Rodriguez v. Wolfe

• Decision Date: 19 January 1978
• Citation: 401 N.Y.S.2d 442,93 Misc.2d 364
• Parties: Carlos D. RODRIGUEZ, etc. v. James C. WOLFE et al.
• Court: New York Supreme Court

Page 442

401 N.Y.S.2d 442

93 Misc.2d 364

Carlos D. RODRIGUEZ, etc. v. James C. WOLFE et al.

Supreme Court, Special Term, Queens County, Part 1.

Jan. 19, 1978.

Hoberman, Sussman, Bloom & Reich, P. C., Brooklyn, for plaintiff.

Steven E. Siegel, Kew Gardens, for Volkswagen Ins. Co.

MEMORANDUM

JOSEPH S. CALABRETTA, Justice.

Plaintiff moves by order to show cause for an order of attachment against the insurance policy issued to the defendant Irene Ford. This is a case of great current interest regarding the viability of obtaining quasi in rem jurisdiction as established in Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312. Federal district courts and other state courts, as well as the courts in this Second Department, have reached opposite decisions on the issue within the last year.

The facts are fairly classical. There was an automobile accident in the State of Florida involving two vehicles owned by Florida residents. The two drivers are residents of Florida (the issue of their legal domicile not being of concern to the questions presented). Plaintiff, a resident of New York State (Queens County), is suing in his representative capacity as administrator of his son's estate, the son having been a passenger in one of the vehicles.

Before reaching the paramount question of whether Seider v. Roth is still good New York law, the court must establish the estate's state residence. The decedent was a member of the United States Navy, and as such, was based in Florida. Prior to his Naval service, he was a resident of Queens County. Although the affidavits do not show conclusively that he elected to keep his legal domicile in New York, there is nothing to show that he ever renounced his New York domiciliary. Therefore, this court feels that his prior residency, plus the administrator's residency, as well as the fact that the estate is being processed in New York, is sufficient contact to declare that the plaintiff estate is a resident of New York. (See Reisner v. James, NYLJ, Aug. 15, 1977, p. 10, col. 5.) (At this point the court must note that the final issue of liability appears to favor the estate. The plaintiff has submitted the police reports and a court transcript wherein the defendant driver pleaded guilty and was sentenced on a charge of manslaughter (driving while intoxicated).)

Having now established that we have before us a New York resident seeking to acquire quasi in rem jurisdiction by attaching defendant's insurance policy, the court has considered the recent Seider decisions, namely: the New York Court of Appeals case of Donawitz v. Danek, 42 N.Y.2d 138, 397 N.Y.S.2d 592, 366 N.E.2d 253; the Supreme Court of the United States case of Shaffer v. Heitner, --- U.S. ----, 97 S.Ct. 2569, 43 L.Ed.2d 683; the United States District Court, Eastern Distri of New York, cases of O'Connor v. Lee-Hy Paving, 437 F.Supp. 994, and Torres v. Tow Motor Division of Caterpillar, Inc., --- F.Supp. ---- (EDNY, 1977, Bramwell, J.); the Supreme Court, Kings County, case of Katz v. Umansky, 399 N.Y.S.2d 412; and the Supreme Court, Queens County, case of Wallace v. The Target Store, Inc., 400 N.Y.S.2d 478. Finally, the court has studied the well-reasoned article by Dean McLaughlin in the New York Law Journal (NY Trial Prac., NYLJ, Dec. 9, 1977, p. 1, col. 1).

Having thus carefully considered the alternatives, this court must align itself with the "realistic approach". It must take the New York Court of Appeals at its face value, when it states in Donawitz that " * * * we do not reach or consider the assertion * * * that in restricting Seider Simpson to resident plaintiffs there is a constitutional inhibition grounded on the denial of equal protection." The United States Supreme Court in Shaffer concluded "that all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." Chief Justice Fuld, in Simpson v. Loehmann, 21 N.Y.2d 305, 311-312, 287 N.Y.S.2d 633, 234 N.E.2d 669, considered the International Shoe test and in upholding the Seider doctrine, stated:

"The historical limitations on both in personam and in rem jurisdiction, with their rigid tests, are giving way to a more realistic and reasonable evaluation of the respective rights of plaintiffs, defendants and the State in terms of fairness. (See, e. g., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68.) Such an evaluation requires a practical appraisal of the situation of the various parties rather than an emphasis upon somewhat magical and medieval concepts of presence and power. Viewed realistically, the...