I liked that title, but it is not necessarily true. It is an embellishment at best, and if you clicked on it, then it did the trick. In actuality, here is an interesting DJ victory that was obtained in Nassau. I think it discusses various issues involving (1) the use of DJ’s; (2) timing issues; and (3) objective criteria used to demand EUO’s. It is a thoughtful order, and should give the bar pause when pursuing EUO’s. Read here.
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6 Responses
Yes I see it. I think — App Term 2nd excepted — there is a growing resistance by the Courts to the knee jerk EUO.
If you’re in Supreme you do not go to the App Term 2nd to Appeal.
I do not like the App Term 2nd caselaw cited wherein personal knowledge of the no show is the law firm’s affirmation. That is BS.
I believe the App Div will hold that you need a bust statment on the record or some form of Affidavit where someone says I looked; its my job to look; no one showed.
I think you are wrong about the personal knowledge aspect. I think it follows the law of mailing. The rule involves: (1) Is there a procedure; (2) Was it detailed; (3) Was it followed; (4) What happened. I have to imagine that the courts are throwing on the plaintiffs the burden to show that they did appear. Pragmatically, it makes sense because if you have that affidavit and/or testimony, then you will defeat the EUO no show or IME no show dj or motion.
Yes, the knee jerk EUO and the broad based allegations of conspiracy, without proof, need to be avoided. I like to think that if I am looking to question a provider, I have a bona fide reason. I also want the provider to show, because I am really curious about the runner issues.
“personal knowledge of the non appearance.” You at least need the equilvalent a sign in sheet that was not signed.
Right now it is circular. I have personal knowledge of the non appearance because that’s my job.
Here is our business procedure for scheduling EUO’s, confirming EUO’s, etc. No one confirmed their appearance. I send an employee to a deposition center. The employee waits but the person does not show up. Notation made in computer. business practice. etc. etc. It is not circular – it is practice and procedure.
The wait to defeat it? An affidavit that someone showed up. It is not that difficult now.
A judge is a law student who marks his own examination papers.
— H. L. Mencken
Your way is proper JT. See my comment about the unsigned sign in sheet or equivalent.
But I am seeing complete garbage passing muster. “I am a managing attorney and its my job to know if someone doesn’t show and x did not show.”
“Calling it your job boss don’t make it right.”