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AUGUST 1997
 
Overview of topics...

Lead Note:

"DEEMED DISMISSED" FEATURE OF FILING SYSTEM ABOLISHED; COURT GIVEN DISCRETION TO EXTEND TIME FOR SERVICE--PART I

The Filing System:

 

  • CPLR Doesn't Govern "Commencement" in In Rem Foreclosure Proceedings
  • Improper Service Finding Made During the 120-Day Period Should Not Result in Dismissal

New Laws:

 

  • Some Infants' Claims May Now Go to Arbitration Without Court Order
  • "Deeming" Appeal from Dismissal Order To Specify Later Judgment Too

General Practice:

 

  • Attorney's Verified Pleading Can't Serve as Affidavit on Default Application
  • Matrimonial Venue Okay Even Though Neither Party Resides in County
  • Can't Withhold Expert's Name in Legal Malpractice Action Based on Lapsed Medical Malpractice Claim

Open Citations:

 

  • Bayonne (Issue 54:Page 3): 171 Misc.2d 684, 654 N.Y.S.2d 961 (Nov. 26, 1996).
  • Auger (55:2): 171 Misc.2d 866, 656 N.Y.S.2d 157.
  • Russo (55:2): 171 Misc.2d 707, 655 N.Y.S.2d 313 (Feb. 11, 1997).
  • Key Bank (55:3): 227 A.D.2d 991.
  • Suffolk (55:3):171 Misc.2d 855, 656 N.Y.S.2d 107 (Feb. 7, 1997).
  • Miller (56:3): 171 Misc.2d 404, 654 N.Y.S.2d 970.

 ARTICLE HEADLINES

FEATURE ARTICLE:
"DEEMED DISMISSED" FEATURE OF FILING SYSTEM ABOLISHED; COURT GIVEN DISCRETION TO EXTEND TIME FOR SERVICE--PART I

NEW STATUTE APPLIES ONLY TO ACTIONS COMMENCED AFTER JAN. 1, 1998; HOW TO PROCEED UNTIL THEN
  • New Law Not Effective Until January 1st
  • Warning: Don't Assume Too Much; Learn from the Past
  • Any Retroactivity for the New
    CPLR 306-b?
  • Should Plaintiffs Delay Suit Until After January 1st?
 
 THE FILING SYSTEM

IN REM FORECLOSURES:
"Commencement" Moment in Real Property Foreclosures in Rem Is When List of Delinquent Taxpayers Is Filed in Court

STATUTE OF LIMITATIONS BREAK:
If Some of 120-Day Period Still Left When Improper Service Shown, Court Should Just Allow New Service

 NEW LAWS

ARBITRATION OF INFANT'S CLAIM:
Court Order No Longer Required for Arbitration of Infant's Claim in Uninsured Motorist Cases

 
WHICH PAPER TO APPEAL?:
Amendment Provides That Appeal from Order Is Deemed to Specify Judgment Later Entered on the Order

 GENERAL PRACTICE

MATRIMONIAL ACTION VENUE:
Setting Matrimonial Venue in County of Neither Side's Residence Is Not Disciplinary Violation

PROOF FOR DEFAULT JUDGMENT:
Attorney's Verification, While Sometimes Adequate for Pleading, Can't Serve as Affidavit on Application for Default

EXPERT DISCLOSURE:
Medical Expert's Name Can't Be Concealed in Legal Malpractice Action Brought for Failure to Prosecute Med Mal Claim

         
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