STEVEN M. GARBER & ASSOCIATES v. ZUBER, KIM JOHN ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
891
CA 10-02518
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.
STEVEN M. GARBER & ASSOCIATES, A PROFESSIONAL
CORPORATION, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
KIM JOHN ZUBER, DEFENDANT-APPELLANT,
ET AL., DEFENDANT.
HARTER SECREST & EMERY LLP, ROCHESTER (THOMAS G. SMITH OF COUNSEL),
FOR DEFENDANT-APPELLANT.
PETER M. AGULNICK, P.C., GREAT NECK (PETER M. AGULNICK OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered October 21, 2010. The order granted the
motion of plaintiff for summary judgment in lieu of complaint.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: By motion for summary judgment in lieu of complaint
pursuant to CPLR 3213, plaintiff commenced this action to enforce a
judgment entered in California upon the default of Kim John Zuber
(defendant). Contrary to defendant’s contention, Supreme Court
properly granted the motion. “Absent a jurisdictional challenge, a
final judgment entered upon the defendant’s default in appearing in an
action is . . . entitled to be given full faith and credit in the
courts of this State” (GNOC Corp. v Cappelletti, 208 AD2d 498; see
Fiore v Oakwood Plaza Shopping Ctr., 78 NY2d 572, 577, rearg denied 79
NY2d 916, cert denied 506 US 823). Here, the record establishes that
the California court had jurisdiction over defendant and that
defendant admits that process was properly served upon him in New York
(cf. Vertex Std. USA, Inc. v Reichert, 16 AD3d 1163). We agree with
the court that plaintiff established that defendant had “certain
minimum contacts with [California] so that the maintenance of the suit
[there] would not offend traditional notions of fair play and
substantial justice . . . and [that defendant] has purposefully
[availed himself] of the privilege of conducting activities within the
forum State, [i.e., California,] thus invoking the benefits and
protections of its laws” (Money-Line, Inc. v Cunningham, 80 AD2d 60,
62; see Hanson v Denckla, 357 US 235, 253, reh denied 358 US 858;
-2- 891
CA 10-02518
International Shoe Co. v Washington, 326 US 310, 316).
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court