Opinion
July 3, 1985
Robert Abrams, Attorney-General (Randolph Volkell of counsel), for New York Higher Education Assistance Corporation, defendant.
John B. Wynne for Chemical Bank, defendant.
Kramer, Levin, Nessen, Kamin Frankel (Michael Ruben of counsel), for New York Law School, defendant.
Patricia A. Crenshaw for plaintiff.
Defendant New York Higher Education Assistance Corporation (NYHEAC) moves pursuant to CPLR 5015 (a) (1) to vacate the default judgment entered against it on February 24, 1984, and to renew its prior motion to dismiss for lack of personal jurisdiction.
On February 24, 1984, plaintiff's motion for entry of a default judgment against NYHEAC was granted by Honorable Felice Shea. Justice Shea ordered that plaintiff proceed to an inquest on damages. Plaintiff alleges that he served the Attorney-General with a note of issue demanding a jury trial on the assessment of damages on March 23, 1984. A copy of the note of issue was filed with the County Clerk on March 27, 1984.
On May 24, 1984, plaintiff appeared before me in Trial Term, Part 7, ready for trial. I adjourned the case to June 12, 1984, in order to give plaintiff an opportunity to advise the Attorney-General of the pending trial. On June 12, 1984, the Attorney-General failed to appear, and the trial went forward. On June 13, 1984, the jury awarded plaintiff $80,000 on his claim against NYHEAC.
By letter dated June 25, 1984, the Attorney-General requested that I take no further action until it ascertained whether NYHEAC desired its representation in this matter. On July 7, 1984, plaintiff presented me with an order directing the entry of judgment, which I declined to sign in view of the Attorney-General's letter.
On August 20, 1984, the Attorney-General, on behalf of NYHEAC, moved to dismiss the action on the ground that plaintiff had never properly served NYHEAC. I denied that motion with leave to renew, noting that movant had failed to move to vacate its default. Because the case file could not be located in the clerk's office, no other action was taken until June 11, 1985, when defendant made this motion.
When a defaulting party moves simultaneously to vacate its default and to dismiss the action on jurisdictional grounds, the jurisdictional objection is usually considered first. (Siegel, NY Prac § 111, at 138; see also, Stuhl v 527 Madison Ave. Co., 36 A.D.2d 502 [1st Dept 1971]; Mutual Home Dealers Corp. v Alves, 43 Misc.2d 930 [Sup Ct, Nassau County 1964], affd 23 A.D.2d 791 [2d Dept 1965]; Coleman Capital Corp. v Trans Urban Constr. Co., 53 Misc.2d 70 [Civ Ct, N Y County 1967].) It is undisputed that plaintiff's only attempts to obtain jurisdiction over NYHEAC were by serving the Attorney-General.
Generally, jurisdiction may not be obtained over State agencies or other State administrative bodies by serving the Attorney-General of the State of New York. (See, Patchogue Scrap Iron Metal Co. v Ingraham, 57 Misc.2d 290 [Sup Ct, Suffolk County 1968]; Matter of Bott, 125 Misc.2d 1029 [County Ct, Monroe County 1984].) In this case, it is clear that service on the Attorney-General is not sufficient to confer jurisdiction over NYHEAC. Education Law § 653 (4) provides, "Process in any action or proceeding may be served upon the secretary of state, as agent for [NYHEAC], in the manner provided by section three hundred six of the business corporation law." Plaintiff has not complied with the statutorily prescribed method of service on NYHEAC. Accordingly, I find that this court lacks jurisdiction over NYHEAC, and that defendant's motion to dismiss must be granted.