O'Connor v. Wells
| Decision Date | 08 July 1964 |
| Docket Number | A-B |
| Citation | 252 N.Y.S.2d 861,43 Misc.2d 1075 |
| Parties | Thomas O'CONNOR and Rosaleen O'Connor, Plaintiffs, v. Nick WELLS, formerly doing business Asar-A Ranch, Defendant. ; Special Term, Albany County |
| Court | New York Supreme Court |
Rosemary Fallon Byron, Catskill, for defendant, in support of application.
Wood, Morris, Sanford & Hatt, Albany (Karl H. Schrade, Albany, of counsel), for plaintiffs, in opposition.
Defendant moves pursuant to subdivision (a) of rule 3211 of the Civil Practice Law and Rules, for dismissal of the complaint on the ground that the court has not jurisdiction of the person of the defendant.
Upon this application the essential facts are not in dispute. It appears: that on August 2, 1963 and prior thereto defendant owned and operated a riding academy business on real property owned by him in Greene County in this State; that on August 28, 1963 defendant sold said business and real property; that on December 22, 1963 defendant moved to Florida 'to remain there permanently' and that the summons and complaint herein were personally served on defendant in Florida on January 15, 1964. The complaint alleges a cause of action for personal injuries arising out of negligence which occurred on August 2, 1963 in said County in connection with the operation of said riding academy, together with a derivative cause.
Subdivision (a) of section 302 of the Civil Practice Law and Rules provides:
'(a) Acts which are the basis of jurisdiction. A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state, if, in person or through an agent, he:
'1. transacts any business within the state; or
'2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
'3. owns, uses or possesses any real property situated within the state.'
Said section is retroactive and applies to plaintiffs' causes of action, notwithstanding that they accrued prior to September 1, 1963, the effective date of the statute (Muraco v. Ferentino, 42 Misc.2d 104, 247 N.Y.S.2d 598; Developers Small Business Invest. Corp. v. Puerto Rico Land & Development Corp., 42 Misc.2d 23, 246 N.Y.S.2d 896; Patrick Ellam, Inc. v. Nieves, 41 Misc.2d 186, 245 N.Y.S.2d 545; CPLR § 10003).
But defendant argues that said section 302 is not applicable to a non-domiciliary who, at the time of the commission of a tortious act by him in this State, was a domiciliary. This contention is refuted by the section itself which contains the words 'any domiciliary'. The word 'any' has been defined judicially to mean 'all' or 'every' and the use of the word imports no limitation (Randall v. Bailey, 288 N.Y. 280, 285, 43 N.E.2d 43, 45; Weinstein v. Sinel, 133 App.Div. 441, 117 N.Y.S....
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...& Co. R. 61 (C.P.1938); Goodrich, Conflict of Laws 118 (4th ed. 1964). 18 See N.Y. CPLR § 313. 19 See O'Connor v. Wells, 43 Misc.2d 1075, 252 N.Y.S.2d 861, 863 (Sup.Ct.1964). 20 Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235, 236 (Sup.Ct.1965). Cf. Hempstead Medical Arts Co. v. Willie, N.Y......
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...of service is sufficient for jurisdiction under CPLR 302 (See also Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235; O'Connor v. Wells, 43 Misc.2d 1075, 252 N.Y.S.2d 861). III. Uniform District Court Act Sec. 404 is the district court's 'long arm' statute, the district court equivalent of CP......
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...be applied. "Any" as used in a statute means "all" or "every" and suggests a broad and expansive meaning. O'Connor v. Wells, 252 N.Y.S.2d 861, 863, 43 Misc.2d 1075 (N.Y.Sup.1964); State v. Zueger, 459 N.W.2d 235, 237 (N.D.1990); Christianson v. City of Bismarck, 476 N.W.2d 688, 690 ¶25 The ......
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...of § 302 of the New York Civil Practice Law and Rules, and jurisdiction was upheld by the Court of Appeals. In O'Connor v. Wells, 43 Misc.2d 1075, 252 N.Y.S.2d 861, the court pointed out that any other construction would permit a wrongdoer simply to move out of state to escape the jurisdict......