R 320.Defendant’s appearance.

Subd (a) is based upon the first sentence of CPA § 237. It prescribes what the defendant served with a summons must do to avoid a default for want of appearance. The phrase “a motion which has the effect of extending the time to answer” is used rather than a “motion raising an objection to the complaint in point of law,” as in the CPA provision, or “a motion under rule 3211,” because there are other kinds of motions that extend the time to answer beyond twenty days after the service of the summons and that should suffice to avoid a default—e. g., a motion to correct pleadings ( CPLR rule 3024). The extension of time to appear to 30 days after certain kinds of service parallels the similar provision that was added to CPLR § 3012, regarding service of an answer. Since the purpose of the provision to extend the time to appear, whether by answer or either of the other methods specified in this subdivision, it is helpful to retain it both here and in § 3012. Section 239 of the CPA is omitted. It derived, together with CPA §§ 206 and 224, from § 473 of the Throop Code. Sections 206 and 224 prescribed an alternative procedure for appointment of a guardian ad litem to represent an infant defendant who was a nonresident or temporarily absent from the state. Designed to eliminate the cost of publication, they have been omitted as unnecessary in the new CPLR rules (see introduction to title); and consequently CPA § 239, governing the time to appear after this procedure is used, is also unnecessary.

Subds (b) and (c) are new. They replace the last sentence of CPA § 237, providing that a voluntary general appearance is equivalent to personal service, and CPA § 237-a, providing for a special appearance to contest jurisdiction over the person. The provisions abolish the special appearance, allowing an objection to jurisdiction over the person to be raised either by motion under new CPLR 3211 or in the answer. The objection is waived if not raised by one of these two methods. The objection that the court does not have jurisdiction of a thing involved in the action, referring to in rem and quasi in rem actions, is treated the same way. This objection was not specifically provided for in the former provisions. It is covered in new CPLR rule 3211(a), together with the objection to jurisdiction over the subject of the action or of the party’s person. The term “appearance” is used in the subdivisions instead of “voluntary general appearance”; since the special appearance is eliminated there is no need to distinguish it from the “general” appearance. Since the preliminary special appearance to contest personal jurisdiction is eliminated and the objection is to be raised with other defenses or objections in a motion or by answer, the rule of the last sentence of CPA § 237 that a voluntary general appearance confers personal jurisdiction has been changed. Subd (b) provides instead that an appearance confers such jurisdiction only if the defendant has waived the objection by failing to raise it in the proper manner. If he has so raised it the appearance does not confer jurisdiction; the objection may be joined with other defenses and, if denied, may be urged again on appeal. Federal rule 12, which also eliminates the special appearance, accomplishes the same result by providing that “[N]o defense or objection is waived by being joined to one or more other defenses or objections in a responsive pleading or motion.” However, the Federal rule fails adequately to meet a problem that arises in rem or quasi in rem actions, where jurisdiction is based on an attachment or the action involves property in the state, or marital status. In such actions, the question arises whether a defendant may make an appearance limited to contesting the in rem claim without subjecting himself to personal jurisdiction. For example, if the plaintiff has a claim for an amount greater than the value of the attached property, the defendant may wish to defend, to prevent application of that property to satisfaction of the claim, without subjecting himself to a personal judgment against him for the entire amount; or in a marital action a defendant may wish to contest the claim for divorce without subjecting himself to a judgment for alimony. Whether a defendant may make such a limited appearance has produced a wide divergence of opinion among courts and commentators. Compare, e. g., Salmon Falls Mfg. Co. v Midland Tire and Rubber Co. 285 Fed 214 (6th Cir 1922), Cheshire National Bank v Jaynes, 224 Mass 14, 112 NE 500 (1916), and Fidelity and Casualty Co. v Bank of Plymouth, 213 Iowa 258, 237 NW 234 (1931), with Grant v Kellogg Co. 3 FRD 229 (SDNY 1943), Kaiser-Frazer Corp. v Eaton, 46 Del 509, 85 A2d 752 (Super Ct 1952), and State ex rel. Methodist Old People’s Home v Crawford, 159 Ore 377, 80 P2d 873 (1938); see 2 Moore, Federal Practice par 12.13 (2d ed 1948); Frumer, Jurisdiction and Limited Appearance in New York; Dilemma of the Nonresident Defendant, 18 Fordham L Rev 73 (1949); Frumer & Graziano, Jurisdictional Dilemma of the Nonresident Defendant in New York—A Proposed Solution, 19 Fordham L Rev 125 (1950); Note, “Special” Appearances to Contest the Merits in Attachment Suits, 97 UPaLRev (1949); Note, Effect of a General Appearance to the In Rem Cause in a Quasi In Rem Action, 25 IaLRev 329 (1940). The few lower court cases in New York that have considered the question have decided against such a limited appearance in the attachment situation ( Perlak v Goodyear Tire & Rubber Co. 140 NYS2d 675 (Sup Ct 1955); Burg v Winquist, 124 NYS2d 133 (Sup Ct 1953); Swift v Tross, 55 How Prac 255 (Sup Ct 1878)) and in the marital action situation. Brainard v Brainard, 272 App Div 575, 74 NYS2d 1 (1st Dept 1947), affd mem, 297 NY 916, 79 NE2d 744 (1948). But cf. Paprin v Bitker, 64 NYS2d 289 (Sup Ct 1946); Zeide v Flexser, 175 Misc 911, 25 NYS2d 610 (Sup Ct 1941); see Frumer & Graziano, 18 Fordham L Rev supra at 79–80; Frumer & Graziano, 18 Fordham L Rev supra at 142–43. The Restatement of Judgment sanctions such a limited appearance but only in the attachment situation. Rest Judgments § 40. A compromise position has been advanced whereby defense to the in rem claim would subject the defendant to personal jurisdiction only as to causes of action stated in the original complaint and any subsequently added that form “part of the same transaction” as the in rem claim. Frumer & Graziano, 18 Fordham L Rev supra at 125, 151. The conflicting policy considerations are simply stated: a rule prohibiting a limited appearance forces the defendant to choose between defaulting on the in rem claim or submitting to personal jurisdiction; on the other hand, it affords a lever for obtaining personal jurisdiction over absent or non-resident defendants, whereby all the claims between the parties may be settled at one time and a multiplicity of suits avoided. The position taken in subd (c) is basically in accord with that of the New York lower court decisions denying any right to a limited appearance. Since the submission to personal jurisdiction by defending the in rem claim rests upon the doctrine of appearance as a consent to jurisdiction, this result is difficult to reach under the formulation of Federal rule 12 that no defense or objection is waived by being joined with any other defense or objection (see United States v Balanovski, 236 F2d 298 (2d Cir 1956), affirming 131 F Supp 898 (SD NY 1955), because that formulation conflicts in principle with the doctrine that an appearance is a waiver of any objection to personal jurisdiction. Nevertheless, the Federal decisions that have reached the result of no limited appearance have relied upon the latter doctrine, either ignoring rule 12 or arguing that it should not be “tortiously construed in circumstances like the present to promote unnecessary litigation.” United States v Balanovski, 236 F2d 298, 303 (2d Cir 1956) (per Clark, C.J.). Neither the Federal rule nor the last sentence of CPA § 237 meets the limited appearance problem, and subd (c) has been drafted as new. Under its terms, a defendant may object to in rem jurisdiction, or to the joinder of an in personam claim where only in rem jurisdiction exists without subjecting himself to personal jurisdiction. If he does not proceed after making the objection, he can default on any in rem claim for which jurisdiction has been sustained and avoid personal liability, but if he proceeds to defend it, he is subjected to full personal jurisdiction in the action. If an appellate court reverses a lower court determination that in rem jurisdiction exists, however, the defendant’s appearance will not be equivalent to personal service even if he continued with the defense after making his objection, since the rule only applies if the court has acquired at least in rem jurisdiction.

Subd (d) is new. It obviates the need to continue publication once the defendant has appeared. It also solves the problem which might otherwise arise where the statute of limitations runs after publication was commenced but before the defendant actually appeared. Under the proposal the appearance will be deemed to have been made at the time of first publication.

1977 Recommendations of the Committee to Advise and Consult with the Judicial Conference on the Civil Practice Law and Rules:

CPLR 320(a), which governs appearance procedure, would be amended by adding a final sentence to make a cross-reference to subdivision (b) of CPLR 3012 which as proposed to be amended would grant an extension of the time to appear to a defendant who makes a timely demand for the complaint (see infra).

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd by Judicial Conference, eff Sept 1, 1964; by Judicial Conference, eff Sept 1, 1969; L 1970, ch 852, § 2; L 1978, ch 528, § 3, eff Jan 1, 1979.