A recent decision from New York's First Judicial Department
now allows for service by mail to Canada.
What You Need To Know
Lawsuits filed in all New York state
courts can be served on Canadian parties by mail.
This recent decision aligns practice
in New York's busiest commercial court in Manhattan with the
rest of New York state courts.
For signatories including Canada and the United States, the
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents governs the method by which court documents
for a litigation in one country are properly delivered to parties
in another country.
Many jurisdictions have interpreted Article 10(a) of the Hague
Convention to permit service of process—the delivery of
documents initiating a lawsuit—to be made by mail if the
defendant's country has not objected to such service.
Because Canada has not objected to service by mail, a plaintiff in
numerous U.S. jurisdictions can serve a lawsuit simply by mailing
the initial documents to a Canadian defendant.
One jurisdiction that did not allow service by mail, however,
was New York's First Judicial Department, which includes the
state courts located in Manhattan. The First Department has been an
outlier for several years compared with the other state and federal
courts in New York, all of which have allowed process to be served
by mail in countries that do not object.1 And the fact
that New York's highest court had not resolved the conflict
between the First Department and the other Judicial Departments
created some uncertainty on this issue throughout the state.
In Mutual Benefits Offshore Fund v. Zeltser, the First
Department Appellate Division recently decided to "join our
sister Departments and hold that service of process by mail
'directly to persons abroad' is authorized by article 10(a)
of the Hague Convention . . . so long as the destination state does
not object to such service."2 The court provided no
reasoning for its about-face, but implicitly overruled its previous
conclusion that "service" of process initiating a lawsuit
is not encompassed by Article 10(a), which allows parties to
"send" judicial documents through postal channels to
1. The state courts located in the other boroughs of New
York City—Brooklyn, Queens and Staten Islandare within the
Second Department, which has permitted service of process by mail
to non-objecting countries since at least 2005.See Fernandez v.
Univan Leasing, 790 N.Y.S.2d 155 (App. Div. 2005).
2. 37 N.Y.S.3d 1, 1 (App. Div. 2016).
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