Henry Sash & Door Co. v. Medi-Complex Limited

• Decision Date: 14 March 1972
• Docket Number: MEDI-COMPLEX
• Citation: 329 N.Y.S.2d 892,69 Misc.2d 269
• Parties: HENRY SASH AND DOOR CO., Inc., Plaintiff, v.LTD., Defendant.
• Court: New York District Court

Page 892

329 N.Y.S.2d 892

69 Misc.2d 269

HENRY SASH AND DOOR CO., Inc., Plaintiff, v. MEDI-COMPLEX LTD., Defendant.

District Court, Suffolk County.

March 14, 1972.

Robert H. Tucker, Forest Hills, for plaintiff.

Stanley R. Goldstein, New York City, for defendant.

DECISION

MEMORANDUM

ROCKWELL D. COLANERI, Judge.

Plaintiff moves for summary judgment (CPLR 3212; see also Uniform District Court Act Sec. 1001; CPLR 101) against the defendant for the sum of $643.95. Defendant, served with a copy of the motion papers, chooses not to oppose the motion.

FACTS

Plaintiff's cause of action is for 'goods sold and delivered by the plaintiff to the defendant.' At the time of delivery, defendant's place of business was in Smithtown, New York. Defendant, however, apparently decided that it would be more profitable elsewhere, moved to Kings County, and the summons and complaint were served on it there. Defendant answered with a general denial and a defense of lack of jurisdiction over it.

I.

At the outset, 'there are two kinds of jurisdiction that the court must have or obtain, in order to render a valid decision or judgment: first, jurisdiction over the subject matter of the suit or proceeding; second, jurisdiction over the parties to the action' (1 Carmody-Wait 2d, New York Practice, Sec. 2:77 et seq.; Hunt v. Hunt, 72 N.Y. 217 at 229). This court clearly has subject matter jurisdiction (Uniform District Court Act Sec. 202). Jurisdiction over the 'person' of the defendant presents a problem.

Defendant received the merchandise in Smithtown, New York (within a district of the court in the county, see Uniform District Court Act Sec. 404(a)(1)) but was served with process outside the county after it moved its business to Kings County.

II.

Service upon a New York domiciliary may be made anywhere in the world, and under CPLR 313 personal jurisdiction is acquired so long as the defendant is a domiciliary at the time of service. Personal jurisdiction over nondomiciliaries committing the acts prescribed in CPLR 302 may also be required by service of process anywhere in the world. (McKinney's Cons.Laws of N.Y., Book 7B, Practice Commentaries, Dean McLaughlin, C302:6). From a literal reading of CPLR 302 and 313, it appears that no jurisdiction may be acquired over a defendant who commits one of the prescribed acts while he is a New York domiciliary, and then changes his domicile. This situation or hiatus was first highlighted by Dean McLaughlin in 1964 (Practice Commentaries to CPLR 302). 'In other words, if, while he is a New York domiciliary, a defendant commits one of the prescribed acts, and then changes his domicile, may he be reached under CPLR 302?' (McKinney's Cons.Laws of N.Y., Book 7B, C302:6.)

Although Dean McLaughlin urged a change in CPLR 302 (cf. Kurland v. Chernobil, 260 N.Y. 254, 183 N.E. 380 and Vehicle and Traffic Law Sec. 253), legislative enactment was not forthcoming. Fortunately, State v. Davies, 24 A.D.2d 240, 265 N.Y.S.2d 358, aff'd 18 N.Y.2d 950, 277 N.Y.S.2d 146, 223 N.E.2d 570 stated that non-domicile at the time of service is sufficient for jurisdiction under CPLR 302 (See also Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235; O'Connor v. Wells, 43 Misc.2d 1075, 252 N.Y.S.2d 861).

III.

Uniform District Court Act Sec. 404 is the district court's 'long arm' statute, the district court equivalent of CPLR 302. (McKinney's Cons.Laws of N.Y., Book 29A, Professor Siegel, Practice Commentaries, CCA Sec. 404). The statute contains certain district court requirements. If service on the defendant-corporation cannot be effected by personal delivery within the county, then the corporation shall be deemed a non-resident for the purpose of this section. (Uniform District Court Act Sec. 404(d)). Having establishing that the defendant-corporation is a non-resident, it may only be served outside the county from acts enumerated in Uniform District Court Act Sec. 404(a)(1--3).

Subdivision (a)(1) of Uniform District Court Act Sec. 404 states that in personam jurisdiction is acquired over a non-resident of the county if he transacts any business within a district of the court in the county. A reading of the section would require two items to be present before this court acquires in personam jurisdiction, namely, defendant is a non-resident at the time he transacts his business and it must be within a district of the court. (Note--Suffolk County District Court encompasses the five western towns only--see Suffolk County District Court Rule 3935.1 (22 NYCRR 3935.1); cf. Nassau County District Court Rule 3840.1 (22 NYCRR 3840.1).)

State v. Davies (supra) stated that the Supreme Court's long arm statute is applicable to the situation when defendant is a domiciliary when he transacts his business and then subsequently leaves the state. This court interprets the District Court long arm statute in the same vein. (See also Coffman v. Nat. Union Fire Ins., 60 Misc.2d 81, 302 N.Y.S.2d 480; 146--150 W. Sunrise Highway Corp. v. Lee's Speedway, 54 Misc.2d 913, 283 N.Y.S.2d 790).

Therefore, service of the summons 'may be made in such manner and at such place, regardless of county or state lines, as would confer jurisdiction on supreme court in a like case'. (Uniform District Court Act 404(b)). Defendant was served in Kings County, however plaintiff's problem is not completely solved.

IV.

All-State Credit Corp. v. Defendants Listed in 669 Default Judgments, 61 Misc.2d 677, 306 N.Y.S.2d 596 held '. . . where a summons is served outside the territorial limits of a court, the basis for jurisdiction must be alleged in the pleadings' (at p. 679, 306 N.Y.S.2d at p. 598; see also Coffman v. Nat. Union Fire Ins., supra; All-O-Matic Mfg. Corp. v. Shields, 59 Misc.2d 199, 298 N.Y.S.2d 268; Lebensfeld v. Tuch, 43 Misc.2d 919, 252 N.Y.S.2d 594). This premise has been criticized as being 'unnecessarily harsh' (Dean McLaughlin, Practice Commentaries, supra).

Nowhere in the UDCA nor the CPLR is it required that the plaintiff plead jurisdictional facts. (See however Lebensfeld v. Tuch, supra). The jurisdictional fact required is 'in personam' jurisdiction. There is, in addition, no requirement that the plaintiff plead subject matter jurisdiction (for instance, the district court is one of limited jurisdiction).

If this in personam jurisdictional statement is required, plaintiff should be permitted to amend his pleading to state this requirement. CPLR 203(e) states that a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, if the original pleading gave notice of the transaction or occurrence (note also that Lebensfeld v. Tuch, supra, assumed that the basis for jurisdiction must be alleged and that the court could not permit plaintiff to retroactively cure service).

When the action is commenced by service of a summons alone, plaintiff's affidavits may contain the necessary jurisdiction facts (cf. Fraley v. Desilu Prods., 23 A.D.2d 79, 258 N.Y.S.2d 294). In Schnall v. Clearfield Cheese Co., Inc., 23 A.D.2d 652, 257 N.Y.S.2d 491 the court stated 'inasmuch as it does not appear from plaintiff's amended complaint or his Affidavits that he has any such cause of action, the motion under CPLR 3211(a)(8) to dismiss for lack of jurisdiction should have been granted' (at p. 652, 257 N.Y.S.2d at p. 491; emphasis added). The Fraley case would encourage the plaintiff to commence his action by service of a summons alone. The district court is not faced with this problem, as the complaint must be served with the summons (Uniform District Court Act Sec. 901).

A serious problem not discussed in any case or commentary is that of a default based on a complaint which does not allege 'jurisdiction'. A defendant served with the summons and complaint in California (here in Kings County) can choose...