85 Misc. 2d 965
PROCEDURAL HISTORY: In plaintiff holder's action on a promissory note, where only defendant guarantor defended the action, the court considered the guarantor's motion to dismiss. The primary defense asserted was that the court lacked personal jurisdiction because his summons was improperly served upon him on a day when he came into the state for a court appearance.
- The guarantor, who resided in New Jersey, contended that service was invalid because he was served with a summons while he was in New York voluntarily attending a traverse hearing in a previous action based on the same note.
-Although New York exempted from service of civil process a nonresident party or witness who came to the state voluntarily to attend court, the rule did not apply to the guarantor because was otherwise readily amenable to service, as he came to New York daily.
-Further, service could have been had pursuant to N.Y. C.P.L.R. 302, subd. (a), para. 1, New York's long-arm statute, because the case concerned a note that the guarantor signed in New York. -Defendant signed both as president of a New York corporation and as an individual.
-The corporate business and the guarantor's personal economic activity all took place in New York.
-A previous action was dismantled by a written judicial decision just a week after this one was begun and service of the summons was not a harassment, so N.Y. C.P.L.R. 3211, subd. (a), para. 4 did not require the court to dismiss the case. A request for another trial failed because it was informal, unsubstantiated, and untimely.
Under most general circumstances, New York exempts from service of civil process a nonresident party or witness who comes to the State voluntarily to attend court.
-This rule allows nonresidents to participate in New York trials without fear that they are subjecting themselves to other lawsuits here.
-It is calculated to encourage voluntary attendance upon courts and to expedite the administration of justice.
-The immunity rule does not apply to all nonresidents, nor to all cases.
-An out-of-stater who is otherwise readily amenable to service does not need this rule to encourage his in-State appearance, and so he cannot claim its protection.
CONCLUSION: The motion to dismiss was denied.
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