SPR - June 1997 Headlines & Topics


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. ó50-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