Banco Do Brasil v. Madison S. S. Corp.

• Decision Date: 16 January 1970
• Citation: 61 Misc.2d 1028,307 N.Y.S.2d 341
• Court: New York Supreme Court
• Parties: BANCO DO BRASIL, plaintiff, v. MADISON STEAMSHIP CORP., and John G. Poles, Melvin J. Tublin, Michael Patestides, Christ Stratakis, individually and as co-partners doing business under the firm name of Poles, Tublin & Patestides, Defendants.

Page 341

307 N.Y.S.2d 341

61 Misc.2d 1028

BANCO DO BRASIL, plaintiff, v. MADISON STEAMSHIP CORP., and John G. Poles, Melvin J.

Tublin, Michael Patestides, Christ Stratakis, individually

and as co-partners doing business under the firm name of

Poles, Tublin & Patestides, Defendants.

Supreme Court, Special Term, New York County, Part I.

Jan. 16, 1970.

Frank E. Nattier, New York City, Richard L. Newman, New York City, for counsel, for plaintiff.

Poles, Tublin, Patestides & Stratakis, New York City, Alvin Stern, New York City, of counsel, for defendants.

ARNOLD L. FEIN, Justice.

After answer, defendants move to dismiss in an action in which plaintiff sues: (1) to recover amounts allegedly received by defendant Madison Steamship Corp. (Madison), and the codefendants, Madison's attorneys, pursuant to an execution on a judgment against plaintiff, in excess of the amount of said judgment; and (2) to compel defendants to issue a satisfaction of said judgment. The judgment was obtained by Madison against plaintiff on default in an action in the United States District Court for the Southern District of New York.

Defendants assert and have pleaded in their answer, that: (1) this court lacks personal jurisdiction over Madison and jurisdiction of the subject matter; (2) the complaint fails to state a cause of action against defendant attorneys; (3) the claims are barred by the statute of limitations.

Madison is a non-resident corporation. The summons was served on defendant attorneys only. Plaintiff asserts this was sufficient service on Madison because the attorneys represented Madison in the action in which the judgment was recovered and thereafter in matters incident to collection of the judgment. Even if it be assumed that jurisdiction to sue Madison in New York exists by virtue of Madison's actions here in obtaining a judgment and allegedly wrongfully collecting and retaining amounts in excess of the judgment, this does not mean that personal jurisdiction in this action has been obtained over Madison by service of process on defendant law firm.

Pursuant to CPLR, section 303, the commencement of an action in this state by a person 'not subject to personal jurisdiction,' constitutes a designation of the attorney appearing in the action, as agent, 'during the pendency of the action' for service of a summons in any separate action against such person, if such separate action could have been asserted as a counterclaim in the Supreme Court. (Norry v. Land, 44 Misc.2d 556, 254 N.Y.S.2d 176; Mitter v. Massa, D.C., 237 F.Supp. 915).

]During the pendency of such action' means until final judgment is entered. (Concourse Super Service Station, Inc. v. Price, 33 Misc.2d 503, 226 N.Y.S.2d 651.) An attorney's power to represent a party ceases upon the entry of final judgment and issuance of execution thereupon, unless his authority is shown to be extended by special agreement or statute. (Weiner v. Jones, 245 App.Div. 17, 279 N.Y.S. 799; Averill v. Williams, 4 Denio 295; Kalmanowitz v. Kalmanowitz, 108 App.Div. 296, 95 N.Y.S. 627; Conklin v. Conklin, 113 App. Div. 743, 99 N.Y.S. 310; Welsh v. Cochran,63 N.Y. 181; Goebel v. Clark, 242 App.Div. 408, 275 N.Y.S. 43).

Even if it be held that CPLR 303 is referrable to actions in the Federal Courts, it is manifest that the action in the Federal Court by defendant against plaintiff is no longer pending, judgment having been entered and an execution having been issued and enforced.

Service on the attorneys did not subject Madison to personal jurisdiction.

Plaintiff contends defendants have waived the right to move at this time with respect to personal jurisdiction over Madison. (CPLR 3211(e); Wahrhaftig v. Space Design, 29 A.D.2d 699, 286 N.Y.S.2d 442; Village of Laurel Hollow v. Laverne, 43 Misc.2d 248, 250 N.Y.S.2d 951; Casden v. Broadlake Corp., 47 Misc.2d 847, 263 N.Y.S.2d 345; cf. Brodsky v. Spencer, 53 Misc.2d 4, 277 N.Y.S.2d 802; and the 1968 Supplementary Practice Commentary to CPLR 3211 by Prof. Siegel, 7B McKinney's CPLR p. 181.) Defendant's request that the motion be regarded as for summary judgment would seem to overcome the objection, even if Wahrhaftig's literal reading of CPLR 3211(e) be deemed controlling.

However, it is not necessary to dispose of the motion on this narrow jurisdictional ground.

This court does not have subject matter jurisdiction over the causes of action alleged. Relief with respect to a judgment and its enforcement is to be obtained in the court which rendered the judgment. Even in the New York State Supreme Court, the courts of one county will not act with respect to the correction of judgments obtained and entered in another county, nor the satisfaction of such judgments. (Baldwin Kitchen Cabinet Corp. v. Artz, 15 A.D.2d 560, 222 N.Y.S.2d 950; Matter of Magraw, 285 App.Div. 1055,) 139 N.Y.S.2d 355.) The attorneys for the plaintiff argue, without citing any authority, that this court has jurisdiction respecting a Federal court judgment and that plaintiff cannot obtain the requisite relief in the Federal Court in which the judgment was entered because both parties are alien corporations, and the amount in dispute is less than $10,000, the jurisdictional minimum in the Federal Court. Defendants' argue to the contrary, also without citing authority. This is another case in which both sides make sweeping assertions of the state of the law, without supporting authority.

Federal Rule 60(b) expressly provides for a motion 'to relieve a party or his legal representative from a final judgment' for a number of reasons, including '(5) the judgment has been satisfied, released or discharged * * * or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. * * * This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment * * * or to set aside a judgment for fraud upon the court.'

The necessity for diversity of citizenship or other...