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JUNE 1995
 
Overview of topics...

Lead Note:

DOES DEFENDANT WHO ASSERTS JURISDICTIONAL DEFENSE IN ANSWER WAIVE IT BY PROCEEDING ON THE MERITS?

The Filing System:

 

  • May Mere Copy of Proof of Service Be Filed?
  • Effect of Omitting Index Number from Notice of Entry of Judgment

General Practice:

 

  • Role of Surveillance Tapes in Custody Case
  • Is Protective Order Still Okay Against Excessive Demand for Interrogatories?
  • Frivolity Sanction of $10,000 for Client and Attorney Each
  • Penalty for Destroying Evidence Before Suit
  • Effect of Omissions in Matrimonial Actions:
    • Demand for Ancillary Relief
    • Attorney's Certification of Facts
  • Civil Court's Declaratory Judgment Powers

Backlog Items:

 

  • No "Work Product" Insulation for File When Attorney Sues Client for Fee
  • Money Sanction as Condition for Allowing Late Default Judgment?
  • May Plaintiff Have Nurse Present During Physical Examination?

Open Citations:

 

  • Marsala (Issue 29/Page 2): 208 A.D.2d 689.

 ARTICLE HEADLINES

FEATURE ARTICLE:
DOES DEFENDANT WHO ASSERTS JURISDICTIONAL DEFENSE IN ANSWER WAIVE IT BY PROCEEDING ON THE MERITS?


 THE FILING SYSTEM

FILE ORIGINAL OF PROOF OF SERVICE:
Mere Copy of Proof of Service May Not Do

INDEXNUMBERITIS?:
Failure to Include Index Number on Notice of Entry of Judgment Not Jurisdictional Defect


 GENERAL PRACTICE

SURVEILLANCE TAPES:
H Can Get Discovery of Tapes W Took of H in Custody Case Just to Show H in Normal Activities with Child

 
INTERROGATORIES:
Even Under New Procedure, Party Served with "Outrageous" Demand Need Not Respond; Can Instead Move for Protective Order

FRIVOLITY SANCTIONS:
Full $10,000 Sanction Apiece Imposed on P and P's Lawyer

DESTROYING EVIDENCE:
Party Destroying Evidence Before Suit Can Be Subjected to CPLR 3126 Sanction

MATRIMONIAL ACTIONS:
Omission of Ancillary Relief Statement in Divorce Summons Not Jurisdictional; Just Bars That Relief If D Defaults

MATRIMONIAL ACTIONS:
Omission of Certification in Matrimonial Action, That Counsel Knows of No False Statement, Is Curable Nunc Pro Tunc

 
DECLARATORY JUDGMENT:
In CPLR 325(d) Case, Civil Court Has Declaratory Jurisdiction re Insurer's Obligation to Defend Regardless of Sum Involved


 BACKLOG ITEMS

ATTORNEY-CLIENT:
When Lawyer Sues Client for Fee, Client's File Must Be Discovered; No Attorney Work Product Insulation Here

DEFAULT JUDGMENTS:
Court Can't Impose Money Sanction for Plaintiff's Failure to Take Default Judgment Within Year

PHYSICAL EXAMINATIONS:
Nurse Designated by P's Attorney Can Be With P at Physical Examination

         
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