All-State Credit Corp. v. Riess

• Decision Date: 04 December 1968
• Docket Number: ALL-STATE
• Citation: 61 Misc.2d 677,306 N.Y.S.2d 596
• Parties: CREDIT CORPORATION, Appellant, v. Defendants listed in affidavits of Gilbert RIESS and Robert Rosenthal, sworn to
• Court: New York Supreme Court — Appellate Term

Page 596

306 N.Y.S.2d 596

61 Misc.2d 677

ALL-STATE CREDIT CORPORATION, Appellant, v. Defendants listed in affidavits of Gilbert RIESS and Robert Rosenthal, sworn to December 4, 1968, Respondents.

Supreme Court, Appellate Term, Second

Supreme Court, Appellate Term, Second Department, Ninth and

Tenth Judicial Districts.

Jan. 7, 1970.

[61 Misc.2d 678] Sheldon Cohen, Lynbrook, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz, George D. Zuckerman, Lloyd G. Milliken, New York City, of counsel), for the Administrative Judge of the District Court of Nassau County.

Before HOGAN, P.J., and GULOTTA and GLICKMAN, JJ.

OPINION

HOGAN, Presiding Judge.

Plaintiff, as assignee of various retail installment sales contracts, caused to be filed in the District Court of Nassau County 669 judgments by default in actions predicated upon these contracts. It appears that the various defendants involved were neither residents of Nassau County nor served with process therein, nor do the complaints contain any allegations which would establish the basis for jurisdiction. The court below, on its own omnibus motion upon notice to plaintiff, vacated the judgments and dismissed the complaints for lack of in personam jurisdiction. Plaintiff appeals from the order entered thereon. The notice of appeal was served upon Honorable B. Thomas Pantano, Administrative Judge of the District Court of Nassau County.

The Attorney General, who appears for Judge Pantano on this appeal, asserts a preliminary objection that the appeal was not properly perfected in that plaintiff failed to serve notices of appeal upon any of the defendants involved. CPLR 5515 requires the notice of appeal to be served upon an adverse party. An adverse party, within the meaning of this provision, includes one whose interest in relation to the subject matter of the appeal is in conflict with the reversal of the order appealed from, or the modification sought by appellant (10 Carmody Wait 2d § 70:141). Ordinarily, the notice of appeal need not be served upon any defendant who has failed to appear (CPLR 2103(e); McLear v. Balmat, 194 App.Div. 827, 186 N.Y.S. 180, affd. 231 N.Y. 548, 132 N.E. 883; 10 Carmody Wait 2d § 70:141). None of the defendants appeared in the respective actions herein, nor did they receive notice of the Sua sponte application to vacate the judgments entered against them. The situation at bar compares with Argall v. Pitts, 78 N.Y. 239, where the Court of Appeals entertained an appeal without a respondent. While the court there indicated that it would not reverse without notice of appeal being served upon the adverse party, nevertheless it was of the opinion that the order appealed from was proper and accordingly affirmed it. Hence, even if we assume for present purposes that the Administrative Judge was not a proper respondent or adverse party herein, we may affirm if the order in question is correct.

Addressing ourselves to the merits, the Uniform District Court Act requires that a summons be served within the county in which the action is brought unless otherwise authorized by such Act or other provision of law other than the CPLR (UDCA § 403). Specific authorization for service outside the county is provided for in those instances where the basis for jurisdiction over a non-resident is the transaction of business within a district of the court in the county and the cause of action arose as a result thereof (UDCA § 404(a) 1, (b)).

Plaintiff does not question...