FCNB Spiegel Inc. v. Dimmick

• Decision Date: 07 November 1994
• Citation: 619 N.Y.S.2d 935,163 Misc.2d 152
• Parties: FCNB SPIEGEL INC., Plaintiff, v. Michelle R. DIMMICK a/k/a Michelle Rowe, Defendant.
• Court: New York City Court

Page 935

619 N.Y.S.2d 935

163 Misc.2d 152

FCNB SPIEGEL INC., Plaintiff, v. Michelle R. DIMMICK a/k/a Michelle Rowe, Defendant.

Civil Court of City of New York,

New York County, Special Term,

Part II.

Nov. 7, 1994.

As Amended Jan. 9, 1995.

Craner, Nelson, Satkin & Scheer, P.A., for plaintiff.

MICHAEL D. STALLMAN, Justice.

Plaintiff's ex parte motion for court-fashioned, "expedient" service under CPLR 308(5) requires the Court to consider the unique relationship of CPLR 301, CPLR 308(5) and CPLR 313. Is a New Jersey resident employed in New York City on a continuous, daily basis "present" in New York under CPLR 301 and constitutionally subject to New York's jurisdiction? Where and how may she be served?

Plaintiff's summons and endorsed complaint seeks to domesticate an unsatisfied New Jersey judgment obtained against defendant in 1993. ¹ The underlying cause of action apparently had no New York nexus. Defendant lives in Jersey City at an address known to plaintiff. Defendant is regularly employed by the National Association of Securities Dealers at 33 Whitehall Street in Manhattan but apparently has no other New York tie. Plaintiff asserts that it unsuccessfully attempted to serve defendant at her workplace, but was "denied access by security". (Moving affirmation, p. 2).

A plaintiff seeking court-crafted service under CPLR 308(5) must demonstrate that service is "impracticable" under the other applicable subdivisions of CPLR 308. The plaintiff need not show that it attempted other methods of service with "due diligence," the higher standard required for "nail-and-mail" service. CPLR 308(4); Tremont Federal Savings & Loan Ass'n v. Ndanusa, 144 A.D.2d 660, 535 N.Y.S.2d 8. Rather, plaintiff must show that no other statutory method of service is practicable: i.e., that it is impossible (either because the defendant's location is unknown or, if known, because plaintiff cannot obtain access to serve defendant pursuant to CPLR 308[1], [2] or [4]; or not legally permissible in the context of the particular action.

Movant has not met its burden of demonstrating impracticability. The attorney's conclusory hearsay account of one fruitless attempt at service does not establish that every other available method is impracticable. For example, plaintiff could attempt service by delivery to defendant's employer's receptionist or the building's doorman/woman or receptionist/concierge as a person of suitable age and discretion under CPLR 308(2) (see F.I. du Pont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 396 N.Y.S.2d 343, 364 N.E.2d 1115), followed by the required mailing and filing.

In the alternative, is defendant subject to service at her home in New Jersey, under CPLR 308(1), (2) or (4) via CPLR 313?

CPLR 313 permits service of the summons outside the State of New York in the same manner as service within the state.

CPLR 313 contains a little-noted, frequently ignored requirement: A plaintiff may use CPLR 313 only if the defendant is domiciled in New York or subject to New York jurisdiction under CPLR 301 or 302. Although neither a New York domiciliary nor subject to long-arm jurisdiction under CPLR 302, defendant appears to be subject to jurisdiction under CPLR 301. ² CPLR 301 codifies the pre-CPLR bases for personal jurisdiction which developed at common law, and which continue to evolve under the CPLR. Presence in the state's territorial jurisdiction at the time the action is commenced is one such historically exercised basis. The New York courts have developed the correlative doctrine of constructive presence, originally to permit New York to exert jurisdiction over unlicensed foreign corporations "doing business" in New York. Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915 (Cardozo, J.); see Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485; cf. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (insufficient proof of continuous, systematic activity in forum state). When an entity regularly, continuously and systematically engages in business activity in New York, it is deemed to be present here, and subject to general, in personam jurisdiction in New York, even over causes of action having no New York nexus. See Bryant v. Finnish National Airline, 15 N.Y.2d 426, 260 N.Y.S.2d 625, 208 N.E.2d 439. The defendant's voluntary, continuous self-benefitting activity in New York makes it fair and reasonable for an out-of-state defendant to expect to be subject to New York jurisdiction.

More recently, the courts have applied the concept of constructive presence to non-resident individuals and non-corporate entities engaged in equivalent continuous courses of activity in New York. ABKCO Industries, Inc. v. Lennon, 85 Misc.2d 465, 377 N.Y.S.2d 362, modified 52 A.D.2d 435, 384 N.Y.S.2d 781 (individuals); Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (unincorporated political group). See Chase, Weinstein-Korn-Miller CPLR Manual 2d ed. (1994 rev.), Section 3.04(d); cf. Laufer v. Ostrow, 55 N.Y.2d 305, 313, 449 N.Y.S.2d 456, 434 N.E.2d 692 (insufficient evidence of forum activity by individual).

An individual permanently employed in New York City, who regularly commutes on a daily basis to conduct business here, can be deemed present in New York as contemplated by CPLR 301. Such a person voluntarily avails herself of the protection and benefits of New York, including its laws, on a regular, continuous and systematic basis and must be deemed continuously present here for purposes of jurisdiction. Such a defendant should reasonably expect to be subject to New York State's jurisdiction, even if the cause of action is not New York related. If Ringo Starr, an English subject and domiciliary, can be held constructively present in New York under CPLR 301 through the New York activity on his behalf of attorneys and accountants (ABKCO Industries Inc. v. Lennon, supra ), then a fortiori, defendant is constructively present in New York within the meaning of CPLR 301, based on her own purposeful, continuous, daily employment activity here. See Restatement (Second), Conflict of Laws, Section 35, comment e (1971). ³

It is not jurisdictionally significant that defendant is an employee and not the owner of a business. "Doing business" evolved as convenient shorthand to describe the continuous pattern of activity in New York needed for a finding that an unlicensed foreign corporation is present here and thus subject to general jurisdiction under CPLR 301. It is the nature and quality of the defendant's New York contacts which are significant. Whether the defendant--corporation, individual, or other non-corporate entity--owns a business or controls an entity, becomes significant if jurisdiction is predicated on attribution to the defendant of the other entity's New York activity. Compare Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 with Delagi v. Volkswagenwerk, AG., 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895; see McLaughlin, Practice Comm. to McKinney's Cons Laws of NY, Book 7B, CPLR C 301:1, at 7, C 301:3, at 11; Siegel, New York Practice, 2d ed., Section 82.

Defendant's activity in New York satisfies both the state standard for general jurisdiction under CPLR 301 and federal due process standards. Quantitatively and qualitatively, defendant's New York employment suffices under the International Shoe test, making it fair and reasonable for her to be sued here, even though the cause of action does not appear to be New York related. U.S. Const. Amend. 14; see Helicopteros Nacionales de Colombia, S.A. v. Hall, supra; International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Restatement (Second) of Conflict of Laws, § 35(3), comment e (1971). ⁴

Since defendant unquestionably would be subject to New York jurisdiction if served while physically present in New York, then the place where service is to be effected should be of no jurisdictional significance to a defendant who is constructively present here. Indeed, permitting CPLR 308 service at her home would be better calculated to be received than mailing process to her at a large corporate headquarters. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865.

Based on plaintiff's showing (by definition, the only proof on this ex parte application), defendant would be subject to New York jurisdiction under CPLR 301. Were this a Supreme Court action, CPLR 313 would permit plaintiff to serve defendant at her New Jersey home by personal delivery (CPLR 308(1)) or delivery to a person of suitable age and discretion plus mailing (CPLR 308(2)) or, if neither method could be effected with due diligence, by "nail-and-mail" service (CPLR 308(4)). However, out of state service is not permitted in this Civil Court action.

Civil Court Act Section 403 requires that service "be made only within the [C]ity of New York unless service beyond the city be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state." [emphasis added]. The specific exclusion of the CPLR therefore excludes out of state service pursuant to CPLR 313. In contrast, out of state service under Business Corporation Law Section 307 (unlicensed foreign corporations) or Vehicle and Traffic Law Section 253(2) (non-resident motorists) is applicable to the Civil Court, but not to this case. See Siegel, Practice Comm. to McKinney's Cons Laws of NY, Book 29A, Civil Ct.Act § 403, at 127. Civil Court Act Section 404(b) permits extraterritorial service without regard to city or state lines only in cases where the cause of action arises from the transaction of business, commission of a tort or ownership, use or possession of real property within the City of New York....