Tomaszewski v. Cleveland

81 A.D.2d 1018

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1981
• Docket: Appeal No. 1
• Status: Published

Opinion

— Order and judgment unanimously affirmed, without costs. Memorandum: Plaintiff, Lottie Tomaszewski, a New York resident, was injured on July 27, 1975 when the vehicle in which she was riding collided with another. The accident occurred in Florida and both defendants are Florida residents. Plaintiffs sued for personal injuries and derivative damages and attempted to obtain jurisdiction by attaching defendants’ insurance policies in New York. Defendants asserted lack of jurisdiction in their answers and moved to dismiss the complaint on that ground. Special Term granted the motions, holding that the Supreme Court decision of Rush v Savchuk (444 US 320) applied retroactively and that jurisdiction was not acquired by Seider-Roth (Seider v Roth, 17 NY2d 111) attachment. In affirming we base our decision as to defendant Cleveland solely on plaintiffs’ failure to complete service on him as the statute requires (CPLR 6213; Raphael v Gibson, 65 AD2d 553; Galbraith v Yancik, 77 Misc 2d 130), and as to defendant Martinez on the invalidity of the order of attachment and postattachment procedure (see 22 NYCRR 1039.13). (Appeal from order and judgment of Erie Supreme Court — summary judgment.) Present — Dillon, P. J., Simons, Hancock, Jr., Doerr and Moule, JJ. [103 Misc 2d 355.]