J. A. Mennella Foods Corp. v. Neptune's Nuggets, Inc.
| Citation | 74 Misc.2d 839,346 N.Y.S.2d 43 |
| Parties | J. A. MENNELLA FOODS CORP., Plaintiff, v. NEPTUNE'S NUGGETS, INC., and Matlaw's Food Products, Inc., Defendants. |
| Decision Date | 26 June 1973 |
| Court | New York County Court |
Motion by defendants to vacate the default judgment entered by the clerk of this Court on August 2, 1972 in the amount of $11,327.90 exclusive of interest and costs.
The complaint herein contains two causes of action:
1. Waste allegedly committed by defendant Neptune Nuggests, to property at Bay Shore, Suffolk County, New York occupied by said defendant under a lease from plaintiff, itself a leasee thereof. This cause of action alleges damages in the amount of $5,061.00.
2. Rent from January 1, 1972 up to the date of the judgment.
Said complaint also alleged that defendant Neptune Nuggests, Inc. consolidated with defendant Matlaw's Food Products, Inc. on December 1, 1971 and continued to operate as 'Matlaw's Food Products, Inc.' with principal offices at West Haven, Connecticut.
A default judgment was entered by the Clerk of Suffolk County on August 2, 1972 in the total amount of $11,836.82 consisting of: 'amount claimed in complaint' $11,327.90, $453.12 interest and $55.80 costs and disbursements.
At the outset, it is clear that plaintiff's cause of action for alleged waste is not a claim 'for a sum certain or for a sum which can by computation be made certain' as required by CPLR 3215(a) for entry of a judgment by the clerk without application to the Court. The clerk of this Court therefore had no authority to enter the judgment and his entry thereof was void. Steward v. Alleghany Mut. Cas. Co., 64 Misc.2d 1090, 316 N.Y.S.2d 934.
As was said in Geer, Du Bois & Co. v. Scott & Sons Co., 25 A.D.2d 423, 424, 266 N.Y.S.2d 580, 582: 'Since the Clerk had no power to enter judgment * * * the judgment thus entered was a nullity and the application to vacate the judgment and upon the default should have been granted unconditionally.'
However, in addition, defendants question the jurisdiction of this Court over this action, alleging that defendants were not doing business in this County at the commencement of the action and upon the further ground that the judgment was in excess of the $10,000 monetary jurisdiction of this Court.
Plaintiff contends, in effect, that this action arises out of acts committed by defendants in this County and as a result thereof this Court has jurisdiction under CPLR Sec. 302 (the 'Long Arm Statute').
The question arises, however, whether Sec. 302 takes precedence over Judiciary Law, Sec. 190--a (amended L.1971 c. 11, Sec. 3, effective September 1, 1971), which defines the residential requirements as to domestic and foreign corporations for the purpose of determining jurisdiction of this Court under Judiciary Law, Sec. 190.
Said Sec. 190--a now reads as follows:
'For the purpose of determining jurisdiction under section one hundred ninety, a domestic corporation or joint-stock association is deemed a resident of a county in which its principal place of business is established by or pursuant to a statute or by its articles of association, or in which its principal place of business or any part of its plant, shops, factories or offices is actually located * * * and a foreign corporation is to be deemed a resident of a county if it maintains any plant, store, office, warehouse or other facility for doing business within such county; * * *.'
At the commencement of this action, defendants had no place of business in this county and were not doing business in this county. This Court would therefore have no jurisdiction of this action unless the 'Long Arm Statute', CPLR Sec. 302 is applicable herein.
This question appears to be one of first instance, research by this Court having failed to disclose any precedent.
In the analogous situation of a non-resident motorist involved in an accident in this State, Vehicle and Traffic Law Sec. 253(2) permits service of process arising out of such accident upon the non-resident motorist by mailing the summons to the Secretary of State at Albany, New York....
To continue reading
Request your trial
-
Weber v. Kowalski
...Inc., 11 A.D.2d 766, 205 N.Y.S.2d 173 (construing former section 67, subd. 3 of the Civil Practice Act); contra Mennella Foods v. Neptune's, 74 Misc.2d 839, 346 N.Y.S.2d 43; compare Judiciary Law § 190(3), (5) referring to the 'complaint' with Art. VI, § 11, subd. a of the N.Y. Constitution......
-
Peoples Nat. Bank of Rockland County v. Yodowitz
...total amount in the complaint and not to each individual cause of action. The same result was reached in Mennella Foods v. Neptune's, 74 Misc.2d 839, 841, 346 N.Y.S.2d 43, 45 (1977). The case of Baron v. Bobroy, Inc., 11 A.D.2d 766, 205 N.Y.S.2d 173 (2nd Dep't. 1960) contains language to th......
-
Benson v. Cohoes School Bd.
...Dutchess Co. 1975). Contra: Silverman v. Abdul, 85 Misc.2d 11, 379 N.Y.S.2d 671 (Rockland County Court 1976); J. A. Mennella Foods v. Neptune's, 74 Misc.2d 839, 346 N.Y.S.2d 43 (Suffolk County Court At the outset it should be noted that nothing contained in the New York Constitution nor in ......
- McGowan v. Grand Island Transit Corp.