Al-Dohan v. Agop Kaspar Kouyoumjian

• Decision Date: 03 December 1982
• Docket Number: P,AL-DOHA
• Parties: Mohammed Salehlaintiff, v. AGOP KASPAR KOUYOUMJIAN, Defendant.
• Court: New York Supreme Court

Page 974

456 N.Y.S.2d 974

116 Misc.2d 1024

Mohammed Saleh AL-DOHAN, Plaintiff, v. AGOP KASPAR KOUYOUMJIAN, Defendant.

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

Dec. 3, 1982.

Herman E. Cooper, P.C. by Herman E. Cooper, New York City, for plaintiff.

Debevoise & Plimpton by Gary W. Kubek, New York City, for defendant.

MARTIN EVANS, Justice.

This plaintiff's motion seeking to modify a prior decision of this Court ( Al-Dohan v. Kouyoumjian, 114 Misc.2d 170, 451 N.Y.S.2d 367) is granted.

Movant bases his application on arguments originally advanced in a supplemental affirmation dated June 7, 1982, which he incorporates by reference into this motion. The supplemental affirmation was submitted late, after both its projected submission date and the issuance of the Court's decision. The affirmation refers, inter alia, to a notice of deposition dated June 20, 1981 served by defendant on plaintiff, which plaintiff claims constituted an appearance. The existence of this notice and a later subsequently withdrawn motion to compel compliance, was not before the Court at the time of the original decision. Defendant's conduct raises a question of apparent first impression: What is the jurisdictional consequence of an informal general appearance made in the course of an attachment proceeding before formal commencement of an action by service of a summons?

Accordingly, the decision of this Court dated June 3, 1982 is modified by deleting the last two paragraphs, and substituting the following:

While none of defendant's acts (i.e., his request for papers, his opposition to plaintiff's motion to confirm the attachment and his own motion to vacate) amounted to an appearance, his notice of deposition dated June 20, 1981, did. The notice specifically sought discovery pursuant to Article 31, the general disclosure provisions of the Civil Practice Law and Rules, and was broadly worded so as to demand overall discovery on the merits. Defendant by his own affirmative conduct, made an informal appearance and effectively waived what could have been a valid jurisdictional objection. See Weinstein, Korn and Miller, New York Practice under the CPLR § 320.01; 320.12. Once a party defends on the merits, or otherwise affirmatively participates in the action other than by objecting to jurisdiction or by performing an act specifically permitted without jurisdictional consequences, he has "appeared". "[I]t is unimportant how process was served or that it was served at all, and by appearing, all objections to the regularity or sufficiency of the service of process is waived" Matter of Dell, 56 Misc.2d 1017, 1019, 290 N.Y.S.2d 287; 4 Carmody Wait 2d 26:36. A request to take a deposition is such an appearance. McGowan v. Bellanger, 32 A.D.2d 293, 301 N.Y.S.2d 712; see Siegel, New York Practice § 112.

Moreover, by attempting to justify the broad demand for discovery, defendant seeks "to create his own unique structure" not available to others in his position and thereby gain undue advantage. See De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 406, 362 N.Y.S.2d 843, 321 N.E.2d 770. Defendant sought to obtain the sweeping disclosure rights, not only including priority, but also exploration of possible counterclaims, available only to one defending an action on the merits. He acted unilaterally, without first having sought leave of court based on proof that the requested information was necessary to frame a defense to the attachment. Yet, he seeks to avoid the inevitable jurisdictional result simply because he claims that he subjectively intended only a limited appearance. Because defendant himself affirmatively acted beyond the scope of a limited appearance, he deprived himself of the protection from the court's jurisdiction which a limited appearance ordinarily affords.

Plaintiff argues that every appearance is automatically jurisdiction-acquiring unless an objection to jurisdiction is made at the time of appearance. Defendant argues that an appearance no longer automatically vests jurisdiction, since the revised CPLR eliminated the former practice of a special appearance and permits a jurisdictional objection to be raised by answer or motion. Defendant claims that even if its service of a discovery notice did constitute an appearance, he had an indefinite time in which to object to jurisdiction since having not yet been served with a summons, his time in which to answer had not even begun to run.

Neither plaintiff's nor defendant's position reflects an entirely accurate view of either the...