Aspinall's Club Ltd. v. Aryeh

86 A.D.2d 428, 450 N.Y.S.2d 199, 1982 N.Y. App. Div. LEXIS 16089
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 17, 1982
StatusPublished
Cited by19 cases

This text of 86 A.D.2d 428 (Aspinall's Club Ltd. v. Aryeh) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aspinall's Club Ltd. v. Aryeh, 86 A.D.2d 428, 450 N.Y.S.2d 199, 1982 N.Y. App. Div. LEXIS 16089 (N.Y. Ct. App. 1982).

Opinion

OPINION OF THE COURT

Thompson, J.

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. (20 US Treaties & Other Int Agreements 361, TIAS 6638.) 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 [430]*430service 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 [a]; 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 instructions].) 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.

[431]*431On 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 [d], par [1]) 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 “[i]t 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 a default judgment on April 2, 1980.

In August, 1980, the Club commenced the instant action by service of a summons and a notice of motion for summary judgment in lieu of a complaint with supporting affidavits, seeking to enter the default judgment for the 100,500 pounds to be converted to United States dollars [432]*432and for interest from the date of the default. The Club also sought, in a second cause of action, summary judgment on the documents (the dishonored checks).

Aryeh opposed the motion as to entry of the judgment arguing, inter alia, that New York does not enforce foreign default judgments when jurisdiction rests “upon long-arm service of process” and that enforcement of a gambling debt would controvert New York’s public policy, citing CPLR 5304 (subd [b], par 4). As to the Club’s cause of action on the checks, Aryeh argued that under English law the Club had illegally extended credit when it accepted the checks. Special Term concluded that Aryeh’s trips to England and visits to the Club constituted a sufficient basis for an English court to exercise jurisdiction over him. However, Special Term denied the Club’s motion for summary judgment on the first cause of action (to enter the English default judgment) and set the matter down for a hearing as to the propriety of service, noting that there had been no proof that a copy of the papers in the original English action had ever been mailed to Aryeh as required by CPLR 308 (subd 2).

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Bluebook (online)
86 A.D.2d 428, 450 N.Y.S.2d 199, 1982 N.Y. App. Div. LEXIS 16089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aspinalls-club-ltd-v-aryeh-nyappdiv-1982.