Lieberman v. Warner

• Decision Date: 04 June 1971
• Citation: 66 Misc.2d 731,322 N.Y.S.2d 393
• Parties: Bernard R. LIEBERMAN, Plaintiff, v. H. Grant WARNER, Defendant.
• Court: New York City Court

Page 393

322 N.Y.S.2d 393

66 Misc.2d 731

Bernard R. LIEBERMAN, Plaintiff, v. H. Grant WARNER, Defendant.

Civil Court of the City of New York, New York County, Trial

Term, Part 48.

June 4, 1971.

Bernard R. Lieberman, New York City, in pro. per.

Gemmelli, Goldfarb & Ryan, New York City, H. Grant Warner, of counsel, for defendant.

MILTON SANDERS, Judge.

Defendant, an attorney at law, was served with a summons and complaint in a public corridor in Civil Court, Bronx County, where he had been representing the defendants in another action brought by plaintiff herein, relating to a real estate transaction. Defendant, who is a nonresident of the City of New York, contends that as an attorney, he was exempt from the service of process in this action while attending court in connection with the other suit.

There is no question that non-resident parties and witnesses with essential testimony voluntarily attending judicial proceedings within the state normally have an immunity from service of process so long as their sole purpose for being here is attendance at the proceeding (Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962; Thermoid Co. v. Fabel, 4 N.Y.2d 494, 176 N.Y.S.2d 331, 151 N.E.2d 883; 1 Weinstein, Korn & Miller, New York Civil Practice, Sect. 308.05). There is a conflict of authority, however, in this country, as to whether this immunity extends to non-resident attorneys attending such judicial proceedings (See 42 Am.Jur. 'Process' Sects. 140, 141). It appears that there are only two cases in New York which have discussed the problem. In Kutner v. Hodnett, 59 Misc. 21, 109 N.Y.S. 1068 the court expressly declined to extend such immunity to a non-resident attorney. In Sarlie v. Niesenbaum, 23 Misc.2d 211, 199 N.Y.S.2d 46, the court similarly denied immunity to a non-resident attorney who had come here for the purpose of advising a foreign party at an examination before trial, and acted as an interested observer at such examination. While Mr. Justice Steuer in that case indicated his disapproval of the reasoning in the Kutner case, which was that a refusal to extend immunity to an attorney would discourage foreign attorneys from practising within the jurisdiction, he had no quarrel with the result. He stated that 'if immunity is extended beyond parties and witnesses it would be hard to say where it should stop,' and concluded that 'the cloak of immunity put over parties does not cover others in their train.' Although the court in Sarlie...