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Tuesday, January 11, 2005

New rule. The Second Circuit is putting out a new rule requiring the filing of briefs in PDF form. For more information on the proposed rule, which will not be effective until after a public comment period, click here.

Monday, January 10, 2005

Rescission Statute. An insured brought an action against its insurer, challenging the latter's rescission of her disability insurance policy within the six-year limitations period. The District Court dismissed the case based on a provision that provided that an insured could only bring an acton within three years on legal challenged to denied proofs of claim. The Second Circuit held that this provision had no applicability in this case. Terry v. Unum Life Insurance Co. can be found here.

Friday, January 07, 2005

Habitual residence. When one parent kidnaps a child from one country to another, the non-kidnapping party can get the child back to the child's "habitual residence" to decide all child custody issues by invoking the Hague Convention on the Civil Aspects of International Child Abduction, providing the relevant countries are parties to the treaty. In order to invoke the treaty, it must be shown the location of the habitual residence of the child. This term is not decided in the treaty, and in Gitter v. Gitter, the Second Circuit provided the factors that must be considered in making such a decision. First, the intent of the parents must be considered. However, that is not dispositive. The Court must also look to evidence that unequivocally points to the child having acclimatized to another country. The District Court had decided that the United States, not Israel was the habitual residence of the child based on the first factor, but did not consider the second factor. Based on that, the Second Circuit remanded the case for reconsideration by the District Court. The decision can be found here.

Thursday, January 06, 2005

Correction. A few days ago, I noted that the On Appeal blog was the same as the Appellate Law and Practice blog. I got two e-mails informing me that I was wrong. The Appellate Law and Practice blog can be found here. It's nice to know that someone is reading.

Tuesday, January 04, 2005

Crawford Not retroactive. The New York Law Journal has written an article on the retoractivity of the Crawford case. The article can be found here (and I don't think you have to be a subscriber).

New blog. Check out John Derrick's new blog on appellate practice, On Appeal. You can find it here. Enjoy it!

UPDATE: I see that it is actually an update of the Appellate Law and Practice blog that has been listed for a few months on my bloglist and has moved off of blogspot. I'll make the change on my bloglist. You can still enjoy it.

Monday, January 03, 2005

Breach of Duty of Good Faith and Fair Dealing -- Not enough. Sterling National Bank breached its duty of good faith and fair dealing to National Market Share, Inc. by failing to honor approximately $800,000 in payroll checks. However, it was National Market's Share's faithless principal who had caused the company to go out of business. Hence, the bank was only ordered to pay nominal damages of $1. The Second Circuit affirmed. The decision in National Market Share, Inc. v. Sterling National Bank can be found here.

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