## Facts

- A Vermont motor vehicle accident allegedly injured John J. Foley, a New York resident, when his vehicle was struck by a car owned by Mary E. Roche and driven by John Tyzbir, both New Jersey residents.
- Foley sued Roche and Tyzbir in New York Supreme Court, New York County, seeking damages for personal injuries.
- Foley obtained an attachment order against Roche’s automobile liability policy, aiming to seize the insurer’s contractual duty to defend and indemnify; the policy was attached and defendants were served in New Jersey.
- Defendants moved to vacate the attachment and dismiss for lack of jurisdiction; the motion was initially denied, and defendants later reasserted jurisdictional defenses in their answer.
- Venue was changed to Nassau County; Foley sought to strike jurisdictional defenses, and the matter returned to the original justice for reconsideration.
- After Shaffer v. Heitner, the trial court determined the insurance attachment did not supply constitutionally sufficient minimum contacts and that New York lacked personal jurisdiction over defendants.
- The trial court dismissed and vacated the attachment, but conditioned that relief on defendants accepting service in a new New Jersey action and waiving statute of limitations defenses (with a limited exception tied to availability in New York).
- Defendants appealed only the imposition of those conditions.

## Issues

1. Whether a New York court that determines it lacks personal jurisdiction over nonresident defendants may condition dismissal and vacatur of an attachment on defendants’ agreement to accept service and waive statute of limitations defenses in a new action in another state.

## Decision

- The Appellate Division modified the order by deleting the conditions.
- The court directed an unconditional dismissal for lack of jurisdiction and an unconditional vacatur of the attachment.

## Legal Principles

- After Shaffer v. Heitner, quasi in rem jurisdiction must satisfy International Shoe minimum contacts; attaching an insurer’s obligation alone does not establish jurisdiction over nonresident insureds absent sufficient contacts with New York.
- When a court lacks personal jurisdiction, its power is limited to dismissing the action and vacating jurisdictional attachments; it may not impose coercive conditions affecting parties’ rights or defenses in another forum, such as compelled acceptance of service or waiver of statute of limitations defenses.

## Conclusion

The court held that once New York lacked personal jurisdiction and the insurance-based attachment could not support jurisdiction, the action had to be dismissed and the attachment vacated without conditions requiring defendants to submit to process or waive defenses in a different state.


Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588 (N.Y. App. Div. 1st Dep’t 1979)