Erneta v. Princeton Hospital

Murphy, P. J., and Yesawich, J.,

dissent in a memorandum by Yesawich, J., as follows: I dissent and would affirm the order on appeal. While Seider v Roth (17 NY2d 111) attachments are still allowable even after Shaffer v Heitner (433 US 186; see Baden v Staples, 45 NY2d 889), here the plaintiffs were not residents of New York at the time the cause of action accrued. Although there appears to be no dispute they were bona fide residents when the action was commenced, and are now, their nonresidency when the action accrued is a circumstance which militates against extending Seider. The underlying purpose of Seider and Simpson v Loehmann (21 NY2d 305), and their progeny, in permitting attachment of a defendant’s liability insurance policy is to afford a convenient forum for resident plaintiffs. But in those cases the plaintiffs in fact were New York residents at the time they claimed to have suffered injury. That a plaintiff’s domiciliary interest is of critical importance in a Seider-type attachment was clearly indicated in Donawitz v Danek (42 NY2d 138, 142) where a majority of the court considered the insured’s duty to defend and indemnify, which has been found to be an attachable debt, a "special type of contract duty” of insufficient substance to support quasi in rem jurisdiction over a nonresident plaintiff and refused to expand the Seider-Simpson doctrine to embrace a plaintiff who was neither a resident at the time the cause of action accrued nor when suit was commenced. In light of the court’s reluctance to expand this doctrine, assertion of jurisdiction in this instance would be an unwarranted extension of Seider where New York had no interest at all in the controversy at the time it arose or for several years thereafter. (Fish v Bamby Bakers, 76 FRD 511; cf. Farrell v Piedmont Aviation, 411 F2d 812, cert den 396 US 840.)