Case of the Day: New York State Thruway Authority v. Fenech
Posted on March 7, 2012
The case of the day is New York State Thruway Authority v. Fenech (N.Y. App. Div. 2012). The question was whether service by mail is permissible where the defendant is in Canada. There was no question in the case that New York law permitted service by mail; the question was whether the service also comported with the Hague Service Convention.
The Appellate Division (Third Department) had previously held, with a minority of American courts (including, I am sorry to say, the District Court here in Boston) that Article 10(a) of the Convention, which uses the word “send” rather than “serve”, permits the use of postal channels only to serve judicial documents other than the summons and complaint. This view is plainly wrong, and in today’s case, the court abandoned it in favor of the correct view, which is that Article 10 permits service of process by postal channels (except where the state of destination has objected).
The decision is plainly right. It does not, however, deal with the objection that esteemed fellow blogger and Canadian lawyer Antonin Pribetic made in our dialogue about the permissibility of service by mail in Canada under the Convention (Antonin’s point related only to Ontario, and it’s not clear in which province Fenech received the service). I think service by mail is permissible under the Convention in Canada for reasons I give in the dialogue, but I wanted to point readers to Antonin’s views (which he’s expanded on in a new post) just in case I’m wrong.