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MARCH 1996
 
Overview of topics...

Lead Note:

JUDICIAL AMBIVALENCE ABOUT HOW TO PUNISH DELAYED EXPERT DISCLOSURE MISLEADS SOME PARTIES INTO CASE-FORFEITING CONDUCT

The Filing System:

 

  • Effect of Late Filing of Proof of Service in Second Action -Need for New Fee in Post
  • Judgment Enforcement Proceeding
  • Application of 120-Day Period for New Action When Contract Sets Limitations Period

General Practice:

 

  • Sanction for Premature Motion to Preclude Exists Independently of Bill of Particulars Statutes
  • Effect of Vacatur of Judgment Confirming Arbitration Award
  • X's Expert Can Testify Even Though X Lost the Object Tested and Couldn't Furnish It to Y

Backlog Items:

 

  • "Categorical" Discovery Demand Still Vacatable If Too Broad
  • Default Judgment Sticks Because Corporate Address on Secretary of State's Books Not Kept Current
  • Conflict on Whether Order for Money Can Be Docketed Like Judgment in Marital Action

Federal Jurisdiction:

 

  • Going Forward in State Court After Removal to Federal Court Gets P State Court Money Sanction

Open Citations:

 

  • Giahn (Issue 32/Page 2): 215 A.D.2d 437, 626 N.Y.S.2d 254.
  • Alvarez (Issue 38/Page 2): 165 Misc.2d 979, 630 N.Y.S.2d 912.

 ARTICLE HEADLINES

FEATURE ARTICLE:
JUDICIAL AMBIVALENCE ABOUT HOW TO PUNISH DELAYED EXPERT DISCLOSURE MISLEADS SOME PARTIES INTO CASE-FORFEITING CONDUCT


 THE FILING SYSTEM

EFFECT OF LATE PROOF OF SERVICE:
Late Proof of Service in Second (Follow-Up) Action Is Not Jurisdictional Defect

POST-JUDGMENT ENFORCEMENT PROCEEDING:
New Fee Needed for Post-Judgment Special Proceeding, But Late Payment Here Is Not Jurisdictional Defect

EFFECT OF CONTRACTUAL TIME PERIODS:
120-Day Period for Second Action After Dismissal of First One Applies Even When Contract Sets Period of Limitations

 
 
GENERAL PRACTICE

BILL OF PARTICULARS SANCTIONS:
Moving to Preclude Before Bill of Particulars Is Even Due Brings Sanction Against Defendant's Lawyer

RES JUDICATA FOR ARBITRATION AWARD:
Award Is Res Judicata Even If No Judgment Is Rendered on It, or If Judgment So Rendered Is Vacated for "Procedural" Reason

LOST EVIDENCE:
Evidence That Lost Pipe Was Tested by X's Side and Found to Implicate Y Not Barred Merely Because Y Couldn't Test It


 BACKLOG ITEMS

DISCOVERY DEMANDS:
Even Under Amendment Allowing Categorical Demand for Discovery, Demand Will Be Vacated If "Unduly Burdensome"

 
SERVICE ON CORPORATIONS:
Corporation's Failure to Keep Agent's Address Current on Secretary of State's Records Brings Default Judgment

MONEY AWARD IN MARITAL ACTION:
In Matrimonial Actions, Conflict on Whether Money Order Can Be Docketed as Judgment Without Court Leave


 
FEDERAL JURISDICTION

IGNORING FEDERAL REMOVAL:
Taking Default Judgment in State Court, After Removal to Federal Court Divested Jurisdiction, Gets Lawyer $1000 Fine in State Court

         
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