Marine Midland Bank, N.A. v. Bowker
| Decision Date | 28 October 1982 |
| Citation | 89 A.D.2d 194,456 N.Y.S.2d 243 |
| Court | New York Supreme Court — Appellate Division |
| Parties | MARINE MIDLAND BANK, N.A., Plaintiff, v. Edward T. BOWKER, Defendant and Third-Party Plaintiff-Respondent; John F. Byrne, Doing Business as Jack Byrne Ford & Mercury, et al., Third-Party Defendants-Appellants. |
Schrade & Kimmey, Albany (Karl H. Schrade, Albany, of counsel), for third-party defendants-appellants.
Paul M. Whitaker, Albany, for defendant and third-party plaintiff-respondent.
Before SWEENEY, J.P., and MAIN, MIKOLL, LEVINE and WEISS, JJ.
In 1979, defendant Bowker purchased an automobile from the automobile agency of third-party defendant John F. Byrne (Byrne), to be financed by a retail installment contract which was subsequently assigned to plaintiff. After defendant defaulted in payment, plaintiff brought suit against defendant for the balance due. Defendant interposed an answer which, inter alia, asserted a counterclaim for breach of warranty based upon the alleged defective condition of the vehicle. Thereafter, defendant also brought a third-party action against Byrne, as dealer, and Ford Motor Company, as manufacturer, alleging over $150,000 in direct and consequential damages. Because of alleged confusion as to whether Ford's attorneys would represent him, Byrne did not interpose an answer. Defendant moved County Court for a default judgment against Byrne. The court rendered a decision and granted judgment for $11,843.55, considering sua sponte the issue of its jurisdiction to grant relief in the impleader action in excess of its monetary jurisdictional limit (N.Y. Const., art. VI, § 11, subd. a; Judiciary Law, § 190, subd. 5). A motion to vacate the default was denied on the ground that Byrne had failed to establish an excusable default. Byrne then moved for leave to reargue the prior motion and also brought a separate motion to dismiss the third-party complaint on the ground that it sought damages exceeding County Court's jurisdictional limit of $10,000. Both motions were denied, and Byrne and Ford have appealed.
The appeal from the denial of the motion to reargue is dismissed, 112 Misc.2d 1044, 448 N.Y.S.2d 123, since no appeal lies from an order, 109 Misc.2d 39, 439 N.Y.S.2d 617, denying reargument (see, e.g., Carlucci v. Poughkeepsie Newspapers, 88 A.D.2d 608, 450 N.Y.S.2d 54 (1982)). However, whether the motion to dismiss is deemed to be an initial motion or, because the court had already decided it sua sponte, a motion to reargue, it is properly before us insofar as it involves the issue of the court's subject matter jurisdiction. The order or judgment of a court lacking subject matter jurisdiction is void, and objection to the court's jurisdiction in such a case may be taken at any stage of the action, including on appeal (Robinson v. Oceanic Steam Navigation Co., 112 N.Y. 315, 324, 19 N.E. 625 (1889); Matter of Stoddard v. Town Bd. of Town of Marilla, 52 A.D.2d 1091, 384 N.Y.S.2d 314 (1976)).
Turning to the merits of the jurisdictional issue, County Court erroneously based its decision upon its combined reading of Cohen Agency v. Perlman Agency, 51 N.Y.2d 358, 434 N.Y.S.2d 189, 414 N.E.2d 689 (1980), section 190-b of the Judiciary Law, and Howard Iron Works v. Buffalo Elevator Co., 176 N.Y. 1, 68 N.E. 66 (1903). The issue here would never have arisen before Cohen, which, construing impleader more broadly than merely strict indemnification on the main action, allowed a third-party plaintiff to claim over for an amount greater than the amount demanded in the complaint. Cohen, however, was an action commenced in Supreme Court. Therefore, while it would permit the assertion of a third-party claim in a County Court action in an amount greater than that demanded in the complaint, Cohen does not necessarily determine that the claim over could exceed the monetary jurisdictional limit of County Court. Howard, which held that County Court has jurisdiction over a counterclaim in any amount, 1 is also distinguishable from the instant impleader issue. At the time Howard was decided, a counterclaim generally had to arise out of the transaction sued upon in the complaint 2 (Civ.Prac.Act, § 266). Now a defendant may use as a counterclaim any claim he has against the plaintiff, whether related or not to the plaintiff's action (CPLR 3019, subd. [a] ). Furthermore, plaintiff was the one in Howard who had invoked the jurisdiction of County Court to resolve his dispute and, therefore, having picked the forum for that purpose, could hardly object to a full resolution of that dispute when defendant interposed a related counterclaim. Section 190-b (subd. 1) of the Judiciary Law...
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