On May 11, 2023, Justice Masley of the New York County Commercial Division issued a decision in Pala Assets Holdings Ltd v. Rolta, LLC, 2023 NY Slip Op. 31608(U), authorizing service of process by e-mail in India, explaining:
Plaintiffs admit that they unsuccessfully attempted to serve Singh in India pursuant to the Hague Convention because, contrary to plaintiffs’ instructions, the process server served Rolta instead of Singh. Plaintiffs’ process server took 251 days to serve Rolta India, starting the Hague Convention process on August 5, 2021, and effecting service on April 13, 2022. It took another two months to inform plaintiffs of the defective service. To serve Singh under the Hague Convention in India, plaintiffs must begin the lengthy process anew.
In motion sequence number 032, plaintiffs also requested permission to serve this contempt motion on Singh by email as alternate service pursuant to CPLR 308(5). Singh insists on personal service in India under the Hague Convention as the sole method of service. On December 9, 2022, on the record, the court found that email service on Singh was good and comported with due process which is supplemented by this decision.
First, the court rejects Singh’s argument that personal service is required by the Hague Convention in India. More recent cases allow email service in India as consistent with the Hague Convention.
While service of process by e-mail is not directly authorized by either the CPLR or the Hague Convention, it is not prohibited under either state or federal law, or the Hague Convention, given appropriate circumstances. Indeed, both New York courts and federal courts have, upon application by plaintiffs, authorized e-mail service of process as an appropriate alternative method when the statutory methods have proven ineffective.
Under New York law, while personal service is preferable for service of a corporate executive charged with contempt by aiding a corporation’s evasion of a court order, it is not necessary. Indeed, alternate forms of service are as likely, if not more likely, to securely and confidently reach the corporate executive and inform the executive of the proceeding.
Plaintiffs established, with numerous emails, produced by defendants on April 22, 2022, that Singh uses the email address [email protected] to conduct business. The “cmd” in the email address refers to Singh’s title as Chairman & Managing Director of Rolta India. Plaintiffs also established impracticability under CPLR 308(5) sufficient to direct alternate service. The movant must make some showing that the other prescribed methods of service could not be made or would have been unduly burdensome. The delay to serve and the delay to notify plaintiffs of the service combined with fact that to get such expedited service plaintiffs paid $5,000, which resulted in the process server serving Rolta India, not Singh. The delay combined with the process server’s incompetence satisfies the unduly burdensome standard and the court concludes that, effectively, service cannot be made personally.
(Internal quotations and citations omitted).