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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 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
         
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