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EVERITT v. EVERITT
Factual and Procedural Background
Plaintiff Robert H. Everitt served a summons on defendant Deborah R. Everitt, a nonresident, which included a notice that a default judgment could be taken for $46,900. Defendant responded by filing a general notice of appearance and requested that a copy of the complaint be served on her attorneys. The complaint contained three causes of action: first, to recover $46,900 on an express contract; second, to recover $1,500 based on an alleged subsequent modification of the contract; and third, to recover $350,000 for libel. The defendant moved to strike the second and third causes of action on the ground that the court’s jurisdiction over her was limited to the amount stated in the summons notice. The Special Term granted the motion to strike those causes of action, and this appeal followed.
Legal Issues Presented
- Whether the notice on the summons limiting the amount for which a default judgment could be taken restricts the court’s jurisdiction over a defendant who has appeared generally.
- Whether the court properly struck the second and third causes of action on the basis of jurisdictional limitations arising from the summons notice.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mendoza v. Mendoza, 4 Misc.2d 1060, affd. 273 App. Div. 877, appeal dismissed 297 N.Y. 950 | Permitting amendment of complaints to add or change causes of action after service, especially when defendant appears generally. | Supported the court’s conclusion that the plaintiff could allege additional causes of action beyond those stated in the summons notice once the defendant appeared generally and received the complaint. |
| Chapman v. Chapman, 284 App. Div. 504, 514 | Discussed limitations on jurisdiction and notice requirements under the Restatement of Judgments (§ 5, comment g). | The court distinguished this case as non-controlling because it involved a question of fact about notice and due process in a summary judgment context, whereas here the defendant had appeared generally and had proper notice. |
| Subsequent explanation in 285 App. Div. 991 and 4 Misc.2d 64 | Clarified the importance of notice and general appearance in establishing jurisdiction and due process. | Reinforced that a general appearance without limitation and receipt of notice satisfies due process, supporting the court’s jurisdiction over all causes of action. |
Court's Reasoning and Analysis
The court analyzed the effect of the notice on the summons under Rule 46 of the Rules of Civil Practice, noting that such notice is permissive ("may" be given) and intended to facilitate default judgments without court application in certain contract actions. Because the defendant did not default but instead appeared generally and requested the complaint, she submitted to the court’s jurisdiction for all purposes. The notice on the summons only operates in the event of default and does not limit the plaintiff’s ability to allege additional causes of action in the complaint. The court cited Mendoza v. Mendoza to illustrate that after service of the complaint, amendments or additional claims are permissible. The court rejected contrary dicta in Chapman v. Chapman, distinguishing it on grounds of due process and notice. The defendant had ample opportunity to defend all causes of action, having appeared generally and received the complaint. The court noted alternative procedural options available to the defendant to contest jurisdiction or obtain the complaint without submitting to general jurisdiction. Accordingly, the court concluded that the striking of the second and third causes of action was improper.
Holding and Implications
The order striking the second and third causes of action was reversed, and the defendant’s motion to strike was denied without costs.
The decision directly reinstates the plaintiff’s additional causes of action and confirms that a defendant’s general appearance constitutes submission to the court’s jurisdiction for all claims, regardless of the notice on the summons. No new precedent was established beyond the application of existing principles regarding jurisdiction, notice, and general appearance.
Per Curiam.
Plaintiff served a summons on defendant, a nonresident, bearing a notice that in the event of default judgment would be taken against her for the sum of $46,900. Defendant interposed a general notice of appearance and demanded that a copy of the complaint be served upon her attorneys. The complaint contained not only a first cause of action to recover the sum of $46,900 on an express contract, but a second cause of action to recover $1,500 on an alleged subsequent modification of the contract, and a third cause of action to recover $350,000 for libel. Defendant's motion to strike out the second and third causes of action on the ground that she was not subject to the jurisdiction of the court for anything other than the amount stated in the notice appearing on the summons was granted by Special Term.
The court's jurisdiction over defendant is not limited by the notice which appeared on the summons pursuant to rule 46 of the Rules of Civil Practice. Such a notice is not mandatory, for the rule provides that it "may" be given with the summons, thus enabling the plaintiff to have the clerk enter a default judgment in certain contract actions without application to the court (Civ. Prac. Act, § 486). Defendant did not default, however, but entered a general appearance and demanded a copy of the complaint. When defendant appeared generally she submitted to the jurisdiction of the court for all purposes. The notice on the summons, operative only in the event of default, does not preclude plaintiff from alleging in his complaint other or additional causes of action which were not or could not be comprehended within the notice. After service of the complaint plaintiff could amend it to increase the demand for damages, change his theories of recovery, substitute different causes of action, or add new causes of action ( Mendoza v. Mendoza, 4 Misc.2d 1060, affd. 273 App. Div. 877, appeal dismissed 297 N.Y. 950).
The dictum to the contrary in Chapman v. Chapman, ( 284 App. Div. 504, 514) based upon the Restatement of Judgments (§ 5, comment g) is not controlling. As subsequently explained ( 285 App. Div. 991), the case first arose on a motion for summary judgment, and there was a question of fact as to whether the defendant had been given notice of the amendment of the complaint in a Vermont action and whether he had been afforded a reasonable opportunity to defend against it. Upon the subsequent trial it was developed that the defendant had appeared generally, without limitation on the authority of his attorney or on the nature of his appearance, and that he had been given notice of the amendment through his attorney, so that there was no denial of due process ( 4 Misc.2d 64).
Defendant here has appeared generally, has designated counsel to act for her, has received a copy of the complaint, and will have just as ample an opportunity to defend against the second and third causes of action as she has to defend against the first. Other alternatives were available to the defendant. For example, she could have appeared specially to contest jurisdiction, or without making any appearance she could have first demanded a copy of the complaint (Civ. Prac. Act, § 257).
The second and third causes of action stated in the complaint were improperly stricken. The order appealed from should be reversed and the motion denied, without costs.
BREITEL, J.P., BOTEIN, RABIN, VALENTE and McNALLY, JJ., concur.
Order unanimously reversed and the motion denied.
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