SPR - July 1997 Headlines & Topics


JULY 1997

Overview of topics...

Lead Note:

TRACKING THE NEW LAWS AMENDMENT REQUIRING 60-DAY MOTION FOR JUDGMENT AFTER ANSWER PLEADS DEFENSE OF IMPROPER SERVICE HELD RETROACTIVE, BRINGING DEFENDANT'S WAIVER

Tracking the New Laws:

Third Dep't Holds Omnibus Workers' Comp Act Not Retroactive

The Filing System:

Specifying Wrong Return Date in Special Proceeding Is Jurisdictional
Conflict on Time to File Proof of Service When Special Statute Differs from CPLR

General Practice:

Effect of Omitting "Personal and Confidential" from Envelope Cotaining Summons
City Still Subject to Joint Liability When Charged with Failure to Maintain Traffic Signal

Backlog Items:

Not Substituting Proper Person After Death of Party Can Be Waived
Ninety Days for Seeking Deficiency Judgment in Mortgage Foreclosure Applied Flexibly

Federal/State Practice:

Federal Diversity Case Survives Through Interplay of Federal and State "Commencement" Rules, Preserving Case Both Practices Would Have Dismissed as Too Late

Open Citations:

Coleman (Issue 52/Page 2): 227 A.D.2d 919.
McNamara (52:4): 227 A.D.2d 892.
Frycek (53:2): 171 Misc.2d 220, 654 N.Y.S.2d 264.
Key Bank (55:3): 227 Misc.2d 991.
Paracha (56:3): 228 A.D.2d 422.
Cortes (56:4): 227 A.D.2d 430.
Kalkan (56:4): 227 A.D.2d 382.
Jannon (57:3): 227 A.D.2d 844.
Greenblatt (57:4): 171 Misc.2d 126.

ARTICLE HEADLINES

FEATURE ARTICLE:
TRACKING THE NEW LAWS AMENDMENT REQUIRING 60-DAY MOTION FOR JUDGMENT AFTER ANSWER PLEADS DEFENSE OF IMPROPER SERVICE HELD RETROACTIVE, BRINGING DEFENDANT'S WAIVER

OMNIBUS WORKERS' COMP ACT:
Third Dep't Reverses Majewski, Agreeing with Second Dep't That Omnibus Act Is Not Retroactive

THE FILING SYSTEM WRONG RETURN DAY:
Even Under Filing System, Specifying Wrong Return Date in Special Proceeding Is Jurisdictional Defect

CONTINUING CONLICTS:
If Given Proceeding Has Its Own, Flexible Requirement on Filing Proof of Service, Does It Prevail Over Rigid CPLR?

GENERAL PRACTICE

SUBSTITUTED SERVICE:
Failure to Say "Personal and Confidential" on Envelope Mailed to Place of Business Voids Service

JOINT VERSUS SEVERAL LIABILITY:
Not Even Municipal Tortfeasor Can Rely on Article 16 to Cancel Joint Liability If Charged with Non-Delegable Duty

BACKLOG ITEMS

DEATH DURING ACTION:
Insurer's Participation in Case for Two Years After Insured's Death Waives Objection

DEFICIENCY JUDGMENTS:
The 90-Day Period for Seeking Deficiency Judgment After Mortgage Foreclosure Needs Only "Substantial Compliance"

FEDERAL/STATE PRACTICE

BLENDING OF "DEEMED DISMISSAL" UNDER CPLR 306-b WITH FEDERAL COUNTERPART RULE 4(m) PRESERVES DIVERSITY CASE THAT WOULD HAVE BEEN TOO LATE UNDER BOTH PRACTICES