SPR - August 1998 Headlines & Topics


AUGUST 1998

Overview of topics...

Lead Note:

RULE AMENDMENT RESTRICTS TRANSFERS FROM SUPREME TO CIVIL COURT

New Laws:

New RPAPL Article 14 Allows Mortgage Foreclosure Without Court Involvement
Statute on Court-Ordered Service on Corporations Amended

General Practice:

Conflict on Whether Retention of Counsel Dissolves Toll for Infancy
"Feldman" Loan Rejected
Effect of Complaint's Amendment During Pendency of Dismissal Motion
Use of "Ex Parte" Deposition on Motions
What Credit Against Verdict When Non-Settling Tortfeasor Fails to Inject Share of Settler?
Egregious Disclosure Delay Brings Only Money Penalty

Arbitration:

Okay for One Side's Appointee as Arbitrator to Testify
Newly Discovered Evidence Not Ground for Vacating Award
Costs May Be Granted in Special Proceeding Concerning Arbitration

Backlog Items:

Serving Summons First and Filing Later: May the Clerk Reject the Filing?
Accounting Is Money Claim and Supports Order of Attachment

Open Citations:

Matie (Issue 62:Page 3): 242 A.D.2d 864, 665 N.Y.S.2d 360.
Van Vlack (70:3): 242 A.D.2d 704.
Cazsador II (72:2): 243 A.D.2d 867.
Woodburn (72:4): 243 A.D.2d 1044.

ARTICLE HEADLINES

FEATURE ARTICLE:
RULE AMENDMENT RESTRICTS TRANSFERS FROM SUPREME TO CIVIL COURT

NEW LAWS

MORTGAGE FORECLOSURE:
New RPAPL Article 14 Allows Out-of-Court Mortgage Foreclosure

SERVING CORPORATIONS:
Availability of Court-Ordered Service on Corporations Expanded

GENERAL PRACTICE

TOLL FOR INFANCY:
In Personal Injury Action, 2d Dep't Holds That Disability of Infancy Ends When Counsel Is Retained by Parent

"FELDMAN" LOAN REJECTED:
No "Feldman" Loan Allowed When Third-Party Defendant Is Employer

AMENDMENT PENDING MOTION:
What Happens to D's Dismissal Motion When P Amends the Complaint While the Motion Is Pending?

USE OF DEPOSITIONS:
Party Can Use "Ex Parte" Deposition, and Own Employee's Deposition, as Evidence in Chief on a Motion

TORT SETTLEMENTS:
Effect of Tort Settlement When Non-Settling Tortfeasor Deliberately Fails to Show Fault of Settling Tortfeasors

DISCLOSURE DELAYS:
Although Delays by P's Attorneys in Legal Malpractice Action Found Flagrant, Only Monetary Penalty Imposed

ARBITRATION ARBITRATOR AS WITNESS:
Partial Arbitrator Can Testify for His Side

NEWLY DISCOVERED EVIDENCE:
Newly Discovered Evidence Is Not Basis for Vacating Arbitration Award

COSTS RE ARBITRATION:
Costs Allowable in Special Proceeding Involving Arbitration

BACKLOG ITEMS

WRONG SEQUENCE:
Clerk's Refusal to Issue Index Number Upon Filing Because Service Was Already Made Brings End of Case

ATTACHMENTS:
Accounting Action Qualifies as Money Claim So As to Support Attachment