Service of Process Abroad in New York

What Are the Laws on Service of Process Abroad?

Background

New York courts have held that where service of process is made in a foreign country that is a signatory of the Hague Convention, compliance with the procedures of the Hague Convention is mandatory in State court proceedings and supersede the Civil Practice Law and Rules. (Amerasia Bank v. Saiko Enterprises, Inc., 263 A.D.2d 519, 520 [2nd Dept. 1999].)

How to Structure the Motion

Courts are well aware of the difficulties associated with service abroad through the Hague Convention. (Kulpa v. Jackson, 3 Misc. 3d 227 [Sup. Ct. Oneida Cty. 2004].) “The nature of the attorney’s duty when orchestrating service under the Hague Convention is necessarily different…. [T]he treaty mandates the delegation of the duty and actuality of service to a foreign sovereign over whom the litigant, definitionally, has absolutely no control. All that an attorney can do regarding service pursuant to the Hague Convention is follow the proper procedures to cast his client on the tender mercies of a foreign sovereign which may or may not have much interest in effecting the involvement of its citizens in litigation in the United States.” (Id. at 236.)

“Once the papers have been successfully delivered to the sovereign, the domestic litigant’s counsel has done all she can, and if additional months or years are required to let the sovereign work his will, so be it, and courts should routinely correspondingly extend the time provided to complete the task of achieving proper service under the Hague Convention.” (Id.)

An extension may be granted where there are difficulties in service abroad through the Hague Convention. (Kupla v. Jackson, 3 Misc. 3d 227, 235 [Sup. Ct. Oneida Cty. 2004].) The court may, upon good cause shown or in the interest of justice, extend the time for service of a summons and complaint. (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104-05 [2001].)

To establish good, a plaintiff must demonstrate reasonable diligence in attempting service. (Leader v. Maroney, 97 N.Y.2d 95, 101, 106 [2001].) Good cause may be found to exist where a plaintiff’s failure to timely serve process is a result of circumstances beyond the plaintiff’s control. (Bumpus v. New York City Trans. Auth., 66 A.D.3d 26, 31 [2nd Dept. 2009].)

When deciding whether there is good cause for an extension of time to serve a summons and complaint in the interest of justice, New York courts “consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to the defendant.” (Thompson v. City of New York, 89 A.D.3d 1011, 1012 [2nd Dept. 2011].)

The Court’s Decision

An extension is appropriate if the plaintiff can meet either of two distinct standards: “good cause” or “the interest of justice.” (Spath v. Zack, 36 A.D.3d 410, 413 [1st Dept. 2007].) The Court of Appeals has clarified that “good cause” and the “interest of justice” are separate standards. (Leader v. Maroney, 97 N.Y.2d 95, 101, 104 [2001].) In determining whether either standard warrants extension of the 120-day period for service, the statute empowers the court to consider any factor relevant to the exercise of its discretion, and no one factor is determinative. (Id. at 106.)

The interest of justice standard is broader than the good cause standard, and requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. (Bumpus v. New York City Trans. Auth., 66 A.D.3d 26, 31 [2nd Dept. 2009].)

Timeline

Service of the summons “shall be made within one hundred twenty days after the commencement of the action or proceeding.” (Civ. Prac. Law & Rules, § 306-b.)

Documents for Service of Process Abroad in New York

Sort By

Employees Retirement System For The City Of Providence, Derivatively As A Shareholder Of Credit Suisse Group Ag On Behalf Of Credit Suisse Group Ag v. Urs Rohner, Iris Bohnet, Christian Gellerstad, Andreas Gottschling, Michael Klein, Shan Li, Seraina Macia, Richard Meddings, Kai S. Nargolwala, Ana Paula Pessoa, Joaquin J. Ribeiro, Severin Schwan, John Tiner, Eric Varvel, Thomas P. Gottstein, Lara J. Warner, Brian Chin, David Miller, Parshu Shah, Radhika Venkatraman, Credit Suisse Group Ag, Nominal Defendant document preview

MEMORANDUM OF LAW (W/NYSCEF DOC. #'S)

16 pages

FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION EMPLOYEES RETIREMENT SYSTEM FOR THE CITY OF PROVIDENCE, derivatively as a shareholder of CREDIT SUISSE GROUP AG on Index No. 651657/2022 …

Case Name Employees Retirement System For The City Of Providence, Derivatively As A …