Petition — Applestein v. Simons

of the

Anited States

OCTOBER TERM, 1976

No. 76°1364

ALLAN H. APPLESTEIN,

Petitioner

ve.

GUSTAVE SIMONS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF NEW YORK

JAY JEROVE MILLER

Counsel of record for Petitioner

Office & Post Office Address

100 East 42nd Street

New York, New York 10017

Telephone: (212) 867.2500

SOL. |. SOKOLSKY

of counsel

MIAMI REVIEW — 57).4053 — 577.9721

| INDEX

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

FEDERAL QUESTIONS RAISED IN

COURTS BELOW

REASONS FOR ALLOWANCE OF THE WRIT

CONCLUSION

APPENDIX

Opinion of the New York Court of Appeals

dated January 13, 1977, of which re-

view is sought

Order of the New York Supreme Court, Ap-

pellate Division, dated March 3, 1975,

determining that said Court has in per-

sonam jurisdiction over the defendant

Opinion of the New York Supreme Court,

\ Trial Term, dated May 3, 1974, deter-

mining that it has in personam jurisdic-

tion over the defendant

INDEX (cont.)

Order of the New York Supreme Court, Trial

Term, dated October 11, 1974, denying

the defendant’s motion for an order de-

termining that the court lacks in per-

sonam jurisdiction over the defendant

Opinion and order of the New York Supreme

Court dated June 19, 1970 referring to

a referee the defendant's motion for an

order annulling the warrant of attach-

ment and dismissing the complaint

Report of the New York Supreme Court

Referee dated June 29, 1971 recommend-

ing denial of the defendant’s motion for

an order annulling the warrant of at-

tachment and dismissing the complaint

Order of the New York Supreme Court dated

September 7, 1971 denying the defend-

ant’s motion for an order annulling the

warrant of attachment and dismissing

the complaint

Opinion and order of the New York Supreme

Court dated July 31, 1972 denying the

plaintiff's motion for leave to serve an

emended complaint, on other grounds

App. 6

App. 12

App. 15

INDEX (cont.)

Opinion and order of the New York Supreme

Court, dated July 29, 1975, by the trial

Justice denying the defendant's motion

for a new trial on other grounds

Opinion and order of the New York Supreme

Court, Appellate Division, rendered Oc-

tober 12, 1976 affirming the judgment

in favor of the plaintiff on the merits

App. 17

App. 20

Iv

CASE CITATIONS

Page

Anderson v. Benson,

1953, D.C., D.Neb., 117 F. Supp. 765 ta 14

Balasea v. Benteler-Werke,

A.G. 1965, 23 A.D.2d 664, 23 A.D.2d 211 __.__ App. 4

Brainard v. Brainard,

1947, 272 App. Div. 575, 74 N.Y.S.2d 1, aff'd

207 N.Y. 916, 79 N.E.2d 744... ..........----. 16

Campbell v. Murdock,

1950, D.C., N.D. Ohio, 90 F. Supp. 297 . __. - 14

Cheshire National Bank v. Jaynes,

1916, 224 Mass. 14, 112 N.E. 500 aes 14

McQuillen v. National Cash Register Co.,

1940, 4 Cir., 112 F.2d 877, cert. den. 311 U.S.

695, 61 S.Ct. 140, 85 L.ed. 450 14

Miller Bros. v. State,

1953, 201 Md. 535, 95 A.2d 286, rev'd on other

grounds, 1954, 347 U.S. 340, 74 S.Ct. 535, 98

L.ed. 744 _ 14

Minichiello v. Rosenberg,

1969, 2 Cir., 410 F.2d 106, cert. den, 396 U.S.

844, reh.den. 396 U.S. 949 ents 14

mee ee Oe

Vv

CASE CITATIONS (cont.)

Page

Olcott v. MacLean,

1878, 73 N.Y. 223 aah 16

Salmon Falls Mfg. Co. v. Midland Tire & Rubber Co.,

1922, 6 Cir., 285 Fed. 214 14

Sands v. Lefcourt Realty Corp.,

1955, 35 Del.Ch. 340, 117 A.2d 365 14

Seider v. Roth,

1966, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216

N.E.2d 312 a 15

Simons v, Applestein,

1975, 367 N.Y.S.2d 732 case No. 2; same case,

387 N.Y.S.2d 399 2

Simpson v. Loehmann,

1968, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238

N.E.2d 319 15, App. 4

United States v. Balanovski,

1956, 2 Cir., 236 F.2d 298, cert. den, 1957, 352

U.S. 968, 77 S.Ct. 357, 1 L.ed.2d 322 14

U.S. Industries, Inc. v. Gregg,

1976, 3 Cir., 540 F.2d 142 11

VI

CONSTITUTIONAL AND STATUTORY .

CITATIONS

Page

McKinney’s Consolidated Laws of New York

Volume 7B, following CPCR 320, page 377;

same, page 374 . | = FF

New York Civil Practice Law and Rules (“CPLR”):

§314. oil re. 4

R.320(c) (1) ene 4y 14, App. 4

§5501(b) | Cae FA

I asnincs:ssonssciceveciasentianimpniaataiadnete 10

$6213 yee

RRR EST Deiter Aa

New York Code of Rules and Regulations (“NYCRR”) :

238 NYCRR 6600.9(a)(Z) —........_..._._... 10

22 NYCRR §600.10(d) (2) (ii) 9

United S.ates Code:

Fe ne STII inc stnnpesensnntantnns es inneebibiansionieanien 3

28 U.S.C. $1655 -_ iainhoeiamerien 15

United States Constitution:

ET CO 4

I setter inxs: iecetnicnantiamihdeatiniesieleeeaeenmiaes 4

er ce ee

enn

Vil

MISCELLANEOUS CITATIONS

Page

Blume, Actions Quasi in Rem under Section 1655,

Title 28, U.S.C., 50 Mich.L. Rev.1, 22-24

(1951) a ; 15

Currie, Attachment and Garnishment in the Federal

Courts, 59 Mich. L.Rev. 337, 379-80 (1961) 15

Moore, Federal Practice, Vol. 2A, 12.13 (2d ed.

1948 & Supp. 1967) 7 15

Report to the 1969 Legislature In Relation to the

CPLR, Judicial Conference, State of New

York, February 1, 1969 at page 62 17

Restatement of Judgments, £40 (1942) 15

Taintor, Foreign Judgment In Rem:

Full Faith And Credit Against Res Judicata In

Personam, 8 U.Pitt. L.Rev. 223 (1942) 13, 15

Weinstein Korn & Miller, New York Civil Practice,

Vol. 1 $320.17 and 320.18 App. 4

in the

Supreme Court

of the

Gnited States

OCTOBER TERM, 1976

NO,

ALLAN H. APPLESTEIN,

Petitioner

v8.

GUSTAVE SIMONS,

stespondent

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF NEW YORK

The petitioner Allan H. Applestein prays that a writ

of certiorari issue to review the judgment of the Court of

Appeals of the State of New York entered on January 13,

1977 in an action by the respondent Gustave Simons

against the petitioner originating in the Supreme Court of

the State of New York, County of New York, bearing in-

dex number 12349-1964.

2

OPINIONS BELOW

The decision of the New York Court of Appeals of

which review is sought is not yet reported. The decision

made three dispositions:

1. In its final paragraph it dismissed an appeal

taken as of right “upon the ground that no substantial

constitutional question is directly involved”. It is this de-

termination of which review is sought. It left undisturbed

an order which had been rendered by the New York Su-

preme Court, Appellate Division, on March 3, 1975 re-

ported without opinion as Simons v. Applestein, 367

N.Y.S.2d 732, case No. 2, affirming an unreported deci-

sion of the New York Supreme Court contained in the

appendix to this petition at pages App. 3, 4 and 5.

2. In the first decretal paragraph of its decision the

New York Court of Appeals also dismissed a motion (made

simultaneously with the appeal taken as of right) for per-

mission to appeal the same order of the Appellate Division

dated March 3, 1975, upon the grounds that the latter

order did not (at the time it was made) finally determine

the action; but that paragraph did not dispose of or bar

the aforesaid appeal taken as of right from the subse-

quent 1976 final judgment, which appeal as of right was

(as aforementioned) disposed of and dismissed in the final

paragraph.

3. The New York Court of Appeals decision also,

in its first decretal paragraph, denied a motion for per-

mission to appeal an intermediate appellate decision af-

firming the judgment entered after trial, reported as

Simons v. Applestein, 1976, 387 N.Y.S.2d 399 and ap-

pended hereto at page App. 20.

JURISDICTION

The decision of the New York Court of Appeals of

which review is sought is dated and was entered in that

court on January 13, 1977. The judgment of the New York

Supreme Court upon remittitur from the Court of Appeals

was entered on January 24, 1977.

Jurisdiction to review the judgment in question is

conferred on this court by 28 U.S.C. Section 1257(3), in

that a right, privilege or immunity is specially set up or

claimed under the Constitution of the United States; and

in that such right, privilege or immunity has or have been

denied to the petitioner by invalid application or non-

application of a State statute under the decision of which

review is sought.

QUESTIONS PRESENTED FOR REVIEW

1. In an action in a State court against a non-

domiciliary of that State who was not personally served

with process but whose property within the State was

attached, is a right, privilege or immunity to make only a

limited appearance to defend the action on the merits only

to the extent of the value of the attached property, without

a general appearance and submission to personal jurisdic-

tion, a constitutional requirement of due process of law?

2. In an action in a State court against a non-

domiciliary of that State who was not personally served

with process but whose property within the State was

attached, is a rule unconstitutiona! if it makes an appear-

ance to defend the action on the merits a general appear-

ance and submission to personal jurisdiction, and forces

the defendant to choose between abandonment of his prop-

4

erty without defense, or submission to personal jurisdic-

tion; and does an attempt to force a defendant to make

such a choice contravene the constitutional guaranty of

due process of law?

3. Are New York courts constitutionally required

to apply the amendment to New York Civil Practice Law

and Rules, rule 320(c) (1), effective September 1, 1969,

to an action pending on that date against a non-domiciliary

of that State who was not personally served with process

but whose property within the State was attached, where

that amendment provides in such a case for a limited

appearance not equivalent to personal service on the de-

fendant, and granting to the defendant a right, privilege

or immunity to defend the action on the merits only to the

extent of the value of the attached property without a

general appearance and submission to personal jurisdic-

tion?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The petitioner’s rights, privileges and immunities are

claimed under the due process and equal protection clauses

of Amendment XIV, section “1” and Amendment V of the

United States Constitution. The petitioner claims that they

also govern the application of New York Civil Practice

Law and Rules section 314 and rule 320(c), the latter rule

as amended effective September 1, 1969, and section 5213:

“314. Service without the state not giving

personal jurisdiction in certain actions (emphasis

supplied).

5

“Service may be made without the state by

any person authorized by Section 313 in the

same manner as service is made within the state

“3. where a levy upon property of the per-

son to be served has been made within the state

pursuant to an order of attachment or a chattel

of such person has been seized in an action to

recover a chattel.”

“R.320. Defendants Appearance. * * *

(ec) When appearance confers personal jur-

isdiction, in certain actions; /imited appearance.

When the court's jurisdiction is not based upon

personal service on the defendant, an appear-

ance is not equivalent to personal service upon

the defendant :

“1. In a ease specified in subdivision (3) of

Section 314, if jurisdiction is based solely upon

a levy on defendant’s property within the state

pursuant to an order of attachment. (emphasis

supplied)

$6213. Service of summons.

An order of attachment granted before an ac-

tion is commenced is valid oniy if, within sixty

days after the order is granted, a summons is

served upon the defendant or first publication

of the summons against the defendant is made

pursuant to an order and publication is subse-

quently completed, except that a person upon

whom the order of attachment is served shall

not be liable for acting upon it as if it were valid

without knowledge of the invalidity.

The respondent (plaintiff) attempted to proceed pur-

suant to the said statutes but did not succeed in making

personal service of process anywhere, and failed to make

any publication within sixty days after the order was

granted or at any time thereafter. The petitioner (de-

fendant) subsequently appeared in the action but con-

tends that his appearance conferred no greater jurisdic-

tion than would have been acquired by successful service

outside the state or publication of the summons, namely

jurisdiction only quasi in rem, and not in ersonam.

STATEMENT OF THE CASE

Well over five years after supposed accrual in April

1959 of the alleged cause of action, and only months before

the period of limitations would have expired, the plaintiff

caused his secretary as his assignee to attempt to com-

mence in her own name as plaintiff an action for the

alleged reasonable value of supposed legal services claimed

to have been rendered by the present plaintiff to the de

fendant, who is also an attorney admitted to the Maryland

Bar.

The defendant is a domiciliary of Florida. He was

not served with the summons either personally outside

New York or by publication. The plaintiff's secretary at-

tempted to commence the action with an order of attach-

ment and succeeded in attaching a bank deposit of the

defendant in New York containing $2,833.52. The plain-

tiff's secretary however failed to serve the summons per-

sonally or to commence publication of the summons within

sixty days after the date of the order of attachment as

7

required by New York Civil Practice Law and Rules

(“CPLR”) 6213, q.v. supra. The defendant by the attor-

neys who then represented him, prepared motion papers

to vacate the order of attachment by reason of such fail-

ure. The defendant's attorneys withdrew the motion and

excused the plaintiff's failure to publish the summons or

serve it outside New York, and interposed an answer to

the complaint, but the defendant claims that he intended

thereby to confer no greater jurisdiction on the court than

it would have had if the summons had been published or

served outside New York, namely jurisdiction quasi in

rem. Moreover the defendant bonded back the attachment

and discharged it pursuant to CPLR 6222 by means of an

affidavit of his attorney which stated that “pursuant to

the provisions of Section 6222 of the Civil Practice Law

and Rules making this motion does not constitute an ap-

pearance in the action by the defendant.”

After a mistria! ordered because of jurisdictional

issues, followed by jurisdictional motions and a jurisdic-

tional appeal, mentioned below under the heading “Fed-

eral questions raised in courts below”, the New York

Supreme Court, Appellate Division, held that it had ac-

quired jurisdiction in personam over the petitioner (de-

fendant!. The action went to trial and a verdict and

judgment were rendered against the petitioner, not lim-

ited to the value of the attached property which was

$2,833.52 plus interest, but for the full amount demanded

in the complaint, $33,333.33, which with interest and

costs aggregated $68,156.20. Judgment was affirmed by

the Appellate Division of the Supreme Court, and the

Court of Appeals declined to disturb it by means of the

appellate procedures in that court of which review is here

sought.

FEDERAL QUESTIONS RAISED BELOW

IN COURTS BELOW

The stages in the proceedings in the court of first

instance and in the appellate court at which, and the

manner in which, the federal questions sought to be re-

viewed were raised, and the method of raising them and

the way in which they were passed upon by the courts,

are as follows:

I. Prior to presentment of constitutional issues, ju-

risdictional issues were first raised in statutory contexts.

A trial justice ordered a mistrial because he believed that

jurisdiction quasi in rem was absent on the grounds that

the present plaintiff's secretary, who had originally at-

tempted to commence the action in her own name as plain-

tiff, had reassigned the claim back to the present plaintiff

prior to the time that she obtained the order of attach-

ment; and since she no longer owned the claim at the time

she obtained the attachment, the attachment was thought

to be invalid. The plaintiff objected inter alia that the

matter was irrelevant because he claimed he had acquired

jurisdiction in personam over the defendant. The Justice

disregarded that objection and directed that the validity

of jurisdiction quasi in rem be tested in a motion part,

and ordered the mistrial. In the ensuing motion the plain-

tiff again objected that he had obtained jurisdiction in

personam but the court again disregarded it, a referee

reporting that “Jurisdiction herein is predicated on the

validity of a warrant of attachment, * * °*”. The court

however then sustained jurisdiction quasi in rem. On a

subsequent unrelated motion for leave to amend the com-

plaint the petitioner contended that it could not be

amended because the court lacked jurisdiction in per-

sonam, but the motion was denied on other grounds.

II. The constitutional question whether jurisdiction

had been acquired only quasi in rem, or in personam, was

formally raised by written motion to a Justice to whom

the action had been assigned for trial, and the constitu-

tional law was argued in written briefs. The Justice held

that jurisdiction in personam had been acquired, and the

defendant appealed to the Appellate Division on a printed

record and printed briefs. Under appellate practice estab-

lished in the New York Code of Rules and Regulations

(“NYCRR”) the questions involved in the appeal are

required to be stated in the appellant’s brief accompanying

the record, 22 NYCRR §600.10(d) (2) (ii), Six such ques-

tions were stated, all relating to the same subject raised

in this petition for a writ of certiorari. One of the six

questions was specifically phrased in constitutional terms

as follows:

“3. Ie a limited appearance a constitutional

requirement of due process of law where a non-

domiciliary defendant whose property is attached

is not personally served with process; and is a

rule unconstitutional if it makes an appearance

on the merits, in an action quasi in rem, a gen-

eral appearance, and forces the defendant to

choose between abandonment of his property

without defense, or submission to personal jur-

isdiction? The court below did not expressly an-

swer the question, but its ruling presupposes a

negative answer.”

10

The other five questions were in pari materia. The Ap-

pellate Division affirmed the ruling of the Justice to whom

the action had been assigned for trial, and the action sub-

sequently proceeded to trial before another Justice and a

jury. For the purposes of this writ the record is deemed

to consist of the printed record on appeal to the Appellate

Division and the accompanying printed brief as required

by the aforesaid appellate rule. The aforesaid quotation of

the question involved appears on page 2 of the latter brief.

Ill. After trial an appeal on the merits was taken

to the Appellate Division of the Supreme Court which

affirmed the judgment. Thereafter permission to appeal

to the Court of Appeals was sought from the court by

way of “Notice of motion for leave to appeal, affir-

mation, and appellant's brief’, deemed part of the record

submitted in support of this application for a writ of

certiorari. Pursuant to 22 NYCRR §500.9(a)(2) the

same questions of law were presented as had been

earlier presented to the Appellate Division, and appear on

pages “5” and “6” of the notice of motion. Specifically the

question phrased in constitutional terms appears on page

- of

The petitioner simultaneously filed a notice of appeal

to the Court of Appeals as a matter of right, and advised

that court in its aforesaid motion papers that “The con-

stitutiona! issue may make the non-final order reviewable

as of right, CPLR 5601/d) and (b) (1), 5501(b) second

sentence, and we are filing a protective notice of appeal.”

The New York Court of Appeals determined the mo-

tion for permission to appeal, and the appeal taken as of

right, as follows:

a

11

“Motion, insofar as it seeks leave to appeal from

the October 12, 1976 Appellate Division order, de-

nied; and insofar as it seeks leave to appeal from

the March 3, 1975 Appellate Division order, dis-

missed upon the ground that the order sought to

be appealed from does not finally determine the

action within the meaning of the Constitution;

with twenty dollars costs and necessary reproduc-

tion disbursements.

On the Court’s own motion, appea! taken as of

right dismissed, without costs, upon the ground

that no substantial constitutional question is di-

rectly involved.”

The petitioner contends on this petition for a writ

of certiorari that the New York Court of Appeals erred

in determining that no substantial constitutional question

is directly involved, and in its failure to reverse the judg-

ment on constitutional grounds.

REASONS FOR ALLOWANCE OF THE WRIT

The viability of the constitutional issue tendered in

this petition, which has not yet been resolved by this Court,

persists in federal and state courts. Just months ago it

was one of three constitutional issues raised before a

United States Court of Appeals in U.S. Industries, Inc. v.

Gregg, 1976, 3 Cir., 540 F.2d 142, where it was defined

as, id at 145:

“4. Whether the denial of an opportunity to

make a limited appearance, defending plaintiff’s

12

claim on the merits with any judgment limited to

the value of the seized property, deprived Gregg

of due process?”

While the Court of Appeals in reversing the district

court and remanding with a direction to dismiss the com-

plaint for want of jurisdiction over the person, predicated

its decision primarily on one of the other, albeit closely

related, constitutional grounds, it did not fail to take note

of the issue here raised and considered its result to be

“buttressed” by it, id at 156:

“While the focus of our attention has been the

situs provision of § 169, the result we reach is

buttressed by the operation in this case of the

rule of Sands v. Lefcourt Realty Corp., supra.

Under the interpretation that case gave to the

statutory schema, the nonresident defendant is

inexorably put to a Hobson’s choice: either sur-

render by default the entire value of the seized

property or submit to in personam jurisdiction.

Keeping in mind the admonition of Mullane that

constitutional standards do not depend on ‘elusive

and confused’ state law classifications, we won-

der whether this jurisdiction realistically ought to

be considered as quasi in rem. The purpose of the

Delaware procedure is to coerce the nonresident

to submit to in personam jurisdiction. And it is

difficult to conceive of a more potent jurisdiction

—irrespective of its label—than the jurisdiction

exercised here. Unless Gregg chose to default the

$2 million in stock certificates he could have been

held personally to answer for a claim in excess

of $20 million in a forum unrelated to him or the

transaction at issue. Of course, if this case were

13

analyzed under an in personam rubric, the con-

clusion we have reached would follow just as

surely.”

That conclusion was that the court lacked jurisdiction over

the person.

The view that imposition of such a dilemma is un-

constitutional has long been supported by scholarly au-

thority, see Taintor, Foreign Judgment In Rem: Full

Faith And Credit Against Res Judicata In Personam, 8

U. Pitt. L. Rev. 223(1942). As there said by Professor

Taintor, id. at 226:

“It is submitted that an attempt to force de-

fendant to choose between abandonment of his

property without defense and submission to the

jurisdiction of the court for all purposes contra-

venes the constitutional guaranty of due process

of law.”

And as concluded by Professor Taintor, id. at 232:

“It is submitted that principle and the authori-

ties, so far as they exist, support the conclusion

that a rule which makes any appearance on the

merits in an action in rem or quasi in rem a gen-

eral appearance for all purposes is improper

and unconstitutional, and that a personal judg-

ment rendered under such duress is without due

process of law, and is not entitled to and may not

be given ful] faith and credit.”

14

Indeed the United States Court of Appeals for the

Second Circuit has observed that the New York Court of

Appeals itself may have been likewise concerned over the

constitutionality of the former version of CPLR 320(c)

which was in effect when the action at bar was commenced.

In Minichiello v. Rosenberg, 1969, 2 Cir., 410 F.2d 106,

cert. den 396 U.S. 844, reh. den. 396 U.S. 949, Judges

Friendly and Feinberg stated, 410 F.2d at 111, footnote 7:

*** “The Court of Appeals may have enter-

tained qualms about the constitutionality of

CPLR §320 (c) both in the Seider situation and,

as indicated by the last sentence of the quotation,

in other instances of quasi in rem jurisdiction.

There is substantial authority that where the pres-

ence of property within the state is the sole basis

for jurisdiction, it is unfair to require the de-

fendant to choose between forfeiting this and sub-

jecting himself to liability for a larger claim.

See Cheshire Nat’l Bank v. Jaynes, 224 Mass.

14, 112 N.E. 500 (1916); Salmon Falls Mfg.

Co. v. Midland Tire & Rubber Co., 285 F. 214

(6 Cir. 1922); McQuillen v. Nat’l Cash Register

Co., 112 F.2d 877 (4 Cir.), cert. denied, 311 U.S.

695, 61 S.Ct. 140, 85 L. Ed. 450 (1940); Miller

Bros. v. State, 201 Md. 535, 95 A.2d 286 (1953),

rev'd on other grounds, 347 U.S. 340, 74 S.Ct.

535, 98 L.Ed. 744 (1954). But see, contra, Camp-

bell v. Murdock, 90 F.Supp. 297 (N.D. Ohio

1950); Anderson v. Benson, 117 F.Supp. 765

(D.Neb.1953) ; Sands v. Lefcourt Realty Corp.,

35 Del.Ch. 340, 117 A.2d 365 (1955); United

States v. Balanovski, 236 F.2d 298 (2 Cir. 1956),

cert. denied, 352 U.S. 968, 77 S.Ct. 357, 1 L.Ed.2d

15

$22 (1957). Although the commentators are like-

wise divided, several suggest that to deny the

defendant an opportunity to defend without sub-

mitting to in personam jurisdiction violates due

process. See Taintor, Foreign Judgment in Rem:

Full Faith and Credit v. Res Judicata in Per-

sonam, 8 U. Pittsburgh L. Rev. 223 (1942); and

B. Currie, Attachment and Garnishment in the

Federal Courts, 59 Mich.L.Rev. 337, 379-80

(1961); cf. Restatement of Judgments § 40

(1942). But see 2A Moore, Federal Practice

912.13 (2d ed. 1948 & Supp. 1967); Blume, Ac-

tions Quasi in Rem under Section 1655, Title 28,

U.S.C., 50 Mich.L. Rev. 1, 22-24 (1951).

The Second Circuit was there commenting upon the

first decision of the New York Court of Appeals which

sanctioned a limited appearance, Simpson v. Loehmann,

1968, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319,

for the purposes of its judicially created direct action

against insurers, Seider v. Roth, 1966, 17 N.Y.2d 111, 269

N.Y.S.2d 99, 216 N.E.2d 312. In Simpson the New York

court held that where no personal jurisdiction had been

obtained over the nonresident insured defendant, but only

jurisdiction quasi in rem over the contractual obligation

of the domestic insurer to defend him, the defendant was

entitled to defend the action on the merits without sub-

mitting to the personal jurisdiction of the court, and that

“the recovery is necessarily limited to the value of the

asset attached, * * * ” emphasis supplied), namely the

limit of the insurance policy. The action had been com-

menced in 1964 —- the same year in which the action at

bar was conzenced!

16

In Simpson however the court left open the question

whether a limited appearance was applicable to claims

other than direct actions against insurers. The following

year the New York Judicial Conference responded by

enacting its amendment to CPLR 320(c) in the form

quoted supra in this petition under the heading “Con-

stitutional and statutory provisions involved”, which

adopted the presently existing limited appearance. Simp-

son and the statutory amendment, it is submitted, were no

mere acts of grace by the Court and Judicial Conference,

but were their recognition of constitutional constraint, see

Minichiello quoted supra. They were a reconciliation with

a constitutional right that had always previously existed.

The problem of the action at bar is that it was already

pending at the time that tne statute was amended to pro-

vide for the limited appearance; and that at the time the

action was commenced New York imposed the “Hobson’s

choice”, Olcott v. Mac Lean, 1878, 73 N.Y. 223: Brainard

v. Braimard, 1947, 272 App.Div. 575, 74 N.Y.S.2d 1. aff’d

297 N.Y. 916, 79 N.E.2d 744. In its affirmance in Brain-

ard, supra, the New York Court of Appeals passed upon

federal constitutionality under the Fourteenth Amend-

ment.

It is submitted that New York was then in error in

sustaining the federal constitutionality of its Hobson’s

choice, and that New York, during the pendency of the

action at bar, recognized and rectified its error. The issue

is whether such rectitude operates only prospectively, or

whether New York is constitutionally constrained to apply

it to actions already pending and undetermined. We con-

tend the latter. What is now constitutional or unconstitu-

tional, was always so. The action being yet undetermined.

17

the defendant was still entitled to due process and equal

protection of the laws. Equal protection also precludes

discrimination based upon any supposed distinction be-

tween direct actions against insurers and all other actions.

No problem arises from absence of a specia] appear-

ance or a protestation that an appearance was limited.

Limited appearances are unlike traverses of personal serv-

ice of a summons, or denials that jurisdiction in rem has

been acquired, which may be contested formally by motion

or in a responsive pleading. Where there is only a limited

appearance in an action against a non-domiciliary quasi

in rem, there is nothing to object to formally, because the

plaintiff makes no claim that he served the summons per-

sonally within the State, and the defendant does not deny

that his property was duly attached; so no formal objection

is required or applicable. Indeed under New York CPLR

320(c) there is no requirement that any jurisdictional ob-

jection be verbally raised in order to have a limited appear-

ance. The statute is self-executing. As stated in Professor

McLaughlin’s practice commentaries to McKinney’s Con-

solidated Laws of New York, Volume 7B, following CPLR

320, page 377:

“Although Restatement, Judgments § 40(a)

(1942) states that a defendant who makes a lim-

ited appearance must indicate ‘that he does not

intend thereby to submit himself to the jurisdic-

tion of the court’, evidently this is not so in New

York. The present section delimits the function

of an appearance in an attachment case and ap-

pears to be self-executing, requiring no further

protestations from the defendant. See Report to

the 1969 Legislature In Relation To the CPLR,

18

Judicial Conference, State of New York, Febru-

ary 1, 1969, at page 62.” (emphasis supplied).

Accordingly a limited appearance, constitutionally re-

quired to be available when this action was commenced,

needed no formal denial of any jurisdiction, “the statute

being necessarily retroactive and self executing.

19

CONCLUSION

New York has denied the petitioner his constitutional

guaranty of due process and equal protection of the laws

by withholding from him, as a non-domiciliary who was not

served with process by any means, an opportunity to make

a limited appearance in an action quasi in rem for the pur-

pose of defending title to his attached property on the

merits without subjecting himself to personal jurisdiction ;

by forcing him to choose between abandonment of his prop-

erty or submission to personal jurisdiction; by purporting

to exercise personal jurisdiction over him; and by render-

ing a personal judgment against him in excess of the value

of the attached property.

The New York Court of Appeals erred in its decision

that no substantial constitutional question is directly in-

volved. It is respectfully submitted and prayed that a writ

of certiorari should issue to review that decision.

Respectfully submitted

JAY JEROME MILLER

Counsel of record for the Petitioner

Office & Post Office Address

100 East 42nd Street

New York, New York 10017

Telephone: (212) 867-2500

SOL IL. SOKOLSKY

of counsel

APPENDIX

STATE OF NEW YORK, COURT OF APPEALS

At a session of the Court, held at Court of Appeals Hall

in the City of Albany on the Thirteenth day of January

A.D. 1977.

PRESENT, HON. CHARLES D. BREITEL, Chief Judge,

presiding.

1 Mo. No, 1115

Gustave Simons,

Respondent,

vs.

Allen H. Applestein,

Appellant.

A motion for leave to appeal to the Court of Appeals

having heretofore been made upon the part of the appel-

lant herein, papers having been submitted thereon and due

deliberation having been thereupon had, it is

ORDERED, that the said motion, insofar as it seeks

leave to appeal from the October 12, 1976 order of the Ap-

pellate Division, be and the same hereby is denied; and,

insofar as it seeks leave to appeal from the March 3, 1975

order of the Appellate Division, be and the same hereby is

dismissed upon the ground that the order sought to be

appealed from does not finally determine the action within

the meaning of the Constitution; with twenty dollars costs

and necessary reproduction disbursements; and it is

ORDERED, on the Court’s own motion, that the ap-

peal taken as of right by said appellant be and the same

hereby is dismissed, without costs, upon the ground that

no substantial constitutional question is directly involved.

8/ Joseph W. Bellacosa

Joseph W. Bellacosa

Clerk of the Court

es

App. 2

At a term of the Appellate Division of the Supreme

Court held in and for the First Judicial Department

in the County of New York, on March 3, 1975.

Present—Hon. Arthur Markewich, Justice Presiding

Francis T. Murphy, Jr.

George Tilzer

Louis J. Capozzoli, Justices.

Affirmance of Order 2060 N

Gustave Simons,

Plaintiff-Respondent

-against-

Allen H. Applestein,

Defendant-Appellant.

An appeal having been taken to this Court by the

defendant-appellant from an order of the Supreme Court,

New York County, (Baer, J.), entered on October 16,

1974, determining that said Court has in personam juris-

diction over the defendant, and said appeal having been

argued by Mr. Sol. I. Sokolsky of counsel for the appellant,

and by Mr. Arnold Bennett Glenn of counsel for the re-

spondent; and due deliberation having been had thereon,

It is hereby unanimously ordered that the order so ap-

pealed from be and the same is hereby affirmed, and that

the respondent recover of the appellant $40 costs and dis-

bursements of this appeal.

ENTER:

HYMAN W. GAMSO

Clerk.

a el net

App. 3

INDIVIDUAL CALENDAR PART 14

New York Supreme Court

County of New York

GUSTAVE SIMONS,

Plaintiff,

—against—

ALLAN H. APPLESTEIN,

Defendant.

(Filed May 6, 1974)

PRESENT:

HON. HAROLD BAER

Justice.

This decision is in response to the parties request for

a ruling as to whether or not this court has in personam

jurisdiction or only quasi in rem jurisdiction in the instant

action.

In August and September of 1964 the plaintiff ob-

tained an oider of attachment on the funds of the defend-

ant which were in New York; service of a summons and

complaint was attempted in September of 1964 on the

defendant in Florida.

In November of 1964 the defendant’s answer was

served upon the plaintiff’s attorney. Through the long and

tortured history of this litigation there has never been a

definitive ruling with respect to the nature of the jurisdic-

tion in this matter.

App. 4

Prior to the amendment of CPLR 320, and in cases

other than those involving liability insurance policies (see

Simpson v. Loehmann, 21 N.Y.2d 990) a defendant whose

property was attached had no right to make a limited

appearance. An appearance prior to September 1, 1969

therefore constituted a submission to in personam jurisdic-

tion (see McLaughlin, McKinney’s Consolidated Laws, Vol-

ume 7B C.320.6 p. 374; Weinstein Korn & Miller, New

York Civil Practice Vol. 1 § 320.17 and 320.18).

It is clear that we are bound by the status of the law

at the time this action was commenced (Balassa v. Bente-

ler-Werke, 23 A D 2d 664).

Accordingly, we find that in the instant case the de-

fendant has subjected himself to in personam jurisdiction.

Dated May 3, 1974 H.B.

J.S.C.

OOOO ne BR ee I. a ee a

App. 5

INDIVIDUAL CALENDAR PART XIV

New York Supreme Court

County of New York

Gustave Simons

—against—

Allan H. Applestein

(Filed October 16, 1974)

PRESENT:

HON. HAROLD BAER

Justice.

Papers Numbered

Notice of Motion and Affidavits Annexed ..——S_é1-6

Answering Affidavits .... 7-21

Upon the foregoing papers this Motion is denied in

accordance with the memorandum decision of this court

dated May 3, 1974.

Dated October 11, 1974 H.B.

J.S.C.

County Clerk’s No. 12349, 1964

Spec I Liber 7/77 Line 5, 1974

App. 6

EXHIBIT “C”

SUPREME COURT OF THE STATE OF NEW YORK,

SPECIAL TERM PART I, NEW YORK COUNTY

at the Courthouse thereof, 60 Centre Street,

New York, New York, 10007

Present:

HON. GEORGE STARKE

Justice.

Anita Yasus

— against —

Allan H. Applestein

(Filed June 19, 1970)

The following papers numbered 1 to 23 read on this mo-

tion, SUBMITTED TO illegible

No. 138 on Calendar of June 12, 1970

Papers Numbered

Notice of Motion - Exhibits and

Affidavits Annexed 1-5

—CROSS MOTION

Answering Affidavit, Affirmations &

Exhibits 6-17

Replying Affidavits - Exhibits 18-20

Rejoinder Affirmations 21-23

oe rete seen eye Sh Me lee

ee ee hel Recah NTN ee

App. 7

Upon the foregoing papers this Motion by defendant

to annulling a warrant of attachment, the defendant’s

bond and to dismiss the complaint and the cross motion to

substitute plaintiffs is disposed of as follows.

| The crux of the matter herein is a jurisdictional

question, centered about when and if the assignments were

made, which issue cannot be determined on the papers sub-

mitted. The issue as to jurisdiction is therefore referred to

the Hon. Gerald Mazur, Special Referee, to hear and re-

port thereon, together with his recommendations. { Coun-

sel are directed to serve a copy of this order within 5 days

after publication hereof on the office of the referees, Room

308M, for the purpose of arranging a hearing date. { De-

termination of the instant matter shall be held in abeyance

pending receipt of the referee’s report.

Dated June 19, 1970

Briefs: Plaintiff’s J.S.C.

County Clerk’s No. 12349, 1964

Spec I Liber. Y3 Line 3, 1970

App. &

SUPREME COURT : NEW YORK COUNTY

INDEX NO. 12349/64

ANITA YASUS,

Plaintiff,

- against -

ALLAN H. APPLESTEIN,

Defendant.

(Filed June 29, 1971)

TO THE SUPREME COURT, NEW YORK COUNTY,

SPECIAL TERM, PART I:

By order dated June 19, 1970 of the Hon. George

Starke, one of the Justices of this Court, the issue as to

jurisdiction in this matter was referred to me to hear and

report with recommendations. Jurisdiction herein is predi-

cated on the validity of a warrant of attachment, and in-

volves questions as to when and if certain assignments were

made.

Heretofore, a mistrial of this action was granted on

the ground that the plaintiff obstensibly was not the owner

of the claim upon which the attachment was obtained, thus

creating a serious jurisdictional defect in the proceeding.

After mistrial the parties were left to their remedies at

Special Term.

PN a he ee De ee el

De ART 1) St fe dee eto ©

App. 9

The hearing before me was held on February 4, 1971.

A transcription of the minutes taken by an official court

reporter is filed herewith together with memoranda sub-

mitted by the respective parties.

After hearing the testimony herein, observing the

demeanor of the witnesses and assessing their credibility,

it is my opinion that the following appears to have oc-

curred :

On August 26, 1964 the order of attachment was is-

sued. In support of the application there is an affidavit by

plaintiff dated and verified July 29, 1964 in which she

refers to an annexed assignment to her of the cause of

action “dated this 29th day of July, 1964.” The court file

discloses, however, that the annexed assignment is dated

August 13, 1964.

Plaintiff was then a secretary in the law office of the

assignor, Gustave Simon. He was not in the city on July

29, 1964. The cause of action is for legal] fees allegedly

due Simon.

Whatever the reasons for proceeding in this way, it

appears that about the time of the assignment from Simon

to plaintiff, a reassignment from plaintiff to Simon dated

in blank was prepared. No reason appears in the record

for the reassignment, but the explanation in plaintiff's

memorandum that this was a security measure against

the event that plaintiff might leave Simon’s employ, is

plausible.

The matter was handled for plaintiff and Simon by

one Leonard Kolleeny. The papers apparently were pre-

App. 10

pared by July 29, 1964, but apparently not used until

after Simon’s return. The statement by plaintiff as to

the date of the assignment was obviously erroneous inso-

far as any written assignment from Simon was concerned.

This inaccuracy appears to be the cause of a series

of further errors committed by Kolleeny which has befud-

dled the jurisdictional basis of this lawsuit.

Apparently in getting the case ready for trial in Feb-

ruary 1970, Kolleeny found copies of the August 13, 1964

assignment as well as copies of the undated reassignment.

Since August 13, 1964 did not conform to the statement in

plaintiff’s July 29, 1964 affidavit, and since the summons

and complaint bear the July 29th date, he apparently con-

cluded that the August 13th date was in error and had

his secretary erase it and insert July 29, 1964 in its place.

He then had his secretary date the reassignment July 30,

1964, a date he says he “arbitrarily” chose.

This made it appear that as of the time of the at-

tachment order, the assignment (July 29th) was super-

seded by the reassignment (July 30th), thus rendering it

jurisdictionally impossible for plaintiff to have obtained

the attachment since she was no longer the “owner” of the

claim.

I believe that this was the result of unwillful careless-

ness on the part of Mr. Kolleeny and was neither fraudu-

lently motivated nor done for any reasons of impropriety.

On the basis of the foregoing; it is my conclusion that

the assignment from Simon to plaintiff was executed on

August 13, 1964 and that at the time the order of attach-

Se = -

; App. 11

ment was signed, plaintiff was the record owner of the

claim. It is also my conclusion that the reassignment was

executed sometime considerably after the order of attach-

ment probably prior to plaintiff’s termination of her em-

ployment in March 1965.

Since the procedure followed in prosecuting this claim

appears to be legally permitted and not against public or

court policy, it is respectfully recommended that the court

deny defendant’s motion to annul the warrant of attach-

ment and for ancillary relief.

Respectfully submitted,

GERALD MAZUR

Special Referee.

DATED: June 29, 1971

App. 12

At a Special Term Part I, of the Supreme Court,

New York County held at 60 Centre Street, New York

on the 7th day of September, 1971.

PRESENT: HON. GEORGE STARKE

Justice

ANITA YASUS,

Plaintiff.

- against -

ALLAN H. APPLESTEIN,

Defendant.

ORDER

Defendant having moved this Court by Notice of Mc-

tion dated July 13, 1971 for an Order rejecting the report

of Hon. Gerald Mazur, Special Referee, dated June 29,

1971 and for an Order granting the relief heretofore re-

quested by the defendant in its earlier Notice of Motion

dated May 11, 1970 which Motion had been held in abey-

ance pending the report of the Special Referee; and

Plaintiff having cross-moved this Court by Notice of

Motion dated July 15, 1971 for an Order

a. Confirming the report of Hon. Gerald Mazur,

Special Referee dated June 29, 1971 and

b. Substituting Gustave Simons as party plaintiff

and

c. Restoring this case for trial to the Trial Calendar

for a day certain;

ane ee es ai

App. 13

And due deliberation having been had thereon and

the Court having rendered its decision in writing dated

July 30, 1971; it is

NOW, upon reading and filing the aforesaid Notices of

Motion and Cross-Motion and upon the Affidevit of Sol

I. Sokolsky, Esq., attorney for defendant, sworn to July 9,

1971 in support of the Motion and the exhibits annexed

thereto; and upon the Affirmation of Leonard Kolleeny,

Esq., attorney for the plaintiff affirmed the 15th day of

July 1971 in opposition to the prime motion and in support

of the plaintiff’s cross-motion and upon the exhibits an-

nexed thereto; and upon all the original order of reference

herein of Hon. Justice George Starke dated June 19, 1970

and upon the said report of the Hon. Gerald Mazur, Spe-

cial Referee dated June 29, 1971, it is

ORDERED, that defendant’s motion to reject the

report of Hon. Gerald Mazur, Special Referee, dated June

29, 1971 is hereby denied and, it is further

ORDERED, that the plaintiff’s cross-motion to con-

firm the report and for other relief is hereby granted and

it is further

ORDERED, that the defendant’s motion heretofore

held in abeyance by the earlier order of this Court dated

June 19, 1970 be and the same hereby is denied and it is

further

ORDERED, that Gustave Simons is substituted as

party plaintiff in this action and that the title of this case

is amended to read as follows:

App. 14

“SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

1234/69

GUSTAVE SIMONS,

Plaintiff,

- against -

ALLAN H. APPLESTEIN,

Defendant.

(Filed September 8, 1971)

and it is further

ORDERED, that this action is hereby restored to the

Trial Term Part I Day Calendar of this Court for the 9th

day of September 1971 and the plaintiff is directed to

serve a copy of this Order with Notice of Entry upon the

Calendar Clerk of Trial Term, Part I, within 10 days of

the granting of this Order, and it is further

ORDERED, that a copy of this order with notice of

entry be served on the Clerk of the Court who is directed

to change the records accordingly.

Enter

App. 15

SUPREME COURT OF THE STATE OF NEW YORK

SPECIAL TERM PART I, NEW YORK COUNTY

at the Courthouse thereof, 60 Centre Street,

New York, New York 10007

Present:

Hon. Hilda G. Schwartz

Justice.

GUSTAVE SIMONS

— against —

ALLAN H. APPLESTEIN

(Filed August 1, 1972)

The following papers numbered 1 to 12 read on this motion,

submitted

No. 60 on Calendar of June 14, 1972

Papers Numbered

| Notice of Motion pleadings, exhibit and |

Affidavits Annexed in ae

Answering Affidavit ER ee

: Replying Affidavit and exhibit 7-8

Rejoinder Affidavit and exhibits 9-12

Motion by plaintiff for an order permitting the plain-

tiff to amend his complaint in the form proposed is dis-

posed of as follows:

App. 16

Plaintiff by his proposed amended complaint seeks to

increase the damages claimed from $33,579.33 to 383,599.33

including disbursements, as the reasonable value of legal

services rendered to the defendant and to subsiitute two

new causes of action for this larger amount, which pro-

posed causes of action accrued over twelve years ago.

Although leave to amend is freely given, the court

must determine the nature of the amendment, the time it is

made, the possible prejudice to the adverse party and the

justification offered by the amending party. It is apparent

that at this late stage of the proceedings, some seven years

after the verification of the complaint, prejudice to the

defendant would be caused by granting this relief. The

motion is, accordingly, denied.

Dated July 31, 1972

County Clerk’s No. 12349, 1964

Spec I Liber S15 Line 5, 1972

App. 17

New York Supreme Court

County of New York

INDIVIDUAL VCALENDAR PART 61

PRESENT:

Hon. WILLIAM MERTENS

Justice.

GUSTAVE SIMONS

— against —

ALLAN H. APPLESTEIN

(Filed July 31, 1975)

Papers Numbered

Exhibit

Notice of Motion and Affidavits Annexed .__ 1-8

Answering Affidavits & Exhibits . —.. 4-10

Replying Affidavit & Exhibit we 11-12

Rejoinder Affidavits & Exhibits .......__ 13-16

Notice of Examination and Pleadings — Exhibit

Stipulation — Referee’s Report — Minutes

As the Court reads the extensive papers on this mo-

tion for a new trial it can only marvel at the sheer audac-

App. 18

ity of a defendant who when testifying at the trial denied

a certain conviction in Florida and whose moving papers

on this motion show the utter falsity of his testimony at

the trial. The attempt of counsel in his supplemental brief

(p. 4) to claim confusion of incidents on the part of the

defendant in so testifying at the trial is meaningless in

view of the failure to submit any affidavit by the defend-

ant himself, The matter of the Florida conviction was ap-

-propriately disposed of by the Court at the trial of this

ancient matter. Suffice to say that the defendant was his

own worst witness and the jury on the record before it

could easily, and with ample justification in the record,

resolve the issue of credibility against the defendant as

it did without any reference to the Florida conviction

which defendant denied at the trial and which the Court

instructed the jury to disregard. There is no basis for the

instant motion and it is denied in all respects.

Dated July 29, 1975.

J.S.C.

Briefs: Defendant’s

County Clerk’s No. 12349, 1964,

“App. 19

Kupferman, J.P., Murphy, Lupiano, Lane, JJ.

2978-79

< Gustave Simon§,

Plaintiff-Respondent, A.B.Glenn

_—against—

Allen H. Applestein,

Defendant-Appellant. S.I.Sokolsky

Judgment, Supreme Court, New York County (Mer-

tens, J.), entered on March 27, 1975, in favor of plaintiff

after a jury trial and the order of said Court entered on

July 31, 1975, denying defendant’s motion for a new trial,

unanimously affirmed. Respondent shall recover of ap-

pellant $60 costs and disbursements of these appeals.

«The critical question presented in this action to re-

cover for legal services rendered and disbursements in-

curred by plaintiff's former Jaw firm involved the na-

ture of the legal representation undertaken and the

contingency upon the happening of which a fee was to be

paid. Resolution of that issue in favor of plaintiff is sup-

ported by the record. We have examined appellant’s con-

tentions, inter alia, that he was prejudiced by an inquiry

into his violation of a Florida municipality’s ordinance

and the receipt of files relating to a prior litigation and

find them lacking in merit.

Order filed.

App. 20

At a term of the Appellate Division of the Supreme

Court held in and for the First Judicial Department

in the County of New York, on October 12, 1976.

Present—Hon. Theodore R. Kupferman, Justice Presiding,

Francis T. Murphy, Jr.,

Vincent A. Lupiano,

Myles J. Lane, Justices.

2978-79

Gustave Simons,

Plaintiff-Respondent,

—against—

Allen H. Applestcin,

Defendant-Appellant.

Appeals having been taken to this Court by the de-

fendant-appeilant from a judgment of the Supreme Court,

New York County (Mertens, J.), entered on March 27,

1975, in favor of plaintiff against defendant in the total

sum of $68,156.20, and from an order of said court en-

tered on July 31, 1975, denying defendant’s motion for a

new trial, and said appeal having been argued by Mr. Sol

I. Sokolsky of counsel for the appellant, and by Mr. Arnold

Bennett Glenn of counsel for the respondent; and due de-

liberation having been had thereon, and upon the memo-

randum decision of this Court filed herein,

It is unanimously ordered that the judgment and or-

der so appealed from be and the same hereby are affirmed.

Respondent shal] recover of appellant $60 costs and dis-

bursements of these appeals.

ENTER: HYMAN W. GAMSO

Clerk.