Micha v. Hnasko

¶1dissent and vote to affirm in the following memorandum by Sweeney, J. Sweeney, J. (dissenting). We disagree with the *921result reached by the majority and, therefore, dissent and vote to affirm. Special Term’s granting of permission to defendant to amend his answer was, in our view, not an abuse of discretion. The record clearly demonstrates that when plaintiff initially sought permission to attach defendant’s insurance policy pursuant to Seider v Roth (17 NY2d 111) defendant opposed the application. His attorney stated in an affidavit that the matter was adjourned to give both counsel an opportunity to submit briefs in view of the uncertainty as to the validity of the Seiderholding following the decision in Shaffer v Heitner (433 US 186). The issue is one of waiver. The record manifestly establishes that defendant did not waive his objection concerning jurisdiction. Furthermore, we are unable to accept the majority’s narrow and restricted interpretation of Gager v White (53 NY2d 475). Finally, it should be noted that the instant case is readily distinguishable from our recent case of Carmen v West Hudson Hosp. (84 AD2d 875) where the application for the attachment of the insurance policy was, unlike in the instant case, made without objection. The objection in Carmencame much later after years of participation in the litigation and after the decision in Rush v Savchuk (444 US 320). We properly concluded this was a waiver. The defendant in the present case sufficiently challenged the validity of the jurisdiction found unconstitutional in Rush so as to allow the application of Rushto the present case. There should be an affirmance.