Attorney General of New York — Opinion
Dated: February 9, 1978
CPLR Rule 328
There is no express prohibition in Rule 328 of the CPLR against a South African consular officer from serving a South African court civil summons upon a person in New York State. However, we are not commenting on whether a foreign country money judgment taken thereafter in South Africa would be recognized or enforceable in New York State under Articles 53 and 54 of the CPLR, respectively.
Hon. Leslie B. Labuschagne Deputy Consul-General South African Consulate General’s Office
This is in response to your letter wherein you ask our opinion as to whether or not there are any prohibitions against a South African consular officer from serving a South African court civil summons upon a person in New York State.
CPLR, Rule 328 provides as follows:
“Assistance to tribunals and litigants outside the state.
“(a) Pursuant to court order. Upon application by any interested person or in response to letters rogatory issued by a tribunal outside the state, the supreme court or a county court of the state may order service upon any person who is domiciled or can be found within the state of any document issued in connection with a proceeding in a tribunal outside the state. The order shall direct the manner of service.
“(b) Without court order. Service in connection with a proceeding in a tribunal outside the state may be made within the state without an order of court.
“(c) Effect. Service under this rule does not, of itself, require the recognition or enforcement of an order, judgment or decree rendered outside the state.”
In regard to civil matters instituted under the jurisdiction of New York courts, CPLR 2103, subdivision a, states as follows:
“Service of papers.
“(a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over.”
Your inquiry does not deal with the recognition of foreign country money judgments or the enforcement thereof in New York State, and Articles 53 and 54 of the CPLR, respectively, should be consulted in that regard. It is noted that any service herein pursuant to above Rule 328 does not necessarily entitle recognition in New York State of any South African court money judgment.
We can find no provision of law which would expressly prohibit the service of a South African court civil summons upon a person in New York State by a South African consular officer.
Accordingly, we conclude that there is no express prohibition in Rule 328 of the CPLR against a South African consular officer from serving a South African court civil summons upon a person in New York State. However, we are not commenting on whether a foreign country money judgment taken thereafter in South Africa would be recognized or enforceable in New York State under Articles 53 and 54 of the CPLR, respectively.