Siegel's Practice Review - February 2012 Headlines & Topics


February, 2012

Overview of topics...

LEAD NOTE:

1st Dep't Adopts 2d's View That Even If D's Negligence Is Established, P Can't Have Summary Judgment Unless It's Also Shown That P Has No Contributory Fault

SPECIAL NOTE:

Restriction in CPLR Article 53 Bars Chevron's Attempt to Enjoin Enforcement of Ecuador's $17 Billion Judgment

GENERAL PRACTICE:

3d Department Joins 2d and 4th in Construing Hague Convention to Allow Service of Process in Foreign Country by Mere Mail
Okay for Subrogated Insurer to Bring Separate Action Against Wrongdoer; Impleader Is Not Sole Option
Plaintiff May Not, by Entering Judgment Without Notice, Deprive Defendant of Hearing on Possible Collateral Source Reductions
Debtor's Repeated Defaults in Failing to Respond to Protective Steps Set Up to Insulate Exempt Income in Bank Account Results in Finding Funds Are Not Exempt
Justice's "Sua Sponte" Dismissal of Foreclosure Action "with Prejudice" Is Reversed and Case Ordered Assigned to Different Justice

ARTICLE HEADLINES

Feature Article

CONFLICT ABOUT SUMMARY JUDGMENT AND COMPARATIVE NEGLIGENCE IS RESOLVED AS FIRST DEPARTMENT ADOPTS SECOND'S RULING
Result Is That Even If D's Negligence Is Established, P Can't Have Summary Judgment Unless It's Also Shown That P Has No Contributory Fault

Special Note:

CPLR ARTICLE 53 CAN'T BE USED UNTIL ATTEMPT IS MADE IN NEW YORK TO ENFORCE FOREIGN COUNTY JUDGMENT
Hence Chevron Can't Have N.Y. Injunction to Stop Enforcement of Ecuadorean Judgment

General Practice Points:

HAGUE CONVENTION SERVICE
3d Department Joins 2d and 4th in Construing Hague Convention to Allow Service of Process in Foreign Country by Mere Mail

PROCEDURE FOR SUBROGATION
Okay for Subrogated Insurer to Bring Separate Action Against Wrongdoer; Impleader Is Not Sole Option

COLLATERAL SOURCE
Plaintiff May Not, by Entering Judgment Without Notice, Deprive Defendant of Hearing on Possible Collateral Source Reductions

EXEMPT FUNDS IN ACCOUNT
Debtor's Repeated Defaults in Failing to Respond to Protective Steps Set Up to Insulate Exempt Income Results in Finding Funds Are Not Exempt

MORTGAGE FORECLOSURE
Justice's "Sua Sponte" Dismissal of Foreclosure Action "With Prejudice" Is Reversed and Case Ordered Assigned to Different Justice