Al-Dohan v. Kouyoumjian

• Decision Date: 07 April 1983
• Docket Number: P,AL-DOHA
• Citation: 93 A.D.2d 714,461 N.Y.S.2d 2
• Parties: Mohammed Salehlaintiff-Respondent, v. Agop Kaspar KOUYOUMJIAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 2

461 N.Y.S.2d 2

93 A.D.2d 714

Mohammed Saleh AL-DOHAN, Plaintiff-Respondent, v. Agop Kaspar KOUYOUMJIAN, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 7, 1983.

H.E. Cooper, New York City, for plaintiff-respondent.

J.H. Weiss, New York City, for defendant-appellant.

Before MURPHY, P.J., and SANDLER, ROSS, KASSAL and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered December 8, 1982,116 Misc.2d 1024, 456 N.Y.S.2d 974, granting plaintiff's motion modifying its prior determination which granted defendant's motion to vacate an attachment, unanimously reversed, on the law, with costs, the motion to modify denied, and the determination vacating the attachment reinstated.

We are in agreement with the analysis of Special Term in its original determination (114 Misc.2d 170, 451 N.Y.S.2d 367), vacating the attachment by reason of the failure of plaintiff to properly serve the summons within the statutory period required by CPLR 6213. There is no dispute on this record that plaintiff failed to properly commence the action by service of the summons within 60 days after issuance of the order of attachment. Since process was not served on or before September 6, 1981, when the statutory period expired, Special Term properly concluded that the order of attachment should be vacated. The failure to serve the summons was a jurisdictional defect, which rendered the attachment void ab initio (see Raphael v. Gibson, 65 A.D.2d 553, 409 N.Y.S.2d 18; Galbraith v. Yancik, 77 Misc.2d 130, 353 N.Y.S.2d 134; 7A Weinstein-Korn-Miller, New York Civil Practice p 6213.04).

It is also uncontested that, although the summons was never served, on July 13, 1981, within the 60-day period, plaintiff moved to confirm the attachment in accordance with CPLR 6211(b), serving a copy of the complaint with the motion papers. This, however, did not operate as a substitute for proper service of process in the manner required by CPLR 308, nor is there such claim. The mailing of the motion to confirm by registered mail does not amount to expedient service under CPLR 308(5) since no application had been made for leave and there was no showing, as required, that service under subdivisions (1) through (4) of section 308 was "impracticable."

We also agree with Special Term that defendant's opposition to the motion to confirm and cross-motion to vacate the attachment did not constitute an appearance (CPLR 6223[a] ); nor did defendant's demand for the papers upon which the attachment was granted (CPLR 6212[d] ). Further, the transmittal of papers to counsel representing defendant does not serve as a substitute for personal service in the absence of any claim or proof that, in accordance with CPLR 318, the attorneys had been designated as agent to receive service of process on behalf of defendant.

However, we do not subscribe to the conclusion reached by Special Term, in modifying its original determination, that defendant's service of a notice of deposition, albeit by its terms served pursuant to CPLR Article 31, constituted an appearance and a waiver of any jurisdictional objection. The relevant facts are not in dispute. Prior to the return date of the motion to confirm the attachment, defendant served a notice to conduct an oral examination of plaintiff. Although the notice was broadly worded as "relating to the allegations of the Verified Complaint," on a subsequent motion to compel disclosure, counsel confirmed that the deposition was sought "for purposes of supporting defendant's opposition to plaintiff's motion to confirm an attachment." In modifying its initial determination, Special Term held that the service of the notice amounted to an informal appearance and a waiver of any jurisdictional objection [CPLR 320(b) ], albeit no action had ever been commenced since, concededly, no summons was ever served.

We disagree. We fail to perceive the underlying basis for Special Term having concluded that defendant appeared when no action had ever been commenced and, therefore, the time to appear had not run. As provided in CPLR 320, a defendant appears by service of an answer or a notice of appearance, or by a motion which has the effect of extending the time to answer. CPLR 3211(e) provides that a defendant may raise an objection to personal jurisdiction, either by pleading the objection in his answer as a defense or by timely motion to dismiss on that ground. Thus, it has been held that the service of a notice of deposition before expiration of the time to answer or move does not amount to a waiver of any objection to personal jurisdiction (see Mittleman v. Mittleman, 45 Misc.2d 445, 448, 257 N.Y.S.2d 86; Coleman Capital Corp. v. Trans Urban Co., 53 Misc.2d 70, 72, 278 N.Y.S.2d 251). Underlying the principle is the awareness that objections to personal jurisdiction under CPLR 321 (a)(8) may be made either by motion or in the answer and, accordingly, the failure to interpose a jurisdictional objection at the time an appearance is required under CPLR 320...