Siegel's Practice Review - June, 2009 Headlines & Topics


June, 2009

Overview of topics...

LEAD NOTE :

The "General Pattern of Delay" Amendment of CPLR 205(a): If Judge Dismissing Earlier Action Didn't Consider It Neglect to Prosecute, Plaintiff Does Get Six Months of CPLR 205(a) for New Action

GENERAL PRACTICE:

When Subcontractor S Sues Contractor G to Recover for Work Done, G's Defense of Offset Based on Damages G Incurred Because of S's Negligence Is Not "Claim" That S's Insurer Has to Defend
Service Outside State by One Not on CPLR 313 List of Proper Servers Held Void, Vacating Default Judgment
Mailing Notice of Appeal from New Jersey Is No Good; Mailing Must Be from New York; Forfeited Appeal Is Result
When P Sues D to Foreclose Mechanic's Lien on D's Property, and Joins L, Who Had Also Filed Lien, L Must Assert Its Lien as Counterclaim
In Measuring Value of Real Property Levied On to Determine Poundage, Mortgages and Liens May Not Be Subtracted
Recent Article Discusses Kinds of Action That Satisfy CPLR 6501 and Permit Filing of Lis Pendens

BACKLOG ITEMS:

Store's Surveillance Tapes of Premises at Time of Plaintiff's Fall Are Disclosable Without Plaintiff First Having to Depose; and Stores Are Warned About Destroying Tapes
Civil Court Holds It Can Itself Grant Leave to File Late Notice of Claim; Application to Supreme Court Is Not Necessary

ARTICLE HEADLINES

Feature Article:

THE "GENERAL PATTERN OF DELAY" AMENDMENT OF CPLR 205(a)
If Judge Dismissing Earlier Action Didn't Consider It Neglect to Prosecute, Plaintiff Does Get Six Months of CPLR 205(a) for New Action

General Practice:

INSURER'S DUTY TO DEFEND
When Subcontractor S Sues Contractor G to Recover for Work Done, G's Defense of Offset Based on Damages G Incurred Because of S's Negligence Is Not "Claim" That S's Insurer Has to Defend

SERVICE VOIDED
Service Outside State by One Not on CPLR 313 List of Proper Servers Is Held Void, Vacating Default Judgment

ANOTHER VOIDING FOR SERVICE DEFECT
Mailing Notice of Appeal from New Jersey Is No Good; Mailing Must Be from New York; Forfeited Appeal Is Result

MECHANICS' LIENS
When P Sues D to Foreclose Lien on D's Property, and Joins L, Who Had Also Filed Lien, L Must Assert Its Lien as Counterclaim

SHERIFF'S POUNDAGE
In Measuring Value of Real Property Levied On to Determine Poundage, Mortgages and Liens May Not Be Subtracted

LIS PENDENS
Recent Article Discusses Kinds of Action That Satisfy CPLR 6501 and Permit Filing of Lis Pendens

Backlog Items:

SURVEILLANCE TAPES
Store's Tapings of Premises at Time of Plaintiff's Fall Are Disclosable Without Plaintiff First Having to Depose; and Stores Are Warned About Destroying Tapes

NOTICE OF CLAIM
Civil Court Holds It Can Itself Grant Leave to File Late Notice of Claim; Application to Supreme Court Is Not Necessary