My Favorite Kind of Niceties

Over at Full Court Pass, Norman Olch has a post: Improper Dismissal of Civil Claims: The Procedural Niceties.  There he discusses a recent Second Circuit decision addressing CPLR § 1003 (Nonjoinder and misjoinder of parties) and a really interesting case from the Appellate Division, Second Department, Beshay v Eberhart L.P. #1, 2010 NY Slip Op 00461 (2010).  In Beshay, the complaint was dismissed after plaintiff’s opening statement; something you don’t see all to often.  Beshay explains what circumstances will warrant such a dismissal, which is nice.  You can find a description of those circumstances by clicking on the link or heading over to Mr. Olch’s post.  I’d go to the post, but that’s just me.  The other decision, the one from the Second Circuit, provides a “procedural warning.”  That too can be found in Mr. Olch’s post.

And in the New York State Bar Association Journal, David Horowitz has a great article on the growing beast that is the CPLR.  Right after the introduction he explains the difference between a section and rule.  That was the coolest thing ever.  I thought that I was the only person who was interested that esoteric stuff.  Hell, I posted on it. While I noted that CPLR § 101 allows you to cite to a section or a rule without writing “R.” or “§” he points out that CPLR § 102 was what stripped the Judiciary of its ability to make changes to the CPLR, but, as an end around, it can create “uniform rules.”  Cool stuff, right?  He goes on to discuss how changes to the CPLR have often confused rather that clarified the rules.  And worse yet, the uniform rules cannot be inconsistent with the CPLR provisions, so their ability to help is limited.  Though, I ‘m not quite sure how helpful those uniform rules are, when they keep growing and growing. Even worse, the Commercial Division has rules that aren’t actually rules.  At the end he suggests a complete overhaul of the CPLR, which he admits is all but impossible. There is a lot of good stuff there.  If you don’t get the magazine, borrow it from someone.

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