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JANUARY 1996
 
Overview of topics...

Lead Note:

UNDER ARTICLE 16, DEFENDANTS' SHARES OF FAULT ARE EXTRAPOLATED TO 100% AFTER PLAINTIFF'S CONTRIBUTORY SHARE COMES OFF THE TOP

The Filing System:

 

  • Conflict on Effect of Omitting Index Number and Filing Date from Summons
  • Conflict on Whether Late Payment Can Cure Prior Failure to Pay Filing Fee

General Practice:

 

  • Is Inadequate Type Size in Summons Jurisdictional?
  • Resisting Summary Judgment to Secure Additional Evidence
  • Does Plaintiff's Bankruptcy Removal Suspend Its Obligation to Serve Complaint?
  • Using Delivery Order to Reach Debtor's Property Outside New York
  • "Rem" Jurisdiction Over Property Located Elsewhere?

Backlog Items:

 

  • Not Serving 90-Day Notice on All Parties Bars Lack of Prosecution Dismissal
  • May Attorney Be Deposed About Affidavit Drawn for Witness?
  • Does Appeal from Original Judgment Lie After Its Amendment?

Open Citations:

 

  • Levitin (Issue 38/Page 3): 903 F.Supp. 400.
  • Mitsui (Issue 39/Page 1): 906 F.Supp. 202.
  • Horner (Issue 39/Page 3): Correct date is Dec. 13, 1995, not 1993.

 ARTICLE HEADLINES

FEATURE ARTICLE:
UNDER ARTICLE 16, DEFENDANTS' SHARES OF FAULT ARE EXTRAPOLATED TO 100% AFTER PLAINTIFF'S CONTRIBUTORY SHARE COMES OFF THE TOP


THE FILING SYSTEM

SUMMONS OMISSIONS:
Conflict About Whether Omitting Both Index Number and Date of Filing from Summons Is Jurisdictional Defect

Conflict on Whether Failure to Pay Fee for Second Action Can Be Cured with Simple Late Payment

 
GENERAL PRACTICE

SIZE OF TYPE IN SUMMONS:
Use of Less Than 12-Point Type in Summons Held Not Jurisdictional Defect

RESISTING SUMMARY JUDGMENT:
To Avoid Summary Judgment on Ground Opposing Evidence "May Exist", Party Must Show "Likelihood" Discovery Would Help

EFFECT OF BANKRUPTCY REMOVAL:
Plaintiff's Removal to Bankruptcy Court for Chapter 11 Reorganization Doesn't Excuse Its Failure to Serve Complaint

ENFORCEMENT OF JUDGMENTS:
Using Delivery Order to Reach Debtor's Property Outside New York

 
"REM" JURISDICTION:
If Foreign Place Cooperates, Debtor's Property There Can Be Deemed to Be In Constructive Custody of Court Here


BACKLOG ITEMS

NEGLECT TO PROSECUTE:
Dismissal for Neglect to Prosecute Fails Because Third-Party Defendant Didn't Serve 90-Day Notice on All Parties

DEPOSING OF ATTORNEYS:
Deposing of Attorney Who Drew Witness's Affidavit Denied

APPEAL FROM AMENDED JUDGMENT:
No Appeal Lies from Judgment Superseded by Amended Judgment

         
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