Abbott Installations, Inc. v. Schenck

110 A.D.2d 673, 488 N.Y.S.2d 10, 1985 N.Y. App. Div. LEXIS 48570

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1985
• Status: Published

Opinion

Defendant is a West German corporation with no place of business in this State. Plaintiff is a domestic corporation. On or about November 17, 1981, the parties entered into a contract whereby plaintiff agreed to install a material handling system, manufactured by defendant, at a KLM Royal Dutch Airlines (KLM) building in John F. Kennedy International Airport. During the course of the installation, a dispute arose involving payments allegedly due to plaintiff for work beyond that which was originally contracted. Plaintiff obtained an ex parte order of attachment upon moneys and accounts of defendant in the possession of KLM, and timely moved to confirm the attachment in accordance with CPLR 6211 (b), serving the motion papers by registered mail, return receipt requested, along with a summons and verified complaint. This mailing did not operate as a substitute for proper service of process (Al-Dohan v Kouyoumjian, 93 AD2d 714, 715, appeal dismissed 59 NY2d 967; Faravelli v Bankers Trust Co., 85 AD2d 335, 339-340, affd 59 NY2d 615), and plaintiff makes no claim that defendant was otherwise served. The failure to properly serve the summons on defendant within 60 days of the issuance of the order of attachment rendered the order of attachment null and void (CPLR 6213; AlDohan v Kouyoumjian, supra, p 715; Raphael v Gibson, 65 AD2d 553, 554). Therefore, Special Term erred in granting plaintiff’s motion for an order confirming the order of attachment.

In light of this disposition, we find it unnecessary to address defendant’s remaining contentions. Gibbons, J. P., Weinstein, Brown and Niehoff, JJ., concur.