Place a call and your jurisdictional defense will fall
State Farm Fire & Cas. Co. v Davis, 2020 NY Slip Op 51008(U)(App. Term 2d Dept, 2020)
“Nevertheless, a lack of jurisdiction claim will be deemed waived where a defendant has implicitly acknowledged the validity of a default judgment or has unreasonably delayed in moving to vacate the judgment (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628 ; Taveras v City of New York, 108 AD3d 614, 617 ; HSBC Bank USA, N.A. v A & R Trucking Co., Inc., 66 AD3d 606 ). Here, it is undisputed that seven years before moving to vacate the judgment, defendant had called plaintiff’s attorney’s office in order to negotiate payment of the judgment. Defendant thereby implicitly acknowledged the existence of the judgment and demonstrated a lack of good faith by dilatorily asserting his rights.”
The lack of value of a notice of appearance
JP Morgan Chase Bank, N.A. v Jacobowitz, 2019 NY Slip Op 07773 (2d Dept. 2019)
Remember: when you answer, the CPLR gives you 60 days to move to dismiss on personal jurisdiction or you are out of the box. Filing a notice of appearance sans answer will not subvert the CPLR. It is a cute strategy but the Courts frown on lack of personal jurisdiction application.
” It is immaterial that the notice of appearance, in addition to requesting that all papers in the action be served on the defendants’ counsel, stated that “[t]he Defendants do not waive any jurisdictional defenses by reason of the within appearance.” This language is not a talisman to protect the defendants from their failure to take timely and appropriate action to preserve their defense of lack of personal jurisdiction. The defendants did not move to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction until January 2016, more than 10 months after filing the notice of appearance. Under these circumstances, the defendants waived any claim that the Supreme Court lacked personal jurisdiction over them in this action.”
EMC Health Prods., Inc. v Maryland Auto. Ins. Fund, 2019 NY Slip Op 51316(U)(App. Term 2d Dept. 2019)
” In support of its motion, defendant alleged that it conducts no business in the State of New York, including that it does not issue insurance policies here, has no sales representative or agent within [*2]the state, and is not licensed to transact business within the State of New York. Plaintiff opposed the motion”
The motion was granted.
This case hearkens back to the bounds of jurisdiction in this State. While a Court may not be able to exercise personal jurisdiction, the deemer provision in the insurance contract combined with the compulsory arbitration law may lead to a different conclusion.
Wilmington Trust, N.A. v Pape, 2019 NY Slip Op 01449 (2d Dept. 2019)
I remember as a younger lawyer serving pro-se Defendants in Civil Court, Queens County after the Defendant moved to dismiss for failure to obtain personal jurisdiction. and we were never going to bring the process server down for a traverse hearing. Oh classic.
” Moreover, the plaintiff’s re-service of the summons and verified complaint pursuant to CPLR 311-a during the pendency of the defendant’s motion to dismiss obviated the defendant’s jurisdictional objection”
Court approves of service in the court room
Sandella v Hill, 2018 NY Slip Op 08051 (2d Dept. 2018)
“According to the defendant, as he was waiting for his case to be called, an unknown person came into the courtroom, called out his name, and dropped some papers on the floor. The defendant indicated that he did not pick the papers up because his attorney told him that he could not be served in court. The Supreme Court, without a hearing, denied the defendant’s motion to vacate the default judgment.”
“If a defendant resists service of process, service may be effected pursuant to CPLR 308(1) by leaving a copy of the summons in the defendant’s general vicinity, provided that the defendant is made aware that this is being done”
(This case rested upon the notion that a non-domiciliary could not be served due a special appearance in New York. The Court held that even if this was true, defendant could have been served outside of New York on a Touza theory pCPLR 302; 313])
Fraudulent procurement of insurance has serious consequences
JEFFREY E. SCHOLES VS. STEPHEN M. HAUSMANN, ET AL, A-0980-17T3 (N. J. App. Div. 2018)
“Since plaintiff primarily garaged his vehicle in New Jersey, he was required to maintain automobile liability insurance coverage under provisions approved by the Commissioner, including mandatory medical expense benefits coverage of $15,000 per person. As noted by the judge, “the Deemer Statute cannot save the [p]laintiff’s failure to obtain an insurance policy approved by the State of New Jersey.” Plaintiff had a Florida insurance policy that the Commissioner did not approve, and the policy did not provide medical expense benefits coverage of $15,000 per person. Consequently, N.J.S.A. 39:6A-4.5(a) bars plaintiff’s cause of action for recovery of economic and non-economic
damages sustained as a result of the accident”
I wish we had this statute in New York.
A 325(d) case outside the equity jurisdiction of supreme Court cannot be ruled upon by an Acting Supreme Court Justice
Caffrey v North Arrow Abstract & Settlement Servs., Inc., 2018 NY Slip Op 01043 (2d Dept. 2018)
This is a fascinating case involving an Acting Supreme Court Justice’s equity jurisdiction when effectuating that role in the Civil Court in a 325(d) matter. The agreed to facts are as follows:
“The parties agree that the initial transfer of the action to the Civil Court for trial pursuant to CPLR 325(d) was jurisdictionally erroneous and procedurally improper. The parties dispute whether the Supreme Court had the authority to retransfer the action to itself after the Civil Court judgment had already been entered. They also dispute the authority of the Supreme Court to, in effect, adopt the findings of fact and conclusions of law of the Civil Court trial judge and to concomitantly substitute the Civil Court judgment with a Supreme Court judgment based on the same trial proceeding.”
The court holds that a post-judgment re transfer (325[b]) is inappropriate, despite the reality that Supreme Court have legally assigned the case to Justice Liddy Marazzo in the first instance or, before trial, the case could have been moved out of Civil Court and then re-assigned to Justice Marazzo . Very fascinating.
I like this part:
(1) “Nevertheless, a court should not take judicial notice of any court-generated document without affording the parties an opportunity to be heard on whether notice should be taken, and, if so, the significance of its content (see CPLR 4511[a], [b]; cf. Tirado v Miller, 75 AD3d 153, 160). In recognizing the potential centrality and significance of any order designating the Civil Court judge as an Acting Justice of the Supreme Court for this matter, we afforded the parties to this appeal an opportunity to submit simultaneous post-argument letter briefs on the issue and have considered their responses.
The determination of whether to judicially notice a court-generated document ultimately rests upon whether the document is reliable, the accuracy and veracity of which cannot be disputed. Court-generated orders from the Chief Administrative Judge, designating a jurist of one court as an acting jurist in another court, satisfy the requisite reliability, accuracy, and veracity as to be uncontestable for judicial notice. Consequently, in rendering our decision on this appeal, we recognize that as of January 5, 2012, Judge Marrazzo was designated as an Acting Justice of the Supreme Court.”
“Here, Administrative Order 227/2012, of which we take judicial notice, and which designated Civil Court Judge Marrazzo as an Acting Justice of the Supreme Court, was not unrestricted and open-ended, but instead was subject by its expressed terms to a crucial limitation; namely, the judge was assigned “as an Acting Justice of the Supreme Court, to serve in the Supreme Court, Thirteenth Judicial District, Civil Term” (emphasis added). Although Judge Marrazzo was not divested of his authority to function as a Civil Court judge in the Civil Court, the Administrative Order only permitted him to act in the additional capacity of Acting Justice of the Supreme Court for matters pending in the Supreme Court itself, having Supreme Court captions and index numbers. Conversely, Administrative Order 227/2012 did not address or confer Acting Supreme Court status on Judge Marrazzo to hear and adjudicate matters pending elsewhere, such as in the Civil Court. It is also beyond cavil that an Administrative Order cannot expand the subject matter jurisdiction of the Civil Court that does not otherwise exist under the State’s Constitution.
The result here is that another Supreme Court Justice not within the Civil Court should have re transferred the case prior to it beginning to Justice Marrazzo.
Default denied based upon quirk of NYCCCA 403 and 404
S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co., 2017 NY Slip Op 50551(U)(App. Term 2d Dept. 2017).
I always knew this quirk existed. I have not seen it utilized, but when you are in default and do not have a leg to stand on, you hunt down procedural hammers that have grown dusty.
“Section 403 of the New York City Civil Court Act provides that service “shall be made only within the city of New York unless service beyond the city be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state.” Plaintiff appears to be arguing that defendant is not a resident of the City and, thus, to be implicitly arguing that the service was valid pursuant to CCA 404, which provides for service outside the City upon nonresidents in certain enumerated instances. However, defendant’s position is that it is a [*2]resident of the City of New York, in which case, pursuant to CCA 403, service was invalid. As neither plaintiff’s complaint nor its motion papers set forth any facts allowing for jurisdiction to be acquired over defendant by service outside the City of New York pursuant to CCA 404 (see All-State Credit Corp. v Defendants Listed in 669 Default Judgments, 61 Misc 2d 677 [App Term, 2d Dept, 9th & 10th Jud Dists 1970]), plaintiff has failed to show that service had been validly effectuated, and, thus, plaintiff failed to establish its entitlement to a default judgment.
Defendant is correct here.
Allstate has claims offices in the City and elsewhere. Thus, service must be made at one of the NYC claims offices. The way around this is to cough up $40 and to serve pursuant to Ins Law 1212. Ins Law 1212(b), last sentence states: “Service of process so made shall be deemed to have been made within the territorial jurisdiction of any court in this state.” Therefore service would be as if it was made on one of Allstate’s New York city offices.
Jursidictional defect (it really isn’t)
Tribeca Lending Corp. v Bartlett, 2014 NY Slip Op 07429 (1st Dept. 2014)
The realm of procedural snafus that can trigger the existences of jurisdiction defects, sufficient to warrant 5015(a)(4) treatment are quite narrow. This case expresses this sentiment quite nicely.
“The alleged defects raised by defendant do not involve jurisdictional defects within the meaning of CPLR 5015(a)(4), and thus do not provide a basis for vacatur under that provision (Wells Fargo, N.A. v Levin, 101 AD3d 1519, 1521 [3d Dept 2012], lv dismissed 21 NY3d 887  [lack of standing is not a jurisdictional defect]; see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009] [lack of a certificate of conformity is “not a fatal defect”]; see also Varon v Ciervo, 170 AD2d 446, 447 [2d Dept 1991] [untimely filing of proof of service is not a basis to vacate a notice of pendency]).”
The usual reminder is that it is quite difficult to get out of a judgment is resort is not made to 5015(a)(1)
Does anyone know if this is “the general”? I always hear their commercials.
Metro Health Prods., Inc. v Access Gen. Ins. Co., 2014 NY Slip Op 50348(U)(App. Term 2d Dept. 2014)
“In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Georgia-based corporation, which is not authorized to conduct business in New York State, does not issue or deliver contracts of insurance to New York State residents or to corporations authorized to do business in New York, does not solicit applications for contracts of insurance within New York State, does not have a power of attorney on file with the State of New York, has not filed a consent to service or declaration that its insurance policy be deemed in compliance with New York Vehicle and Traffic Law § 311 and does not control any New York State authorized company.”
No jurisdiction for out-of-state non licensed or credentialed insurance carrier in the state of New York