L & W Air Conditioning Co., Inc. v. Varsity Inn of Rochester, Inc.
| Decision Date | 21 August 1975 |
| Citation | 82 Misc.2d 937,371 N.Y.S.2d 997 |
| Court | New York Supreme Court |
| Parties | L & W AIR CONDITIONING CO., INC., Plaintiff, v. VARSITY INN OF ROCHESTER, INC., Defendant. |
The plaintiff took judgment against the defendant in the State of Georgia and has filed that judgment with the Clerk of the County of Monroe, State of New York, pursuant to Article 54 of the CPLR entitled 'Enforcement of Judgments Entitled to Full Faith And Credit.' Defendant moves to set aside that judgment upon three grounds: (1) that the judgment was taken by default and Article 54 does not permit the filing in New York State of foreign default judgments, (2) that the Georgia Court lacked jurisdiction and (3) that defendant did not receive notice of the time of trial in violation of his right to due process.
(1) The judgment roll from the Georgia court shows that after the service of the summons and complaint in New York, the defendant submitted an answer in which it denied the allegations of the complaint and, as an affirmative defense, alleged that the court did not have jurisdiction of the person of defendant. When the case came on for trial the defendant did not appear and judgment was taken by default.
The 1968 Uniform Enforcement of Judgments Act, from which Article 54 was taken, does not exclude from filing a judgment of a sister state taken by default. The Committee to Advise and Consult with the Judicial Conference on the CPLR, in urging the adoption in New York State of the 1968 Uniform Enforcement of Foreign Judgments Act, recommended that the act not apply to judgments 'in which there was no appearance by the defendant in the rendering forum.' This recommendation was based upon the Committee's fear of 'sewer service' (Report of the Judicial Conference to the 1969 Legislature in Relation to the CPLR). As submitted by the Committee, proposed Article 54 excludes from its scope judgments obtained by 'default in appearance'. Section 320 of the CPLR states that the defendant 'appears by serving an answer or a notice of appearance * * *.' It is apparent from the Committee's report that it intended to exclude not all judgments taken by default, but only those default judgments where there is no appearance at all in the action. Since the defendant did appear in the action in Georgia, the Georgia judgment may not be refused recognition under Article 54 because of the default of the defendant in appearing at the time of trial.
(2) Defendant may not now question the jurisdiction of the Georgia Court. When defendant filed an answer in the Georgia action raising the issue of jurisdiction, he consented that the issue of jurisdiction be tried by the Georgia Court and the findings of the court are now binding upon him. See, Res Judicata and Jurisdiction: The Bootstrap Doctrine (53 Harv.L.Rev. 652, 655--656) where the author notes 'a series of federal and state decisions holding conclusive a judgment rendered after a special appearance resulting in a determination of jurisdiction over the person.'
In Cascade Chemical Coat, Inc. v. Wellco Chemical Products, 15 Ill.App.3d 1056, 305 N.E.2d 595, the court stated that the issue presented to it 'is whether the filing of a special appearance in a foreign court prevents collateral attack of the jurisdictional basis of a judgment entered therein where it appears that the jurisdictional issue was decided by the foreign court.' The court concluded that the filing of the special appearance did prevent collateral attack. In that case the defendant, at the time of filing the special appearance in an action in Oregon, moved to vacate the service of the summons. No testimony was taken at the hearing of the motion and the Oregon court denied the motion. Defendant made nof further appearance in the action and a default judgment was rendered against him. When the defendant was sued on the judgment in Illinois, the Illinois court held that the defendant could not now question the jurisdiction of the Oregon court. The basis of the decision was that 'defendant was given an opportunity to fully litigate that issue (of jurisdiction) before the matter was decided by the Oregon court' and therefore the issue was 'res judicata'.
In Vander v. Casperson, 16 A.D.2d 881, 228 N.Y.S.2d 641, the Appellate Division, Fourth Department, discussed the principles...
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...at all in the action" (Tatick v. Tatick, 119 Misc.2d 729, 732, 464 N.Y.S.2d 337 [1983], citing L & W Air Conditioning Co. v. Varsity Inn of Rochester, 82 Misc.2d 937, 371 N.Y.S.2d 997 [1975], affd. 56 A.D.2d 735, 392 N.Y.S.2d 853 [1977] ; Paden v. Warnke, 110 Misc.2d 61, 441 N.Y.S.2d 575 [1......
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