Saggese v. Peare
| Decision Date | 27 January 1970 |
| Citation | 307 N.Y.S.2d 118,33 A.D.2d 900 |
| Parties | Kathleen SAGGESE, Plaintiff-Respondent, v. Richard A. PEARE and Janet G. Luba, Defendants, Concord General Mutual Insurance Company, Garnishee-Appellant. |
| Court | New York Supreme Court — Appellate Division |
M. Wittels, New York City, for plaintiff-respondent.
W. R. Sichol, Jr., Suffern, for garnishee-appellant.
Before CAPOZZOLI, J.P., and McGIVERN, MARKEWICH and NUNEZ, JJ.
Order entered May 1, 1969, denying the motion of garnishee-appellant to vacate an attachment dated January 28, 1969, unanimously reversed on the law, without costs or disbursements, the motion granted, and the attachment vacated.
The action purported to have been initiated by service of the subject attachment on the Superintendent of Insurance arises out of an auto accident which occurred in New Hampshire. Plaintiff-respondent is a resident of New York; defendants are not, but one of them has a policy of insurance with the garnishee, attachment of which was procured, pursuant to Seider v. Roth, 17 N.E.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312. The levy of an attachment is required to be made in the same manner as service of a summons (CPLR 6214(a)). However, '* * * such service shall not be made by delivery of a copy to a person authorized to receive service of a summons solely by a designation filed pursuant to a provision of law other than rule 318.' The garnishee, not having an office in this state, filed no CPLR 318 designation, its sole amenability to wervice of any process being by virtue of a designation filed pursuant to section 59 of the Insurance Law as a condition of being permitted to do business here.
Despite CPLR 6214(a)'s apparent exclusion of a section 59 designation as a basis for levy under an attachment, Special Term held that a CPLR 318 designation is merely supplementary to designation under section 59 for the purpose of service of process. However, even assuming this to be so, designation under section 59 is limited by the clear language of that section to an 'action or proceeding against such insurer on a contract delivered or issued for delivery or a cause of action arising in this state * * *' (subd. 1.). Plaintiff's cause does not fit this definition which eliminates section 59 as a basis for service.
Nor does the holding in Seider bolster the validity of plaintiff's levy. There, as in Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669, which reaffirmed Seider,...
To continue reading
Request your trial
-
The Rockefeller Univ. V. Ligand Pharmaceuticals
...there is also federal question jurisdiction under the patent laws, as Ligand asserts. 2. Beja relied upon Saggese v. Peare, 33 A.D.2d 900, 307 N.Y.S.2d 118 (1st Dept.1970), which was decided in the context of an assertion of quasi in rem jurisdiction over an out-of-state insurer, a theory w......
-
Beja v. Jahangiri
...though granted at a corporation's request, may not be conclusive on the issue of jurisdiction under NYCPLR § 301, cf. Saggese v. Peare, 33 A.D.2d 900, 307 N.Y.S.2d 118 (App.Div. First Dep't. 1970), it is certainly very strong evidence that the corporation is subject to in personam jurisdict......
-
Sugarman v. Hyatt
...the Superintendent is not designated under CPLR § 318 as the insurer's agent to accept service of process. Saggese v. Peare, 33 A.D.2d 900, 307 N.Y.S.2d 118 (1st Dept. 1970); Beja, supra. Saggese, however, appears to leave open the question of the propriety of such service in a case involvi......