Norry v. Land

44 Misc. 2d 556 | N.Y. Sup. Ct. | 1964

Daniel J. O’Mara, J.

The plaintiff in the above-entitled action caused to be served upon the attorney for the defendant, Land, a summons and complaint, the said attorney having appeared as the attorney of record in a prior action in which the defendant, Land, was the plaintiff and who resided in the State of Florida, and in which the present plaintiff, Norry, was a party defendant.

The defendant, Land, maintains that the provisions of CPLR 303 have no application and for the reason that the present action would have to be in the nature of a -counterclaim to the action in which the defendant, Land, was the plaintiff.

CPLR 303 reads as follows: “ The commencement of an action in the state by a person not subject to personal jurisdiction is a designation by him of his attorney appearing in the action or of the clerk of the court if no attorney appears, as agent, during the pendency of the action, for service of a summons in any separate action in which .such a person is a defendant and another party to the action is a plaintiff if such separate action would have been permitted as a counterclaim had the action been brought in the supreme court. ’ ’

The provisions of CPLR 303 must be interpreted, having in mind the provisions of CPLR 3019, and which said section reads in part as follows: “A counterclaim may be any cause of action in favor of one or more defendants or a person whom a defendant represents against one or more plaintiffs, a person whom a plaintiff represents or a plaintiff and other persons alleged to be liable. ’ ’

In view of the statements made pertaining to the applicability of CPLR 303, 3019 in volume 1 of New York Civil Practice by Weinstein-Korn-Miller starting with paragraph 303.01 and ending with 303.08, it is evident that in view of New York’s broad counterclaim rules, it is not presently necessary that the two actions be related. The authors are also of the opinion that the authorization contained in CPLR 303 is reasonable and should be sustained whenever possible.

The motion made in behalf of the defendant, Land, [to vacate service of the summons and complaint] is hereby denied, without costs.