Sigmoil Resources N.V. v. Fabbri

• Decision Date: 20 June 1996
• Citation: 644 N.Y.S.2d 503,228 A.D.2d 335
• Parties: SIGMOIL RESOURCES N.V., Plaintiff-Appellant, v. Vittorio Lecca Ducagini Duca Di Guevara Suardo FABBRI, Defendant, and Nano Limited, Defendant-Respondent. SIGMOIL RESOURCES N.V., Plaintiff, v. PAN OCEAN OIL CORPORATION (NIGERIA), Defendant. SIGMOIL RESOURCES N.V., Plaintiff-Respondent, v. Vittorio Lecca Ducagini Duca Di Guevara Suardo FABBRI, Defendant, and Nano Limited, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 503

644 N.Y.S.2d 503

228 A.D.2d 335

SIGMOIL RESOURCES N.V., Plaintiff-Appellant, v. Vittorio Lecca Ducagini Duca Di Guevara Suardo FABBRI, Defendant, and Nano Limited, Defendant-Respondent.

SIGMOIL RESOURCES N.V., Plaintiff, v. PAN OCEAN OIL CORPORATION (NIGERIA), Defendant.

SIGMOIL RESOURCES N.V., Plaintiff-Respondent, v. Vittorio Lecca Ducagini Duca Di Guevara Suardo FABBRI, Defendant, and Nano Limited, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 20, 1996.

Shaun F. Carroll, for Plaintiff-Appellant.

Jonathan C. Thau, for Defendant-Respondent.

Peter T. Jensen, for Plaintiff-Respondent.

Jonathan C. Thau, for Defendant-Appellant.

Before ROSENBERGER, J.P., and WALLACH, RUBIN and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Seymour Schwartz, J.H.O.), entered June 7, 1995, which granted defendant Nano Limited's motion to dismiss the two subject actions and to vacate the subject attachments for lack of personal jurisdiction, and order, same court (Beatrice Shainswit, J.), entered on or about August 9, 1995, which denied plaintiff's motion to set aside the Judicial Hearing Officer's order, unanimously affirmed. With respect to appeals previously held in abeyance (218 A.D.2d 607, 630 N.Y.S.2d 746), order, same court and Justice, entered January 9, 1995, which directed a hearing on whether defense counsel should be held in contempt for its conduct in transferring certain escrow funds, the amount of fine to be assessed by reason of contumacious conduct if found to have occurred, and the extent of actual loss or injury sustained by plaintiff by reason of any civil contempt, unanimously affirmed, and order, same court and Justice entered January 20, 1995, which held defendant Nano's counsel in contempt, and awarded plaintiff actual damages against said counsel, comprised of the proceeds derived from the sale of the subject apartment less the deductions to which both sides had agreed, plus interest, unanimously modified, on the law, the facts, and in the exercise of discretion, to the extent of requiring that the $625,000 deposited into court, or the bond posted, pursuant to this Court's order of August 24, 1995, be maintained pending determination of the action commenced against the instant defendants in May, 1995 (Index No. 113161/95), and otherwise affirmed.

The Judicial Hearing Officer (J.H.O.) properly found that personal jurisdiction is lacking in both of the subject actions. Service of summons by means other than by registered air mail, pursuant to the order to show cause, was admittedly never timely effected in the first action. Because plaintiff has not demonstrated that service under CPLR 308(1), (2) or (4) was impractical, it was an improvident exercise of discretion to have ordered service by mail in the second action herein (see, Preza v. Sever's Gourmet, 212 A.D.2d 765, 623 N.Y.S.2d 268, lv. denied 87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160; Giordano v. McMurtry, 79 A.D.2d 548, 433 N.Y.S.2d 583, aff'd 53 N.Y.2d 962, 441 N.Y.S.2d 668, 424 N.E.2d 555).

Defendant Nano's counsel violated the court's binding and clear directive not to release certain funds. While it is true that the orders of attachment were necessarily vacated upon dismissal of both actions (cf., Atlantic Raw Materials v. Almarex Prods., 154 N.Y.S.2d 993, 997), when issued, those orders were facially valid and sufficiently clear such that the parties were bound by them. That a party is sanguine in its good-faith belief that an order is defective, misguided or erroneous, is an insufficient basis upon which it may then unilaterally disregard such order (see, Brostoff v. Berkman, 79 N.Y.2d 938, 940, 582 N.Y.S.2d 989, 591 N.E.2d 1175, ...