Foley v. Roche

• Decision Date: 26 June 1979
• Citation: 68 A.D.2d 558,418 N.Y.S.2d 588
• Parties: John J. FOLEY, Plaintiff-Respondent, v. Mary Ellen ROCHE and John Tyzbir, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 588

418 N.Y.S.2d 588

68 A.D.2d 558

John J. FOLEY, Plaintiff-Respondent, v. Mary Ellen ROCHE and John Tyzbir, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 26, 1979.

Robert P. Whelan, New York City, of counsel (McHugh, Heckman, Smith & Leonard, New York City, attorneys), for defendants-appellants.

Pamela Anagnos Liapakis, New York City, of counsel (Lipsig, Sullivan, Mollen & Liapakis, P. C., New York City, attorneys), for plaintiff-respondent.

Before FEIN, J. P., and SANDLER, BLOOM, LYNCH and ROSS, JJ.

FEIN, Justice Presiding.

Defendants appeal from the order of Special Term to the extent that the court conditioned dismissal of the complaint for lack of jurisdiction and vacatur of the attachment upon defendants agreeing to accept service of process in an action to be commenced in New Jersey and waiving statute of limitations as a defense, except to the extent available as a defense in this action. The suit was instituted upon an order attaching the contractual obligation of defendant's insurer to defend and indemnify under a policy of automobile liability insurance issued by Continental Insurance Company. Special Term found that such attachment, procured on authority of Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312, was invalid in view of the recent United States Supreme Court opinion in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683, which held applicable to all assertions of jurisdiction the minimum contacts test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.

The action arises out of an accident which occurred on January 26, 1976 in Vermont, when plaintiff, a New York resident, allegedly sustained personal injuries when a vehicle owned by defendant Roche and operated by defendant Tyzbir, both New Jersey residents, collided with the vehicle owned and operated by plaintiff. This action was commenced after plaintiff had obtained an order on October 19, 1976, attaching Roche's automobile liability policy and the obligation to defend and indemnify thereunder (Order, 10/19/76, Stecher, J.). Pursuant to that order, the Sheriff of Suffolk County attached the policy and service was thereafter effected upon both defendants in New Jersey. Defendants then moved to vacate the attachment (CPLR 6223) and to dismiss the complaint for lack of personal and subject matter jurisdiction (CPLR 3211(a)(2), (8) and (9)). The motion was denied, Special Term finding the attachment properly obtained and no sufficient ground urged to warrant its vacatur (Order, 4/19/77, Kirschenbaum, J.).

In their answer defendants interposed affirmative defenses, alleging the impropriety of the attachment, lack of personal and subject matter jurisdiction and Forum non conveniens. Thereafter, defendants served a demand to change the venue to Nassau County and an application to change the place of trial was granted without opposition (Order, 6/17/77, Niehoff, J.). A prior motion by plaintiff to strike the third and fourth affirmative defenses of lack of subject matter jurisdiction and lack of jurisdiction by reason of the attachment was denied by Mr. Justice Tierney, with leave to renew in Nassau County following disposition of the motion to change the venue. (Order, 7/27/77, Tierney, J.). Plaintiff then moved before Mr. Justice Velsor in Nassau County, to strike the defenses upon the ground that the issue had been determined by Justice Kirschenbaum. Defendants claimed that an application for the same relief had already been denied by Justice Kirschenbaum. Justice Velsor concluded that the prior determination of Justice Kirschenbaum decided only so much of the motion as sought to vacate the attachment, but did not pass upon the jurisdictional issues. However, Justice Velsor denied the motion without prejudice to an application by plaintiff to Justice Kirschenbaum to resettle the prior order of April 19, 1977.

Defendants thereupon moved by order to show cause to resettle the prior order of Justice Kirschenbaum, demanding dismissal of the action for lack of jurisdiction and vacatur of the attachment. Plaintiff cross-moved to strike the third and fourth affirmative defenses. Justice Kirschenbaum, granting the motion and denying the cross-motion, held that attachment of the obligation to defend or pay under a liability policy pursuant to Seider v. Roth, supra, could no longer he had in view of the recent Supreme Court opinion in Shaffer v. Heitner, supra. Although the court concluded that jurisdiction was lacking, outright dismissal was not directed, since dismissal would foreclose plaintiff from instituting action in New Jersey, the applicable statute of limitations having run. Accordingly, the court conditioned dismissal upon the commencement of a new action in New Jersey within thirty days, acceptance by defendants of service of process in that action and waiver of any statute of limitations defense, other than that which could have been asserted as a defense in this action.

Defendants have appealed from the order to the extent that it imposed conditions to the dismissal. They contend that the court had no authority to dismiss the action conditionally since there was a finding that jurisdiction was lacking, distinguishing that situation from one where dismissal is premised upon Forum non conveniens. They assert that since plaintiff did not appeal from the order dismissing the action and since defendants have appealed only from that portion of the order which imposed conditions to the dismissal, this court is without power to review the merits of the dismissal. They claim that since the conditions were improperly imposed, that portion of the order should be deleted. This would affect an absolute dismissal of the case, since commencement of a new action would be futile, the time to commence a new action having expired.

We disagree with the conclusion reached by Special Term in holding the Seider attachment procedure unavailable in the light of Shaffer v. Heitner, supra. Baden v. Staples, 45 N.Y.2d 889, 410 N.Y.S.2d 808, 383 N.E.2d 110, is dispositive. The Court there held the Seider doctrine to survive the constitutional principles expressed in Shaffer. Therefore, while we fully agree that the order of Special Term was incorrect in vacating the attachment and in dismissing the action for lack of jurisdiction, the problem confronted on this appeal is our jurisdiction to review the entire order, the plaintiff having elected not to appeal from the dismissal and defendants having appealed only from so much of the order as imposed conditions to the dismissal. Ordinarily, appellate review is confined to the part of the order appealed from (Matter of Burk, 298 N.Y. 450, 455, 84 N.E.2d 631, 633). However, we have held that where the portion of an order appealed from is " inextricably intertwined" with the balance of the order from which an appeal has not been taken, an appellate court may not be circumscribed in its review, nor precluded from passing upon so much of the order as is necessarily affected by the portion from which an appeal has been taken (Lea v. Lea, 59 A.D.2d 277, 280, 399 N.Y.S.2d 219, 221; see also, Matter of Burk, supra, 298 N.Y. at 455, 84 N.E.2d at 633; Statella v. Statella, 28 A.D.2d 669, 670, 281 N.Y.S.2d 215, 217).

As applied here, we conclude that the appeal by defendants from so much of the order of Special Term as imposed conditions upon the dismissal for lack of jurisdiction brings up for review the entire order, despite plaintiff's failure to appeal. The conditions attached to the order of dismissal, albeit improper, are not separable from the balance of the order. Rather, they are so "inextricably intertwined" with the dismissal as to necessitate review of the entire order upon defendants' appeal. Clearly, Special Term would not have directed an outright dismissal without imposition of the conditions contained in the order. To hold otherwise would effect a most inequitable result, dismissing an action properly commenced in this state and, in view of the passage of time, precluding plaintiff from any available remedy.

A court when faced with a motion to dismiss for lack of jurisdiction may not properly condition dismissal upon a defendant's agreeing to submit to the jurisdiction of another court in another state by acceptance of process there and waiver of statute of limitations as a defense. Although such conditions are invariably imposed where dismissal is predicated upon the doctrine of Forum non conveniens, where it is found that jurisdiction is lacking a conditional dismissal is inappropriate. The difference lies in the nature of the relief sought and the power of the court to act when called upon to invoke the Forum non conveniens doctrine. Application of Forum non conveniens "should turn on considerations of justice, fairness and convenience", with dismissal directed "when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice and the convenience of the parties." (Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 361, 328 N.Y.S.2d 398, 402, 278 N.E.2d 619, 622). The standard, codified in CPLR 327, effects a transfer of the action to a more convenient forum which the court finds will best serve the ends of justice and the convenience of the parties. Such a motion, addressed to the discretion of the court, requires a balancing to determine whether or not jurisdiction should be retained. We have held: "Forum non conveniens presumes the fact of jurisdiction, to be declined where it is found that, on balancing the interests and conveniences of the parties and the court, the action would be better adjudicated in another...