CPLR § 313. Service without the state giving personal jurisdiction
Morgenthau v Avion Resources Ltd., 2008 NY Slip Op 09006 (Ct. App.)
In this civil forfeiture action, we are asked to determine whether
service of process pursuant to CPLR 313 on defendants in a foreign
country is sufficient to confer personal jurisdiction or whether one
must additionally satisfy the service requirements of that foreign
locale. Because compliance with CPLR 313 alone constitutes proper
service upon foreign [*2]defendants
where, as here, no treaties or international agreements supplant New
York's service requirements, and because principles of international
comity do not mandate a different result, service was sufficient.
Plaintiffs were not compelled to serve defendants in accordance with
the service requirements of the foreign nation, Brazil, via letters
Where there exists a treaty requiring a specific form of service of
process such as the Hague Service Convention, that treaty, of course,
is the supreme law of the land and its service requirements are
mandatory (see US Const, art VI, § 2; Volkswagenwerk v Schlunk,
486 US 694 ). But the Hague Service Convention is not implicated
in connection with service on the Brazilian nationals because Brazil is
not a signatory to that convention.
Both the United States and Brazil are signatories to the Inter-American [*7]Convention
on Letters Rogatory (28 USCA § 1781). Article II of that treaty does
not mandate, however, that letters rogatory be the exclusive means of
service on a party in Brazil. As stated in Kreimerman v Casa Veerkamp S.A. de C.V. (22 F3d 634, 640 [5th Cir 1994]):
"nothing in the language of the Convention expressly reflects an
intention to supplant all alternative methods of service. Rather, the
Convention appears solely to govern the delivery of letters rogatory
among the signatory States . . . [T]he text of the Convention strongly
indicates, not that the Convention preempts other conceivable methods
of service, but that it merely provides a mechanism for transmitting
and delivering letters rogatory when and if parties elect to use that
mechanism" (id. at 640-642).
Consequently, the Letters Rogatory Convention allows for service of process pursuant to a state statute (see Laino v Cuprum S.A de C.V, 235 AD2d 25, 29 [2d Dept 1977])[FN10]. Here, that statute is CPLR 313.
Since a New York plaintiff need not comply with foreign law
absent a treaty, we must lastly consider whether defendants were
properly served under New York law. Individual defendants were served
in Brazil under CPLR 313 and 308 (1), or they were served through their
lawyers under alternative service pursuant to CPLR 308 (5). Plaintiff
served corporate defendants by personal delivery to an authorized
representative in Brazil under CPLR 311 (a) (1), or through their
lawyers under the alternate service order pursuant to CPLR 311 (B)[FN11].
We thus conclude that all due process requirements were met and proper
service upon defendants, save the four served pursuant to CPLR 303 (2)
and (4), was effected. Consequently, that portion of the Appellate
Division decision that affirmed Supreme Court's dismissal of the
forfeiture action should be reversed.