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FEBRUARY 2000
 
Overview of topics...

Lead Note:

PROVING "GRAVE INJURY" IN TORT CASE SO AS TO SUSTAIN IMPLEADER OF EMPLOYER: WHOSE BURDEN, PLAINTIFF'S OR DEFENDANT'S? WHOSE DECISION, COURT'S OR JURY'S?--Part 2 (concluded)

General Practice:

 

  • Mere Oral Preliminary Conference Order Can't Dismiss Complaint for Disclosure Failures
  • Sanction Is Assessed Directly Against Liability Insurer, Though Insurer Not Technically Party
  • "Abandonment" Year of CPLR 3404 Applies to Pre-Note as Well as Post-Note (Trial) Calendar
  • Court in Bench Trial Allows Direct Testimony by Mere Affidavit
  • Insurance Brokers and Agents Are Not Professionals Who Can Rely on CPLR 214(6)

Backlog Items:

 

  • On Motion to Dismiss for Failure to State Claim, Defendant Not Allowed to Use Affidavits
  • Can't Use "Supplemental" Bill of Particulars to Inject Overdue Expert Data

New Laws:

 

  • Insurance Regulation Reducing No-Fault Application from 90 to 30 Days Gets Court Test

Open Citations:

 

  • Curia (Issue 90:Pages 2-3): 182 Misc.2d 36.

 ARTICLE HEADLINES

FEATURE ARTICLE:
PROVING "GRAVE INJURY" IN TORT CASE SO AS TO SUSTAIN IMPLEADER OF EMPLOYER: WHOSE BURDEN, PLAINTIFF'S OR DEFENDANT'S? WHOSE DECISION, COURT'S OR JURY'S?--Part 2 (concluded)

 GENERAL PRACTICE

DISMISSAL FOR DISCOVERY FAILURE:
App Div Disapproves Oral Dismissal of Case Even Though Plaintiff Was Concededly Lax in Responding to Discovery Requirements

SANCTION ON INSURER:
Holding Liability Insurer to be "Party", Court Imposes Frivolity Sanction Directly on Insurer

 
STRIKING FROM CALENDAR:
Abandonment After Case Stricken from Calendar and Not Restored in Year Applies Also to Pre-Note of Issue Calendars

COURTROOM "TESTIMONY" BY AFFIDAVIT?:
Court Allows Direct Testimony of Nonexpert Witnesses by Mere Affidavit, But Subject to Witness's Cross-Examination in Court

WHO'S A PROFESSIONAL?:
Insurance Brokers Are Not Professionals and Can't Plead 3-Year Statute of Limitations as Defense When Contract Is on Scene

 
 BACKLOG ITEMS

NO AFFIDAVITS ALLOWED:
On Motion to Dismiss Under CPLR 3211(a)(7), Court Can't Even Consider Defendant's Affidavits

SUPPLEMENT VERSUS AMENDMENT:
Can't Use "Supplemental" Bill of Particulars to Belatedly Inject Overdue Expert Data

 NEW LAWS

DISPUTE OVER VALIDITY OF INSURANCE REGULATION REDUCING TIME FOR NO-FAULT APPLICATION FROM 90 TO 30 DAYS

         
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