We address the wife’s argument that Supreme Court improperly authorized substituted service of the summons and complaint by email. Pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (20 UST 361, TIAS No. 6638  (hereinafter Hague Convention), of which both the United States and Italy are signatories, requests for service of documents must be sent to a central authority within the receiving state, which then serves the documents by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible with that law.
New York requires that, in an action for divorce, the summons and a copy of the complaint be personally served upon the defendant or, alternatively, a copy of the summons be served on the defendant pursuant to an order directing the method of service in accordance with the provisions of CPLR 308 (Domestic Relations Law § 232[a]). As set forth in CPLR 308(5), if service is impracticable under CPLR 308(1), (2) and (4), then personal service shall be made in such manner as the court, upon motion without notice, directs.
Although impracticality does not require a showing of actual attempts to serve parties under every method in the aforementioned provisions of CPLR 308, the movant is required to make competent showings as to actual efforts made to effect service.
In support of his application for substituted service, the husband failed to come forward with sufficient proof demonstrating an actual effort to effectuate service upon the wife at her residence in Italy.
The only proof submitted by the husband was an email – dated August 12, 2020, more than two months after commencement of the action – from an associate at a process service company that the husband’s counsel often used for service of process.
The email estimated that service upon the wife in Italy in accordance with the Hague Convention would take roughly 18 to 20 weeks in total, which included a few days for Italian translation, 10 to 14 weeks for service and an additional two to four weeks for return of the proof of service.
Although we are mindful that the COVID–19 pandemic remained an issue at the time of the August 2020 email, there was no indication in the email that the 18 to 20–week estimate was atypical or that the COVID–19 pandemic rendered service of process under the Hague Convention impracticable.
Given the husband’s failure to make the requisite showing of impracticability and that a court is without power to direct expedient service pursuant to CPLR 308(5) absent such a showing, Supreme Court erred in authorizing service of the summons and complaint upon the wife via substituted service. Accordingly, Supreme Court should have denied the husband’s application for substituted service.
As the husband failed to effectuate proper service upon the wife within the requisite 120 days following commencement of the action (see CPLR 306–b), we grant the wife’s cross motion and dismiss the complaint for lack of personal jurisdiction.
Joseph II. v. Luisa JJ., – NYS3d – , 2021 WL 5497256 (3rd Dep’t. 2021)
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