Gareen Osserman v. George Osserman

In a matrimonial action, defendant appeals (1) from an order of the Supreme Court, Suffolk County (Thom, J.), dated February 4, 1981, which denied his motion to dismiss the action for lack of in personam jurisdiction based upon the claim that court-ordered expedient service pursuant to CPLR 308 (subd 5) was improper, (2) as limited by his brief, from so much of an order of the same court (Geiler, J.), dated November 13, 1981, as directed defendant to pay $150 per week, pendente lite, for the support and maintenance of the infant issue of the marriage, and (3) from an order of the same court (Geiler, J.), dated November 19, 1981, which denied defendants renewed motion to dismiss the action for lack of in personam jurisdiction based upon the claims that defendant is neither a domiciliary nor a resident of New York, that the matrimonial domicile was not in New York when the parties separated, and that there was no abandonment in New York, and which directed "the defendant and/or his attorney" to appear for examination before trial. Order dated February 4, 1981, affirmed. Order dated November 13, 1981, reversed, insofar as appealed from, and that branch of plaintiffs motion which sought an award of support and maintenance for the infant issue of the parties, pendente lite, is denied. Order dated November 19, 1981, modified, by striking so much of the second decretal paragraph thereof as directs defendants attorney to appear for examination before trial. As so modified, order affirmed. The examination shall proceed at a time and place to be designated by plaintiff in a written notice of not less than 20 days, or at such time and place as the parties may agree. Respondent is awarded one bill of costs. On or about October 9, 1980, plaintiff moved pursuant to CPLR 308 (subd 5) for an order allowing her to commence this divorce action by service of the summons upon defendants attorney, on the ground that service under CPLR 308 (subds 1, 2, 4) was impracticable (see Domestic Relations Law, § 232, subd a). The application was granted, and defendants attorney was served on October 24, 1980. By notice of motion, dated November 10, 1980, defendant, through his attorney, moved to dismiss for lack of personal jurisdiction (CPLR 3211, subd [a], par 8). The claim upon which the motion was based was set forth in the supporting affirmation of defendants attorney as follows: "7 * * * Since the type of service employed does not give this court personal jurisdiction, the summons must be dismissed as [92 A.D.2d 932 Page 933]