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CPLR 5015(a)(3) and (4)…cont

Based upon the evidence adduced at the hearing herein, including the fact that the physical description in the affidavit of service of the individual allegedly served differed considerably from the physical appearance of defendant, and the further fact that the process server failed to identify him in court as the person upon whom he had served process, there was a more than adequate basis for the hearing court’s determination that he was never personally served with process. Accordingly, we conclude that Special Term properly held that personal jurisdiction over he was not acquired by personal service of process upon him.

However, as indicated, we disagree with Special Term’s conclusion that having determined the question of acquisition of jurisdiction by service of process against the plaintiff, the issue of whether the attorney’s appearance on behalf of the defendant was authorized becomes moot. To the contrary, once it was found that personal injury jurisdiction had not been acquired, the court should have shifted its focus to the question of whether the appearance by the attorney on defendant’s behalf amounted to a waiver of the right to challenge jurisdiction. An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer. By statute, a party may appear in an action by attorney, and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction.

Simply stated, the rule, which traces its origin to English case law, holds that the unauthorized acts of a duly admitted attorney may serve to extend jurisdiction over a New York resident who has not otherwise subjected himself to the jurisdiction of the court. From its accident inception, however, the rule has been criticized and its original scope has been narrowed.

The rule that a defendant will ordinarily be precluded from attacking a judgment entered against him on the ground that personal jurisdiction was conferred simply by virtue of an unauthorized appearance was first enunciated in New York case.

Thus, from the outset, there was an awareness of the unfairness that strict adherence to the rule might work, both as to those defendants who had a meritorious defense to the claim made against them and to those who were without recourse against the errant attorney. It bears noting that the Denton case was decided over a vigorous dissent by Judge, who argued that a close examination of the English cases cited by the majority in support of the rule revealed that they were distinguishable in various respects from the facts before the court. The majority position prevailed, however, and the Denton rule was thereafter followed during the early and middle part of the nineteenth century. Throughout, however, the rule remained the subject of strong criticism and dissent.

Nor do we find adequate the other remedy proposed by Denton of allowing a defendant to institute an action for damages against the attorney who made the unauthorized appearance. Such a remedy subjects an innocent party to the burden of instituting a new proceeding against an attorney. Moreover, like our colleagues of the Third Department in, we “fail to see how an attorney’s solvency can validate an otherwise void judgment entered against a person over whom personal jurisdiction was not obtained”.

In light of what we perceive to be the inadequacy of the remedies available to a defendant who finds himself bound by a judgment in an action in which an attorney made an unauthorized appearance on his behalf, we are obviously not persuaded by the further contention set forth in Denton that unauthorized appearances rarely occur and that even when they do “no very serious injury can result”). The infrequency of occurrence is of little solace to defendant and those like him who find themselves bound by a judgment entered on an unauthorized appearance. Furthermore, it is not always the case that the ill effects of an unauthorized appearance are slight. A judgment may subject a party to great financial hardship and, as previously noted, we find the alternative remedies available to such a party to be far from adequate.

Accordingly, we conclude that jurisdiction was not acquired over the defendant since he was never served with a summons and did not voluntarily submit to the court’s jurisdiction. In light of this fundamental jurisdictional defect, we hold that as against defendant the judgment entered herein, predicated upon jurisdiction based upon an unauthorized appearance, is void and, therefore, the order appealed from, which vacated the judgment as to him, should be affirmed.

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