COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 132 May 28, 1998

A. 9186 By: M. of A. Luster

Assembly Committee: Committee on Codes

Effective Date: Immediately and shall apply to civil causes of action filed on or after such effective date

AN ACT to amend the civil practice law and rules, in relation to service of a summons in certain foreign countries

LAW AND SECTION/RULE REFERRED TO: CPLR §306-b

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#42)
 

THIS BILL IS DISAPPROVED

        The proposed bill extends from 120 days to 365 days (after filing), the time period for service of a civil summons when service occurs in a foreign country "which is not subject to the provisions of The Hague Convention relating to service of process or which objects to any use or methods of service provided in such Convention."

        The bill should be disapproved.

         In 1997, CPLR § 306-b was amended (i) to remove the "deemed dismissed" provisions (i.e. providing for automatic dismissal of the action if service was not effected within 120 days/15 days, etc.) and (ii) to eliminate the second 120-day (15-day period) period and the requirement that proof of service be filed. In its place, the 1997 amendment provides for a single 120/15-day period (i.e., it eliminates the second 120/15-day period). In addition, the court, on motion, has the discretion to dismiss the action if service is not made within the 120/15-day period "or upon good cause shown or in the interest of justice, extend the time of service."

        A significant consideration behind the 1997 amendment was the difficulties associated with effecting service in foreign countries and filing proof of service within the applicable period. As discussed above, the 1997 legislation attempted to resolve those difficulties by no longer requiring the automatic dismissal of the action after the 120/15 day-period or the filing of the proof of service and by permitting a plaintiff to move to extend the time of service. Thus, the proposed bill with respect to service in non-Hague Convention countries is simply unnecessary.

        Moreover, the difficulty in effecting service can be encountered even in those foreign countries which are signatories to The Hague Convention. Establishing a different time period (365 days) in the singular situation contemplated by the proposed bill, simply invites further legislation to cover other situations in which service may be difficult.

For the above reasons, this bill is DISAPPROVED.

 Person Who Prepared the Report: David L. Ferstendig, Esq.

 Chair of the Committee: Paul H. Aloe, Esq.