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 non-objecting countries.
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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