Siegel's Practice Review - January 2011 Headlines & Topics


January, 2011

Overview of topics...

LEAD NOTE:

NY Statutory Device for Testing Whether to Defer NY Action to One in Another Court Has Federal Counterpart in Caselaw, Shown in Recent Decision Deferring Federal to State Action

NEW LAW:

Property Exemptions (from Creditor's Levy) Are Increased

SPECIAL NOTE:

Appeal from Interlocutory Order Abates When Judgment Is Entered, and If Order Doesn't "Affect" Final Judgment, Review Is Altogether Barred

GENERAL PRACTICE:

Owner Paid by Fire Insurer But Not Necessarily for Whole Loss May Continue Action, with Court to Resolve Collateral Source Issues Afterwards
Issue of P's "Standing" to Sue Is Defense That D Must Raise by Motion or Answer; It's Waived When Done by Neither
Dropping of Party Whose Residence Furnished Venue Basis Makes Venue Improper, But Remaining Parties Must Then Move to Change Venue Promptly or Case Stays Where It Is
Recent Case Illustrates Consequence of Violating New Affirmation Rule in Foreclosure Cases: (1) Motion for Reference Denied; (2) Lis Pendens Cancelled; and (3) Action Dismissed "with Prejudice"

ARTICLE HEADLINES

Feature Article:

DISMISSAL OF FEDERAL ACTION IN DEFERENCE TO STATE ACTION
NY Statutory Device for Testing Whether to Defer NY Action to One in Another Court Has Federal Counterpart in Caselaw, Shown in Recent Decision Deferring Federal to State Action

New Law:

Property Exemptions (from Creditor's Levy) Are Increased

Special Note:

SCOPE OF REVIEW FROM FINAL JUDGMENT
Appeal from Interlocutory Order Abates When Judgment Is Entered, and If Order Doesn't "Affect" Final Judgment, Review Is Altogether Barred

General Practice Points:

COLLATERAL SOURCE ISSUE
Owner Paid by Fire Insurer But Not Necessarily for Whole Loss May Continue Action, with Court to Resolve Collateral Source Issues Afterwards

"STANDING" TO SUE
Issue of P's "Standing" to Sue Is Defense That D Must Raise by Motion or Answer; It's Waived If Done by Neither

CHANGE OF VENUE
Dropping of Party Whose Residence Furnished Venue Basis Makes Venue Improper, But Remaining Parties Must Then Move to Change Venue Promptly or Case Stays Where It Is

MORTGAGE FORECLOSURE
Recent Case Illustrates Consequence of Violating New Affirmation Rule: (1) Motion for Reference Denied; (2) Lis Pendens Cancelled; and (3) Action Dismissed "with Prejudice"