Siegel's Practice Review - July 2010 Headlines & Topics


July, 2010

Overview of topics...

LEAD NOTE:

Amended CPLR 2001 Is Applied to Forgive Failure to Get Index Number and Pay Filing Fee, Because Omission Was Cured with Later Payment and Defendant Showed No Prejudice

SPECIAL NOTE (Page 3):

Fallout from Court of Appeals Brady Case Felt as Court Is Asked to See If Party Can Afford to Pay Arbitration Fees

GENERAL PRACTICE:

Removing from State to Federal Court Does Not Concede Personal Jurisdiction
Court Can't Sua Sponte Devise Service Method under CPLR 308(5); Motion by Plaintiff Required
Dismissal under Rule 202.27 for P's Failure to Attend Conference Held Not Neglect to Prosecute; Hence It Gets CPLR 205(a) 6 Months for New Action
Court Refuses to Extend Time for P to File CPLR 3012-a Certificate of Merit or CPLR 3406(a) Notice of Medical Malpractice Action
Deciding Motion on Ground Other Than That Argued Is Permissible If Not "Dramatically" Different
If D's Negligence Is Established, P Can Have Summary Judgment Even If P's Own Contributory Fault Remains Open Question
Bond Given by D as Condition of Vacating Default IsDischarged When Vacatur Is Reversed by Appellate Court and Default Is Upheld

ARTICLE HEADLINES

Feature Article:

AMENDED CPLR 2001 IS APPLIED TO FORGIVE FAILURE TO GET INDEX NUMBER AND PAY FILING FEE, BECAUSE OMISSION WAS CURED WITH LATER PAYMENT AND DEFENDANT SHOWED NO PREJUDICE

General Practice Points:

REMOVAL TO FEDERAL COURT
Removing from State to Federal Court Does Not Concede Personal Jurisdiction

COURT-ORDERED SERVICE
Court Can't Sua Sponte Devise Service Method under CPLR 308(5); Motion by Plaintiff Required

NEGLECT TO PROSECUTE
Dismissal under Uniform Rule 202.27 for P's Failure to Attend Conference Held Not Neglect to Prosecute; Hence It Gets CPLR 205(a) Six Months for New Action

MEDICAL MALPRACTICE
Court Refuses to Extend Time for P to File CPLR 3012-a Certificate of Merit or CPLR 3406(a) Notice of Medical Malpractice Action

ALTERED MOTION GROUND
Deciding Motion on Ground Other Than That Argued Is Permissible If Not "Dramatically" Different

COMPARATIVE NEGLIGENCE
If D's Negligence Is Established, P Can Have Summary Judgment Even If P's Own Contributory Fault Remains Open Question

DISCHARGING SURETY BOND
Bond Given by D as Condition of Vacating Default Is Discharged When Vacatur Is Reversed by Appellate Court and Default Upheld

Special Note:

WHO PAYS FOR ARBITRATION?
Fallout from Court of Appeals Brady Case Felt as Court Is Asked to See If Party Can Pay Arbitration Fees