Seavey v. Korte

• Decision Date: 01 November 1993
• Citation: 605 N.Y.S.2d 181,159 Misc.2d 407
• Parties: Robert SEAVEY and Phyllis Seavey, Plaintiffs, v. Jason W. KORTE, Jeep Corporation, Jeep Eagle Corporation, American Motors Corporation, Chrysler Corporation and Chrysler Financial Corporation, Defendants. Justin KORTE, an infant over the age of 14 years by his mother and natural guardian, Linda KORTE and Linda Korte, individually, Plaintiffs, v. Jason KORTE, Phyllis M. Seavey and Robert W. Seavey, Defendants.
• Court: New York Supreme Court

Page 181

605 N.Y.S.2d 181

159 Misc.2d 407

Robert SEAVEY and Phyllis Seavey, Plaintiffs, v. Jason W. KORTE, Jeep Corporation, Jeep Eagle Corporation,

American Motors Corporation, Chrysler Corporation

and Chrysler Financial Corporation, Defendants.

Justin KORTE, an infant over the age of 14 years by his

mother and natural guardian, Linda KORTE and Linda

Korte, individually, Plaintiffs, v. Jason KORTE, Phyllis M. Seavey and Robert W. Seavey, Defendants.

Supreme Court, New York County IAS Part 12.

Nov. 1, 1993.

Rheingold & McGowan, New York City, for Robert and Phyllis Seavey.

Herzfeld & Rubin, New York City, for Chrysler Corp.

EDWARD H. LEHNER, Justice:

By decision dated February 5, 1993 (156 Misc.2d 984, 595 N.Y.S.2d 628) I ruled that a supplemental summons and amended complaint adding additional parties could be validly served upon the new parties without leave of court when all existing parties consented thereto. In so ruling I recognized that precedent in the Second Department called for a contrary result. However, I opined that the First Department, by reason of its decision in Snediker v. Rockefeller Center, Inc., 182 A.D.2d 585, 583 N.Y.S.2d 364 (1992), would sustain the service.

However, as a consequence of the subsequent decision of the Court of Appeals, dated February 16, 1993, in Crook v. E.I. Du Pont de Nemours Company, 81 N.Y.2d 807, 595 N.Y.S.2d 388, 611 N.E.2d 289, I am constrained to grant the motion of Chrysler Corporation ("Chrysler"), a newly added defendant, for reargument and to thereupon recall the decision of February 5, 1993.

In the Crook case the Court of Appeals affirmed, "for the reasons stated in the memorandum" (81 N.Y.2d at 809, 595 N.Y.S.2d 388, 611 N.E.2d 289) of the Third Department, an order which dismissed an action against parties added without court approval on the grounds that "the failure to obtain leave of court constitutes a jurisdictional defect" (181 A.D.2d 1039 at p. 1040, 582 N.Y.S.2d 581). Although in Crook the consent of the existing parties had not been obtained, as it was in the case at bar, the dismissal of the newly added parties was granted because "there had been no waiver by them". Thus, it appears that, without leave of court, the consent of the existing parties to the addition of new parties is insufficient to permit a court to obtain jurisdiction of additional parties, and only such new parties can waive the failure to obtain prior approval. Hence, since there was no waiver by Chrysler, jurisdiction was not obtained by reason of the service upon it in September 1992.

As an alternative argument, plaintiffs maintain that the consent of the court in December 1992 to add Chrysler as a party (which consent was issued without prejudice to the right of Chrysler to assert the statute of limitations as a defense) and the subsequent service on Chrysler later that month makes this action timely in light of the filing of the supplemental summons and amended complaint with the County Clerk on September 3, 1992. Since the accident sued upon herein occurred on September 22, 1989, plaintiffs assert that under the commencement by filing rules enacted in 1992 (Chapt. 216), such filing tolled the statute of limitations provided service was effected within 120 days of the filing. In opposition, Chrysler contends that the new rules only apply to actions commenced after July 1, 1992 and hence are inapplicable to this action because it had been commenced against defendant Korte in 1991.

Pursuant to the amendments contained in the aforesaid Chapter 216, CPLR 203(c) provides that where an action is commenced by filing (which pursuant to CPLR 304 is the current mandated method of instituting an action in the Supreme and County Courts), it is deemed to have been commenced for statute of limitation purposes when the summons and complaint are filed with the clerk of the court. A plaintiff then has, pursuant to CPLR 306-b, 120 days to effect service so as to grant the court jurisdiction. Here if plaintiff had commenced a new action against Chrysler by filing...