Foley v. Roche

John Foley (plaintiff) filed suit in the Supreme Court, New York County against New Jersey residents Mary Roche and Tyzbir (defendants) in connection with a Vermont car accident. After Foley successfully attached Roche’s car insurance policy, Roche and Tyzbir moved to vacate the attachment and to dismiss the complaint due to the asserted lack of personal and subject-matter jurisdiction (jurisdictional defenses). In April 1977, Justice Kirschenbaum of New York County denied Roche and Tyzbir’s motions. Roche and Tyzbir then filed their answer, which reasserted the jurisdictional defenses. Venue was then transferred to the Supreme Court, Nassau County. Foley moved to strike the jurisdictional defenses, arguing that Justice Kirschenbaum’s order already decided that New York had jurisdiction; Roche and Tyzbir responded that Justice Kirschenbaum already denied motions to strike the jurisdictional defenses. The Nassau County court ruled that Justice Kirschenbaum’s ruling did not address jurisdictional issues and thus denied Foley’s motion to strike. But the court allowed Foley to ask Justice Kirschenbaum to resettle his April order, whereupon Roche and Tyzbir requested that Justice Kirschenbaum resettle the April order. Roche and Tyzbir also sought dismissal of Foley’s suit on the basis of a recent United States Supreme Court decision regarding jurisdiction. Foley cross-moved to strike the jurisdictional defenses. Justice Kirschenbaum ruled that New York lacked jurisdiction over Roche and Tyzbir. Instead of dismissing the case outright, Justice Kirschenbaum issued a conditional dismissal in an effort to permit Foley to sue Roche and Tyzbir in New Jersey despite the expiration of the statute of limitations. Roche and Tyzbir appealed the imposition of conditions on the dismissal of Foley’s suit.