review Is Set on Whether Unintentional TortfeasorUnder CPLR Article 16 Can Have Reduction Based on Conduct of Intentional Tortfeasor
  • In Court of Claims, While Claim Itself Must Be Received by AG Within Allotted Time, Motion for Leave to File Late Need Only Be Posted
  • Court Faults D for Not Trying to Spare Itself Prejudice When P Fails to Respond to Expert Demand
  • Insured Has Distinct Claim Against Insurer for Discarding Leaky Water Heater for Which Insured Faces Liability
  • Summary Judgment on Liability Implies "Serious Injury" and Lets Case Stay in Court
  • Foreign Judgment That Satisfies Article 53 Also Supports an Attachment
  • Casualness in Seeing to "Entry" Loses Priority for Judgment Creditor
  • When to Extend 120-Day Service Period

 ARTICLE HEADLINES

FEATURE ARTICLE:
IN ANOTHER EXTENSIVE OPINION ON CPLR 3404, SECOND DEPARTMENT HOLDS THAT JUDGE'S ACTION AT TIME OF CALENDAR STRIKING DETERMINES WHETHER AND HOW RESTORATION IS TO FOLLOW LATER

NEW LAW

TRIAL SUBPOENAS "DUCES TECUM:
Amendment Requires That Subpoena Bear on Its Face Notice That Copy of It Must Accompany the Produced Materials

 


GENERAL PRACTICE

INTENTIONAL TORTFEASORS UNDER ARTICLE 16:
Court of Appeals to Review Issue of Whether Unintentional Tortfeasor Can Have Reduction Based on Conduct of Intentional Tortfeasor

COURT OF CLAIMS PRACTICE:
While Notice of Intention or Claim Itself Must Be Received by AG Within Allotted Time, Motion for Leave to File Late Need Only Be Posted Within Allotted Time

EXPERT DISCLOSURE IN MED MAL CASE:
Faulting D for Trying to Draw Advantage from P's Belated Disclosure of Expert When D Could Have Taken Steps to Spare Itself Prejudice, Court Denies D Dismissal

CPLR 3126; SPOLIATION OF EVIDENCE:
Insured Has Distinct Claim Against Insurer for Discarding Leaky Water Heater for Which Insured Faces Liability

 
GETTING PAST NO-FAULT BARRIER:
Summary Judgment on Liability Implies "Serious Injury" and Lets Case Stay in Court

ENFORCING FOREIGN JUDGMENTS:
Foreign Judgment That Passes Article 53 Test Means "Probability of Success" That Supports an Attachment

JUDGMENT PRIORITIES:
Casualness in Seeing to "Entry" Loses Priority for Creditor Who Won Judgment

COMMENCEMENT OF ACTION:
Extension of 120-Day Period Is Available Not Only When There Was No Service, But Also When Service Was Defective
         
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