Summary
In Gager v. White (78 A.D.2d 617), the court reversed a refusal by Special Term to dismiss the action, even though the plaintiff there was specifically found by Special Term to have relied on the Seider doctrine to her detriment.
Summary of this case from Kalman v. NeumanOpinion
October 21, 1980
Order, Supreme Court, New York County, entered May 27, 1980, denying defendant's motion to dismiss the complaint for lack of personal jurisdiction, unanimously reversed, on the law, without costs or disbursements, and the motion granted. In this wrongful death action brought by the administratrix of a deceased who, prior to the time of her death, had been a New York resident, jurisdiction over defendant, a Kentucky resident, was obtained by attaching his automobile liability policy pursuant to Seider v Roth ( 17 N.Y.2d 111). Although the action was commenced within the one-year Statute of Limitations which is applicable in Kentucky, where the accident occurred, that statute has now run. Challenging the constitutionality of the Seider attachment, defendant asserted the affirmative defense of lack of in rem or quasi in rem jurisdiction in his answer. Defendant thereafter moved to dismiss for lack of in rem or quasi in rem jurisdiction (CPLR 3211, subd [a], par 9), citing the United States Supreme Court's decision in Rush v. Savchuk ( 444 U.S. 320), decided January 21, 1980, holding that the attachment of a nonresident's automobile liability policy does not confer jurisdiction over the nonresident "with whom the state has no contacts, ties or relations" (International Shoe Co. v. Washington, 326 U.S. 310, 319). Special Term denied the motion. We reverse. It is not disputed that defendant has no "contacts, ties or relations" with this State. Thus, he is not and has not been amenable to service of process in this jurisdiction. The fiction of his presence, quasi in rem, through the garnishment of his insurer's obligation to defend and indemnify in connection with this suit, has been eliminated by Rush (supra). Consequently, the court is without a defendant against whom further proceedings may be continued. In the absence of jurisdiction the issue of retroactivity becomes academic. The complaint must be dismissed.
Concur — Sullivan, J.P., Ross, Markewich, Yesawich and Carro, JJ. [ 103 Misc.2d 586.]