Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

This post is a little bit of a change of pace for us because it concerns the mechanics of initiating a lawsuit, rather than substantive legal issues of interest to managers and business owners. 

We review a recent decision of the New York Court of Appeals which held that service of process outside the state may be made by any method valid within the state, as long as New York has jurisdiction. For our non-lawyer readers: service of process (normally, delivery of a summons and complaint in civil cases) on the defendant is essential for a court to obtain personal jurisdiction over the defendant and, therefore, essential to begin a lawsuit.

The case was brought to our attention by the New York Law Digest, No. 589, January 2009, edited by David D. Siegel, perhaps the top authority on New York civil procedure, and distributed via e-mail by the New York State Bar Association. The case is Morgenthau v. Avion Resources, Ltd., 11 N.Y.3d 383 (2008). 

In this case, the defendants were in Brazil. But, the decision is applicable to service outside New York generally. The case involved an attempt to seize assets in New York for wrong-doing in Brazil. Under the circumstances of the case, there was no dispute that the New York courts had subject matter jurisdiction – the courts had jurisdiction over the dispute. The issue that went to New York’s highest court was whether the methods of service that were valid under New York law were also valid out of state.

To shorten the suspense, the Court said, “yes.”

First, the New York statute in question, N.Y.C.P.L.R. §313, does not require that service adhere to local (in this case, Brazilian) law. As an appellate court is sometimes apt to do, it reminds us all that when interpreting a statute, we need to be mindful of what the statute doesn’t say as well as what it does say. The statute does not say that it is necessary to comply with methods of service prescribed by (out-of-state) local law.

In addition, the Court points out that the concept of comity does not apply. Comity is a concept that involves a “spirit of cooperation” between the courts of different sovereign states (including other states in the U.S. and in foreign countries). However, the Court said:

we have never applied the doctrine to import the laws of a foreign country into a New York lawsuit -- and we decline to do so in this case.

International Treaties, of which the United States is a signatory, can mandate a particular method of service. But, Brazil is not a signatory to one treaty that does mandate a method and it is a signatory to another that does not mandate a method of service.  That, made the case for this plaintiff.  But, note that other countries may have signed treaties that do mandate a method of service. 

I’m sure the defendants in this case were fairly frustrated. But, the bottom line is that the defendants were required to defend the lawsuit in a New York court. And, applying the case generally, if the defendant (or the person you would like to make a defendant) moves to Brazil, yes, under circumstances similar to this case, you can still sue. 

What is the takeaway or, at least, the relevance?  An important technical rule was clarified.  Had the decision gone the other way, it could have stymied many attempts to even begin a lawsuit if the defendant was not within the borders of New York.  Remember, the rule is as applicable with respect to an adjacent state as it is to Brazil.  Thus, while it may be rare to deal with a defendant in a distant foreign country that has not signed a treaty that mandates the method of service, disputes crossing neighboring states are far more common and not subject to treaties. 

Image: Locator map for Brazil; Wikipedia Commons

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An article in Law.com provides a clear and concise analysis of the possible impact of the new administration on immigration while advising diligence and compliance for the present (“How Will Obama Administration Impact Immigration?”). The article is by Elena Park who, according to the bio posted with the article, heads the immigration practice at Cozen, O’Connor, a large national law firm.

In keeping with the focus of this blog, we emphasize that if there is any area where business clients would want to stay away from litigation and follow “best practices”, it is in the employment of foreign workers. We have commented before on the narrow path that employers must walk between non-compliance and over-zealous enforcement, for example, here. Ms. Park expresses the dilemma faced by employers as follows:

Employers are feeling the pressure of government scrutiny for potentially hiring unlawful workers, while having to avoid discrimination claims for over-zealously limiting jobs to U.S. employees.

Among the advice offered in the article: Verify - complete I-9 employment verification forms for all new employees; “Document, document, document” – any employment verification issues; follow the same employment verification procedures for all employees.

Looking ahead, the article describes future reform of immigration laws under the new administration that may include legalization of currently undocumented workers, increase in H-1B numbers to allow more hiring of skilled foreign workers, continued worksite enforcement, greater border security and other changes. Recognizing that these predictions are speculative, the article points to statements by the new President (while campaigning) as evidence that immigration is not likely to remain on the back burner.

The focus of this blog is not political so I won’t comment on the pros or cons of these predictions. I am in agreement with this article, however, to the extent that it advises employers to remain diligent to comply with existing law and stay tuned for a possibly more manageable legal environment in the future.

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Sometimes cases and legal issues that superficially seem like “inside baseball” to our non-lawyer readers actually contain practical insights that property and business owners would find fairly interesting - - once an appropriate translation is made from the “legalese.”

A case in point: recently an appellate case in New York provided valuable insights into adverse possession. As a bonus, the case also provided lessons on an important evidentiary rule, the business records exception to the hearsay rule. The case is Corsi v. town of Bedford, 2008 NY Slip Op 09344 (2d Dep’t). 

 We’ve commented on adverse possession before, for example, here and here. At first adverse possession seems like an arcane subject – can neighbors really claim land that is legally not theirs and actually win? Yes, they can. And. it’s not arcane; cases come up all the time in our practice and certainly in the court system.

The plaintiffs, in this case, purchased a home in Bedford, NY. The town purchased the land next to the plaintiff’s property to preserve open space. The plaintiffs claimed a portion of that land on the principle of adverse possession – that they had openly, notoriously and continuously possessed it for 10 years under a claim of right. And, a unique statutory requirement in New York, the claimed land was “usually cultivated or improved” or “protected by a substantial enclosure.” Had the case come up in Connecticut, where we also practice, the time requirement would have been 15 years and there would be other, more subtle differences in the rules.

Lesson number one: adverse possession cannot be claimed against a municipality that owns land for governmental purposes (such as open space preservation). But, lesson number two also applies: if the town bought the land after the 10-year period had already expired, adverse possession would apply. Specifically in this case, the town bought the land in 2004 so if the plaintiffs can prove – by clear and convincing evidence – that they already possessed the portion that they claimed for 10 years in 2004, that portion is theirs.

Incidentally, for our non-lawyer readers, “clear and convincing” evidence is the highest level of proof for civil (meaning non-criminal) litigation. It’s a greater burden of proof than required in most civil matters. And, the burden of proof is on the plaintiffs; the defendant, the town, did not have to prove anything, they merely had to show the plaintiffs’ proof was insufficient.

Both sides used photographs as evidence. The bulk of the published decision really concerned whether certain aerial photographs, along with expert analysis, that the town submitted would be admissible. If the town’s photographs were not admissible, then the plaintiff’s photographs would not be contradicted and the plaintiffs would have the land. 

The trial court had ruled that the town’s photographs were admissible. The plaintiffs appealed.

The appellate court’s decision included a very clear, detailed explanation of the rule that would apply in this case. First, the court reviewed the well-established definition of hearsay: a statement made out of court, offered for its truth. For our non-lawyer readers: hearsay is not admissible because, among other reasons, having been made out of court, it was not made under oath and is unreliable. There are many exceptions to the hearsay rule and trial courts have a lot of discretion in how they apply this rule. 

An exception to the hearsay rule that applied in this case was the business records exception. Thus, lesson number three: records kept in the normal course of business are considered reliable (and, therefore, admissible) because they are not made for the purpose of the litigation. But, there has to be proof (a reliable and credible witness) to establish that the records are authentic and were, in fact, maintained in the normal course of business.

Image: A diagram of the major roads of northwestern Bedford, NY, traces on USGS aerial photo; Wikipedia Commons.

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This blog occupies a niche straddling the legal profession and general business management. Thus, today we find connections between two articles or posts, one addressing management issues from the small business section of the New York Times and the other addressing employment litigation issues from a the New Jersey Employment Law Blog.

The Times gives us as an example of “making lemons into lemonade” (“A Business Forced to Shrink May Be Stronger” by Paul B. Brown). The premise is stated in the title.   The article identifies certain advantages to a business from staying small: less bureaucracy, greater engagement, easier to understand where people fit in and people believe in the company. The article also gives suggestions on ways to get stronger while staying small: outsource low-impact functions, focus on only profitable clients, stay flexible and change the business model when competition changes.

The “lemons and lemonade” part comes in because staying small may, in fact, be forced on a business by the declining economy, which is the lemon part. Using the bitter experience to get stronger is the sweet, lemonade part. Incidentally, I first encountered the lemon and lemonade metaphor many, many years ago in advice columns be either Ann Landers and Dear Abby (or both, being twins, they thought alike). So, a metaphor that old is on its way to becoming a cliché but there is always an element of truth that creates clichés.

The reminder about the lemonade cliché or metaphor caused me to read a little differently the recent post about the ADAA in the NJ Blog (“2009 Starts with New Challenges for Employers” by Frank Steinberg). The ADAA is the Americans with Disabilities Amendments Act, signed into law this past fall by President Bush and effective with the new year.

Citing other writers, the post concisely identifies key issues raised by the amendments to the ADA: Congress, in passing the amendments, reversed a series of Supreme Court decisions that had limited the definition of “disability” and, therefore, limited the ability of employees to sue for damages claiming discrimination in employment because of disability. The author (and other commentators cited in the post), raises the fear that an enormous percentage of employees can now claim to be disabled.

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With the new year we plan to post once per week, usually on Wednesday of each week. We will begin with this new schedule Wednesday, January 7, 2009.  Of course, we remain  flexible so when the occasion calls for it there may be some additional posts. 

This blog is intended to provide commentary rather than 'breaking news."  A less frequent publishing schedule should provide more time for reflection and research.  

Thank you for your patience and support while we try to find our "voice" and a schedule that will keep our blog in proper balance within our practice..

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