Oakes v. Barnes

Appellate Division of the Supreme Court of New York

Oakes v. Barnes

124 A.D.2d 439, 507 N.Y.S.2d 539, 1986 N.Y. App. Div. LEXIS 61427

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 30, 1986

StatusPublished

Cited by1 cases

This text of 124 A.D.2d 439 (Oakes v. Barnes) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oakes v. Barnes, 124 A.D.2d 439, 507 N.Y.S.2d 539, 1986 N.Y. App. Div. LEXIS 61427 (N.Y. Ct. App. 1986).

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Opinion

This action arose out of a two-car automobile accident which occurred in the Province of Quebec, Canada. Plaintiff, currently a resident of Canada, was a passenger in a vehicle owned and operated by defendants Clifford and Charlotte Morey, residents of New York. The other vehicle was owned by defendant Louis Thompson, a resident of Canada, and operated by defendant Gerald Barnes, a resident of New York. After issue was joined, plaintiff made a motion related to disclosure and Thompson cross-moved to dismiss the complaint against him on the ground of lack of personal jurisdiction. Thompson’s moving papers were never served on the attorney for the Moreys such that they did not appear on the motion. Special Term granted the motion and dismissed the complaint as against Thompson on the ground of forum non conveniens. The Moreys appeal.

Clearly, Thompson should have served the cross motion papers on the Moreys’ attorney (CPLR 2103 [e]). However, in this case, such error was merely an irregularity. Thompson only sought to have the action dismissed as against him, and that is all the relief Special Term granted. The action as against the Moreys is still pending in New York. Thus, in this case, the failure to serve the cross motion papers on the Moreys does not warrant reversal. We note that the record does not indicate that any cross claims were interposed prior to the motion to dismiss.

Order affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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This action arose out of a two-car automobile accident which occurred in the Province of Quebec, Canada. Plaintiff, currently a resident of Canada, was a passenger in a vehicle owned and operated by defendants Clifford and Charlotte Morey, residents of New York. The other vehicle was owned by defendant Louis Thompson, a resident of Canada, and operated by defendant Gerald Barnes, a resident of New York. After issue was joined, plaintiff made a motion related to disclosure and Thompson cross-moved to dismiss the complaint against him on the ground of lack of personal jurisdiction. Thompson’s moving papers were never served on the attorney for the Moreys such that they did not appear on the motion. Special Term granted the motion and dismissed the complaint as against Thompson on the ground of forum non conveniens. The Moreys appeal.

Clearly, Thompson should have served the cross motion papers on the Moreys’ attorney (CPLR 2103 [e]). However, in this case, such error was merely an irregularity. Thompson only sought to have the action dismissed as against him, and that is all the relief Special Term granted. The action as against the Moreys is still pending in New York. Thus, in this case, the failure to serve the cross motion papers on the Moreys does not warrant reversal. We note that the record does not indicate that any cross claims were interposed prior to the motion to dismiss.

Order affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Bluebook (online)

124 A.D.2d 439, 507 N.Y.S.2d 539, 1986 N.Y. App. Div. LEXIS 61427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oakes-v-barnes-nyappdiv-1986.

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