Summary
In Gazerwitz v. Adrian (28 A.D.2d 556, 557), the court expressly held that where a defendant in his answer raises by way of a separate defense lack of personal jurisdiction pursuant to subdivision (b) of CPLR 320 "He is, nevertheless, a party to the action and, as such, subject to the statutory disclosure provisions."
Summary of this case from New Jersey Shale Brick Tile v. QueenslandOpinion
May 22, 1967
Order of the Supreme Court, Kings County, dated December 7, 1966, affirmed, with $10 costs and disbursements. The examination of defendant shall proceed at the place fixed in said order, upon 10 days' notice, or at such other place and time as the parties may stipulate. Because defendant is a resident of Passaic, New Jersey, and the accident occurred in that State, plaintiff was unable to acquire in personam jurisdiction over him in this negligence action brought in the Supreme Court, Kings County. She obtained in rem jurisdiction by attaching, upon the authority of Seider v. Roth ( 17 N.Y.2d 111), defendant's automobile liability insurance policy issued to him by an insurance carrier doing business in this State. After service of the summons and complaint, defendant served an answer and, subsequently, an amended answer in which, in addition to denying the material allegations of the complaint, he pleaded, as an affirmative defense, that the court had not acquired jurisdiction over his person. Subsequently, plaintiff moved for an order to examine defendant before trial at the courthouse. Defendant opposed and also made a cross motion for a protective order precluding plaintiff from conducting any discovery and inspection proceedings. The Special Term properly granted plaintiff's motion and denied defendant's cross motion. "A significant change effected by the Civil Practice Law and Rules is the elimination of the special appearance as the method of raising an objection to jurisdiction, whether over the person, in rem, or quasi in rem" (4 Carmody-Wait 2d, New York Practice, § 26:49). A defendant who questions the jurisdiction of the court over him may raise that objection by a motion to dismiss on that ground, made before service of a responsive pleading is required (CPLR 3211, subd. [a], par. 8), or he may raise the objection in the answer (CPLR 320, subd. [b]). In our case, defendant followed the latter procedure and, having done nothing further by way of defending on the merits, has incurred no personal liability as respects any judgment that may be rendered in the action on his default (CPLR 314, subd. 3; CPLR 320, subd. [c]; 1 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 320.18; 4 Carmody-Wait 2d, New York Practice, § 26:51). He is, nevertheless, a party to the action and, as such, subject to the statutory disclosure provisions. CPLR 3110 provides: "A deposition within the state on notice shall be taken: 1. when the person to be examined is a party * * * within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending" (emphasis supplied). It is well established that the statutory disclosure provisions apply to nonresidents as well as to residents of the State ( Wallace v. Bacon, 143 App. Div. 211; Wolf v. Union Waxed Parchment Paper Co., 148 App. Div. 623; 7 Carmody-Wait 2d, New York Practice, § 42:62) and that, absent a showing of hardship, the nonresidence of a defendant does not preclude an examination in the county where the action is pending ( Schoen v. Morgan Trucking Co., 13 A.D.2d 622; Drews v. Spencer, 274 App. Div. 802; Rosenberg v. Jewish Hosp., 219 N.Y.S.2d 556). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.