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Gager v. White

53 N.Y.2d 475 Court N.Y. Decision date 1981-07-07 English

Decision Majority — Fuchsberg, J. · Concurring — *490 Gabrielli, Jones and Wachtler, JJ.

Contents

Majority

p. 475
Lucille Gager, as Administratrix of the Estate of Linda Gager, Deceased, Appellant, v Ronald L. White, Respondent. Mei Yuet Chin, as Administratrix of the Estate of Yu Chin, Deceased, et al., Appellants, v Peter W. Cray, Respondent, et al., Defendant. Adrea Cachat, an Infant by Her Father and Natural Guardian Marc Cachat, et al., Respondents, v J. E. Guertin Co. et al., Appellants; John Scheuer et al., Respondents. Debra Carbone, Appellant, v Gail W. Ericson, Respondent, et al., Defendants. Sallie Hill, Appellant v Clarence Elliott, Respondent.
Argued June 10, 1981;
decided July 7, 1981
p. 477
POINTS OF COUNSEL
Stanley Bryer for appellant in the first above-entitled action.
I. Plaintiff’s reliance on Seider v Roth was justified. (Shaffer v Heitner, 433 US 186 ; Rush v Savchuk, 444 US 320 ; Linkletter v Walker, 381 US 618 .) II. There is no procedural vehicle available to defendant whereby he can raise jurisdictional objections.
Louis G. Adolf sen, Thomas R. Newman and L. Kevin Sheridan for respondent in the first above-entitled action.
I. Since the continued exercise of jurisdiction would violate defendant’s due process rights, this action was properly dismissed. (Firestone Tire & Rubber Co. v. Risjord, 449
p. 478
US 368 ; Shaffer v Heitner, 433 US 186 ; Menna v New York, 423 US 61 ; People v Michael, 48 NY2d 1 ; Linkletter v Walker, 381 US 618 ; Johnson v New Jersey, 384 US 719 ; Desist v United States, 394 US 244 ; People v Morales, 37 NY2d 262 ; United States v Peltier, 422 US 531 ; Handing v United States, 418 US 87 .) II. Since the limited appearance by defendant pursuant to the constitutionally defective order of attachment did not confer personal jurisdiction over him under the CPLR and he timely objected to quasi in rem jurisdiction in his answer, he did not waive any objection to jurisdiction. (Simonson v International Bank, 14 NY2d 281 ; Benadon v Antonio, 10 AD2d 40 ; Simpson v Loehmann, 21 NY2d 305 ; Matter of Zivkovic v Zivkovic, 36 NY2d 216 ; Matter of Hoggard v Hoggard, 45 AD2d 38 ; International Shoe Co. v Washington, 326 US 310 ; Rush v Savchuk, 444 US 320 ; Curtis Pub. Co. v Butts, 388 US 130 ; Johnson v Zerbst, 304 US 458 ; Menna v New York, 423 US 61 ; People v Michael, 48 NY2d 1 .)
Emilio Nunez, Pamela Anagnos Liapakis and Cheryl R. Eisberg for appellants in the second above-entitled action.
I. This court need not apply the United States Supreme Court decision of Rush v Savchuk retroactively where a party reasonably relied on prior law and would suffer manifest injustice and hardship. (Linkletter v Walker, 381 US 618 ; Great Northern Ry. v Sunburst Co., 287 US 358 ; Desist v United States, 394 US 244 ; Stovall v Denno, 388 US 293 ; Lyons v Westinghouse Elec. Corp., 235 F Supp 526 ; Chevron Oil Co. v Huson, 404 US 97 ; Cipriano v City of Houma, 395 US 701 ; Allen v State Bd. of Elections, 393 US 544 ; Hanover Shoe v United States Shoe Mach., 392 US 481 ; Gelpcke v City of Dubuque, 1 Wall [68 US] 175.) II. Rush v Savchuk should not be applied retroactively to this action since plaintiff justifiably relied on the Seider doctrine and would be denied her day in court by a holding of retro-activity. (Harris v Jex, 55 NY 421 ; People ex rel. Rice v Graves, 242 App Div 128 , 270 NY 498 , 298 US 683 ; New York Public Interest Research Group v Steingut, 40 NY2d 250 ; Incorporated Vil. of Northport v Guardian Fed. Sav. & Loan Assn., 87 Misc 2d 344 , 54 AD2d 893 ; Baden v Staples, 45 NY2d 889 ; Donawitz v Danek, 42 NY2d 138 ; Neuman v Dunham, 39 NY2d 999 ; Simpson v Loehmann,
p. 479
21 NY2d 305 , 990; Minichiello v Rosenberg, 410 F2d 106 , 396 US 844 ; O’Connor v Lee-Hy Paving Corp., 579 F2d 194 , 439 US 1034 .) III. Gager v White neither mandates blanket retroactivity nor is considered the controlling authority on the issue of retroactive application of Rush v Savchuk. (Holzsager v Valley Hosp., 493 F Supp 120 ; Erneta v Princeton Hosp., 49 NY2d 829 ; Kalman v Neuman, 102 Misc 2d 662 ; Harris v Balk, 198 US 215 ; Tomaszewski v Cleveland, 103 Misc 2d 355 .) IV. Should this court decide that Rush must be applied retroactively, it should, in the interests of justice, condition dismissal upon the waiver of the defense of the Statute of Limitations in New Jersey. (Barry v American Home Assur. Co., 31 NY2d 684 .)
William Paul Last and Joseph Arthur Cohen for respondent in the second above-entitled action.
I. Shaffer v Heitner should be applied retroactively to pending litigation as it was in Rush v Savchuk. (Shaffer v Heitner, 433 US 186 ; Rush v Savchuk, 444 US 320 ; People v Morales, 37 NY2d 262 ; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65 ; Garlock v Penn Cent. Transp. Co., 53 AD2d 1006 ; Hain v Hewlett Arcade, 40 AD2d 991 ; Sanchez v Hertz Rental Corp., 70 Misc 2d 449 ; Gelbman v Gelbman, 23 NY2d 434 ; Woods v Lancet, 303 NY 349 ; Rumsey v New York & New England R. R. Co., 133 NY 79 .) II. The United States Supreme Court in Shaffer v Heitner and Rush v Savchuk applied the due process test for the benefit of defendant. (Simpson v Loehmann, 21 NY2d 305 , 990; Minichiello v Rosenberg, 410 F2d 106 , 398 US 844 ; Kirchman v Mikula, 443 F2d 816 ; Robinson v Shearer & Sons, 429 F2d 83 ; Kulko v California Superior Ct., 436 US 84 ; Hanson v Denckla, 357 US 235 ; Arnold v Mayal Realty Co., 299 NY 57 ; Gregoire v Putnam’s Sons, 298 NY 119 ; Ratka v St. Francis Hosp., 44 NY2d 604 .) III. Appellants’ reliance on Seider v Roth was patently misplaced. (Reynolds v Snow, 10 AD2d 101 , 8 NY2d 899 ; Shaffer v Heitner, 433 US 186 ; O’Connor v Lee-Hy Paving Corp., 579 F2d 194 , 439 US 1034 .) IV. The decision in Gager v White represents the prevailing appellate judgment on the issue of retroactive application of Rush v Savchuk. (International Shoe Co. v Washington, 326 US 310 ; Morehouse v Volkswagen AG., 74 AD2d 164 ; Tomaszewski v Cleveland, 103 Misc 2d 355 .)
p. 480
V. The conditional granting of dismissal as suggested by appellants has no jurisdictional basis and patently violates the United States Constitution. (Epstein v Sirivejkul, 64 AD2d 216 , 48 NY2d 738 .)
James A. Magee for appellants in the third above-entitled action.
The Supreme Court of the United States has stated that jurisdiction over a nonresident defendant obtained through a Seider attachment is unconstitutional. Therefore, such an assertion of jurisdiction is void. (Donawitz v Danek, 42 NY2d 138 ; Erneta v Princeton Hosp., 49 NY2d 829 ; Harris v Balk, 198 US 215 ; International Shoe Co. v Washington, 326 US 310 ; Rush v Savchuk, 444 US 320 ; Seider v Roth, 17 NY2d 111 ; Shaffer v Heitner, 433 US 186 ; Torres v Towmotor Div. of Caterpillar, 457 F Supp 460 .)
Norman Bard for respondents in the third above-entitled action.
I. Appellants have waived their right to object to lack of jurisdiction by failing to interpose the defense in their answer. (Donawitz v Danek, 42 NY2d 138 ; Seider v Roth, 17 NY2d 111 ; Harris v Balk, 198 US 215 ; Shaffer v Heitner, 433, US 186; Baden v Staples, 45 NY2d 889 ; Competello v Giordano, 51 NY2d 904 ; Smith Co. v Jet Dr. Gen. Mar. Contr. Co., 72 AD2d 576 ; Dutchess Bank & Trust Co. v Holden Constr. Co., 49 AD2d 901 ; Erneta v Princeton Hosp., 49 NY2d 829 ; Morehouse v Volkswagen AG., 74 AD2d 164 ; Uman v Timpane, 77 AD2d 620 ; Gager v White, 78 AD2d 617 .) II. Even if the court finds that there was no waiver by defendant and Rush should be applied retroactively, it should not be so applied to this case. (Desist v United States, 394 US 244 ; Johnson v New Jersey, 384 US 719 ; People v Morales, 37 NY2d 262 ; People v Lynch, 23 NY2d 262 ; People v Heller, 33 NY2d 314 ; People v Dargan, 27 NY2d 100 ; Matter of D. [Daniel], 27 NY2d 90 ; People v Baker, 23 NY2d 307 ; Holzsager v Valley Hosp., 493 F Supp 120 ; Donawitz v Danek, 42 NY2d 138 ; Simpson v Loehmann, 21 NY2d 305 .)
Elliott J. Roberts for appellant in the fourth above-entitled action.
I. Rush v Savchuk does not require a retroactive application of its holding. (Rush v Savchuk, 444 US 320 ; Linkletter v Walker, 381 US 618 ; Seider v Roth, 17 NY2d 111 ; Tehan v Shott, 382 US 406 ; Hanover Shoe v
p. 481
United Shoe Mach., 392 US 481 ; Gelpcke v City of Dubuque, 1 Wall [68 US] 175; United States ex rel. Angelet v Fay, 333 F2d 12 ; Chevron Oil Co. v Huson, 404 US 97 ; Lyons v Westinghouse Elec. Corp., 235 F Supp 526 ; Baden v Staples, 45 NY2d 889 .) II. Erneta v Princeton Hosp. ( 49 NY2d 829 ) does not require retroactive application of Rush v Savchuk. (Danowitz v Danek, 42 NY2d 138 .) III. Defendant-respondent submitted to the quasi in rem jurisdiction of the court and should, therefore, be estopped from seeking dismissal of this action. (Morehouse v Volkswagen AG., 74 AD2d 164 ; Leutloff v Leutloff, 47 Misc 2d 458 ; Ciunci v Wella Corp., 23 AD2d 754 ; La Bate v Meyerbank Elec. Co., 23 AD2d 503 ; Strauss v Douglas Aircraft Co., 404 F2d 1152 .)
Joseph W. Conklin and Raymond J. Pezzoli for respondent in the fourth above-entitled action.
I. Rush v Savchuk does require a retroactive application of its holding. (Rush v Savchuk, 444 US 320 ; Seider v Roth, 17 NY2d 111 ; Erneta v Princeton Hosp., 66 AD2d 669 , 49 NY2d 829 ; Morehouse v Volkswagen AG., 74 AD2d 164 ; Chicot County Dist. v Bank, 308 US 371 .) II. The New York State Court of Appeals has already determined that Rush v Savchuk should be applied retroactively. (Erneta v Princeton Hosp., 49 NY2d 829 ; Donawitz v Danek, 42 NY2d 138 ; Morehouse v Volkswagen AG., 74 AD2d 164 .) III. Defendant-respondent herein preserved its objection to jurisdiction under Seider v Roth.
Donald B. Knight for appellant in the fifth above-entitled action.
I. Appellant justifiably relied upon the attachment procedure to secure quasi in rem jurisdiction and will be put to unfair hardship if the subsequent declaration that this procedure is unconstitutional, is applied and her complaint dismissed. (Seider v Roth, 17 NY2d 111 ; Linkletter v Walker, 381 US 618 ; Mapp v Ohio, 367 US 643 ; Tehan v Shott, 382 US 406 ; Stovall v Denno, 388 US 293 ; Chevron Oil Co. v Huson, 404 US 97 ; Harris v Jex, 55 NY 421 ; People v Kaiser, 21 NY2d 86 ; Rosenstiel v Rosenstiel, 16 NY2d 64 ; People v McQueen, 18 NY2d 337 .) II. This is the first occasion this court has had to rule on the retroactive application of Rush to residents of New York at the time of the accident. (Erneta v Princeton Hosp., 49 NY2d 829 .)
p. 482
Louis G. Adolfsen, Thomas R. Newman and L. Kevin Shieridan for respondent in the fifth above-entitled action.
Since the continued exercise of jurisdiction would violate defendant’s due process rights, this action was properly dismissed. (Firestone Tire & Rubber Co. v Risjord, 449 US 368 ; Shaffer v Heitner, 433 US 186 ; Menna v New York, 423 US 61 ; People v Michael, 48 NY2d 1 ; Linkletter v Walker, 381 US 618 ; Johnson v New Jersey, 384 US 719 ; Desist v United States, 394 US 244 ; People v Morales, 37 NY2d 262 ; United States v Peltier, 422 US 531 ; Hamling v United States, 418 US 87 .)

OPINION OF THE COURT

These five appeals are part of the aftermath of the Supreme Court’s recent decision in Rush v Savchuk ( 444 US 320 ), the effect of which was to vitiate the predicate for quasi in rem jurisdiction pioneered in 1966 by Seider v Roth ( 17 NY2d 111 ). In essence, Seider held that a liability insurance contract issued by a carrier authorized to do business in this State, contingent as its obligations may be, partakes of the character of a “debt” which by its attachment may be made to serve as the foundation for jurisdiction over its nonresident insured defendants. After this holding had survived 14 years of doctrinal dispute, Rush was to declare it violative of due process. The issue now is whether this ruling is to be applied prospectively alone or retrospectively as well.

The cases on which we are to act present typical Seider fact patterns. In each, a New York domiciliary seeks damages for injuries or death sustained in an automobile accident outside the State as a result of the alleged negligence of a nonresident operator or owner of a motor vehicle. Save for the plaintiff’s residence, in all, for all practical purposes, the sole connection with this State was the policy’s availability for attachment.

Because in every instance the cases before us were pendente lite when the Supreme Court administered its coup de grace, they all became the subject of motions to dismiss.

p. 483
These initially were all denied, "nisi prius declining to apply Rush to ongoing cases whose plaintiffs, in choosing this forum and foregoing others, had, as these courts saw it, placed justifiable reliance on New York’s previously consistent, if vigorously contested, course of decisional support for Seider’s jurisdictional analysis (see Baden v Staples, 45 NY2d 889 ; Donawitz v Danek, 42 NY2d 138 ; Neuman v Dunham, 39 NY2d 999 ; Simpson v Loehmann, 21 NY2d 305 , mot for rearg den 21 NY2d 990 ; see, also, O’Connor v Lee-Hy Paving Corp., 579 F2d 194 , cert den 439 US 1034 ; Minichiello v Rosenberg, 410 F2d 106 , affd en banc 410 F2d 117 , cert den 396 US 844 , reh den 396 US 949 ).

The story in the intermediate appellate courts, however, was different. In Cachat v Guertin Co., there was an affirmance, but only because no jurisdictional defense had been interposed. On the other hand, because some type of jurisdictional objection had been raised in the other four, each brought a reversal and dismissal. For the reasons that follow, we now hold that Rush must be applied only when a specific objection to the assertion of jurisdiction founded on the attachment of the out-of-State defendant’s liability insurance policy was preserved by appropriate motion or affirmative defense (CPLR 3211, subd [e]).

Especially since almost every party touches on the matter, our discussion may well start with the reminder that, consonant with the common law’s policy-laden assumptions, a change in decisional law usually will be applied retrospectively to all cases still in the normal litigating process (People v Pepper, 53 NY2d 213 , citing People v Morales, 37 NY2d 262 , 267-268; Kelly v Long Is. Light. Co., 31 NY2d 25 , 29, n 3). By way of departure from this generality, however, where there has been such a sharp break in the continuity of law that its impact will “wreak more havoc in society than society’s interest in stability will tolerate” (Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: “Prospective Overruling” or “Sun-bursting”, 51 Marq L Rev 254 ), it is now recognized that, when adherence to the traditional course is strongly contraindicated by powerful factors, including strong elements

p. 484
of reliance on law superseded by the new pronouncement, a court may direct that it operate prospectively alone (Chevron Oil Co. v Huson, 404 US 97 ; Great Northern Ry. v Sunburst Co., 287 US 358 ).[1]

All the plaintiffs, stressing that the Statute of Limitations now may have foreclosed an action in a forum where jurisdiction would be constitutionally unassailable, argue that theirs are precisely the kind of cases in which retroactive application should be eschewed. But this is by no means a one-sided argument. As the defendants contend, that Seider might turn out to have not been the only possible “true rule” was not without forewarning (see, e.g., Siegel, New York Practice [1978], § 105, p 127; Stein, Jurisdiction by Attachment of Liability Insurance, 43 NYU L Rev 1075 ; Reese, Expanding Scope of Jurisdiction Over Non-Residents — New York Goes Wild, 35 Ins Counsel J 118). Moreover, even if the balance on the issue of prejudice had to be struck in favor of those who preferred to rely on the authoritative pronouncements of the New York courts rather than those of its now clairvoyant critics, the fundamental nature of the jurisdictional determinations in Rush renders conventional criteria for fixing an appropriate line of demarcation for overruling academic. For, a constitutional due process limitation on the power of a State’s exercise of its jurisdiction under our Federal system of government, as distinguished, for instance, from one founded in due process considerations bearing on less fundamental substantive and procedural concerns, is an absolute abnegation of the offending State’s ability to continue to act beyond the boundaries the determination defines.

This observation almost inevitably flows from a review of the conceptual building blocks on which Rush stands. They reflect deviation from what for long had come to be the

1 Although this exceptional technique is usually employed in the criminal law area (see, e.g., People v Pepper, 53 NY2d 213 , supra; People v Morales, 37 NY2d 262 , supra), as the cited cases illustrate, it finds application in the civil sphere as well (see, also, Overruling Decision — Application, Ann., 10 ALR3d 1371 ). It is settled that judgments where the normal appellate process has been exhausted may not be collaterally attacked (Chicot County Dist. v Baxter State Bank, 308 US 371 , 376; cf. Vander v Casperson, 12 NY2d 56 ).

p. 485
accepted standards for identifying the bounds of State court basis jurisdiction.[2]

Epitomized by Pennoyer v Neff ( 95 US 714 ), these were readily divisible into in personam, in which the fulcrum was the person; in rem, which, applicable to designated property, was designed to affect the interests of all persons; or quasi in rem which bore on the interests of particular persons in designated property. The last was of two types. One, like actions to partition land or foreclose a mortgage, was invocable to establish or extinguish claims to or in particular property. The second, the kind involved in the present cases, provided a basis for obtaining a judgment to the satisfaction of which the property on which the jurisdiction was based could be applied though it was not related to the controversy between the parties. (See Restatement, Judgments, §§5-9; Silberman, Shaffer v Heitner: The End of an Era, 53 NYU L Rev 33 , 39.)

Background too was the requirement for “minimum contacts”, integral to “fair play and substantial justice” (see International Shoe Co. v Washington, 326 US 310 , 316), which, at the time Seider came on the legal horizon, had been established as essential to in personam jurisdiction, yet was not requisite for quasi in rem jurisdiction, for which the presence of property alone sufficed (Harris v Balk, 198 US 215 ; Pennoyer v Neff, supra).

But Shaffer v Heitner ( 433 US 186 ) was to eliminate this dichotomy. Noting that “the law of state-court jurisdiction no longer stands securely on the foundation established in Pennoyer” and that “ ‘ “judicial jurisdiction over a thing,” is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing’ Restatement (Second) of Conflict of Laws § 56, Introductory Note (1971)”, it held that “although the presence of the defendant’s property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State’s jurisdiction” (Shaffer v Heitner, supra, pp 206-

2 Basis jurisdiction, sometimes known as “judicial jurisdiction” (Restatement, Conflict of Laws 2d, §§ 24, 68), is to be distinguished from subject matter jurisdiction, which embraces the competence of a court to entertain a particular kind of litigation (Green, Civil Procedure [2d ed], p 13).

p. 486
207, 209 ). This, of course, still left open the question as to whether the presence in the forum of the defendant’s policy and the fact that its carrier was doing business there were enough in the Seider-type case to meet these concerns (see Lowenfeld, In Search of the Intangible: A Comment on Shaffer v Heitner, 53 NYU L Rev 102 ).[3]

In Rush, however, the Supreme Court was to dissipate any differences on this subject. It specifically held that cognizable legal fictions, first that, as a form of property, a debt partakes of 'the situs of the debtor, and, second, that a corporation is to be found wherever it does business, both of which Seider entertained, fell short when no more was present in the forum than the liability insurer and its obligation to defend and indemnify. Furthermore, in defining a forum relationship that would meet The required standards, the court made clear that it is not the relation of the plaintiff who seeks the advantage of its forum of choice that carries weight, but rather that of the defendant against whom.the litigation is targeted.[4] From there it proceeded to arrive at the evaluation that, in a Seider factual framework, “the defendant has no contacts with the forum” (emphasis in original). It was on these foundations, which whatever otherwise has been or can be said on the subject,[5] we have no choice but to accept for the nonce that the Supreme Court concluded that the forum State could impose no binding judgment against a Seider defendant (Rush v Savchuk, 444 US 320 , 328-333, supra).[6]

3 Our court (Baden v Staples, 45 NY2d 889 , supra) and the United States Court of Appeals for the Second Circuit (O’Connor v Lee-Hy Paving Corp., 579 F2d 194 , supra) were of the view that it did.

4 Although some post-Seider decisions theorized that the Seider formulation was tantamount to a direct action statute under which a tort plaintiff in essence was proceeding directly against the coverage so that the carrier’s and not the tort-feasor’s was the interest at stake (see Donnwitz v Danek, 42 NY2d 138 , 142, supra; Miniehiello v Rosenberg, 410 F2d 106 , 109, supra), in Rush, the court found the analogy inappropriate (Rush v Savchuk, 444 US 320 , 330-331, supra).

5 (See World-Wide Volkswagen Corp. v Woodson, 444 US 286 , 299 [Brennan, J., dissenting.] The cited dissent was applied to Rush v Savchuk as well.

6 Though a State may interpret its own statute or State constitutional provision more strictly than the Supreme Court interprets the corresponding provision of the Federal Constitution, it may not do so more broadly (Erlanger Mills v Cohoes Fibre Mills, 239 F2d 502 [SOBELOFF, J.] [North Carolina statute *487 authorizing jurisdiction on a basis broader than the “minimum contacts” of International Shoe Co. v Washington, supra, held invalid]).

p. 487
The searching nature of Rush’s reach for the roots of State judicial jurisdictional power is but a reiteration of the basic principle that “[a] court must have jurisdiction in rem or in personam in order to enter a valid judgment of any kind” (4 Carmody-Wait 2d, NY Prac, § 25:3, p 4; accord Hanson v Denckla, 357 US 235 , 250). So, with significant contemporaneousness, in World-Wide Volkswagen Corp. v Woodson ( 444 US 286 , 291), a companion case to Rush itself, the court took the occasion to remind us, once again, that “[a] judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere” (emphasis added). Thus, as Dean McLaughlin has noted, “if it violates due process to commence an action with jurisdiction resting on the attachment of the defendant’s insurance policy, it is difficult to comprehend why it does not also violate due process to continue such an action” (1980 Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, C314:4, 1980-1981 Supp, pp 137, 138-139; emphasis in text)[7]

And, since as we have seen, basis jurisdiction now focuses on a defendant’s rights (World-Wide Volkswagen Corp. v Woodson, supra; Kulko v California Superior Ct., 436 US 84 , 91), any reliance by plaintiffs is irrelevant. Indeed, inasmuch as lack of such jurisdiction can be asserted even after a defense on the merits has been presented (see Fourth Prelim Rep of Adv Comm on Practice & Procedure, p 187 [1960] ; Harkness v Hyde, 98 US 476 ), it surely must be given effect here.[8]

7 We have found no case in which a holding that the assertion of basis jurisdiction would violate due process was limited to prospective effect. Whatever signpost there is, it goes the other way. So the Supreme Court, though only in dictum in a case concerned with subject matter jurisdiction, recently observed that a jurisdictional ruling by definition can never be so limited (Firestone Tire & Rubber Co. v Risjord, 449 US 368 ). While there is a Third Circuit opinion limiting a holding concerning subject matter jurisdiction (Mc-Sparran v Weist, 402 F2d 867 , 876-877 [en banc], cert den 395 US 903 ), the vitality of that decision would appear to have been sapped by the language in Firestone.

8 For these reasons, we are constrained to reject the provisional contentions of some of the plaintiffs, that, if we hold that their actions do not survive *488 jurisdictionally, their dismissal be conditioned on the defendants’ willingness to stipulate that they will not plead the Statute of Limitations if the suit is pursued in an appropriate forum. Unlike resort to that device in cases of forum non conveniens, which presumes the fact of jurisdiction, where basis jurisdiction is lacking there just is no power to condition the dismissal (Kalman v Neuman, 80 AD2d 116 , 126, n 2 [Lazer, J.]; Foley v Roche, 68 AD2d 558 , 565-566 [Fein, J.]).

p. 488
That, however, is not the end of the matter. Unlike subject matter jurisdiction, which limits the power of a particular court rather than the judicial jurisdiction of the State en gros, a defect in basis jurisdiction is waivable (CPLR 3211, subd [e]). Under the CPLR, the objection may be raised either by a preanswer motion or by pleading it as an affirmative defense, whichever comes first (see Siegel, New York Practice, § 111, p 137; 4 Weinstein-KornMiller, NY Civ Prac, pars 3211.03-3211.05).[9] Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts of our State and, as such, acts as a predicate for basis jurisdiction (see Restatement, Conflict of Laws 2d, § 33; Siegel, op. cit., § 111, p 139; cf. York v Texas, 137 US 15 ; Henderson v Henderson, 247 NY 428 ).[10]

Examining the cases before us to determine whether quasi in rem jurisdiction has been appropriately controverted, we note that specific objections on that score were made in the answers filed in Gager v White and Hill v Elliott. In these cases, the Appellate Division’s dismissal of the complaints being mandatory, there should be an affirmance.

9 Of course, if a defendant has not appeared at all, there is nothing to preclude essaying a collateral attack on jurisdiction (Restatement, Judgments, §11; see, generally, Chief Judge Desmond’s opn in Vander v Casperson, 12 NY2d 56 , 59, supra).

10 Historically, where the initial jurisdiction was in rem or quasi in rem, an appearance, followed by a defense upon the merits, automatically transformed the jurisdictional basis to one that was in personam (see Homburger & Laufer, Appearance and Jurisdictional Motions in New York, 14 Buf L Rev 374, 386-388, 406-408; Frummer, Jurisdiction and Limited Appearance in New York: Dilemma of the Nonresident Defendant, 18 Ford L Rev 73; cf. Restatement, Judgments, §§ 38-40). Later, this practice was replaced by CPLR 320 (subd [c]), which provides that when jurisdiction is quasi in rem, the appearance remains a limited one. Under these circumstances, the defendant is now permitted to defend without submitting to in personam jurisdiction (Siegel, op. cit., § 113, p 140).

Concurrence

p. 489
In contrast, no jurisdictional protest having been lodged in Cachat v Guertin Co., the Appellate Division also was correct when it there found that dismissal was not in order (CPLR 3211, subd [e]).[11]

Lastly, in Mei Yuet Chin v Cray and Carbone v Ericson, the answers raised objection to in personam jurisdiction only.[12] Since, as explained earlier, a defect in the categorically distinct concept of quasi in rem jurisdiction requires a sufficiently particularized pleading to apprise the plaintiff of its nature with sufficient clarity to avoid prejudice by inducing quiescence (compare CPLR 3211, subd [a], par 8, with par 9; see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.15, p 32-66), it follows that the in rem issue must be deemed waived and the Appellate Division orders, which held to the contrary, reversed.

In sum, the orders in Gager v White, Cachat v Guertin Co., and Hill v Elliott should be affirmed, while those in Chin v Cray, and Carbone v Ericson should be reversed and the orders at Special Term in these cases should be reinstated.[13]

(concurring). We concur in result in each of these cases, but cannot accept what appears to us to be the overbreadth of the majority opinion, addressing matters which are not necessary for the resolution of these appeals.

In Erneta v Princeton Hosp. ( 49 NY2d 829 ) our court acknowledged the mandate of the Supreme Court of the United States in Rush v Savchuk ( 444 US 320 ). In there according retroactivity to the new rule of Rush, the court eschewed the opportunity to indulge in an “institutional reassessment of Seider v Roth” (49 NY2d, p 830). It suffices for present purposes to cite Erneta, and to emphasize that in as much as the decision in Rush is predicated on the nonexistence of jurisdiction, that inhibition extends to judicial action of any sort thereby precluding any of the ameliorative remedies which are pressed on us by plaintiffs who may now be foreclosed from all judicial relief. As the Supreme Court, through Justice Marshall, wrote with respect to an absence of subject matter jurisdiction: “A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only” (Firestone Tire & Rubber Co. v Risjord, 449 US 368 , 379).

The only new issue presented in these cases relates to questions of waiver of the right to challenge jurisdiction predicated on a Seider attachment under the Rush decision. We understand the majority to be holding that Rush is to be applied retroactively unless in the individual case, there has been such a waiver by the defendant (in whatever form or by whatever means effectually manifested). We agree with that principle and concur in its application to the five cases now before us. We are in accord as well that in preserving the Rush claim, the defendant must be explicit, by a “sufficiently particularized pleading” or otherwise, to leave no doubt that it is the jurisdictional challenge under what is now the Rush doctrine which is being raised. It will not

11 The nearest thing to a jurisdictional defense in Cachat was a much different claim, that of defective service.

12 In Chin, in his “Sixth Separate and Complete Affirmative Defense”, the answer pleaded that “the court lacks jurisdiction over the person of the defendant”. In Carbone, by way of its “Second Defense”, the answer pleaded that “this Court does not have jurisdiction over the person of the defendant” and, as a “Third Defense”, by way of a limited appearance, pleads that “any judgment * ** * may be satisfied only out of the res allegedly attached”.

13 Finally, the concurrers’ comments- are quickly met: First, Erneta v Princeton Hosp. ( 49 NY2d 829 ), a memoless entry, which, following Rush by days and here on briefs which had no time to treat with Rush or its retroactivity, as Judge Jasen’s Erneta concurrence so correctly implied, did not scratch the surface. Secondly, Erneta was a case involving an infant whose time to bring suit in another jurisdiction was still alive because of the toll of the Statute of Limitations for such plaintiffs. Thirdly, it therefore comes as no surprise that the most current post -Rush comment, emphasizing the need for explication of the issues with which today’s opinion treats and specifically referring to the attention both sides of Rush’s retroactivity issue merit, concludes on the following note: “The magnitude of the impact that [-RmsTi’s] retroactivity will have on tort victims, who walked the red carpet of Seider, thus remains unspoken. And that red carpet was laid down not by legislators, but by judges. Are they really going to pull it in while *490 so many stand on it?” (Siegel, Seider-Overruling Update, New York State Bar Law Digest, No. 257, May, 1981). This more than adequately disposes of the concurring opinion’s predeliction for more summary treatment of this case.

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do to raise challenges to personal jurisdiction over the defendant. Accordingly, as the majority correctly concludes, the defendants in Gager and Hill did not waive their challenges to Seider jurisdiction; the defendants in Mei Yuet Chin, Cachat and Carbone must be held, in consequence of failure to raise the Rush defense, now to have waived it.

Chief Judge Cooke and Judges Jasen and Meyer concur with Judge Fuchsberg; Judges Gabrielli, Jones and Wachtler concur in result in a concurring opinion.

In Gager v White: Order affirmed, with costs.

In Mei Yuet Chin v Cray: Order reversed, with costs, and the order of Supreme Court, Bronx County, reinstated.

In Cachat v Guertin Co.: Order affirmed, with costs. Question certified answered in the affirmative.

In Carbone v Ericson: Order reversed, with costs, and the order of Supreme Court, New York County, reinstated.

In Hill v Elliott: Order affirmed, with costs.

Cases cited