Foreign Service by Mail Now Allowed in Three out of Four Departments
February 28, 2012 Posted By Tara Bhupathi Complex Litigation
On February 16th, 2012, the Supreme Court Appellate Division of the Third Department overturned the Department’s previous interpretation of Article 10(a) of the Hague Convention, which did not allow service by mail on foreign defendants. The issue arose in a suit filed by the New York State Thruway Authority against Nathan Fenech and Silver Creek Transport, Ltc, Canadian residents. Both defendants were served via mail and sought dismissal of the complaint on the grounds of invalid service. The Supreme Court’s Judge Platkin granted the motion to dismiss, however, in his opinion, Judge Platkin suggested a revisit of the precedent relied upon. Naturally, New York Thruway appealed the ruling, allowing the Appellate Division to review the court’s 1985 ruling in Reynolds v. Wossop Koh which has disallowed foreign service by mail for almost three decades.
In reversing the lower court’s dismissal of the complaint, the Appellate Division looked to legislative history and other interpretations across jurisdictions in order to find that the rule of law dictated in Reynolds went against the purpose of the Hague Convention. The New York Judicial Departments and Federal Circuit Courts disagree as to the meaning of Article 10(a) due to the split in interpretation of the use of the word “send” as opposed to “serve”. The Article grants the “freedom to send judicial documents, by postal channels, directly to persons abroad,” as long as the recipient state does not object, which Canada does not. On one hand, the Second and Fourth Departments and Second and Ninth Circuits hold that the provision allows for service by mail, and pass off the use of “send” as a typo or a word intended to mean service. On the other hand, the First Department and Fifth and Eigth Circuits hold that the use of “send” means that the provision refers to mere notices and other legal documents that are not served in the legal sense.
The Third Department reasoned that since the Hague Convention intended to both “provide a simpler way to serve process abroad” and “assure that defendants sued in foreign jurisdictions would received actual and timely notice,” allowing service by mail would not be out of line with the underlying policy goals. The Court also examined the history of the negotiations that led to the Hague Convention, studies done by special commissions after the Convention and the opinion of the US DOJ in holding that Article 10(a) includes service of process.