NY Practice Outline

NY Practice Outline - N EW Y ORK P RACTICE O UTLINE I...

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Unformatted text preview: N EW Y ORK P RACTICE O UTLINE I. JURISDICTION OVER THE DEFENDANT A. P RESENCE —R EAL AND F ICTIONAL 1. Presence of Natural Persons a. Burnham v. Superior Court of California (1990, p.4) i. Rule of Law: A person may be constitutionally served with process while in the forum state, even if his presence is unrelated to the suit. b. Hammett v. Hammett (1980, App. Div., p.19) i. Generally, when nonresident defendant has been enticed into jurisdiction by fraud and deceit for purpose of obtaining service upon him, service thereby effectuated will be vacated, but if defendant is not lured into jurisdiction and is here of his own free will, service will not be invalidated merely because it was accomplished through use of deception. CPLR 3211(a) , subd. 8. ii. Where nonresident defendant spent one weekend per month in state and on date of service of process arrived with empty suitcase to remove his remaining clothing from apartment and it could be inferred that he came to New York from time to time during week on business and social occasions, motion to vacate service on ground of improper service was properly denied, considering that defendant's affidavit was to be deemed an admission that he was voluntarily in New York at time in question because his affidavit failed to place in issue the determinative facts, with result that plaintiff's statement that she did not request him to come into city remained uncontroverted. CPLR 3211(a) , subd. 8. c. Merigone v. Seaboard Capital (1976, NY Sup. Ct., p.23) i. Synopsis: Action was brought against guarantor of promissory note who was the only person left defending case after the taking of default judgments against maker and other guarantors in a previous action on the note. The Supreme Court, Bertram Harnett, J., held that since defendant guarantor was subject to jurisdiction under New York long-arm statute, he was not entitled to immunity from service of summons when he came to New York to appear in traverse hearing in previous action based on same note, and present action was not subject to dismissal on ground that it was commenced while prior action on note was still pending. Judgment for plaintiff. ii. Rule : Under most general circumstances, New York exempts from service of civil process a nonresident party or witness who comes to state voluntarily to attend court. 2. Presence of Partnerships and Unincorporated Associations a. Rait v. Jacobs Brothers (1966, NY Sup. Ct., p.25) i. Synopsis: Proceeding on motion to vacate service of summons. The Supreme Court, Theodore Velsor, J., held that fact that summons was served upon limited partnership's general partner residing in forum was sufficient to sustain jurisdiction of court over limited partnership even though limited partnership was organized and existing under laws of another state with principal offices in that state and did not transact business in forum....
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This note was uploaded on 02/14/2008 for the course LAW 7760 taught by Professor Bortnick during the Spring '04 term at Yeshiva.

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NY Practice Outline - N EW Y ORK P RACTICE O UTLINE I...

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