Gouiran Family Trust

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GOUIRAN FAMILY TRUST v. GOUIRAN

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40 A.D.3d 400 (2007)

836 N.Y.S.2d 566

GOUIRAN FAMILY TRUST et al., Respondents, v. EMILE E. GOUIRAN et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 17, 2007.

There has been no showing by defendants that French law does not permit service by mail under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No. 6638 [1965]; cf. Sardanis v Sumitomo Corp., 279 A.D.2d 225 [2001]). Indeed, the contrary appears to be true (see Eli Lilly & Co. v Roussel Corp., 23 F.Supp.2d 460, 473 [D NJ 1998]).

In any event, any challenges to lack of personal jurisdiction were waived pursuant to CPLR 3211 (e), and defendants’ default herein was entered more than six months after the acknowledged receipt of the summons by defendant Emile Gouiran in France. Although CPLR 308 (5) provides for special service upon natural persons only, service under CPLR 3211 (e) would have permitted the mailing and service upon the attorneys directed by the court. Thus, service was not improper.

In view of the absolute lack of merit to defendants’ contentions that the confessions of judgment were not obtained fraudulently, the court properly declined to vacate the default that had been granted for failure to serve the answer in a timely fashion. The extraordinary directive that Emile Gouiran be personally present to seek permission to file papers in this action or to prosecute a new action in the courts of New York is justified in view of his blatant, decades-long flouting of court orders, his flight from justice, and his perversion of the legal system (see e.g. Matter of Gouiran v Gouiran, 271 A.D.2d 266, 267 [2000]).