Al-Dohan v. Kouyoumjian

• Decision Date: 03 June 1982
• Docket Number: AL-DOHA,P
• Citation: 114 Misc.2d 170,451 N.Y.S.2d 367
• Parties: Mohammed SALEHlaintiff, v. Agop Kaspar KOUYOUMJIAN, Defendant.
• Court: New York Supreme Court

Page 367

451 N.Y.S.2d 367

114 Misc.2d 170

Mohammed SALEH AL-DOHAN, Plaintiff, v. Agop Kaspar KOUYOUMJIAN, Defendant.

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

June 3, 1982.

Herman E. Cooper, New York City, for plaintiff.

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

MARTIN EVANS, Justice:

Defendant moves to vacate an attachment on the grounds that plaintiff failed, within sixty days of obtaining the attachment, to complete commencement of the action by the valid service of a summons. This motion requires the Court to examine the underlying purpose of a summons within the context of the revised attachment statute.

This proceeding arises out of a long series of Middle Eastern business dealings between plaintiff, a Saudi Arabian subject and resident, and defendant, a Syrian-born Armenian now residing in California. The nature and scope of their relationship is obscure. At issue is ownership of over $9,000,000 of which $6,000,000 had been deposited by plaintiff in an account in defendant's name at the Republic National Bank of New York. Plaintiff contends that he conveyed the funds to defendant as his agent in trust, on an oral agreement that defendant would invest them for plaintiff. Defendant claims that plaintiff was his agent for trading gold in Saudi Arabia, where non-Moslems are unable to freely engage in commerce; that plaintiff, having held over $9,000,000 of defendant's money under an oral agreement, in trust for him under plaintiff's name, withheld a substantial portion when transferring the balance at issue to defendant's New York account. On July 8, 1981 plaintiff, because of the fear that defendant would withdraw the balance upon commencement of litigation, and as a predicate for obtaining New York jurisdiction, successfully applied for an ex parte order of attachment. Upon levy, the Bank reported only $27,521.86 remaining on deposit.

CPLR 6213 provides, in pertinent part:

An order of attachment granted before an action is commenced is valid only if, within sixty days after the order is granted, a summons is served upon the defendant or first publication of the summons against the defendant is made pursuant to an order and publication is subsequently completed.

The sixty day statutory period expired on September 6, 1981. No summons was validly served, nor was any order of publication obtained, within that period.

Nevertheless, on July 13, 1981, within the statutory period, plaintiff moved for an order confirming the attachment, pursuant to CPLR 6211(b), and served notice of that motion on defendant, along with a copy of the complaint and supporting affidavits by registered mail. There is no question that defendant received actual notice of the attachment and the imminent pendency of the action. Defendant retained counsel, who, on August 20, 1981 demanded a copy of all relevant papers from plaintiff's attorneys. The next day, plaintiff's attorneys served defendant's attorneys with a copy of a summons and complaint together with the other papers upon which the attachment was based.

It is well settled that the failure to serve a summons is a jurisdictional defect, fatal to attachment, which voids it ab initio. Raphael v. Gibson, 65 A.D.2d 553, 409 N.Y.S.2d 18; Kieley v. Central Complete Combustion Mfg. Co., 147 N.Y. 620, 42 N.E. 260; Weinstein, Korn & Miller, New York Practice § 6213.03. This rule is motivated by common sense and fairness; indeed, it is a requirement of due process. Whether the attachment and levy is intended as a security device or as a jurisdictional predicate, it is both unfair and purposeless to indefinitely encumber the defendant's property if no action is presently to be commenced.

When the State Legislature recodified New York's attachment statute (CPLR Article 63) in 1977, it sought to guarantee the defendant's due process rights after the grant of an ex parte order by providing for the speedy confirmation hearing procedure mandated by the new CPLR 6211(b) where the plaintiff now bears the burden of proof. See Jud.Conf., Report on CPLR Proposed Amendments, 2 McKinney's New York Session Laws (1977) 2566 et seq.; L.1977 ch. 860.

The old law's failure to give the defendant adequate notice and an opportunity to be heard, and its requirement that the objecting defendant bear the burden of proof rendered it constitutionally defective. Sugar v. Curtis Circulation Co., 383 F.Supp. 643; see North Georgia Finishing, Inc. v. Di-Chem., Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751.

While the notice, hearing and shifted burden of proof aspects of the revised law are necessary elements of a constitutionally valid attachment procedure, their observance does not alone guarantee conformity with due process. The service of summons requirement of CPLR 6213 independently helps to secure due process and has thus not been rendered surplusage by the 1977 amendments; its continued viability was implicitly recognized by the Legislature's decision to retain it as an integral part of the attachment procedure. Under the new procedure, a defendant (more accurately, a putative defendant) need no longer fear deprivation of his property without his knowledge, an opportunity to be heard and the right to put the movant to his proof. However, without the requirement that an action be commenced with sixty days, he could still be effectively deprived of his property for an indefinite length of time, without the opportunity to litigate the underlying issues which initially gave rise to the attachment.

CPLR 6213 is more than merely a notice statute, as a summons is more than mere notice. Of course, the primary purpose of a summons is to notify the defendant that an action is pending, fairly apprise him, in general terms, of its object, and tell him when, where and how he should respond. See gen., Valz v. Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 133, 163 N.E. 124. While the law provides that an action be commenced by service of a summons, (CPLR 304, 305), no specific form of summons is prescribed; its contents, in whatever form, must be sufficient to give such fair notice. Thus it could be argued that the complaint, order of attachment, and other supporting papers served on defendant by registered mail along with the motion to confirm the attachment, together adequately gave notice so as to be deemed a summons. Certainly defendant's subsequent actions, including the retention of counsel, indicate that he did receive actual notice.

The law, however, requires more than notice, even actual notice alone, is insufficient. See, Wuchter v. Pizzutti, 276 U.S. 13, 24, 48 S.Ct. 259, 262, 72 L.Ed. 446. Assuming the existence of an adequate jurisdictional basis (here, in rem jurisdiction over property deposited in New York and subject to attachment,...