National Equipment Rental, Limited v. Graphic Art Designers Inc.

Decision Date26 September 1962
Citation234 N.Y.S.2d 61,36 Misc.2d 442
PartiesNATIONAL EQUIPMENT RENTAL, LTD., Plaintiff, v. GRAPHIC ART DESIGNERS INC. d/b/a Key Line Advertising Art Associates, Ervin B. Magyary, Statmaster Corporation, Defendants.
CourtNew York Supreme Court

Stuart B. Belanoff, Elmont, for plaintiff.

Stephen L. Bair, New York City, for defendants Graphic Art Designers, Inc. and Ervin B. Magyary.

WILLIAM R. BRENNAN, Jr., Justice.

The defendants Graphic Art Designers Inc. and Ervin B. Magyary, appearing specially, move to set aside the service of the summons on the ground that the service upon them was insufficient or, in the alternative, for judgment dismissing the complaint for lack of jurisdiction of the subject matter.

The plaintiff is a Delaware corporation, authorized to do business in the State of New York. It maintains its place of business in Nassau County. It leased to the movant Graphic Art Designers Inc., of Hollywood, California, certain equipment. The lease is in writing and a guarantee of payment executed by the movant Ervin B. Magyary is also in writing. In both documents, the parties designate Florence Weinberg, of 47-21 Forty First Street, Long Island City, New York, 'as agent for the purpose of accepting service of any process within the State of New York.' Florence Weinberg has been personally served.

In addition, the leasing contract provided: 'This agreement shall be deemed to have been made in Nassau County, New York * * * and shall be interpreted, and the rights and liabilities of the parties hereto determined, in accordance with the laws of the State of New York'. The guaranty contained similar language.

Insofar as service of process is concerned, the question has been resolved by this court (Widlitz, J.) in National Equipment Rental, Ltd v. Boright, New York Law Journal, July 17, 1962, p. 8, col. 8; p. 9, col. 1, in which, in construing a similar designation of an agent to receive service of process, the court said:

'The instant situation concerns a contractual designation. The propriety of service in accordance with an advance designation has been upheld in Gilbert v. Burnstine (255 N.Y. 348 [174 N.E. 706, 73 A.L.R. 1453]), Emerson Radio & Phonograph Corporation v. Eskin[d] (32 Misc.2d 1038 ), National Equipment Rental, Ltd . v. Karlin (6 Misc.2d 128, 166 N.Y.S.2d 27).'

Accordingly, to the extent that the motion seeks to set aside service of the summons as insufficient, it is denied.

That branch of the motion which seeks a dismissal of the complaint as to the moving defendants upon the ground that the court lacks jurisdiction over the subject matter of the action, to wit, a breach of contract and of a guaranty thereunder, is likewise denied. As to the corporate defendant, Section 225 of the General Corporation Law provides that an action may be maintained against a foreign corporation by another foreign corporation: '1. Where the action is brought to recover damages for the breach of a contract made within the state'. Not only was the last signature on the contract, that of the plaintiff, affixed in New York, but, as already noted, the contract expressly provided that it was deemed to have been made in New York and was to be interpreted in accordance with the laws of New York. The action is, therefore, one 'to recover damages for the breach of a...

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4 cases
  • National Equipment Rental, Ltd v. Szukhent
    • United States
    • U.S. Supreme Court
    • January 6, 1964
    ...court to create a valid agency for service of process under the law of that State. National Equi ment Rental, Ltd. v. Graphic Art Designers, Inc., 36 Misc.2d 442, 234 N.Y.S.2d 61.8 It is argued, finally, that the agency sought to be created in this case was invalid because Florence Weinberg......
  • Hoffman v. National Equipment Rental, Ltd.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • February 18, 1981
    ...Rental, Ltd. v. Dec-Wood Corp., 51 Misc.2d 999, 274 N.Y.S.2d 280 (App.Term.1966); National Equipment Rental, Ltd. v. Graphic Art Designers, Inc., 36 Misc.2d 442, 234 N.Y.S.2d 61 (Sup.Ct.1962). Of these, Centra Cast, Dec-Wood, and Graphic Art Designers involved provisions substantially simil......
  • CALZATURIFICIO GIUSEPPE GARBUIO v. Dartmouth Outdoor Sports, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • August 31, 1977
    ...1972) ("doing business" as basis for in personam jurisdiction). 5 The decision in National Equipment Rental, Ltd. v. Graphic Art Designers, Inc., 36 Misc.2d 442, 234 N.Y.S.2d 61 (Sup.Ct.1962), is not contrary to Fidan. In National Equipment, the contract between the parties was actually exe......
  • William Sternberg & Assoc., Inc. v. Litho Supply, Inc.
    • United States
    • New Jersey Superior Court
    • March 20, 1987
    ...in applicable law." Plaintiff relies upon the decision of the New York Supreme Court in National Equipment Rental Ltd. v. Graphic Art Designers, Inc., 36 Misc.2d 442, 234 N.Y.S.2d 61 (Sup.Ct.1962). In that case, a corporation doing business in New York sued a California corporation in the N......

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