New First Department Rules

The First Department has modified Rules 600.10 and 600.11 to reduce the number of copies of briefs and records to be filed with the Court from 10 to 8.  They have also introduced an e-filing requirement.  Beginning July 1, 2010, parties must file a searchable pdf of the brief and beginning September 1, 2010, parties must file a searchable pdf of the record. 

Cases Headed To The Court Of Appeals

The Court of Appeals has granted leave to appeal in the following cases:

Matter of Dylan C. - "whether a nonsecure facility for the placement of alleged and adjudicated juvenile delinquents is a 'detention facility' within the scope of Penal Law § 205.10, which sets forth the elements of the crime of escape in the second degree"

Matter of State of New York v. Rashid - interaction between Mental Hygiene Law Sec. 10 and Penal Law Sec. 70.30. 

Warney v. State - whether plaintiff set forth sufficient detail to permit the court to find that he is likely to succeed at trial in proving that he did not by his own conduct cause or bring about his conviction

First Department Issues Key Decision Interpreting Arons v. Jutkowitz

On Thursday, in Sheffer v. Tepper, the First Department answered a key question that some still had following Arons v. Jutkowitz.  The court held that Arons permits ex parte interviews of a plaintiff's health care provider before and after the filing of a note of issue, with a strong preference for before.  In particular, the Court held:

The motion court incorrectly interpreted the Court of Appeals' decision in Arons v Jutkowitz (9 NY3d 393 [2007]) as permitting ex parte interviews of a plaintiff's healthcare providers by defense counsel only after a note of issue was filed. To the contrary, the Court of Appeals expressly rejected the long-standing practice of proscribing such interviews only after the note of issue was filed, and otherwise made it clear that the preferred time for such disclosure was before the filing of a note of issue (see id. at 410-411).

Court of Appeals Watch

The Court of Appeals has granted leave to appeal in the following cases:

Goldenberg v. Westchester County Health Care Corp. - in this medical malpractice action, the plaintiff served the summons and complaint upon the defendants without ever filing them or obtaining an index number and paying the filing fee for the action. Following the expiration of the applicable statute of limitations, the defendants moved to dismiss the complaint as time-barred, and the plaintiff cross-moved for leave to file the summons and complaint nunc pro tunc. The Supreme Court granted the defendant's motion and denied the plaintiff’s cross-motion. The Appellate Division affirmed.

Matter of National Fuel Gas Distribution v. Public Service Commission of State - National Gas filed a proposal with the Public Service Commission seeking to increase its rates for the 2008 rate year and to pass on to its ratepayers certain costs of site investigation and remediation (SIR). At issue is whether the Commission improperly reduced the amount of SIR costs that National Gas could pass on to its customers.