Laino v. Cuprum S.A. de C.V

Decision Date20 October 1997
PartiesLouis LAINO, et al., Appellants, v. CUPRUM S.A. de C.V., Respondent, et al., Defendant.
CourtNew York Supreme Court — Appellate Division

Rovegno & Taylor, P.C., Forest Hills (Robert B. Taylor and Dawn A. Munro, of counsel), for appellants.

Lynch Rowin Novack Burnbaum & Crystal, P.C., New York City (Marc Rowin and Karen L. Kirshenbaum, of counsel), for respondent.

Before FRIEDMANN, J.P., and FLORIO, McGINITY and LUCIANO, JJ.

McGINITY, Justice.

In a case of apparent first impression in the appellate courts of this State, we are called upon to decide whether the Inter-American Convention on Letters Rogatory (Jan. 30, 1975, S Treaty Doc. No. 27, 98th Cong., 2d Sess [1984] [reprinted following 28 U.S.C.A. § 1781] [hereinafter the Inter-American Convention] ) provides the exclusive means of service of process within the respective jurisdictions of the signatory nations.

This significant question with potential far-reaching consequences in the commercial litigation sphere arises out of a personal injury action wherein the plaintiff Louis Laino sustained a fractured ankle when, standing upon an aluminum stepladder pruning shrubs at his home in Lawrence, New York, the right side of the ladder collapsed under Mr. Laino, hurling him to the ground. The ladder was manufactured by the defendants Cuprum S.A. de C.V. (hereinafter Cuprum S.A.) and Cuprum International, Inc., in Mexico and distributed on Long Island by Pergament Home Center (hereinafter Pergament). Mr. Laino purchased the ladder in May 1992 at a Pergament location in Melville, New York.

The plaintiffs commenced an action sounding in products liability against Pergament and Cuprum S.A. in September 1992, claiming that the ladder purchased at Pergament was defectively manufactured. Initially, the plaintiffs attempted to serve process on Cuprum S.A. upon the New York Secretary of State as its agent pursuant to Business Corporation Law § 307, entitled "Service of process on unauthorized foreign corporation". Upon motion, the action was dismissed as against Cuprum S.A. as the court found that Cuprum S.A., a Mexican corporation not authorized to do business in the State of New York, should have been served pursuant to Article 10 of the Inter-American Convention and that service of process under Business Corporation Law § 307 was not authorized. The plaintiffs did not appeal from this order of dismissal in favor of Cuprum S.A. and the action remained pending against Pergament.

Thereafter, the plaintiffs attempted to serve Cuprum S.A. pursuant to the Inter-American Convention provisions and recommenced the action against Cuprum S.A. This attempt, however, was rejected by the Mexican court system due to the use of an incorrect address. The plaintiffs filed a corrected summons and complaint pursuant to the Inter-American Convention and the action was once again commenced. The plaintiffs, in addition, then attempted to effectuate service upon Cuprum S.A. by registered mail, return receipt requested, through the office of the Nassau County Clerk. However, the Clerk refused to transmit the papers to Cuprum S.A., claiming a lack of authority. The Clerk contended that the plaintiffs' recourse was the utilization of an internationally agreed-upon means of service, to wit, the Inter-American Convention. The plaintiffs then retained two attorneys authorized to practice in Mexico, Manuel Edgar Lopez, Esq., and Jose A. Gonzalez, Esq., who were granted powers of attorney to personally serve Cuprum S.A. in Mexico. Mr. Gonzalez attempted to serve process at Cuprum S.A.'s principal place of business in Mexico on August 4, 1995, and was informed that a Mr. Jose Juan Rivera, who was reputed to be authorized to accept service on behalf of Cuprum S.A., would appear for service at 6:30 P.M. that day. At that time, Mr. Gonzalez returned to the Cuprum S.A. place of business only to have Mr. Rivera refuse to accept service. Having no alternative, Mr. Gonzalez then served the summons and complaint on the security guard at the gate, the propriety of which will be discussed infra. In addition, Cuprum S.A. was served at a Texas address, where the company has a place of business under the name "Cuprum International, Inc.".

Cuprum S.A. moved to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction, urging, inter alia, that service of process was not made in accordance with Article 10 of the Inter-American Convention. The Supreme Court granted the motion and this appeal ensued.

We now reverse.

Central to the resolution of this appeal is the construction to be accorded to the provisions of the Inter-American Convention and the Additional Protocol to the Inter-American Convention on Letters Rogatory (May 8, 1979, S Treaty Doc. No. 98-27 [entered into force Aug. 27, 1988] [reprinted following 28 U.S.C.A. § 1781] [hereinafter the Additional Protocol] ), a multinational treaty designed to facilitate service of letters rogatory among the signatory nations, and whether the procedures authorized in the Inter-American Convention are the exclusive method of service of process. Both Mexico and the United States are signatories to the treaty. Insofar as relevant herein, the Inter-American Convention provides:

"INTER-AMERICAN CONVENTION ON LETTERS ROGATORY

"II SCOPE OF THE CONVENTION

Article 2

"This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose:

"a) The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad;

* * *

"V EXECUTION

Article 10

"Letters rogatory shall be executed in accordance with the laws and procedural rules of the State of destination" (Convention, art. 2, art. 10).

The Additional Protocol provides, in pertinent part:

"ADDITIONAL PROTOCOL TO THE INTER-AMERICAN CONVENTION ON

LETTERS ROGATORY

"I SCOPE OF PROTOCOL

Article 1

"This protocol shall apply only to those procedural acts set forth in Article 2(a) of the Inter-American Convention on Letters Rogatory, hereinafter referred to as 'the Convention'. For the purposes of this Protocol, such acts shall be understood to mean procedural acts (pleadings, motions, orders and subpoenas) that are served and requests for information that are made by a judicial or other adjudicatory authority of a State Party to a judicial or administrative authority of another State Party and are transmitted by a letter rogatory from the Central Authority of the State of origin to the Central Authority of the State of destination" (Additional Protocol, art. 1).

The plaintiffs urge that personal jurisdiction has been obtained over Cuprum S.A. since service pursuant to the Inter-American Convention is not the exclusive means of service and that jurisdiction could be and was obtained by an alternate means of service. Cuprum S.A. argues that service pursuant to the terms of the Inter-American Convention is mandatory and exclusive, and that since the plaintiffs did not follow the procedures therein, the motion to dismiss was properly granted.

The resolution of this issue necessarily turns on whether the procedures set forth in the Inter-American Convention are mandatory or are permissive, allowing for State rules governing service of process to be employed. We conclude that the Inter-American Convention permits alternate methods of service and that its procedures are not the exclusive means of service of process on defendants residing in a signatory nation.

In reaching this conclusion, it is emphasized that Article 2 of the Inter-American Convention recites that it "shall apply to letters rogatory" rather than to all means of serving process, and further, the scope of the Additional Protocol includes such procedural acts as are transmitted by a letter rogatory. Letters rogatory are but one of several procedural devices by which a court in one country may request authorities in another country to assist the requesting court in the administration of justice (see, Fed. Rules Civ. Pro., rule 4[f], 28[b]; CPLR 3108, 3113[a][3] ). Notably, the Inter-American Convention is silent as to any requirement that letters rogatory are the exclusive means of service of process in the signatory nations. It has been held that this silence is significant. In Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, cert. denied 513 U.S. 1016, 115 S.Ct. 577, 130 L.Ed.2d 492, the United States Court of Appeals for the Fifth Circuit was confronted with the precise question and concluded that the Inter-American Convention does not preempt other methods of service. The Kreimerman court placed great reliance on the words of the Inter-American Convention which states it "shall apply to letters rogatory" ...

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    ...1781, pp. 594–598 (hereafter, Convention)),2 to which the United States and Mexico are signatories ( Laino v. Cuprum S.A. de C.V. (N.Y.App.Div.1997) 235 A.D.2d 25, 28, 663 N.Y.S.2d 275, 276 ). Landstar asserted a letter rogatory was appropriate because the trial court had entered a judgment......
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