Quinn v. City of New York

• Decision Date: 10 February 1960
• Citation: 206 N.Y.S.2d 145,25 Misc.2d 116
• Parties: Helen D. QUINN and Thomas A. Quinn, Plaintiffs, v. CITY OF NEW YORK.
• Court: New York Supreme Court

Page 145

206 N.Y.S.2d 145

25 Misc.2d 116

Helen D. QUINN and Thomas A. Quinn, Plaintiffs, v. CITY OF NEW YORK.

Supreme Court, Special Term, New York County, Part I.

Feb. 10, 1960.

Gustave G. Rosenberg and Lawrence M. Rosenberg, New York City (Lawrence M. Rosenberg, New York City, of counsel), for plaintiffs. Charles H. Tenney, Corp. Counsel of the City of New York; by Kirlin, Campbell & Keating, New York City (Thomas R. McLoughlin, New York City, of counsel), for defendant.

MATTHEW M. LEVY, Justice.

This is a motion by defendant to vacate an order, assertedly entered ex parte, granting plaintiffs' motion to vacate defendant's notice to examine plaintiffs before trial and for a denial of the motion to vacate. The order attacked was not made ex parte, but was granted on default on the call of the motion calendar at Special Term, Part I. The primary question is whether there was truly a default on the part of defendant.

The action is against The City of New York, to recover damages for an accident that occurred at the entrance to Pier 97, at the foot of 57th Street and North River, in Manhattan. The summons and complaint were duly served, and defendant duly served its answer, appearing therein by 'Charles H. Tenney, Corporation Counsel, Attorney for Defendant, Office & P. O. Address, Municipal Building, Borough of Manhattan, City of New York'.

Thereafter, arrangements were made by the Corporation Counsel with a certain company engaged in the maritime business to undertake the defense of the action pursuant to the company's insurance policy with the City of New York. Instructions were given by the Corporation Counsel to the company that '[a]ll papers [in the action] should be endorsed 'Charles H. Tenney, Corporation Counsel', by your attorney as 'of Counsel' and his address'. The company's attorneys are the firm of Kirlin, Campbell & Keating, Esqs., of 120 Broadway, New York City. No notice of any such shift of provessional representation or of change of address of defendant's attorney of record was given to plaintiffs' attorneys.

During the progress of the litigation, a notice to examine plaintiffs before trial was served by defendant, setting the examination down for a specified date, August 5, 1959. This notice was subscribed: 'Charles H. Tenney, Corporation Counsel, Attorney for defendant, By Kirlin, Campbell & Keating, of Counsel, Office & P. O. Address, 120 Broadway, New York 5, New York'. Upon receipt of the notice to examine, plaintiffs moved to vacate the notice and served the motion papers by mail on Charles H. Tenney, Esq., the Corporation Counsel, at his regular office in the Municipal Building, as specified in the answer. There, the motion papers seem to have rested, and, on the return date of the motion, no one appearing in opposition, the motion was granted on default and the notice to examine was vacated.

Obviously, the motion papers to vacate were properly served as provided for in Rule 20(1) of the Rules of Civil Practice. No notice was required to be served on the law firm appearing as 'of counsel', despite the fact that the notice to examine served by defendant sets forth that it was issued in the name of the Corporation Counsel by such law firm as counsel and with its address stated as being at 120 Broadway.

More and more, in recent years, have attorneys been serving adversary papers and subscribing them as 'counsel' for one party or the other--sometimes with and at times without the name of the attorney of record. The rules and practice do not provide for such unilateral procedure. It may, of course, save time and effort in the processing of litigations papers received by a party if direct service by and upon named counsel at the latter's address were agreed...