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JUNE 1997
 
Overview of topics...

Lead Note:

MORE CASES BAR USE OF EXPERT BECAUSE OF PARTY'S FAILURE TO FURNISH DATA ABOUT EXPERT BEFORE TRIAL

Tracking the New Laws:

 

  • More on Retroactivity of Statute Curtailing Malpractice Time Period
  • More on Retroactivity of Amendment Curtailing Time for Summary Judgment

The Filing System:

 

  • Not Even Court-Ordered Default Can Stand After Court Shown "Deemed Dismissal" Occurred
  • Only Under the "Deemed" System: D May Secure Advantage by Defaulting

General Practice:

 

  • Repetitive Requests for Class Status Bring Frivolity Sanction
  • Application of Notice of Claim Requirement in Small Claims Part
  • Reduction of Costs Award for Failure to File Note of Issue?

Backlog Items:

 

  • Physician Must Give Medical Records Directly to Defendant, Not Plaintiff
  • Can Defendant Withdraw from Settlement with Infant Before Court Approval?
  • State Law More Generous Than Federal in Extending Time for Claim Held Up by Bankruptcy

Open Citations:

 

  • Fry (Issue 45/Page 1): 226 A.D.2d 461.
  • Gleason (48:4): 170 Misc.2d 668, 649 N.Y.S.2d 647.
  • Gershel (51:3): 226 A.D.2d 636.
  • Huang (58:1): 170 Misc.2d 617, 651 N.Y.S.2d 286 (Nov. 18, 1996).
  • Siler (53:1): 228 A.D.2d 33, 652 N.Y.S.2d 315.
  • Durkin (56:2): 957 F.Supp. 1360.
  • Mason (56:2): 958 F.Supp. 869.
  • Re (56:2): 958 F.Supp. 907.

 ARTICLE HEADLINES

FEATURE ARTICLE:
MORE CASES BAR USE OF EXPERT BECAUSE OF PARTY'S FAILURE TO FURNISH DATA ABOUT EXPERT BEFORE TRIAL

 TRACKING THE NEW LAWS

MALPRACTICE STATUTE OF LIMITATIONS:
Holding Amendment That Reduces Malpractice Statute to Three Years Prospective Only, Court Notes Constitutional Issue

SUMMARY JUDGMENT TIME LIMIT:
Time Limit on Summary Judgment Motion Applies in Pending Cases

 
THE FILING SYSTEM DEFAULT IRRELEVANT:
Not Even Default Judgment Ordered by Court Can Stand When Court Shown That a "Deemed Dismissal" Occurred

EXPLOITING P'S LAXITY:
With Deliberate Default, Canny Defendant May Be Able to Maneuver a Dilatory Plaintiff Out of Time

 GENERAL PRACTICE

FRIVOLITY SANCTIONS:
Repetitive Requests for Class Action Status After Prior Warning Bring $5000 Sanction

NOTICE OF CLAIM:
Gen.Mun.L. 50-e Notice of Claim Requirement Does Apply in Small Claims Part

 
COSTS IN AN ACTION:
If Trial Occurs Without Note of Issue Having Been Filed, Does the Second of the Three Costs Items Get Assessed?

 BACKLOG ITEMS

SECURING MEDICAL RECORDS:
If Defendant Has Plaintiff's Authorization, Physician Must Furnish Records Directly to Defendant

INFANT'S COMPROMISE:
After Defendant Settles with Infant Plaintiff, Defendant Can't Withdraw Even Though Settlement Not Yet Approved by Court

BANKRUPTCY STAY:
Entire Period of Bankruptcy Stay Constitutes Extension of Time to Bring Action

         
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