Newman v. Harvey

19 A.D.2d 767, 241 N.Y.S.2d 693, 1963 N.Y. App. Div. LEXIS 3427

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1963
• Status: Published

Opinions

Appeal from an order of the Supreme Court at Special Term, entered July 5, 1962, in Onondaga County, which granted a motion by plaintiff for summary judgment and dismissed defendant’s answer and counterclaim.

Memorandum by the Court. A judgment of divorce was granted the respondent in a Nevada action on. March 24, 1960. The appellant husband duly appeared in that action pursuant to a power of attorney executed by him to the Nevada law firm of McLaughlin & Barrett. Incorporated in the judgment were the provisions of a separation agreement executed by the parties relating to support and maintenance of the respondent wife and children. The appellant, it is alleged, defaulted in making the payments provided for in the divorce judgment. The respondent, a resident of Nevada, instituted a proceeding in that State by service of the notice of motion applying for the judgment by mail upon the Nevada law firm of Pike & McLaughlin, alleged to be the successors to McLaughlin & Barrett. A New York State action on the Nevada judgment was then commenced against the appellant, a resident of Onondaga County, and in his answer as an affirmative defense he denied “ that the Courts of the State of Nevada had in personam, jurisdiction [of him] 6 * 9 for the purpose of the proceeding had in obtaining the judgment.” Special Term granted respondent summary judgment. Appellant’s affidavit in opposition to the summary judgment motion asserts that he never received any notice of the institution of the Nevada proceedings which resulted in the judgment • against him and that the power of attorney given by him to McLaughlin & Barrett, Esqs., authorized them to appear for him for the limited purposes of the divorce proceedings. The deposition of attorney McLaughlin, submitted in opposition to the motion, recites that be was absent from the country during the time of the divorce proceedings and that all matters relating thereto were handled by his partner, Barrett, who is no longer a member of his firm, having withdrawn therefrom to become a Judge, prior to the institution of the 1961 proceeding. He further testified that he sent the notice received by his firm to attorney Robert V. O'Hara of Syracuse, who also submitted an affidavit stating that he did not represent appellant during 1961 and “has no recollection of ever receiving any such letter”. The moving- and opposition papers raise many questions of fact which cannot be summarily resolved, furthermore, the legal question of the effect of the dissolution of the Nevada law firm, by the withdrawal of Barrett and the formation of a successor firm, upon the jurisdictional issue of notice, requires further evidence and consideration. In this posture summary judgment should not have been granted.