Court Denies Motion For Alternative Service

Posted: April 25, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Service of Process

Court Denies Motion For Alternative Service

On April 8, 2025, Justice Margaret A. Chan denied plaintiff’s motion for alternative service pursuant to CPLR 308(5) in Yolanda Mgt. Corp. v. MicroAlgo, Inc., Index No. 650956/2024. The Court explained:

While plaintiff’s efforts to serve Zhao in Shenzhen and Singapore were unsuccessful, Zhao has disclosed his Beijing Address in a public SEC filing (see NYSCEF # 45 at 1), and there is no indication that service on this address is impracticable. Thus, plaintiff has a complete address now to properly serve Zhao in Beijing, China via the Hague Convention (cf Born to Bui1d LLC v Saleh, 139 AD3d 654 [2d Dept 2016] [finding international service pursuant to the Hague Convention impracticable because defendant did not disclose her business or residence address in China]). Accordingly, plaintiff’s request for alternative service is denied at this time.

Plaintiff argues that service through the Hague Convention is impracticable because it will take upwards of eighteen months (NYSCEF # 39 at 3). However, plaintiff’s only support for the eighteen-month estimate is an online law blog that itself does not cite any statistics or facts (see id), and the eighteen-month estimate is excessive in light of plaintiff’s first attempt at service under the Hague Convention that took roughly six months (see NYSCEF # 38 ¶¶ 17, 19 [hiring process server on March 28, 2024, with attempted service on August 21, 2024]).

More importantly, the length of time required for service under the Hague Convention does not alone justify alternative service (see, e.g., Joseph Il v Luisa JJ., 201 AD3d 43, 49 [3d Dept 2021] [18-20-week period for service under Hague Convention did not alone justify alternative service]; Greenland Asset Mgt. Corp. v MicroCloud Hologram, Inc., 80 Misc 3d 1231(A) [Sup Ct 2023] [citing Joseph II for same]).

…

Even if alternative service was appropriate here, Zhao persuasively argues that plaintiffs proposed methods are likely not viable. Service on WiMi's designated agent in the United States is unlikely to properly establish service because that agent is only designated to accept service for specific purposes not related to this case (see Stormhale, Inc. v Baidu.com, Inc., 675 F Supp 2d 373, 375 [SDNY 2009] [rejecting service on defendant's designated agent where agent was designated for securities issues only]). And service on Zhao by email is of questionable legality-at least one court has determined that "the Hague Convention prohibits service by email on defendants located in China" in light of China's objections under certain Articles of the Hague Convention (see Smart Study Co., Ltd v Acuteye·Us, 620 F Supp 3d 1382, 1393-1397 [SDNY 2022]).

Accordingly, the Court denied the motion without prejudice if service under the Hague Convention were unsuccessful.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning service of process.