Comparative Fault in the Context of a Motion for Summary Judgment in Liability Claims

The Appellate Division, First Department of New York State recently determined that an individual must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability. The decision by the Appellate Division now aligns with the Second Department, and finally sets the standard for the trial courts within the department which were issuing conflicting decisions on the subject.

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Partner in an Unmarried Couple with No Biological or Adoptive Relationship to the Child has Standing as a Parent to Seek Custody/Visitation

On August 30, 2016 the New York Court of Appeals determined that the recently delineated principles of society established a need to overturn a twenty-five year old decision which previously defined the term “parent” in relation to custody and visitation rights. In reviewing two lower-level decisions, the court ruled that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing as a parent to seek visitation and custody.

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New York Appellate Division 1st Department Rules on Discovery of Facebook Posts

The defendant sought to introduce evidence from the plaintiff’s Facebook account to contradict the plaintiff’s claim that her “social network went from huge to nothing.”  During deposition, the plaintiff had admitted to posting photographs depicting her engaged in fun activities.  The plaintiff had deactivated her Facebook account sometime after the accident and after the commencement of the case.  Subsequently, the defendant made a motion to obtain all the plaintiff’s Facebook records without limitation.  This included all text messages sent through Facebook, photographs, and any other content posted.

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Appellate Division, Second Department Holds Court Approval Necessary Before Recording an Independent Medical Examination to be Used at Trial

This month, the New York Appellate Division, Second Department, considered whether an attorney must obtain permission from the court prior to recording an Independent Medical Examination, and whether failing to provide such a recording to opposing counsel constituted a violation of CPLR 3101. The Court answered both questions affirmatively.

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Appellate Division, First Department, Considers Whether Calling Defense Counsel and Defense Witnesses “Liars” Denied Defendant a Fair Trial

Attorneys are held to a high moral standard of professional conduct. Even though our system of justice is an adversarial one, attorneys must adhere to a code of certain conduct in the courtroom. Statements by an attorney that would result in an unfair trial are prohibited. Witnesses are also held to a high moral standard of truthfulness in giving testimony, whether at a deposition or at trial, and harsh consequences can result from untruthfulness.

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Court reviews use the Statute of Limitation Defense in a boilerplate paragraph – Call to the Court of Appeals?

Failure to follow procedural rules can have a detrimental effect on a case.  Recently, the New York Appellate Division, First Department held that the statute of limitations would not bar the plaintiff’s action because the defendant did not assert the defense in accordance with the format required by New York Civil Procedure Rule governing pleadings, CPLR §3040.  The rule provides that each affirmative defense asserted should be numbered and labeled in a responsive pleading.

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Proposed Changes to the Federal Rules of Civil Procedure 2015

The amendments were officially proposed on August 15, 2013. Public commentary elicited since then includes over 2,300 remarks on all sides of the spectrum. The commentary period closed on February 18, 2014.  The Judiciary Conference’s Advisory Committee on Civil Rules first explored amending the rules in May 2010 at a conference held at Duke University School of Law. Twenty-eight changes to Rules were proposed to the Supreme Court as a result.

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Venue in case against Suffolk County School District is changed to Kings County

CPLR 504, in part, requires that the venue for all trials against school districts take place in the county in which the school district is located. Courts have further noted that CPLR 504 not only applies to school districts, but also to counties, cities, towns, and villages. The statute’s purpose is to safeguard municipal entities from the inconveniences that result if venue could be placed in another county. However, despite the strict statutory language, courts have held that a venue may, in fact, be changed upon a showing of special circumstances.

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