Siegel's Practice Review - October, 2009 Headlines & Topics


October, 2009

Overview of topics...

LEAD NOTE :

"Confidential" Settlement Signed by Parties That Affects Nonsigning Party Must Be Revealed; Attorney Using It to Conceal an Insurer's Obligation Is Referred for Discipline

SPECIAL NOTES:

Requirement That Court Dismissing for Neglect to Prosecute Show "General Pattern of Delay" Held Not Retroactive (Page 2)
Creditor Can't Use CPLR 5225(b) Turnover Order Against Bank Account Without First Complying with New Exemption Protections for Debtor Under CPLR 5222-a (Page 3)

GENERAL PRACTICE:

"There Is No Per Se Rule Against Oral Motions, So Long as a Movant Makes a Proper Evidentiary Showing"
First Department Conflict on Effect of Disobeying Condition in Conditional Order Shows Need for Court of Appeals Input
When Prior Dismissal for Failure to State Claim Was Not on Merits, New Action Held Okay and Gets CPLR 205(a) Time Extension
When "Overnight Mail" of Summons Is Directed by Specified Date in an Order to Show Cause, Merely Dropping Express Mail Into Ordinary Mail Box Won't Do
Despite Frequent Computer Connections Among Branches of Bank, It's Still Best to Effect Attachment at Branch Where Account Is Maintained

BACKLOG ITEMS:

General New York Rule Requiring Seeking Party to Defray Costs of Document Discovery Applies to Electronic Discovery, Too, However Expensive
Delivery of Summons to Minor at Residence Suffices as Delivery to Adult Co-Defendant Living There, but Not as Service on Minor Himself, for Whom Additional Service on Parent or Guardian Is Needed

ARTICLE HEADLINES

Feature Article:

"CONFIDENTIAL" SETTLEMENT SIGNED BY PARTIES THAT AFFECTS NONSIGNING PARTY MUST BE REVEALED; ATTORNEY USING IT TO CONCEAL INSURER'S OBLIGATION IS REFERRED FOR DISCIPLINE

Special Notes:

NEGLECT TO PROSECUTE STATUTE AGAIN
Requirement That Court Dismissing for Neglect to Prosecute Show "General Pattern of Delay" Held Not Retroactive

Creditor Can't Use CPLR 5225(b) Turnover Order Against Bank Account Without First Complying with New Exemption Protections for Debtor Under CPLR 5222-a

General Practice Points:

ORAL MOTIONS
"There Is No Per Se Rule Against Oral Motions, So Long as a Movant Makes a Proper Evidentiary Showing"

VIOLATING CONDITIONAL ORDERS
First Department Conflict on Effect of Disobeying Condition in Conditional Order Shows Need for Court of Appeals Input

MERITS OR NON-MERITS DISMISSAL?
When Prior Dismissal for Failure to State Claim Was Not on Merits, New Action Is Okay and Gets CPLR 205(a) Time Extension

MAILING "EXPRESS" MAIL
When "Overnight Mail" of Summons Is Directed by Specified Date in an Order to Show Cause, Merely Dropping Express Mail Into Ordinary Mail Box Won't Do

ATTACHING BANK ACCOUNT
Despite Frequent Computer Connections Among Branches of Bank, It's Still Best to Effect Attachment at Branch Where Account Is Maintained

Backlog Items:

ELECTRONIC DISCLOSURE
General New York Rule Requiring Seeking Party to Defray Costs of Document Discovery Applies to Electronic Discovery, Too, However Expensive

SERVICE ON MINOR
Delivery of Summons to Minor at Residence Suffices as Delivery to Adult Co-Defendant Living There, but Not as Service on Minor Himself, for Whom Additional Service on Parent or Guardian Is Needed