Seavey v. Korte
| Decision Date | 05 February 1993 |
| Docket Number | No. 1,No. 2,1,2 |
| Citation | 595 N.Y.S.2d 628,156 Misc.2d 984 |
| Parties | Robert W. SEAVEY and Phyllis M. Seavey, Plaintiffs, v. Jason W. KORTE, Jeep Corporation, Jeep Eagle Corporation, American Motors Corporation, Chrysler Corporation, and Chrysler Financial Corporation, Defendants. (Action) 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. (Action) |
| Court | New York Supreme Court |
Rheingold & McGowan, New York City, for plaintiffs Seavey.
Herzfeld & Rubin, New York City, for Jeep Corporation and others (Chrysler) defendants.
The prime issue presented herein is whether service of a supplemental summons and amended complaint is validly made upon an added party when served without prior court approval, but with the consent of all existing parties.
Before me is a motion by plaintiffs in Action No. I authorizing service of a supplemental summons and amended complaint upon Jeep Corporation, Jeep Eagle Corporation, American Motors Corporation, Chrysler Corporation and Chrysler Financial Corporation (jointly referred to as "Chrysler"), and a cross-motion by the Chrysler defendants for summary judgment dismissing the complaint as against them due to it having been served without prior court order.
Robert Seavey was allegedly injured in an automobile accident on September 22, 1989. By written stipulation dated September 2, 1992 between counsel for plaintiffs and the sole defendant in Action No. I, it was agreed that "plaintiffs may file an amended complaint naming additional parties and stating new causes of action against same". Although the stipulation contained a line for it to be "So ordered" by the court, such approval was never requested. A supplemental summons and amended complaint adding the Chrysler defendants as parties and asserting products liability and breach of warranty causes of action against them were filed with the County Clerk on September 3, and served upon Chrysler on September 10. In the answer dated October 28, 1992, Chrysler alleged that the court "does not have jurisdiction over defendants due to plaintiffs' failure to comply with a condition precedent". While not specified in the answer, the condition precedent asserted was the failure to obtain prior court approval to the addition of the Chrysler defendants as required by CPLR 1003.
In their motion served on November 20, 1992, plaintiffs argued that since the only defendant in the action had consented to the filing of an amended complaint adding parties, court approval was unnecessary as CPLR 3025(b) allows an amendment "by stipulation of all parties". Alternatively, plaintiffs contend that by filing the supplemental summons and amended complaint on September 3, 1992, they had, under newly amended CPLR 306-b(a), until the end of 1992 to effect timely service on Chrysler.
At oral argument on December 11, 1992, I allowed plaintiffs to serve Chrysler with a supplemental summons and amended complaint without prejudice to Chrysler's position that service at such time would be untimely by reason of the three year statute of limitations.
With respect to the joinder of additional parties, CPLR 1003 states that "[p]arties may be added or dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just". As to amendments, CPLR 3025(b) provides that a "party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties".
Thus, while § 3025(b) permits pleading amendments upon agreement of all parties, the section on joinder of additional parties contains no similar provision. This has resulted in decisions of the Second Department holding that notwithstanding the consent of all of the existing parties, the joinder of a new party without court approval is a nullity. Hence, in Catanese v. Lipschitz, 44 A.D.2d 579, 353 N.Y.S.2d 250 (2d Dept.1974), where a defendant was added without court approval, but with the consent of the existing defendants, the court ruled (p. 580, 353 N.Y.S.2d 250):
Although in McDaniel v. Clarkstown Central District No. 1, 83 A.D.2d 624, 441 N.Y.S.2d 532 (2d Dept.1981), the court restated the principles set forth in Catanese, dismissal as against the newly joined party was denied because it waited five years to make the dismissal motion. The failure to obtain prior court approval was thus held to be waivable. See also, Christiansen v. City of New York, 144 A.D.2d 328, 534 N.Y.S.2d 386 (2d Dept.1988); Yonker v. Amol Motorcycles, Inc., 161 A.D.2d 638, 555 N.Y.S.2d 416 (2d Dept. 1990); Mekkelson v. Morris L. Cleverley Engineering, P.C., 179 A.D.2d 1056, 579 N.Y.S.2d 287 (4th Dept.1992).
On analyzing the nature of the application, I conclude that the Catanese case was incorrectly decided and based on a recent decision of the First Department believe that it would come to a contrary result.
Because of the unusual fact pattern presented herein, the parties sought to be added by this motion are already before the court. However, normally on an application to add parties the defendants to be added are not present as jurisdiction over such prospective defendants is not a prerequisite to determining the motion. Under our adversarial system, the only objection to such amendment may be made by an existing party over whom the court has jurisdiction. Absent an objection, there would be no basis for a court to reject the existing parties' desire to have additional defendants added so that the controversy may be resolved in one litigation. Needless to say, plaintiffs could have, without any party's...
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Seavey v. Chrysler Corp.
...position that service at such time would be untimely by reason of the three year statute of limitations." 156 Misc.2d 984, 595 N.Y.S.2d 628, 629 (Sup.Ct.New York County 1993). Service was effected later that On December 29, 1992, attorneys for plaintiffs and Chrysler signed stipulations dis......
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Seavey v. Korte
...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 ......