Opinion
December 24, 1984
Appeal from the Supreme Court, Nassau County (McGinity, J.).
Order affirmed, with costs.
Plaintiffs are the personal representatives of the estates of five persons who were killed in an automobile collision in Alabama in 1973. Two of the decedents resided in New York State; the remaining three, Norvella Smith, Frank Milton Smith and Keith Smith, were residents of Rhode Island. Plaintiffs commenced this action in 1975 by utilizing the now discredited doctrine of Seider v. Roth ( 17 N.Y.2d 111). They attached the automobile liability insurance policy issued by the insurer for the respondent Floyd and Beasley Transportation Company, Inc., the owner of the vehicle which had collided with a car in which the decedents were passengers, and which covered respondent Frank Fleaman, the driver of that vehicle (see Menefee v. Floyd Beasley Transp. Co., 89 A.D.2d 1011).
In September, 1975 the respondents moved to dismiss the complaint as against them, arguing, inter alia, that attachment under Seider v. Roth ( supra) could not be utilized on behalf of nonresident plaintiffs. By order dated April 29, 1977, that motion was denied by Special Term (Berman, J.).
In 1981, following the United States Supreme Court's decision in Rush v. Savchuk ( 444 U.S. 320), the defendants Floyd and Beasley Transportation Company, Inc., and Fleaman moved for summary judgment dismissing the complaint on the ground that Seider attachment was no longer a valid basis for jurisdiction. Special Term (Young, J.) denied that motion, and this court affirmed, on the ground that those defendants had not preserved this objection by answer or preanswer motion ( Menefee v. Floyd Beasley Transp. Co., 89 A.D.2d 1011, supra). However prior to Rush, the Court of Appeals had also ruled that Seider jurisdiction was indeed unavailable to a nonresident plaintiff if the action had no other connection to this State ( Donawitz v Danek, 42 N.Y.2d 138). Because the moving defendants did not specifically raise the Donawitz issue in the 1981 summary judgment motion, we left open the question of whether they had properly preserved that objection in their original preanswer motion to dismiss in 1975, and granted them leave to renew that motion ( Menefee v. Floyd Beasley Transp. Co., supra, p 1012).
The respondents thereupon renewed their 1975 motion to dismiss the complaint insofar as asserted by the personal representatives of the nonresident decedents on the authority of Donawitz v Danek ( supra), on the ground that those plaintiffs could not use a Seider attachment. Special Term decided that the original motion of the respondents had indeed raised this objection and thereby preserved it, and accordingly it dismissed the complaint insofar as asserted by the personal representatives of the nonresident decedents (i.e., the Smith decedents). We affirm.
We note that the residence of a decedent, rather than that of his or her personal representative, is controlling as to whether a plaintiff estate is a resident of New York State (see EPTL 11-4.1, 13-3.5 Est. Powers Trusts, subd [a]; Farrell v. Piedmont Aviation, 411 F.2d 812, cert den 396 U.S. 840). We also agree that defendants' original motion papers were "sufficiently particularized * * * to apprise the plaintiff[s] of [the] nature [of this objection] with sufficient clarity to avoid prejudice" ( Gager v. White, 53 N.Y.2d 475, 489, cert den sub nom. Guertin Co. v. Cachat, 454 U.S. 1086). Plaintiffs' reliance on the case of Tomaszewski v. Cleveland ( 55 N.Y.2d 852) is misplaced since the defendants there failed to preserve their objection to Seider-based jurisdiction either by answer or preanswer motion (CPLR 3211, subd [e]; see Tomaszewski v. Cleveland, 103 Misc.2d 355, affd 81 A.D.2d 1018, revd 55 N.Y.2d 852, supra). O'Connor, J.P., Brown, Lawrence and Eiber, JJ., concur.