Erneta v. Princeton Hospital

Order. Sunreme Court, New York County, entered January 25, 1978, granting the motion of defendants Wilson and Peter to strike a prior order of attachment, pursuant to Seider v Roth (17 NY2d 111), and to dismiss the causes of action against said defendants for lack of jurisdiction, reversed, on the law, with $75 costs and disbursements of this appeal to appellants, and the motion denied. Notwithstanding Shaffer v Heitner (433 US 186), the Seider v Roth doctrine is alive. (See Baden v Staples, 45 NY2d 889.) As the dissent accurately points out, plaintiffs in this malpractice action were not residents of New York at the time of the alleged malpractice. The moving defendants are residents of New Jersey, where the malpractice is alleged to have taken place. At the time of the commencement of this action and for some time earlier, plaintiffs were residents of this State. No challenge is made to the bona fides of that residency. In fact, it is alleged that the infant plaintiff, now nine years of age, who suffered severe brain damage from the claimed malpractice, is presently being treated at New York City hospitals and that her schooling, therapy, and guidance are to a large degree being subsidized by the City and State of New York. We do not see that plaintiffs' nonresidence in New York at the time of the alleged malpractice is a factor sufficient to deny them the right to the Seider v Roth quasi in rem attachment remedy. A third defendant, the hospital, a New Jersey domiciliary, over which jurisdiction has also been obtained pursuant to a Seider v Roth attachment, has appeared and has withdrawn its affirmative defense of lack of jurisdiction. The action will proceed against that defendant, in any event. The moving defendants’ insurer transacts business in New York. It is in control of this litigation, has selected defense counsel, and will be in a position to make all strategic decisions. (See, e.g., Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 167.) The insurer’s obligation to defend and indemnify that which is the subject of this litigation is an attachable debt. (CPLR 5201; Simpson v Loehmann, 21 NY2d 305.) Consequently, we find "minimum contacts” among the defendant, the State, and the litigation, such that the maintenance of this action does not offend "traditional notions of fair play and substantial justice.” (Cf. International Shoe Co. v Washington, 326 US 310, 316.) Concur—Kupferman, Lupiano and Sullivan, JJ.