FILED: NEW YORK COUNTY CLERK 08/24/ :33 AM INDEX NO /2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/24/2016

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1 FILED: NEW YORK COUNTY CLERK 08/24/ :33 AM INDEX NO /2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/24/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GUADALUPE GALLEGO OCHOA and GUADALUPE ARANZAZU GAYOSSO GALLEGO, individually and derivatively on behalf of CONSORCIO de DESARROLLO INTERCONTINENTAL, S.A. de C.V. and CORPORACION de OPERACIONES de INFRAESTRUCTURA, S.A. de C.V.,, Plaintiffs, Index No /2016 E-File Case ATTORNEY AFFIRMATION AND CERTIFICATION PURSUANT TO C.P.L.R. 2217(B) against EMPRESAS ICA, S.A.B. de C.V., CONTROLADORA de OPERACIONES de INFRAESTRUCTURA, S.A. de C.V., INGENIEROS CIVILES ASOCIADOS, S.A. de C.V., GRUPO ICA S.A. de C.V. and PEDRO TOPETE VARGAS, Defendants. Maurice W. Heller, an attorney duly admitted to the practice of law before the courts of the State of New York, under the penalties of perjury affirms: 1. I am member of Garvey Schubert Barer, counsel to Plaintiffs in the abovecaptioned proceeding. I respectfully submit this affirmation in support of Plaintiffs' Order to Show Cause why an Order should not be entered extending the time to serve Defendants Guadalupe Aranzazu Gayosso Gallego, Empresas ICA, S.A.B. de C.V., Controladora de Operaciones de Infraestructura, S.A. de C.V., Ingenieros Civiles Asociados, S.A. de C.V. and Grupo ICA S.A. de C.V. pursuant to CPLR 306-b and GS 8: of 6

2 2. This action was brought by Plaintiffs against Defendants, seeking damages for fraud, constructive trust, breach of contract and conversion in connection with the purported sale of shares in a company in which the Plaintiffs owned and interest. A true and correct copy of the Summons with Notice in this action can be found at docket number This action was filed on May 16, Plaintiffs' time to serve Defendants, pursuant to CPLR 306-b, expires on September 12, Plaintiff Guadalupe Gallego Ochoa is a resident of the State of Florida and is a citizen of the state of Mexico. 5. Plaintiff Guadalupe Aranzazu Gayosso Gallego ("Gayosso") is a resident of the state of New York and is a citizen of the state of Mexico. 6. Upon information and belief, Defendant Empresas ICA, S.A.B. de C.V. ("ICA") is a corporation organized and existing under the laws of the state of Mexico. ICA is a holding company for the remaining corporate defendants. ICA is not registered with the New York Secretary of State. 7. Upon information and belief, Defendant Controladora de Operaciones de Infraestructura, S.A. de C.V. ("Conoisa") is a corporation organized and existing under the laws of the state of Mexico. Conoisa is a wholly-owned subsidiary of ICA. Conoisa is not registered with the New York Secretary of State. 8. Upon information and belief, Defendant Ingenieros Civiles Asociados, S.A. de C.V. ("Ingenieros") is a corporation organized and existing under the laws of the state of Mexico. Ingenieros is a wholly-owned subsidiary of ICA. Ingenieros is not registered with the New York Secretary of State. 2 GS6: of 6

3 9. Upon information and belief, Defendant Grupo ICA S.A. de C.V. ("Grupo") is a corporation organized and existing under the laws of the state of Mexico. Grupo is a whollyowned subsidiary of ICA. Grupo is not registered with the New York Secretary of State. 10. Mexico is a signatory of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Document in Civil or Commercial Matters (the "Hague Convention") Because Defendants reside in a country party to the Hague Convention, the Convention provides the exclusive means by which Defendants may be served. See Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, 290 (2008)(when Hague Convention applies, compliance with its terms is "mandatory"); Sardanis v. Sumitomo CoNp., 279 A.D.2d 225, (1St Dept 2001) (invalidating service properly made under N.Y.B.C.L. 307 on Japanese defendant because it did not comply with Hague Convention). 11. Plaintiffs have made reasonable efforts at effectuating service on Defendants within their time to serve, following Hague Convention procedures. For reasons beyond Plaintiffs' control, the service channels required by the Convention have taken Plaintiffs longer than expected. 3 GS B: of 6

4 12. The Central Authority designated by the government of Mexico for purposes of Hague Convention service is: Ministry of Foreign Affairs Directorate-General of Legal Affairs Plaza Juarez No. 20, Planta Baja Edificio Tlatelolco Colonia Centro Delegacion Cuauhtemoc C.P Mexico, Distrito Federall 13. The Hague Convention requires that an "authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority," copies of the process to be served. Hague Convention, Art On June 27, 2016, the Court's Judgment Clerk sent copies of the Summons with Notice, the Notice of Commencement of Action Subject to Mandatory Electronic Filing ("EFM- 1 Notice"), certified Spanish translations of the Summons with Notice and EFM-1 Notice, and Form USM-94 (Request for Service Abroad of Judicial and Extrajudicial Documents) (collectively the "Documents") by registered mail, return receipt requested, to the Mexican Central Authority (the "June Mailings"). The Court Clerk then filed Affidavits confirming transmission of the Documents and attaching mailing receipts. Copies of the Clerk's affidavits filed herein can be found at docket numbers 2, 3, 4 and Can August 23, 2016, Jennifer Sy Lopez, my litigation assistant, visited the Court's E-Filing system to check if the Court had received and filed copies of the return receipts for any of the June Mailings. The system reflects that it had not, as according to the Judgment See "Mexico Central Authority &practical information" available at ht':t:}~s.;:'.,ti~.~y.~~~.,,lzc;s;i7_,~~e:t:'.~r~;~tatc.5';~~lotl~.c~riri,;~%c1~tgia.l:5.3.''.`'aic~.;:::2e7 (last visited August 23, 2016). GS6: of 6

5 Clerk, the Court's usual procedure upon receiving return receipts would be to scan and electronically file the notices. 16. We have had Mexican counsel monitor the status of the documentation sent to the Ministry of Foreign Affairs in Mexico City. We are told that while the documentation has been delivered to the Ministry, the Ministry has not as yet delivered the documents to the corporate defendants, and there is no way to gauge when that will happen. 17. Extensions of time to serve under C.P.L.R. 306-b "should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service." Murphy v. Hoppenstein, 279 A.D.2d 410, 411 (1st Dept 2001) (quoting Memorandum of the Office of Court Administration # 97-67R, 1997 New York State Legislative Annual, at 319). See also Kulpa v. Jackson, 3 Misc.3d 227, 235 (Sup.Ct. Oneida Cnty. 2004) (noting that Office of Court Administration had "cited the difficulty of serving defendants in other countries as one of the situations in which there might be `good cause' for an extension of time to serve pursuant to the statute") 18. Because Mexico is a Hague Convention signatory, Plaintiffs' hands are tied, and Plaintiffs are precluded from pursuing other channels of service to that might be more expedient: In situations involving service under the Hague Convention the treaty mandates the delegation of the duty and actuality of service to a foreign sovereign over whom the litigant, definitionally, has absolutely no control. All that an attorney can do regarding service pursuant to the Hague Convention is follow the proper procedures to cast his client on the tender mercies of a foreign sovereign which may or may not have much interest in effecting the involvement of its citizens in litigation in the United States. Once the papers have been successfully delivered to the sovereign, the domestic litigant's counsel has done all she can, and if additional months or years are required to let the sovereign work his will, so 5 GSB: of 6

6 be it, and courts should routinely correspondingly extend the time provided to complete the task of achieving proper service under the Hague Convention. Kulpa, supra, 3 Misc.3d at 236 (citing Broad v. Mannesmann Anlagenbau, A.G., 141 Wash.2d 670, 10 P.3d 371 [Supreme Court of Washington State 2000]) 19. Counsel have already appeared in this action on behalf of the corporate defendants, even though service has not been completed upon them pursuant to the Hague Convention. I spoke to Ste~ en Selsberg, lead counsel for the corporate defendants, and he said that the corporate defendants would not oppose our motion to extend time for service. 20. I hereby certify pursuant to C.P.L.R. 2217(b) that Plaintiffs have not brought any prior application, before this or any other Court, seeking the same or similar relief. Dated: New York, New York August 23, 2016 D GS6: of 6