Patrician Plastic Corp. v. Bernadel Realty Corp.

• Decision Date: 08 January 1970
• Citation: 256 N.E.2d 180,307 N.Y.S.2d 868,25 N.Y.2d 599
• Parties: , 256 N.E.2d 180 PATRICIAN PLASTIC CORP. et al., Respondents, v. BERNADEL REALTY CORP., Defendant, and Automatic Fire Alarm Company, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 868

307 N.Y.S.2d 868

25 N.Y.2d 599, 256 N.E.2d 180

PATRICIAN PLASTIC CORP. et al., Respondents, v.BERNADEL REALTY CORP., Defendant, and Automatic Fire Alarm Company, Appellant.

Court of Appeals of New York.

Jan. 8, 1970.

George T. Nicholson and Harry J. Hayes, New York City, for appellant.

Max J. Gwertzman and Saul Goldstein, New York City, for respondents.

BREITEL, Judge.

The issue in this property damage action is whether a supplemental summons, in addition to an amended complaint, must be served by a newly added plaintiff on a defendant originally sued in the action.The purpose of adding the new plaintiff was simply to correct the misallocation, among affiliated corporations of similar name, of the ownership of the property in suit.The issue is made simpler because the defendant in question (Automatic Fire Alarm Company) is a domestic corporation, but complicated on the other hand by the court's direction at the time of authorizing joinder that a supplemental summons be served.

The Appellate Division concluded that service of a supplemental summons was not jurisdictional.It held, alternatively, that if it were jurisdictional there remained an issue of fact whether the affected defendant had not appeared in response to the amended complaint, thus dispensing with the need for supplemental process.

The issue arises on a motion by plaintiffs to declaredefendant Automatic in default for its failure to answer the amended complaint, or to direct it to serve an answer to the amended complaint, and for leave to amend the summons to add Patrician Button Corp. as a partyplaintiff.Special Term denied the motion but granted leave to 'plaintiffs' to serve a supplemental summons and amended complaint subject to defendant Automatic's interposing its Statute of Limitations defense.Since the passage of time barred any new claim, the limitations defense would be dispositive.The Appellate Division in holding that it was not necessary to serve the supplemental summons, directed defendant Automatic to serve an answer to the amended complaint but without inclusion of the Statute of Limitations defense.

Plaintiffs, Patrician Plastic Corp. and its wholly-owned subsidiary, Paragon Button Corp., began this action in 1962 to recover for water damage to their property as a result of the defective operation of a sprinkler and alarm system.Plaintiffs were tenants in a building in which defendant Automatic maintained the sprinkler and alarm system for the landlord, Bernadel Realty Corp.Separate answers were interposed by defendants Bernadel and Automatic.Subsequently, during a pretrial proceeding, it was discovered that title to a major portion of the damaged property was in the name of a third corporation, Patrician Button Corp., also a wholly-owned subsidiary of Patrician Plastic, and not in the names of the plaintiffs Patrician Plastic and Paragon Button as originally pleaded.

The original plaintiffs, represented by the same attorney, then moved, on notice to defendants Bernadel and Automatic, for 'leave to serve and file a Supplemental Summons and Amended Complaint adding Patrician Button Corp. as a partyplaintiff.'The motion was granted without opposition by order of September 18, 1963, which directed service of a supplemental summons and amended complaint.

The joinder order was served on defendants Bernadel and Automatic on October 2, 1963.The amended complaint was also served.All service was made by and on the attorneys for the parties.This pleading, headed by a complete and proper caption, was subscribed by the same attorney on behalf of the plaintiffs, including newly added Patrician Button.It was received by defendant Automatic well before the Statute of Limitations had run out.There was never, however, any service of a supplemental summons by or on behalf of Patrician Button, the added plaintiff.

Defendant Bernadel answered the amended complaint in January 1964, and in July of that year moved for leave to amend its answer to assert a cross claim for primary liability against its codefendant Automatic.This motion was granted on notice to Automatic without any opposition.Included in the caption of this order is the name of added plaintiffPatrician Button Corp, as one of the partiesplaintiff.Bernadel then served the amended answer with cross claim upon Automatic on September 24, 1964.Automatic interposed an answer to Bernadel's amended complaint.

The caption of the transcript of another pretrial proceeding, conducted on February 13, 1964, contains the name of Patrician Button Corp.Although its appearance is recited in the transcript, Automatic asserts that it did not appear.

A note of issue and statement of readiness were filed on behalf of plaintiffsPatrician Plastic Corp. and Paragon Button.The name of Patrician Button, the added partyplaintiff, was omitted from the caption of these papers.On the eve of trial, and after the Statute of Limitations had run out, Automatic notified plaintiffs'that it considered service of the amended complaint void because a supplemental summons had not been served.'

Plaintiffs then made the motion involved on this appeal in order to resolve the problems created by the failure to serve a supplemental summons, thus raising the question whether such service was required or jurisdictional.

A threshold issue is whether the appeal is properly before the court on a certified question of law 'decisive of the correctness' of the Appellate Division's determination (CPLR 5713;Blaschko v. Wurster, 156 N.Y. 437, 445, 51 N.E. 303, 306).In accordance with usual practice (see, e.g., Matter of Allen v. Rizzardi, 5 N.Y.2d 493, 496, 186 N.Y.S.2d 225, 226, 158 N.E.2d 813, 814;Phoenix Mut. Life Ins. Co. v. Conway, 11 N.Y.2d 367, 370, 229 N.Y.S.2d 740, 741--742, 183 N.E.2d 754, 755;Cohen and Karger, Powers of the New York Court of Appeals, § 87), the court would interpret the question here certified--which asks whether the Appellate Division's order was 'properly made'--as posing the question of law decided by that court and which it evidently intended to certify, namely, whether the service of a supplemental summons was a jurisdictional requirement.The only problem is whether that question of law is 'decisive'.

A certified question of law is 'decisive' if the appellant would be entitled to a reversal of the Appellate Division's order in the event that the question were to be answered in the appellant's favor.(SeeCohen and Karger, Op. cit., supra, p. 367.)Thus, where the Appellate Division certifies a question of law which it has decided but its decision also rests, albeit in the alternative, on a finding of fact or an exercise of discretion with which this could not interfere, the question certified will be held to be not 'decisive', and the appeal will be dismissed, since the decision could not be reversed--even though the Appellate Division's determination of the question may be erroneous--so long as the finding of fact or exercise of discretion were to stand.(SeeCohen and Karger, Op. cit., supra, § 88, pp. 375--376.)

In the present case, however, although there were several issues of fact considered by the Appellate Division, its decision does not rest on any finding of fact which would preclude this court from reversing if it were to determine that the Appellate Division's decision of the question of law was incorrect.

Thus, as noted, the Appellate Division held that, even if the service of a supplemental summons was a jurisdictional requirement, there was a question of fact as to whether defendant Automatic had made an appearance subsequent to the service of the amended complaint and thereby dispensed with the need for supplemental process.

Of course, where the question necessarily presents issues of fact, which the court is powerless to review on appeal from a nonfinal order, the appeal must be dismissed (Cohen and Karger, Op. cit., supra, § 86, pp. 368--369).And it has been said that where 'the decision could turn, whether exclusively or in the alternative, on an issue of fact, any question of law certified by the Appellate Division will not be deemed decisive' if the Appellate Division has specified that decisive facts have been determined in favor of the party, now respondent in the Court of Appeals(Cohen and Karger, Op. cit., supra, § 89, p. 384; see, also, 7 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5602.14).

However, the Appellate Division did not resolve the question of fact or make any finding concerning the appearance of defendant Automatic but, rather, emphasized that a hearing would be necessary in the event that the matter were of a jurisdictional nature (30 A.D.2d, at p. 575, 291 N.Y.S.2d 601).Manifestly, the mere...