Cenkner v. Shafer
| Citation | 61 Misc.2d 807,306 N.Y.S.2d 634 |
| Parties | Mark CENKNER, an Infant, by Charles Cenkner, His Father, and Charles Cenkner, Individually, Plaintiffs, v. Charles SHAFER, Defendant. |
| Decision Date | 13 January 1970 |
| Court | New York Supreme Court |
Defendant is a resident of the State of Ohio, and plaintiff's cause of action arose in that state. Plaintiff has acquired in rem jurisdiction over defendant by attaching his interest in an insurancy policy. Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312; Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669.
Defendant, appearing specially (not necessary under CPLR § 6223) moves to vacate the attachment. He contends that the attachment is defective because the sheriff has not levied on any specific property within 90 days (CPLR § 6214(e)) and has not complied with CPLR § 6218(b) in filing an inventory.
Accompanying plaintiff's opposing papers is a copy of the affidavit of service specifying the name of the person served. Defendant does not object to service nor does he deny the existence of the insurance policy and the authorization of the company in New York.
The Seider doctrine is not without its critics. Simpson v. Loehmann, supra, Breitel, J., concurring, pp. 314, 316, 287 N.Y.S.2d 633, 234 N.E.2d 669; Burke, J. dissenting, p. 316, 287 N.Y.S.2d 633, 234 N.E.2d 669. In establishing in rem jurisdiction through attachment of (1) the obligation to defend before jurisdiction is acquired or (2) the obligation to indemnify, a non-existent intangible, which may never materialize, the court has reached far beyond any legislative intent. Nevertheless, the decision does not relieve plaintiff from the statutory obligations established by the legislature regarding an attachment. However, to compel the sheriff to seize assets of the insurance company under CPLR 6214(e) places too great a risk upon him and is patently unfair to the company and probably unconstitutional. Thus, there is no possibility for the sheriff to take custody of anything which would warn subsequent lienors and also protect the plaintiff.
In Glassman v. Hyder, 28 A.D.2d 974, 283 N.Y.S.2d 419, the order of attachment was deemed ineffective because there was no debt (unpaid rents) due at the time of service. Assuming the Seider decision (supra) considered this problem and holds that there was a debt of some sort in existence, it does not provide for the requirements of § 6214(e). If an order of attachment has a continuing effect and an effective levy applies to subsequently acquired property by the garnishee, can it be effective for more than 90 days? See 7A Weinstein-Korn-Miller, par. 6214.07. Unless there has been an extension of time by the court or action by the sheriff in taking custody of some property, the levy is void.
Under § 6214(d) plain...
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...extended even after the levy has become void. Seider v. Roth, 28 A.D.2d 698, 280 N.Y.S.2d 1005 (2d Dep't 1967); Cenkner v. Shafer, 61 Misc.2d 807, 306 N.Y.S.2d 634 (Sup.Ct.1970) (dictum). Contra, Worldwide Carriers, Ltd. v. Aris Steamship Co., 312 F.Supp. 172, 175 n.5, 177 (S.D.N.Y.1970).2 ......
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Amoco Overseas Oil v. COMPAGNIE NATIONALE, ETC.
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