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New York courts (CPLR 302 [a] [2])…cont

Consequently, the court has subject matter jurisdiction to issue letters of administration in the decedent’s estate, limited to the administrator defending against the lawsuit and paying any recovery obtained in the action for the tort committed by the nondomiciliary in New York to the extent that such defense and payment are covered by the terms of an insurance policy. Here, inasmuch as the insurer specifically contends that it must be considered a nondomiciliary of New York, the provisions of SCPA 208, which are limited to actions “against a domiciliary,” are not applicable and, in any event, this section should presently be titled “venue” rather than “jurisdiction” as a result of the 1984 amendments to SCPA 205, 206, and 207.

Moreover, a “debt” or “chose in action,” unlike chattel or real property, is not actually located in any specific place; to state that it is situated in one identifiable location is a legal fiction. This is the reason why SCPA 208 (1) refers to a debt against a domiciliary corporation as “deemed personal property in the county where the domiciliary has its principal office”.

Notwithstanding that a debt or the obligation to indemnify of a domestic corporation is deemed personal property situated within the county where the principal office of the corporation is situated, the Court of Appeals stated in the above case that “an exception appears to have been recognized for the purpose of issuing letters on estates of deceased persons in the case of insurance companies authorized to do business in this State even though incorporated elsewhere, at least where the policies have been issued in this State.” It is worthy of note that there were at least two factors present in the case which might be a reason to require a stronger nexus between the alleged “property” of the nondomiciliary and New York than should be required in this matter.

In a case, since the injury plaintiff was injured in Wyoming by the alleged negligence of an Illinois domiciliary, the court concluded that the plaintiff’s New York action could not be “continued generally in personam against the Illinois executor ” Here, jurisdiction over the decedent or his fiduciary in New York is warranted because the tort was committed in New York by a person operating a motor vehicle with a New York license. Moreover, here, unlike in the case, no fiduciary had been appointed in the decedent’s domiciliary state who could be served with process in that state or any other state. This case has nothing to do with forum shopping. The underlying action should be tried in New York, the state where the accident occurred, the only state where anyone sought to have a fiduciary appointed for the decedent and the state in which the decedent possessed a property right, i.e., the obligation of his insurer to defend and indemnify him for any recovery obtained in the injury negligence action.

Inasmuch as there is no due process constitutional impediment to commencing an action against a nondomiciliary decedent in New York for a tort committed in New York, the fact that the decedent owned an insurance policy that obligates the insurer to provide a defense to the New York action, standing alone, is sufficient under SCPA 206 to be deemed properly situated in New York. This confers subject matter jurisdiction in the Surrogate’s Court in New York to issue temporary letters of administration in the estate of the nondomiciliary, limited to the insurance coverage, in those matters where no fiduciary has been appointed in the decedent’s domiciliary state. Such an interpretation of SCPA 206 is supported not only by its express language but also by the public policy enunciated in Vehicle and Traffic Law § 253, which appoints the Secretary of State as the nonresident’s attorney upon whom the summons may be served.

SCPA 210 (2) (a), providing that the Surrogate’s “Court may exercise personal jurisdiction over any non-domiciliary, or his fiduciary, as to any matter within the subject matter of the court arising from any act or omission of the non-domiciliary within the state,” is an additional indication of legislative intent, authorizing the issuance of limited letters of administration under the facts of this case.

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