A judgment without jurisdiction is void

Board of Mgrs. of 50 W. 127th St. Condominium v Kidd, 2019 NY Slip Op 00973 [1st Dept. 2019]

Defendant did not waive the defense of lack of jurisdiction. Before her incoming counsel filed a notice of appearance without mentioning the defense, she had already presented an order to show cause seeking to vacate the judgment based on lack of personal jurisdiction, and she moved to vacate based on improper service shortly after new counsel appeared. In contrast, in the cases relied on by plaintiff and City West, the defendant’s counsel filed a notice of appearance without preserving any objection to jurisdiction after the time to move or answer had elapsed, and did not move to vacate for years afterwards, indicating an intentional abandonment of the defense (see e.g. Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 846-847 [2d Dept 2018], lv denied 31 NY3d 1135 [2018]; Capital One Bank, N.A. v Farraco, 149 AD3d 590, 590 [1st Dept 2017]). Defendant’s communications with plaintiff’s managing agent in which she arranged to pay her arrears, cannot be construed as an appearance in the action, much less a waiver of her defense of lack of jurisdiction.

Because the judgment was entered without jurisdiction over defendant, City West is not entitled to restitution as an alternative remedy to vacatur of the foreclosure sale, as “[a] judgment rendered without jurisdiction is void” and “a deed [] issued in execution upon such a void judgment . . . is similarly void” (U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872 [2d Dept 2011]).

Service requirements in OSC are jurisdictional in nature

Boucan NYC Café, LLC v 467 Rogers, LLC, 2019 NY Slip Op 00416 [2d Dept. 2019]

We agree with the defendant’s contention that the service requirements set forth in the order to show cause dated August 9, 2017, were jurisdictional in nature. The plaintiff’s undisputed failure to comply with these requirements by serving the order to show cause pursuant to CPLR 308(4), instead of CPLR 311-a, deprived the Supreme Court of jurisdiction to entertain the plaintiff’s order to show cause in the order dated August 16, 2017 (see Gonzalez v Haniff, 144 AD3d 1087). Contrary to the plaintiff’s contention, the defendant may challenge the validity of the order dated August 16, 2017, on the ground that the court was without jurisdiction to enter the order (see Board of Directors of Windsor Owners Corp. v Platt, 148 AD3d 645). Accordingly, the plaintiff’s motion to hold the defendant in contempt for failure to comply with the order dated August 16, 2017, should have been denied.

“A judgment rendered without jurisdiction is void” but…

Bank United, FSB v Verbitsky, 2018 NY Slip Op 08623 [2d Dept. 2018]

As a threshold matter, the defendant correctly contends that the Supreme Court should have granted those branches of her motion which were to vacate and set aside the foreclosure sale and, in effect, to vacate the judgment of foreclosure and sale and the order of reference. “[A] court is without power to render a judgment against a party over whom the court lacks jurisdiction. A judgment rendered without jurisdiction is void” (Berlin v Sordillo, 179 AD2d 717, 719; see Diaz v Perez, 113 AD3d 421, 421; U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872). Accordingly, upon, in effect, confirming the referee’s finding that the defendant was not properly served, the court was required to vacate and set aside the foreclosure sale, as well as the judgment of foreclosure and sale and order of reference upon which it was based (see Prudence v Wright, 94 AD3d 1073, 1074; U.S. Bank, N.A. v Bernhardt, 88 AD3d at 872).

However, in light of the plaintiff’s timely cross motion pursuant to CPLR 306-b (see US Bank N.A. v Saintus, 153 AD3d 1380, 1382), the Supreme Court could consider whether to extend the time for service of process, rather than granting the branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

Jurisdiction

CPLR § 302

Paolucci v Kamas, 2011 NY Slip Op 03823 (App. Div., 2nd 2011)

Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants' contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210).  

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

 

Quasi In Rem Jurisdiction

Quasi In Rem Jurisdiction

Cargill Fin. Servs. Intl., Inc. v Bank Fin. & Credit Ltd., 2009 NY Slip Op 07688 (App. Div., 1st, 2009)

While plaintiff's evidence established a basis for quasi in rem
jurisdiction, in that defendant, a Ukranian bank, utilized its New York
correspondent accounts to receive funds and make interest payments
pursuant to the terms of the parties' loan agreements and associated
letters of credit
(see generally Banco Ambrosiano v Artoc Bank & Trust,
62 NY2d 65 [1984]), plaintiff failed in its burden to show the extent,
if any, that defendant had an attachable ownership interest in the
subject correspondent accounts (see e.g. Sigmoil Resources v Pan Ocean Oil Corp. (Nigeria), 234 AD2d 103 [1996], lv dismissed 89 NY2d 1030 [1997]). As [*2]such, the court properly exercised its discretion to deny plaintiff's attachment application (see J.V.W. Inv. Ltd. v Kelleher, 41 AD3d 233 [2007]).

The bold is mine.