Motion for Renewal of Judgment in Chi Zhiliang v. Huang Xianyou, Xiancheng Group Co., Ltd.| Trellis.Law

On January 26, 2023 a Motion-Secondary was filed involving a dispute between Chi Zhiliang, and Huang Xianyou, Xiancheng Group Co., Ltd., for Commercial - Other (Article 53) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 11/08/2023 01:48 PM INDEX NO. 650536/2023
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/08/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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:
CHI ZHILIANG, : Index No. 650536/2023
:
Plaintiff, :
:
v. :
:
HUANG XIANYOU, XIANCHENG GROUP CO. :
LTD., :
:
Defendants. :
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF RENEWED MOTION FOR
EXTENSION OF TIME WITHIN WHICH TO SERVE THE DEFENDANTS

Rongping Wu
DGW KRAMER LLP
One Rockefeller Plaza, 10th Fl.
Suite 1060
New York, NY 10020
T: (917) 633-6860
lwu@dgwllp.com
Counsel for Plaintiff

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
A. Attempted Service on the Defendants................................................................................. 2
ARGUMENT .................................................................................................................................. 4
A. Legal Standard .................................................................................................................... 4
B. An Additional Extension of Time Pursuant to Section 306-b is Warranted ....................... 5
CONCLUSION ............................................................................................................................... 6

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TABLE OF AUTHORITIES
Cases
Bumpus v. New York City Tr. Auth.,
66 A.D.3d 26 (2d Dept., 2009) ................................................................................................... 5
Henneberry v. Borstein,
2012 NY Slip Op 235, 91 A.D.3d 493 (1st Dept., 2012) ........................................................... 5
In re Douyu Int'l Holdings Sec. Litig. v. Consol. Action,
2021 NY Slip Op 30822(U) (N.Y. Sup. Ct., 2021) .................................................................... 5
Leader v Maroney, Ponzini & Spencer,
97 N.Y.2d 95 (2001) ................................................................................................................... 4
Morgenthau v Avion Resources Ltd.,
11 N.Y.3d 383 (2008) ................................................................................................................. 4
Nationstar Mortg. LLC v. McCallum,
2021 NY Slip Op 00806, 191 A.D.3d 480 (1st Dept., 2021) ................................................. 4, 6
So v. So,
2008 NY Slip Op 32675(U), 2008 N.Y. Misc. LEXIS 10225 (N.Y. Sup. Ct., 2008) ................ 5
Statutes
CPLR § 306-b ................................................................................................................. 1, 2, 4, 5, 6
CPLR § 313................................................................................................................................. 4, 5

iii

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Plaintiff, Chi Zhiliang (“Plaintiff”), by and through their undersigned counsel, respectfully

submits this Memorandum of Law in support of their Renewed Motion for an Extension of Time

Within Which to Serve pursuant to CPLR § 306-b (the “Motion”) in the above-captioned matter.

Plaintiff seeks an order that will extend the time period within which to serve commencement

papers so as to effectuate service upon Defendants Huang Xianyou (“Huang”) and Xiancheng

Group Co. Ltd. (“Xiancheng Group”) (collectively, the “Defendants”), through the Hague

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial

Matters (the “Hague Convention”).

PRELIMINARY STATEMENT

Plaintiff respectfully requests that this Court grant them an extension of 120 days within

which to effectuate service upon the Defendants using the procedures prescribed pursuant to the

People’s Republic of China’s (“PRC”) implementation of the Hague Convention. Plaintiff has

initiated the Hague Convention process and needs more time within which to complete the process.

Despite Plaintiff’s initial diligent efforts, service upon the Defendants via traditional and

conventional means has proven impracticable. All known potential addresses for the Defendants

in the PRC have proven ineffective to date, based upon the multitude of attempts made by the

Plaintiff to effectuate service on the Defendants at those addresses. All known addresses for the

Defendants in the PRC have been ineffective to date, based upon efforts made by the Plaintiff to

effectuate service in the PRC that do not involve the Hague Convention. Consequently, the

Plaintiff has initiated service upon the Defendants in the PRC via the Hague Convention.

Accordingly, Plaintiff now respectfully submits this memorandum of law, together with the

affirmation of Rongping Wu, dated November 8, 2023 (the “Wu Aff.”), along with all

accompanying exhibits thereto in support of its Motion for an order pursuant to CPLR § 306-b,

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extending the time within which to effectuate alternative service upon the Defendants by an

additional 120 days to accommodate the Hague Convention.

BACKGROUND

On January 26, 2023, Plaintiff commenced this action by filing a Summons, Complaint,

and supporting exhibits, seeking recognition and enforcement under CPLR Article 53 of a final,

conclusive, and presently enforceable foreign country money judgment entered on May 19, 2014,

in Plaintiff’s favor and against Defendants. (See NYSCEF Nos. 1 – 4). Prior to commencing this

action, Plaintiff was aware of addresses for both of the Defendants within the PRC. (See NYSCEF

Nos. 1 and 3 - 4). The original time within which to effectuate service upon the Defendants, as

prescribed by CPLR § 306-b expired on or around May 26, 2023. Plaintiff has also initiated service

upon the Defendants in the PRC via the Hague Convention. Plaintiff diligently continues to

attempt to serve the Defendants via the Hague Convention in the PRC, but is in need of additional

time within which to effectuate service. On May 30, 2023, Plaintiff filed its first motion pursuant

to CPLR § 306-b with the Court seeking an extension of time so as to allow for the completion of

service via the Hague Convention. (See NYSCEF Nos. 5 – 9). On June 27, 2023, the Court granted

the requested extension and issued an order which created a new deadline of October 25, 2023, for

service to be completed. (See NYSCEF No. 10). Unfortunately, the Hague Convention procedures

initiated by Plaintiff have yet to be completed and consequently, Plaintiff now seeks additional

time.

A. Attempted Service on the Defendants

Plaintiff was aware that the Defendants’ last known addresses were located within the PRC,

as same was represented on the Summons submitted by the Plaintiff. See NYSCEF Nos. 1, 3, and

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4 and Wu Aff., at ¶ 4. Service was initially attempted on the Defendants at those addresses in the

PRC and to-date has been ultimately unsuccessful. See id.

Conventional service was initially attempted on both of the Defendants at their last-known

addresses within the PRC, however despite multiple attempts at effectuating service at those

addresses, to-date the Plaintiff has been unable to confirm or deny whether either of the Defendants

currently resides at, or maintains a presence at their last-known address in the PRC. See id., at ¶

5. Moreover, the Plaintiff has initiated service in the PRC through the Hague Convention to serve

the Defendants in the PRC. See id., at ¶ 6.

Further, on February 22, 2023, to continue the diligent attempts at serving both Defendants,

Plaintiff initiated service upon both of the Defendants in the PRC through the Hague Convention.

See id. Under the Hague Convention procedures, the Chinese Ministry of Justice, which acts as

the PRC Central Authority for purposes of the Hague Convention, must review and then deliver

the papers to a PRC court for service upon the target—a process widely understood to take at least

six months but which can take much longer depending on the circumstances, and which process

ultimately is not particularly expedient. In this instance, more than eight (8) months have elapsed

since service was initiated. Id., at ¶¶ 7 and 8. However, the PRC court is in a much better position

to be able to verify the location of the targets and actually proceed to get the commencement

papers, and thereby notice of this lawsuit, into the hands of the Defendants. Id., at ¶ 8. The PRC

court is familiar with and authorized to utilize standard channels for process within the PRC, and

thereby has access to the necessary resources with which to provide the greatest chance of

successfully notifying the Defendants of the pendency of this instant matter. Id. To-date, the PRC

Central Authority has passed the documents to be served on to the relevant Supreme People’s

Court (the “SPC”) for service upon the Defendants. The SPC is currently in the process of

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effectuating service upon the Defendants and Plaintiff continues to wait for the SPC to confirm

that service has been completed. Id., at ¶ 6.

Consequently, the Plaintiff now requests that, pursuant to CPLR § 306-b and in the interests

of justice, this Court grant Plaintiff an additional extension of 120 days to serve the Defendants

within the PRC so as to accommodate service through the Hague Convention’s procedures.

ARGUMENT

For good cause shown and in the interests of justice, Plaintiff now seeks an order granting

an additional extension of 120 days within which to effectuate the already initiated service upon

the Defendants through the Hague Convention in the PRC.

A. Legal Standard

Pursuant to CPLR § 313, a plaintiff may “use the service methodologies of CPLR 308,

209, 310, 311, and 312-a, etc., wherever the defendant…may be found.” Morgenthau v Avion

Resources Ltd., 11 N.Y.3d 383, 389 (2008) (internal citation omitted).

Pursuant to CPLR § 306-b, “[i]f service is not made upon a defendant within the time

provided in this section, the court, upon motion…[and]…upon good cause shown or in the interest

of justice, extend the time for service.” CPLR § 306-b. The interests of justice standard requires

“a balancing of the competing interests presented by the parties…a plaintiff need not establish

reasonably diligent efforts at service…however a court may consider diligence…the meritorious

nature of cause of action, the length of delay in service, the promptness of [the request], and

prejudice to defendant.” Nationstar Mortg. LLC v. McCallum, 2021 NY Slip Op 00806, 191

A.D.3d 480, 142 N.Y.S.3d 156 (1st Dept., 2021) (citing Leader v Maroney, Ponzini & Spencer,

97 N.Y.2d 95, 105-106 (2001)).

Where service under the Hague Convention is appropriate under CPLR § 313, the interests

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of justice are served by the granting of an extension of time to effectuate that alternative service.

See So v. So, 2008 NY Slip Op 32675(U), 2008 N.Y. Misc. LEXIS 10225, * 10 – 11 (N.Y. Sup.

Ct., 2008) (holding that where the service is not shown to impracticable, and movant has

demonstrated diligent efforts at service to-date, extension of time pursuant to Section 306-b was

warranted); see also In re Douyu Int'l Holdings Sec. Litig. v. Consol. Action, 2021 NY Slip Op

30822(U), at *5 (N.Y. Sup. Ct., 2021) (granting Section 306-b extension of time in interest of

justice to permit effectuation of service through Hague Convention procedures).

B. An Additional Extension of Time Pursuant to Section 306-b is Warranted

The CPLR prescribes an initial 120 days in which to effectuate service of process upon

defendants, while the Hague Convention implemented by the PRC requires at least six months to

complete. 1 In this case, more than eight (8) months have passed and the process remains ongoing.

See CPLR § 306-b, and Wu Aff., ¶ 7. Therefore, Plaintiff respectfully requests that, for good cause

shown and in the interests of justice, the Court grant an extension of time within which to effectuate

service pursuant to Section 306-b. “Good cause requires a showing of reasonable diligence in

attempting to effect service…and may be found to exist where the plaintiff’s failure to timely serve

process is a result of circumstances beyond the plaintiff’s control.” Bumpus v. New York City Tr.

Auth., 66 A.D.3d 26, 31 – 32 (2d Dept., 2009) (internal citations omitted). “CPLR 306-b provides

for an additional and broader standard, i.e., the interests of justice, to accommodate late service

that may be due to mistake, confusion, or oversight, so long as there is no prejudice to the

defendant.” Henneberry v. Borstein, 2012 NY Slip Op 235, 91 A.D.3d 493, 496 (1st Dept., 2012).

Plaintiff initiated Hague Service pursuant to CPLR § 313 on both of the Defendants in the PRC

1
See FAQs, China – Central Authority & Practical Information (last updated January 17, 2023)
https://assets.hcch.net/docs/5bbc302d-532b-40b1-9379-a2ccbd7479d6.pdf (last accessed
November 8, 2023).

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out of an abundance of caution. To-date, the PRC Central Authority has accepted the

commencement documents and passed them on to the relevant SPC for service. Wu Aff., ¶ 6. The

SPC is currently in the process of effectuating service upon the Defendants and Plaintiff can only

wait for the SPC to complete this process. Id. The requested additional extension will enable

Plaintiff to continue to await completion of service of the commencement papers upon each of the

Defendants in the PRC through the mechanisms of the Hague Convention.

As discussed at length above, Plaintiff has exercised diligence in attempting to serve the

Defendants abroad in the PRC, via conventional means. Plaintiff has not delayed in attempting to

serve the Defendants. To-date, Plaintiff has attempted to serve the Defendants using multiple

conventional methods in the PRC. Finally, in light of the facts that neither of the Defendants has

yet to make an appearance in this action and Plaintiff has not unduly delayed in bringing this

Motion, there can be no prejudice to either Defendants caused by the requested extension. See

Nationstar Mortg. LLC, 191 A.D.3d, at 481. Consequently, both for good cause shown and in the

interests of justice, the Court should grant the Motion and provide Plaintiff with an additional 120

days within which to effectuate service of the commencement papers upon both of the Defendants

through the Hague Convention in the PRC.

CONCLUSION

In light of the foregoing reasons, the Plaintiff respectfully requests that this Court issue an

order pursuant to CPLR § 306-b for good cause shown and in the interests of justice granting an

additional extension of time of 120 days within which to effectuate service upon both of the

Defendants through the Hague Convention in the PRC, as is set forth in the accompanying

Proposed Order, and granting such other and further relief as the Court finds just and appropriate

under the circumstances.

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Date: November 8, 2023
New York, New York
Respectfully submitted,
DGW KRAMER LLP

By: /s/ Rongping Wu
Rongping Wu, Esq.
DGW KRAMER LLP
One Rockefeller Plaza, 10th Fl.
Suite 1060
New York, NY 10020
T: (917) 633-6860
lwu@dgwllp.com
Counsel for Plaintiff

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing Plaintiff’s Memorandum of Law in Support of
Motion for Extension of Time Within Which to Serve the Defendants contains 1,903 words and is
in compliance with the Uniform Civil Rules for the Supreme Court & the County Court, Section
202.8-b(a) and Rule 17(i) of the Rules of Practice for the Commercial Division.

Dated: November 8, 2023
New York, New York By: /s/ Rongping Wu
Rongping Wu

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Case Info

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Suzanne J. Adams Track Judge’s New Case

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Document Filed Date

November 08, 2023

Case Filing Date

January 26, 2023

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Motion-Secondary: Chi Zhiliang v. Huang Xianyou, Xiancheng Group Co., Ltd.

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