Bonk v. Hodgkins
| Decision Date | 11 November 1971 |
| Citation | 68 Misc.2d 148,326 N.Y.S.2d 140 |
| Parties | Jeanne M. BONK, Plaintiff, v. Eugene HODGKINS and Carl R. Williams, Defendants. |
| Court | New York County Court |
Mathia P. Poersch, Schenectady, for plaintiff.
James T. Viger, Troy, James W. Bendall, Troy, of counsel, for Eugene Hodgkins, defendant.
The defendant, Eugene Hodgkins, moves to dismiss the Complaint as against him on jurisdictional grounds. The action against both defendants arose out of an automobile accident which occurred July 9, 1970. It is uncontroverted that at the time of the accident, the defendant Hodgkins was and has continuously remained a resident of the State of Georgia, and not of the County of Schenectady, nor has he an office for the transaction of business in the County of Schenectady. Personal service was effected upon him by service upon the Secretary of State of the State of New York under the provisions of Section 253 of the Vehicle and Traffic Law.
The basis of the defendant's motion to dismiss is that under Section 190 of the Judiciary Law, the County Court of the County of Schenectady has no jurisdiction in this kind of action unless All of the defendants reside within the County of Schenectady.
Plaintiff's position in opposition to the motion is that Section 190 of the Judiciary Law has been modified by the provisions of Section 253 of the Vehicle & Traffic Law, the New York non-resident motorist statute. The pertinent portion of Section 253 provides that the 'use or operation by a non-resident of a vehicle in this state * * * shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such non-resident may be involved while using or operating such vehicle in this state * * * and such use or operation shall be deemed a signification of his agreement that any such summons against him which is so served shall be of the same legal force and validity as if served on him personally within the state and Within the territorial jurisdiction of the court from which the summons issues, * * *.'
The italicized portion of Section 253 was added in a 1937 amendment (Laws of 1937, Chapter 490) to then Section 52 of the Vehicle and Traffic Law, now renumbered as Section 253.
Plaintiff, relying on the authority of LaPlaca v. Hutcheson, 191 Misc. 27, 79 N.Y.S.2d 355, argues that the County Court of Schenectady County has jurisdiction of the subject matter of this transitory tort action, and that the foregoing 1937 amendment was intended to provide for implied consent on the part of the non-resident motorist to the exercise of jurisdiction by Any New York court having jurisdiction over the subject matter. Thus, plaintiff's position is that by this amendment to the non-resident motorist statute, the operation of a motor vehicle in New York by such non-resident is deemed not only a consent to substitute personal service, but also to the waiver of any residency requirement otherwise limiting the jurisdiction of any court having jurisdiction over the subject matter.
I find nothing in the express language of Section 253, as amended, to justify this construction. The original purpose of the non-resident motorist statute was to afford a basis for obtaining In personam jurisdiction over the out-of-state driver whose absence prevented the physical service of the summons within the state. The language of the amendment on its face merely extended the effect of substitute personal service upon the Secretary of State to permit acquisition of In personam jurisdiction over the non-resident motorist by those local courts having only local territorial jurisdiction. The pertinent jurisdictional limitation contained in Judiciary Law, Section 190, deals not with the question of In personam jurisdiction, but with limitations on the County Court's exercise of jurisdiction over classes of defendants. Under Section 190--b of the Judiciary Law, the County Court's In personam jurisdiction is as extensive as that of the Supreme Court, permitting service of its process throughout the State, without special legislation, providing that the foregoing residency requirements are met.
It is noteworthy that at the time of enactment of Laws of 1937, Chapter 490, the provisions of Judiciary Law, Section 190, limiting classes of defendants over whom the County Court may exercise jurisdiction, were contained in the Judiciary Article of the New York...
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Union Garage, Inc. v. Wheatle
...was apparently to permit service of process in the widest possible area, even in courts of limited jurisdiction...." In Bonk v. Hodgkins, 68 Misc.2d 148, 326 N.Y.S.2d 140 (Co.Ct., Schenectady Co. 1971), the defendant, a resident of Georgia, was served under Section 253. The County Court dis......
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J. A. Mennella Foods Corp. v. Neptune's Nuggets, Inc.
...from exercising jurisdiction over such non-resident motorists by the limitations contained in Judiciary Law Sec. 190. Bonk v. Hodgkins, 68 Misc.2d 148, 326 N.Y.S.2d 140. This Court finds that CPLR Sec. 302 is not applicable to actions brought in County Courts of this State and this Court ha......