Rubino v. City of New York

Joan Rubino (plaintiff) was injured in a schoolyard that was under the purview of the New York City Board of Education (board) (defendant). Rubino sued New York City (city) (defendant) and the board but served process only on the city; Rubino never served the board. The city’s Corporation Counsel (counsel)—which also was the board’s statutory attorney—answered Rubino’s complaint on behalf of the city only but subsequently acted as if it represented the city and the board both in the discovery process and at trial. In doing so, the counsel served numerous documents on behalf of “defendants.” At the conclusion of Rubino’s case, the supreme court dismissed Rubino’s complaint in an order reciting that the complaint was issued upon the motion of the attorney for both the city and the board. The appellate division affirmed with respect to the city but ordered the reinstatement of Rubino’s complaint against the board. In the appellate division, the counsel again represented itself as the attorney for the city and the board. On remand, the counsel, once more acting on behalf of the “defendants,” moved to dismiss the complaint based on the lack of service on the board. The board did not, however, submit evidence that it was unaware of Rubino’s suit or that it did not authorize the counsel to appear for it. The supreme court granted the board’s motion. Rubino appealed, arguing that the board informally appeared in the case and thus submitted to the court’s personal jurisdiction. The board responded that the counsel did not informally appear on its behalf because the board did not (1) know about Rubino’s suit or (2) authorize the counsel to represent the board. The board also argued that even if the counsel did informally appear, the counsel did so only after the statute of limitations on Rubino’s suit expired. However, the board raised these defenses for the first time on remand.