Korea Deposit Ins. Corp. v. Jung, 653744
| Decision Date | 18 August 2017 |
| Docket Number | 2015,653744 |
| Citation | 68 N.Y.S.3d 625,59 Misc.3d 442 |
| Parties | KOREA DEPOSIT INSURANCE CORPORATION, Bankruptcy Administrator for Bankrupt Tomato Savings Bank Co., Ltd., Plaintiff v. Mina JUNG and Sung–Min Choi, Defendants. |
| Court | New York Supreme Court |
Charles A. Michael Esq., Steptoe & Johnson LLP, 1114 6th Avenue, New York, NY 10036, For Plaintiff
Alan Poliner Esq., Kim & Bae, P.C., 2160 North Central Road, Fort Lee, NJ 07029, For Defendants
In a decision dated June 17, 2016, the court granted plaintiff's motion to extend its time to serve its summons and complaint on defendants another 120 days beyond the 120 days permitted by C.P.L.R. § 306–b after plaintiff commenced this action November 12, 2015: until July 8, 2016. Defendants now move to dismiss the action based on plaintiff's failure to serve defendants as required by applicable law before expiration of that extended deadline. C.P.L.R. §§ 306–b, 3211(a)(8). Plaintiff claims that it served defendant Jung at 205 West 76th Street, New York, New York, June 14, 2016, and that, while the extension for service was granted based on delays inherent in serving defendants in the Republic of Korea, the decision did not limit plaintiff to serving defendants there. If the court concludes that any service after the original 120 days was limited to serving defendants in the Republic of Korea, then plaintiff cross-moves to extend further its time to serve Jung. C.P.L.R. § 306–b. In any event, plaintiff also cross-moves to extend further its time to serve defendant Choi, Jung's husband, and to serve him by alternative means. C.P.L.R. §§ 306–b, 308(5).
The court's prior decision did not limit plaintiff to serving defendants in the Republic of Korea, as long as plaintiff effected service by July 8, 2016. Defendants challenge only the service in New York, rather than the Republic of Korea, and not the adequacy of the means by which plaintiff effected service on Jung at her dwelling place in New York under C.P.L.R. § 308(2) before July 8, 2016. Therefore the court denies defendants' motion to dismiss the action against Jung. C.P.L.R. §§ 308(2), 3211(a)(8).
Plaintiff already sought, and the court already denied, a further extension of time to serve Choi because plaintiff did not show any diligent efforts to complete service on defendants as promptly as possible. Slate v. Schiavone Constr. Co. , 4 N.Y.3d 816, 817, 796 N.Y.S.2d 573, 829 N.E.2d 665 (2005) ; Cassini v. Advance Publs., Inc. , 125 A.D.3d 467, 468, 4 N.Y.S.3d 4 (1st Dep't 2015) ; Khedouri v. Equinox , 73 A.D.3d 532, 532, 901 N.Y.S.2d 221 (1st Dep't 2010) ; Johnson v. Concourse Vil., Inc. , 69 A.D.3d 410, 410, 892 N.Y.S.2d 358 (1st Dep't 2010). See Frank v. Garcia , 84 A.D.3d 654, 654, 923 N.Y.S.2d 529 (1st Dep't 2011). First, plaintiff conceded that it did nothing to serve defendants for 82 days, until February 2, 2016. Second, plaintiff did nothing, itself or through the foreign services business Crowe & Associates that plaintiff retained or another agent, to advise the Central Authority, the body authorized to serve foreign pleadings in the Republic of Korea, regarding the deadline for service or to urge the Central Authority to complete service on defendants as promptly as possible.
The court granted plaintiff one extension of another 120 days because plaintiff satisfied all the other factors under the alternative standard for extending plaintiff's time: that an extension would serve the interests of justice. Leader v. Maroney, Ponzini & Spencer , 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 (2001) ; Nicodene v. Byblos Rest., Inc. , 98 A.D.3d 445, 446, 949 N.Y.S.2d 684 (1st Dep't 2012) ; Henneberry v. Borstein , 91 A.D.3d 493, 496, 937 N.Y.S.2d 177 (1st Dep't 2012) ; Lippett v. Education Alliance , 14 A.D.3d 430, 431, 789 N.Y.S.2d 11 (1st Dep't 2005). The court granted this relief, however, upon the explicit expectation that, during the extension of time granted, plaintiff undertake and persist with efforts to monitor and advise the Central Authority in its attempts at service to the extent possible.
Now, plaintiff only further demonstrates its lack of diligence. In May 2016, plaintiff produced a new address for defendants in the Republic of Korea. Thus, from February 2016, when plaintiff finally undertook to serve them there, to May 2016, when plaintiff through Crowe & Associates and the Central Authority were attempting to serve defendants at an address from which they had moved in 2014, plaintiff knew their new address. Second, even if plaintiff did not learn defendants' new address until May 2016, plaintiff never explains why the source from which plaintiff obtained the new 2014 address was not available to plaintiff when it first investigated defendants preparatory to its action against them and instead used a 2011 address at which to attempt service.
Finally, even if defendants did not move to this new address until May 2016, the attempts that the Central Authority made to serve them at the address provided were not reasonably calculated to find anyone there. The attempts were all on a weekday in the middle of the morning, when persons normally are away from home at work. Thus, even if defendants did not reside at the address, the Central Authority found no one who at least might have advised it that defendants did not reside there. Plaintiff does not demonstrate that it (1) ever, until its cross-motion, sought to ascertain the days and times the Central Authority was attempting service or (2) ever, at any time, advised, let alone urged, the Central Authority to attempt service on weekends or at different times of day. Although plaintiff complains that the Central Authority was not forthcoming regarding its progress in serving Choi, plaintiff does not indicate that it encountered any difficulty communicating to the Central Authority or that plaintiff asked the Central Authority about the days and times of its attempts. For all these reasons, the court denies plaintiff's cross-motion to extend further its time to serve Choi. C.P.L.R. § 306–b.
Having denied plaintiff a further extension of time, the court turns to the question of whether the court still may authorize service that plaintiff already has effected on Choi by alternative means. C.P.L.R. § 308(5). Defendants maintain that the Hague Service Convention prohibits alternative service otherwise permissible under C.P.L.R. § 308(5).
Volkswagenwerk Aktiengesellschaft v. Schlunk , 486 U.S. at 699, 108 S.Ct. 2104. Plaintiff does not show that the alternative methods it seeks to use, service via Choi's attorney or via email, or any other alternative to C.P.L.R. § 308(1), (2), or (4) is ‘a method prescribed by the internal law of the receiving state,‘ the Republic of Korea, or ‘compatible with that law.‘ Volkswagenwerk Aktiengesellschaft v. Schlunk , 486 U.S. at 699, 108 S.Ct. 2104.
Whether ‘there is occasion for service abroad,‘ id. at 704, 108 S.Ct. 2104, and whether ‘recourse to the Convention's means of service‘ is mandatory, however, is ‘dependent on the forum's internal law.‘ Id. at 705, 108 S.Ct. 2104. Thus the internal law of the forum state, New York, determines whether the method of service requires transmittal of documents abroad and whether the Hague Convention applies. Id. at 700–701, 108 S.Ct. 2104. A ‘method prescribed by the internal law of the receiving state,‘ the Republic of Korea, or ‘compatible with that law,‘ id. at 699, 108 S.Ct. 2104, is required only when the Central Authority is to serve the documents in the Republic of Korea.
In particular, where service on an agent in New York is valid and complete under state law and the federal Constitution's due process guarantees, the Hague Convention is not implicated. Id. at 707, 108 S.Ct. 2104 ; LTD Trading Enters. v. Vignatelli , 176 A.D.2d 571, 571, 574 N.Y.S.2d 745 (1st Dep't 1991) ; Born To Build, LLC v. Saleh , 139 A.D.3d 654, 655, 31 N.Y.S.3d 545 (2d Dep't 2016). See Rego v. Thom Rock Realty Co. , 201 A.D.2d 270, 270, 608 N.Y.S.2d 824 (1st Dep't 1994). Under New York law, service by email on foreign defendants is also a permissible means of service, consistent with due process and not prohibited by the Hague Convention, where the methods prescribed by or compatible with the law of defendants' country have proved ineffective.
Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L. , 78 A.D.3d 137, 141–42, 910 N.Y.S.2d 418 (1st Dep't 2010) ; Safadjou v. Mohammadi , 105 A.D.3d 1423, 1425, 964 N.Y.S.2d 801 (4th Dep't 2013).
The court may approve an alternative method, whether service on an agent in New York or service by email, only if plaintiff shows that the alternative method is reasonably calculated to apprise Choi of this action and that he is likely to receive the transmitted information. Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L. , 78 A.D.3d at 142, 910 N.Y.S.2d 418 ; Safadjou v. Mohammadi , 105 A.D.3d at 1424–25, 964 N.Y.S.2d 801. Plaintiff meets this test.
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