MBS Moda v. Fuzzi SpA: Service By Mail Revisited
Posted on January 16, 2013
The case of the day is MBS Moda, Inc. v. Fuzzi S.p.A. (N.Y. Sup. Ct. 2013). Fuzzi, a women’s clothing designer and manufacturer in Rimini, Italy, had a contract with MBS Moda under which MBS was Fuzzi’s agent and sales representative in New York and was entitled to as 12% commission on sales. MBS sued Fuzzi for unpaid commissions. It sought to serve process on Fuzzi by mail and Fedex. Fuzzi moved to dismiss for lack of personal jurisdiction.
While some departments of the Appellate Division of the New York Supreme Court have held, correctly, that Article 10(a) of the Hague Service Convention authorizes service by mail (for example, New York State Thruway Authority v. Fenech, our case of the day from March 7, 2012), the First Department continues to hold that Article 10(a) does not permit service of process by mail, full stop, See Sardanis v. Sumitomo Corp., 718 N.Y.S.2d 66 (App. Div. 2001). And so the court was bound to dismiss the case on the grounds that MBS had not effected service of process.
I hope this issue can be brought before the First Department on appeal, or that the Court of Appeals will take up the issue, particularly because the US Court of Appeals for the Second Circuit’s rule is to the contrary. The First Department’s view here is, I think, plainly wrong and should be reconsidered.