First, I'm taking suggestions. If there is anything you want me to include or change, email me at thecplrblog@gmail.com. Do not email me with questions. If you want to pay me, that's a different story. But if there is something that you'd like to see here, let me know.
Second, I never explicitly said so, but if anyone wants to guest blog, you're more than welcome. However, I have and will always have complete editorial control. That isn't to say that I have any interest in changing someone's post, but there are some things I will allow and some things I won't. As long as you don't intend on being a jerkoff or a stupid, your post will go though. I'm assuming that people actually want to guest blog, but I could be wrong.
murum aries attigit (h/t Popehat). I read stuff like that and wonder what the hell I've been doing with my career. It also makes me realize that I'm not working nearly hard enough. Head over to Randazza's blog; you'll probably feel the same way. No-Fault can beat you down and make you feel like it isn't worth getting up, but it pales in comparison to the toll criminal defense can take on an attorney (h/t Simple Justice). On a happier note, Evan Schaeffer's blawg review #38 is great. He gives Ten New year's Resolutions for Bloggers. One of my favorites is something I have managed to do at my other blog, but not here–Resolution 2: Prove You Have a Personality. Two obsticles are in my way. One, while I have a personality, it's ugly and when people first meet me they usually want to kick me in the face. Two, it takes more effort to put yourself into the posts than it does to do a quick copy and paste job with a little analysis.
Crime and Federalism is a must read. I've mentioned this over at the no-fault blog, but I don't get much in the way of overlap here. Mike, the author, recommends The Last Psychiatrist, and so do I. It's a pain to read because of the ads, but it's worth it. Most of you appear to work in big fancy firms, so my guess is that you don't get around to Toiletlaw. You should. It is one of the most well written blogs out there.
As I write this, I see that Turkewitz covered a some of same stuff in his Linkworthy (End of Year Edition). After you read that, make sure to read about his fight with Class Counsel in the Yahoo suit. It isn't really a fight. More of a water balloon vs. shotgun thing. Lawyerist has a post: Dual Monitors Do Not Double Productivity. It's dead wrong. But there's nothing wrong with bad ideas, so it isn't all bad.
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Worst lawyer in Houston? Not by a country mile.
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Finally, one of my favorite posts from the past few weeks: Ten Words You Need to Stop Misspelling. While your you're there, read Why I'd Rather be punched in the testicles than call customer service.
That said, I’m back. Look for posts over the long weekend.
If you spend any time on PACER, then you probably spend more money than
you'd like while getting search results that you don't need. Enter RECAP. RECAP allows you to to get some of PACER for free. Though it isn't without its problems, it does have a few benefits (aside from the free thing).
So I'm a few days late posting this. So what. I have things to do. Important things.
Skelos v Paterson, 2009 NY Slip Op 06265 (App. Div., 2nd, 2009)
We have no quarrel with those who say that having a man of Mr.
Ravitch's stature, knowledge, and experience in the office of
lieutenant-governor would promote the public interest by providing help
and counsel to the Governor in difficult times and by bringing
much-needed stability to the government of this State. We conclude,
however, that the Governor simply does not have the authority to
appoint a lieutenant-governor, that his purported appointment of Mr.
Ravitch cannot be reconciled with an unambiguous and contrary provision
in the State Constitution, and that no considerations of the State's
financial difficulties or of political strife in the Senate allow us to
find authority for Mr. Ravitch's appointment where none exists.Section 3 of article XIII of the State Constitution provides in
pertinent part that "[t]he legislature shall provide for filling
vacancies in office." Pursuant to that authority, the Legislature
enacted Public Officers Law §§ 41, 42, and 43. Section 41 authorizes
the Legislature to appoint a person "to fill" a vacancy in the office
of Attorney General or Comptroller. Section 42 provides for the filling
of vacancies in certain other offices, with a specific exception for
the "offices of governor or lieutenant-governor" (Public Officers Law §
42[1]).…
Accordingly, the order is affirmed insofar as appealed from. Because we
recognize that this matter is one of great public import and ought to
be resolved finally and expeditiously by the Court of Appeals, we
dispense with the need for the Governor to move for leave to appeal to
that Court and, on our own motion, grant leave.
The bold is mine.
Somehow it screwed up the post formatting. Sorry.
It's a work in progress.
I found this over on Language Log (which I recently added to my RSS reader). The cartoon is from the rut (7/15/08). You can
buy stuff with the cartoons on it (no, I don't get anything out of it).
This past week I found out (through twitter) that the New York Senate passed legislation allowing more cases to be electronically filed (e-filed). I think I mentioned it before, but in case I didn't, the New York Senate has a twitter account: @NYSenate. That's how I found out about the e-filing thing.
Should any of you still be on the fence as to whether you should pay attention to procedure, a recent post on Crime & Federalism might change your mind. Mike1 (the author) writes about a case where the plaintiff/appellee managed to "waive[] waiver" by not arguing the issue on appeal. The post also gives one of the best quotes on procedure I've seen:
Procedural law breaks hearts. The facts are the facts. You can
spin – not change – them. Even the substantive law isn't especially
malleable. If you lose on the facts or substantive law, why can you
do? Curse the law, sure. There is no need for tears or guilt.
Procedural law is different.
If you make a procedural
error, it doesn't matter if the facts or substantive law are on your
side. You can't go to court. Procedural errors haunt.
I almost forgot about his post until I read Scott Greenfield's installment of Blawg Review, Sphincter Rules.
Finally, I found another good blog on writing, Men with Pens. I liked the post on adding flow to your writing. Despite my blogging, I've never been comfortable with pen and paper (or a keyboard). So I read, and try to learn.
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1. We aren't on first name basis; I don't want to mislead anyone. If we ever met, he would probably call me stupid and smack me with his keyboard. I would probably deserve it.
Brown v Bay Ridge Nissan, 2009 NY Slip Op 51565(U) (App. Term, 2nd, 2009)
Plaintiff brought this action to recover damages based upon an
alleged improper sale of her automobile at auction. At the commencement
of the nonjury trial, the attorney for defendants Bay Ridge Nissan and
Santo Perremuto (hereinafter defendants) moved to dismiss based on the
existence of a stipulation of settlement and release, or, in the
alternative, for an adjournment to have their witnesses present at
trial. The Civil Court denied the application. Following the trial, the
court awarded plaintiff the principal sum of $12,500 as against
defendants.In the circumstances presented, it was an improvident exercise
of discretion for the court to deny defendants' attorney's application
for an adjournment. Said attorney's failure to have the witnesses
present, in the expectation that a trial would not be required in light
of the existence of an alleged stipulation of discontinuance and
release, was reasonable. Accordingly, the judgment, insofar as appealed
from, is reversed and a new trial ordered as to defendants Bay Ridge
Nissan and Santo Perremuto, at which the circumstances surrounding the
execution and enforceability of the stipulation of discontinuance and
release may be more fully developed (see Citibank, N.A. v Rehn, 20 Misc 3d 139[A], 2008 NY Slip Op 51569[U] [App Term, 2d & 11th Jud Dists 2008]).We note that an employee may be held liable for his own tortious
acts whether or not he is acting within the scope of his employment (53
NY Jur 2d, Employment Relations § 349).
The bold is mine.
CPLR R. 2221(e) Motion for Leave to Renew
Carullo v Pistilli Constr. & Dev. Corp., 2009 NY Slip Op 05841 (App. Div., 2nd, 2009)
A motion for leave to renew must be based upon new or additional facts
"not offered on the prior motion that would change the prior
determination" (CPLR 2221[e][2]), and "shall contain reasonable
justification for the failure to present such facts on the prior
motion" (CPLR 2221[e][3]; see O'Connell v Post, 27 AD3d 631; see also O'Dell v Caswell, 12 AD3d 492; Rizzotto v Allstate Ins. Co., 300 AD2d 562; Williams v Fitzsimmons, 295
AD2d 342). The plaintiff's motion for leave to renew was properly
denied since he failed to set forth a reasonable justification for his
failure to present the alleged new facts on the prior motion (see O'Connell v Post, 27 AD3d at 631).
NYCTL 1999-1 Trust v Surf Coney Is., Inc., 2009 NY Slip Op 05306 (App. Div., 2nd, 2009)
The Supreme Court providently exercised its discretion in denying that
branch of the plaintiffs' motion which was for leave to renew. The
plaintiffs failed to present a reasonable justification for their
failure to present certain "new facts" on the original motion and cross
motion (CPLR 2221[e][3]; see O'Connell v Post, 27 AD3d 631; Renna v Gullo, 19 AD3d 472). In any event, those facts would not have changed the prior determinations (see CPLR 2221[e][2]; Renna v Gullo, 19 AD3d at 472).
bruteforcelawyer.com 