I do not believe that a sufficient predicate existed on which to base personal jurisdiction over these defendants. The defendants were neither actually nor constructively present in the forum State. Since the courts of this State never obtained jurisdiction, a failure to affirmatively assert this objection in a responsible pleading or by motion should not be deemed a waiver.
The singular basis for exercising jurisdiction over the nominal defendants, the Sposatos, was the attachment of their automobile liability insurance policy pursuant to Seider v Roth (17 NY2d 111). The theorized presence of this res, it is argued, was the conduit through which jurisdiction could be asserted. My colleagues conclude, and in my opinion incorrectly, that this underlying jurisdiction was personal. The nonresident defendants were not exposed to even the slightest personal liability. CPLR 320, which defines the circumstances under which the courts of this State can exercise personal jurisdiction over a nonresident, does not include within its ambit the class of defendants in which the Sposatos are now mired. In fact, subdivision (c) of this section specifically states that an appearance by a nonresident, sued for an out-of-State accident, where the only basis for jurisdiction is the attachment of his liability insurance policy does not confer personal jurisdiction.
Additionally, the presence of these defendants in this State remained a fiction. The defendants had little, if any, contacts with New York and certainly not a sufficient quantity or quality of contacts so as to meet the minimum requirements of International Shoe Co. v Washington (326 US 310). As in most Seider-type actions, the Sposatos’ only contact with New York, the forum State, was through their insurer doing business here. A myriad of other factors militate against jurisdiction in New York. “The intangible policy obligations were not in [this] state by the voluntary choice of the insured; other forums existed in which the *415controversy could have been fully adjudicated; it was likely that the law of another state would have been applicable; and New York’s assumption of jurisdiction may have created a risk of multiple liability. The availability of evidence and the expectations of the parties as to the place of suit also pointed to jurisdictions other than New York” (Stein, Jurisdiction by Attachment of Liability Insurance, 43 NYU L Rev 1075,1116-1117).
Moreover, the United States Supreme Court declared that Seider-type attachments were not immune from due process requirements and that any assertion of jurisdiction must conform to the minimum standards of International Shoe (supra). Without the presence of such minimum contacts, the court held that the assertion of jurisdiction, through the device of attaching the liability insurer’s duty to defend and indemnify its insured, conflicted with due process standards. By this holding, the Supreme Court invalidated the jurisdictional predicate over a Seider-type cause of action (Rush v Savchuk, 444 US 320). In emphasizing the contacts approach, the Supreme Court declared that: “Because the party with forum contacts can only be reached through the out-of-state party, the question of jurisdiction over the nonresident cannot be ignored.” (Rush v Savchuk, supra, at p 331.)
Indeed, this question of jurisdiction is central to the problem confronting us. It is obvious from the decisions that predated Rush (supra), and the applicable sections of the CPLR, that the defendants were never exposed to any personal liability, as there was no personal jurisdiction obtained over them. The sole basis for any action against them in this State was the concept created by Seider (supra). When that concept was found to be unconstitutional, the quasi in rem jurisdiction of this State no longer existed in any action brought under Seider (supra). Personal jurisdiction never having been obtained over the defendants, the decision in Rush (supra), in no manner affected the defendants’ personal position.
The majority would take a question of quasi in rem jurisdiction and treat it as one of personal jurisdiction.
Institution of an action in which no valid jurisdiction was *416obtained invalidates that lawsuit ab initio. Since jurisdiction never existed over the defendants, this objection may be asserted at any time.
Silverman and Yesawich, JJ., concur with Bloom, J.; Ross, J. P., and Markewich, J., dissent in an opinion by Ross, J. P.
Order, Supreme Court, New York County, entered on April 22, 1980, affirmed, without costs and without disbursements.
[See 79 AD2d 594.]