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SUCREST CORPORATION v. FISHER GOVERNOR COMPANY (04/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


April 10, 1969

SUCREST CORPORATION, RESPONDENT,
v.
FISHER GOVERNOR COMPANY, INC., APPELLANT, ET AL., DEFENDANTS

Concur -- Stevens, P. J., Eager, Capozzoli, Markewich and Steuer, JJ.

Orders entered December 6, 1968, unanimously affirmed without costs and without disbursements. Special Term denied defendant's motion to dismiss the complaint for lack of jurisdiction with leave to renew after plaintiff completed taking a deposition ordered on plaintiff's cross motion. In the view we take of the application to examine, this disposition is correct. We also believe the deposition to have been properly ordered. However, we fear that the terms of the order may not be interpreted correctly, hence this clarifying memorandum. Jurisdiction was challenged on two grounds: that the person served was not managing agent of the moving corporate defendant; and that the minimum contact to allow service without the State (CPLR 302) did not exist. Plaintiff moved to take defendant's deposition pursuant to CPLR 3211. Before such a deposition may be ordered it must be shown that facts may exist which would confer jurisdiction but that plaintiff is unable to state them as of knowledge (see Practice Commentary, CPLR 3211, subd. [d], McKinney's Cons. Laws of N. Y., Book 7B; Smith v. Aztec Resort Motel, 21 Misc. 2d 548). The record reveals sufficient to allow examination on the issue of whether service on the person served conferred jurisdiction. The examination should be limited to that issue only.

19690410

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