Aspinall's Club Ltd. v. Aryeh

• Decision Date: 17 May 1982
• Citation: 86 A.D.2d 428,450 N.Y.S.2d 199
• Parties: ASPINALL'S CLUB LIMITED, Appellant, v. Eskander ARYEH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 199

450 N.Y.S.2d 199

86 A.D.2d 428

ASPINALL'S CLUB LIMITED, Appellant, v. Eskander ARYEH, Respondent.

Supreme Court, Appellate Division Second Department.

May 17, 1982.

A. Richard Golub, New York City (Gary S. Graifman and Louis M. Atlas, New York City, of counsel), for appellant.

Sol I. Sokolsky, New York City (Frederick R. Ballen, New York City, of counsel), for respondent.

Edward R. Korman, U.S. Atty., J. Paul McGrath, Asst. Atty. Gen., Washington, D. C. (David Epstein and James G. Hergen, Washington, D. C., of counsel), for United States, amicus curiae.

Before MANGANO, J. P., and GULOTTA, THOMPSON and BROWN, JJ.

THOMPSON, Justice.

In 1967 the United States ratified a convention designed to facilitate the service of process and other documents in civil and commercial disputes among private litigants from different countries. The convention, called the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention), went into effect in 1969. (T.I.A.S. 6638, 20 U.S.T. 361.) Some 20 nations, including the United States and the United Kingdom, have ratified the Convention. Several other countries are signatories but have not yet ratified the Convention.

By its terms, the Convention requires each member state to designate a central authority through which requests for service of legal papers may be channeled. By Executive Order, the President has designated the Department of Justice (the Department) to be this country's central authority. When the Department receives a request for service in this country, the Department's Office of Foreign Litigation (the OFL) processes the request, assigning a control number, checking the request for its completeness and compliance with the Convention's requirements, and performing other similar administrative functions. The OFL then forwards the foreign request and documents to the United States Marshal (the Marshal) for the area in which the person or entity to be served resides or is located. It is then the Marshal's duty to make or attempt to make service. Special instructions may be given to the Marshal as to the manner of service; otherwise the Marshal is to make service in conformity with Rule 4 of the Federal Rules of Civil Procedure, or as otherwise permitted in the jurisdiction in which service is to be made. The request is conveyed to the Marshal on a Federal form, OBD-95. When service is completed, the Marshal must complete form OBD-95 and return it to the Department, which takes any administrative steps necessary for official records and then transmits the completed form to the central authority of the requesting country. The completed form certifies that process has been served as described thereon. (See the Convention, art. 5, subd. Department of Justice Memo No. 386, Rev. 3, July 1979, to United States Marshals, "Instructions for serving foreign judicial documents in the United States and for processing requests by litigants in this country for service of American judicial documents abroad" The Department handles approximately 2,000 requests under the Convention each year.

The Convention seems to be successful in facilitating international service of process, judging by the relatively small number of cases which have been litigated under its provisions. We are now faced with an important question which appears to be one of first impression: whether service by the Marshal under the Convention and under Rule 4 of the Federal Rules of Civil Procedure is sufficient to permit a foreign default judgment to be converted into a New York judgment under CPLR 3213 and otherwise be enforced in the courts of New York. The United States has evidenced its concern with the matter by filing a "Suggestion of Interest of the United States of America", which we treat as a brief amicus curiae. We also granted the United States permission to participate in the oral argument of this matter. We hold that service under the Federal Rules is sufficient, and thus reverse the determination of Special Term that service was required to be made in conformance with New York law.

The plaintiff, Aspinall's Club Limited (the Club), is a British corporation licensed by British authorities to conduct gaming activities on its premises in London. Defendant, Eskander Aryeh, a domiciliary of Great Neck, New York, visited the Club on October 13, 1978 and made written application for membership, giving notice of his intent to gamble. His application was accepted the same day, and thus he became entitled to gamble at the Club after the passage of 48 hours.

On December 29 and 31, 1978 and January 1 and 2, 1979, Aryeh gambled at the Club. He gave the Club 12 checks, for a total of 100,500 pounds sterling, written on a bank account in Switzerland. The checks were subsequently dishonored. The Club wrote to Aryeh, but Aryeh did not cover the checks. The Club then brought suit in the High Court of Justice, Queens Bench Division, in England, seeking recovery of the 100,500 pounds.

Pursuant to the provisions of the Convention, the English Notice of the Writ of Summons was transmitted to the Department of Justice. The Department files show receipt on February 15, 1980 of a request for service from the Senior Master of the Supreme Court of Judicature, Royal Courts of Justice, Strand, London, England, the British central authority under the Convention. The Department processed the papers and sent them to the Marshal who served the papers at Aryeh's home on "Mrs. Aryeh (refused to give 1st name), wife" on February 28, 1980. The Marshal returned the completed form OBD-95 to the Department, which returned all appropriate papers to England, certifying to English authorities that service had been made under the Convention.

Rule 4 (subd. par. ) of the Federal Rules of Civil Procedure provides that personal service may be effected upon a person by leaving copies of the documents with "some person of suitable age and discretion" residing at his "dwelling house or usual place of abode." In an affidavit, Aryeh's wife states that she was not served, but that "appears that a document * * * was left at the premises with a person other than myself". It was undisputed that Aryeh resides at the address where the Marshal served the papers.

Aryeh did not appear or otherwise respond to the Club's English proceeding, so the Club obtained...