Preview
FILED: NEW YORK COUNTY CLERK 09/23/2016 06:54 PM INDEX NO. 154476/2016
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/23/2016
SUPREME COURT STATE OF NEW YORK
COUNTY OF NEW YORK
____________________________________X
YUE FANG QIU : Index No. 154476/2016
Plaintiff, :
: MEMORANDUM OF LAW IN SUPPORT OF
-against- : PLAINTIFF’S MOTION TO EXTEND TIME
: TO SERVE
ISOBELLA HOSAIDO, :
YUET-MUI KAM a.k.a. YUEMEI GAN :
Defendants, :
ANTHONY J. FOLLIERI :
Nominal Defendant. :
____________________________________X
Plaintiff Yue Fang Qiu (hereinafter, “Qiu”) in the above-captioned matter, by
undersigned attorneys and counsel, hereby respectfully submits this Memorandum of Law in
Support, together with Affirmation of Jimin Lee, dated September 23, 2016, and all other
papers and Exhibits annexed thereto, in support of Plaintiff’s Motion to Extend Time to Serve
the Summons and Complaint upon Defendants Yuet-Mui Kam a.k.a. Yuemei Gan (hereinafter,
“Kam”), et al.
ARGUMENT
Service of a summons and complaint is governed by CPLR 306-b, which provides, in
relevant part:
“If service is not made upon a defendant within the time provided in this section, the
court, upon motion, shall dismiss the action without prejudice as to that defendant, or
upon good cause shown or in the interest of justice, extend the time for service.”
(CPLR 306-b [emphasis added]; see also Moundrakis v. Dellis, 96 AD3d 1026, 1026 [2d
Dept 2012] [“A motion pursuant to CPLR 306–b to extend the time for service of a
summons and complaint may be granted upon good cause shown or in the interest of
justice”] [internal quotation marks and citation omitted]).
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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
defendant” (Thompson v. City of New York, 89 AD3d 1011, 1012 [2d Dept 2011] [internal
quotation marks omitted], quoting Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106
[2001], citing Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31-32 [2d Dept 2009]; see also
DiBuono v. Abbey, LLC, 71 AD3d 720, 720 [2d Dept 2010] [“Relevant factors in support of the
extension included timely service which was later found to be defective, service upon the proper
party within a reasonable time after learning of the defect, evidence of merit to the plaintiffs’
claim, and lack of demonstrable prejudice to the estate in light of its actual notice of the
plaintiffs’ claim…”] [citations omitted]).
“To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting
service” (Bumpus, 66 AD3d at 31 [2d Dept 2009], citing Leader, 97 NY2d at 105-106 [2001])
Good cause is likely to be found where “the plaintiff's failure to timely serve process is a result
of circumstances beyond the plaintiff's control” (Henneberry v. Borstein, 91 AD3d 493, 496 [1st
Dept 2012] [citations omitted]; see also Greco v. Renegades, Inc., 307 AD2d 711, 712 [4th Dept
2009] [granting extension of time for service based on difficulties of service in locating
defendant enlisted in military]; Kulpa v. Jackson, 3 Misc 3d 227, 235 [Sup Ct, Oneida County
2004] [granting extension of time to serve based on difficulties in service abroad through the
Hague Convention]).
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Moreover, even if the court does not find any “good cause”, the court may nonetheless
grant a discretionary extension for time of service “in the interest of justice” (Leader, 97 NY2d
at 105 [2001] [“The revision was intended to offer New York courts the ‘same type of flexibility’
enjoyed by Federal courts under rule 4(m) of the Federal Rules of Civil Procedure […, which]
also authorizes a second, unspecified discretionary basis for extension ‘even if there is no good
cause shown.’] [citations omitted]); see also de Vries v. Metro. Transit Auth., 11 AD3d 312, 313
[1st Dept 2004] [“The legislative history indicates that the interest of justice standard is a broader
standard designed to accommodate late service that might be due to mistake, confusion or
oversight, so long as there is no prejudice to the defendant.”] [internal quotation marks and
citation omitted]).
Notably, Plaintiff’s Motion to Extend Time to Serve is timely filed. Although the service
was made upon Defendant Isobella Hosaido (hereinafter “Hosaido”) and nominal Defendant
Anthony J. Follieri (hereinafter, “Follieri”), but, as of today, no Defendants have answered or
filed a motion to dismiss.
Moreover, there is good cause for the Court to grant the extension of the time to serve in
this action, since Plaintiff has diligently attempted to serve Defendant Kam in Norway. Right
after filing the Summons and Complaint on May 26, 2016, Plaintiff has diligently attempted to
serve upon Kam in Norway pursuant the 1965 Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters (hereinafter, the “Hague Convention”).
The current delay in completing service in Norway is “a result of circumstances beyond the
plaintiff's control.” New York courts have recognized any delay and difficulties associated with
service abroad through the Hague Convention as the good cause for granting extension.
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Also, good cause exists because Defendant Kam is evading service of the Summons and
Complaint. According to the Norwegian Central Authority case manager and the Enforcement
Department of Oslo District Court, Kam refused to be served where Defendant’s voluntary
acceptance of service is one of conditions for personal service pursuant to the Hague Convention
(The Hague Convention art 5 (b) [“Subject to sub-paragraph (b) of the first paragraph of this
Article, the document may always be served by delivery to an addressee who accepts it
voluntarily.”]).
Furthermore, Defendants will not suffer any prejudice by this Court’s granting extension
of time to serve. Among other things, the Hague Convention is designed to effectuate and
expedite international service of process, not for any defendants to avoid such service by
rejecting to accept service within 120 days of filing the summons and complaint.
CONCLUSION AND PRAY FOR RELIEFS
WHEREFORE: For above reasons, Plaintiff Qiu in the above-captioned matter, by
undersigned counsel and attorneys, respectfully submits and prays for:
i. An order granting Plaintiffs’ Motion to Extend Time to Serve; and
ii. Other reliefs this Court may deem just, appropriate and equitable.
Dated: New York, NY
September 23, 2016 Respectfully submitted,
Law Office of Frank Xu, PLLC
By:
/s/
Jimin Lee
40 Wall St. Suite 3301
New York, NY 10005
Tel: (212) 488-2580
Fax: (212) 488-2584
Attorneys for Plaintiff
Yue Fang Qiu
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Preview
FILED: NEW YORK COUNTY CLERK 09/23/2016 06:54 PM INDEX NO. 154476/2016 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/23/2016 SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK ____________________________________X YUE FANG QIU : Index No. 154476/2016 Plaintiff, : : MEMORANDUM OF LAW IN SUPPORT OF -against- : PLAINTIFF’S MOTION TO EXTEND TIME : TO SERVE ISOBELLA HOSAIDO, : YUET-MUI KAM a.k.a. YUEMEI GAN : Defendants, : ANTHONY J. FOLLIERI : Nominal Defendant. : ____________________________________X Plaintiff Yue Fang Qiu (hereinafter, “Qiu”) in the above-captioned matter, by undersigned attorneys and counsel, hereby respectfully submits this Memorandum of Law in Support, together with Affirmation of Jimin Lee, dated September 23, 2016, and all other papers and Exhibits annexed thereto, in support of Plaintiff’s Motion to Extend Time to Serve the Summons and Complaint upon Defendants Yuet-Mui Kam a.k.a. Yuemei Gan (hereinafter, “Kam”), et al. ARGUMENT Service of a summons and complaint is governed by CPLR 306-b, which provides, in relevant part: “If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.” (CPLR 306-b [emphasis added]; see also Moundrakis v. Dellis, 96 AD3d 1026, 1026 [2d Dept 2012] [“A motion pursuant to CPLR 306–b to extend the time for service of a summons and complaint may be granted upon good cause shown or in the interest of justice”] [internal quotation marks and citation omitted]). 1 1 of 5 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 defendant” (Thompson v. City of New York, 89 AD3d 1011, 1012 [2d Dept 2011] [internal quotation marks omitted], quoting Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001], citing Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31-32 [2d Dept 2009]; see also DiBuono v. Abbey, LLC, 71 AD3d 720, 720 [2d Dept 2010] [“Relevant factors in support of the extension included timely service which was later found to be defective, service upon the proper party within a reasonable time after learning of the defect, evidence of merit to the plaintiffs’ claim, and lack of demonstrable prejudice to the estate in light of its actual notice of the plaintiffs’ claim…”] [citations omitted]). “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service” (Bumpus, 66 AD3d at 31 [2d Dept 2009], citing Leader, 97 NY2d at 105-106 [2001]) Good cause is likely to be found where “the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control” (Henneberry v. Borstein, 91 AD3d 493, 496 [1st Dept 2012] [citations omitted]; see also Greco v. Renegades, Inc., 307 AD2d 711, 712 [4th Dept 2009] [granting extension of time for service based on difficulties of service in locating defendant enlisted in military]; Kulpa v. Jackson, 3 Misc 3d 227, 235 [Sup Ct, Oneida County 2004] [granting extension of time to serve based on difficulties in service abroad through the Hague Convention]). 2 2 of 5 Moreover, even if the court does not find any “good cause”, the court may nonetheless grant a discretionary extension for time of service “in the interest of justice” (Leader, 97 NY2d at 105 [2001] [“The revision was intended to offer New York courts the ‘same type of flexibility’ enjoyed by Federal courts under rule 4(m) of the Federal Rules of Civil Procedure […, which] also authorizes a second, unspecified discretionary basis for extension ‘even if there is no good cause shown.’] [citations omitted]); see also de Vries v. Metro. Transit Auth., 11 AD3d 312, 313 [1st Dept 2004] [“The legislative history indicates that the interest of justice standard is a broader standard designed to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant.”] [internal quotation marks and citation omitted]). Notably, Plaintiff’s Motion to Extend Time to Serve is timely filed. Although the service was made upon Defendant Isobella Hosaido (hereinafter “Hosaido”) and nominal Defendant Anthony J. Follieri (hereinafter, “Follieri”), but, as of today, no Defendants have answered or filed a motion to dismiss. Moreover, there is good cause for the Court to grant the extension of the time to serve in this action, since Plaintiff has diligently attempted to serve Defendant Kam in Norway. Right after filing the Summons and Complaint on May 26, 2016, Plaintiff has diligently attempted to serve upon Kam in Norway pursuant the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter, the “Hague Convention”). The current delay in completing service in Norway is “a result of circumstances beyond the plaintiff's control.” New York courts have recognized any delay and difficulties associated with service abroad through the Hague Convention as the good cause for granting extension. 3 3 of 5 Also, good cause exists because Defendant Kam is evading service of the Summons and Complaint. According to the Norwegian Central Authority case manager and the Enforcement Department of Oslo District Court, Kam refused to be served where Defendant’s voluntary acceptance of service is one of conditions for personal service pursuant to the Hague Convention (The Hague Convention art 5 (b) [“Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.”]). Furthermore, Defendants will not suffer any prejudice by this Court’s granting extension of time to serve. Among other things, the Hague Convention is designed to effectuate and expedite international service of process, not for any defendants to avoid such service by rejecting to accept service within 120 days of filing the summons and complaint. CONCLUSION AND PRAY FOR RELIEFS WHEREFORE: For above reasons, Plaintiff Qiu in the above-captioned matter, by undersigned counsel and attorneys, respectfully submits and prays for: i. An order granting Plaintiffs’ Motion to Extend Time to Serve; and ii. Other reliefs this Court may deem just, appropriate and equitable. Dated: New York, NY September 23, 2016 Respectfully submitted, Law Office of Frank Xu, PLLC By: /s/ Jimin Lee 40 Wall St. Suite 3301 New York, NY 10005 Tel: (212) 488-2580 Fax: (212) 488-2584 Attorneys for Plaintiff Yue Fang Qiu 4 4 of 5 5 5 of 5