SPR - June 1999 Headlines & Topics


JUNE 1999

Overview of topics...

Lead Note:

"UNDUE HARDSHIP" AS EXCUSE FOR DEFENDANT'S NOT BRINGING IMPROPER SERVICE OBJECTION TO JUDGMENT WITHIN 60 DAYS IS CONSTRUED STRICTLY

General Practice:

Statute Mandating Exercise of Jurisdiction in $1 Million+ Case Doesn't Bar It in Case for Less
Stay for Military Duty Applies Also to Soldier's Son, Extending Time for ó 50-h Exam
Five Defense Lawyers Pay $2000 Each for Picking Jury Without Intending to Go to Trial
Mere Fact Defendant Lives in Foreign Country Doesn't Justify Court-Invented CPLR 308(5) Service
Court Can't Designate Attorney as Referee to Supervise Disclosure Unless Parties Stipulate
Mere Arm Injury Does Not Invoke CPLR 321(c) to Excuse Lawyer from Appearing for Client
Pre-Action Disclosure to Perpetuate Testimony Doesn't Require Strong Proof That Claim Exist

Backlog Items:

State Held to Stricter Standard in Pleading Untimeliness and Improper Service in Court of Claims
Proceeding to Confirm Arbitration Award Is Just Ordinary One and Supports Award of Costs
App Div Warns That Served Papers Must Be Same as Filed Ones in Commencing Action
May Corporation Counterclaim in Small Claims Part?

Open Citations:

Wright (Issue 79:Page 1): 179 Misc.2d 289, 684 N.Y.S.2d 841.
Independent (81:1): 254 A.D.2d 722.
State [Upshur] (81:2): 252 A.D.2d 333, 686 N.Y.S.2d 233.
United (81:3): 179 Misc.2d 896, 686 N.Y.S.2d 679.

ARTICLE HEADLINES

FEATURE ARTICLE:
"UNDUE HARDSHIP" AS EXCUSE FOR DEFENDANT'S NOT BRINGING IMPROPER SERVICE OBJECTION TO JUDGMENT WITHIN 60 DAYS IS CONSTRUED STRICTLY

GENERAL PRACTICE

CHOICE OF FORUM CLAUSES:
Statute Mandating Taking of Case for More Than $1 Million Does Not Preclude Taking Case for Less

STAYS FOR MILITARY SERVICE:
Same Stays That Would Apply to Litigant in Military Service Apply Also to His Family, Here Preserving Infant Son's Rights

FRIVOLITY SANCTIONS:
Five Defense Lawyers Sanctioned $2000 Each for "Frivolously Proceeding to Jury Selection"; Today Sums Could Be Higher

MERE SHOWING DEFENDANT RESIDES IN FOREIGN COUNTRY DOESN'T SUPPORT COURT-ORDERED SERVICE

REFEREE TO SUPERVISE DISCLOSURE:
Under CPLR 3104, Court Can't Appoint Private Attorney as Referee Unless Parties Stipulate

ATTORNEY'S "DISABILITY":
Attorney Is Not "Disabled" When Accident Impairs Arm Because That Does Not Interfere with Practice of Law

PERPETUATING TESTIMONY:
For Pre-Action Disclosure to Perpetuate Testimony, Strong Showing There's Cause of Action Is Not Strict Requirement

BACKLOG ITEMS

SPECIAL PROCEEDINGS CONCERNING ARBITRATION:
Proceeding to Confirm Arbitration Award Is Just Ordinary Special Proceeding in Which Costs Are Awardable

SERVED VERSUS FILED SUMMONS:
App Div Offers Definitive Statement Requiring That Served Papers Be Identical to Filed Papers in Commencing Supreme Court Action

COURT OF CLAIMS PLEADING:
State Waives Statute of Limitations by Overlooking "Particularity" Requirement in Pleading in Court of Claims

SMALL CLAIMS:
Counterclaim by Corporate Defendant Okay as Long as Related to Main Claim and Within Small Claims Amount