Summary
In Erneta v. Princeton Hosp. (66 A.D.2d 669), the First Department reversed an order of the Supreme Court that had granted defendant's motion to strike a prior order of attachment (based on Seider) and to dismiss the complaint for lack of jurisdiction.
Summary of this case from Morehouse v. AktiengesellschaftOpinion
December 7, 1978
Order, Supreme Court, New York County, entered January 25, 1978, granting the motion of defendants Wilson and Peter to strike a prior order of attachment, pursuant to Seider v. Roth ( 17 N.Y.2d 111), and to dismiss the causes of action against said defendants for lack of jurisdiction, reversed, on the law, with $75 costs and disbursements of this appeal to appellants, and the motion denied. Notwithstanding Shaffer v. Heitner ( 433 U.S. 186), the Seider v. Roth doctrine is alive. (See Baden v. Staples, 45 N.Y.2d 889.) As the dissent accurately points out, plaintiffs in this malpractice action were not residents of New York at the time of the alleged malpractice. The moving defendants are residents of New Jersey, where the malpractice is alleged to have taken place. At the time of the commencement of this action and for some time earlier, plaintiffs were residents of this State. No challenge is made to the bona fides of that residency. In fact, it is alleged that the infant plaintiff, now nine years of age, who suffered severe brain damage from the claimed malpractice, is presently being treated at New York City hospitals and that her schooling, therapy, and guidance are to a large degree being subsidized by the City and State of New York. We do not see that plaintiffs' nonresidence in New York at the time of the alleged malpractice is a factor sufficient to deny them the right to the Seider v. Roth quasi in rem attachment remedy. A third defendant, the hospital, a New Jersey domiciliary, over which jurisdiction has also been obtained pursuant to a Seider v. Roth attachment, has appeared and has withdrawn its affirmative defense of lack of jurisdiction. The action will proceed against that defendant, in any event. The moving defendants' insurer transacts business in New York. It is in control of this litigation, has selected defense counsel, and will be in a position to make all strategic decisions. (See, e.g., Thrasher v United States Liab. Ins. Co., 19 N.Y.2d 159, 167.) The insurer's obligation to defend and indemnify that which is the subject of this litigation is an attachable debt. (CPLR 5201; Simpson v Loehmann, 21 N.Y.2d 305.) Consequently, we find "minimum contacts" among the defendant, the State, and the litigation, such that the maintenance of this action does not offend "traditional notions of fair play and substantial justice." (Cf. International Shoe Co. v. Washington, 326 U.S. 310, 316.)
Concur — Kupferman, Lupiano and Sullivan, JJ.
I dissent and would affirm the order on appeal. While Seider v Roth ( 17 N.Y.2d 111) attachments are still allowable even after Shaffer v. Heitner ( 433 U.S. 186; see Baden v. Staples, 45 N.Y.2d 889), here the plaintiffs were not residents of New York at the time the cause of action accrued. Although there appears to be no dispute they were bona fide residents when the action was commenced, and are now, their nonresidency when the action accrued is a circumstance which militates against extending Seider. The underlying purpose of Seider and Simpson v Loehmann ( 21 N.Y.2d 305), and their progeny, in permitting attachment of a defendant's liability insurance policy is to afford a convenient forum for resident plaintiffs. But in those cases the plaintiffs in fact were New York residents at the time they claimed to have suffered injury. That a plaintiff's domiciliary interest is of critical importance in a Seider-type attachment was clearly indicated in Donawitz v. Danek ( 42 N.Y.2d 138, 142) where a majority of the court considered the insured's duty to defend and indemnify, which has been found to be an attachable debt, a "special type of contract duty" of insufficient substance to support quasi in rem jurisdiction over a nonresident plaintiff and refused to expand the Seider-Simpson doctrine to embrace a plaintiff who was neither a resident at the time the cause of action accrued nor when suit was commenced. In light of the court's reluctance to expand this doctrine, assertion of jurisdiction in this instance would be an unwarranted extension of Seider where New York had no interest at all in the controversy at the time it arose or for several years thereafter. (Fish v. Bamby Bakers, 76 FRD 511; cf. Farrell v. Piedmont Aviation, 411 F.2d 812, cert den 396 U.S. 840.)