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New York State Thruway Authority v. Fenech

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Supreme Court, Appellate Division, Third Department, New York.

NEW YORK STATE THRUWAY AUTHORITY, Appellant,

v.

Nathan C. FENECH et al., Respondents,

and

Graham Corporation, Appellant.

(And a Third–Party Action.).

 

Feb. 16, 2012.

 

Before: MERCURE, Acting P.J., SPAIN, KAVANAGH, STEIN and EGAN, JR., JJ.

 

MERCURE, Acting P.J.

Appeals from an order of the Supreme Court (Platkin, J.), entered August 27, 2010 in Albany County, which granted a motion by defendants Nathan C. Fenech *655 and Silver Creek Transport, Ltd. to dismiss the complaint against them.

 

After a tractor-trailer that allegedly exceeded the limitations of Vehicle and Traffic Law § 385 damaged the underside of a bridge in the Town of Batavia, Genesee County, plaintiff commenced this action against defendant Nathan C. Fenech, who was driving the truck, and defendant Silver Creek Transport, Ltd., which owned the truck (hereinafter collectively referred to as defendants), as well as defendant Graham Corporation, which owned the cargo of the truck. Defendants, who are Canadian, were served by mail pursuant to Vehicle and Traffic Law § 253. Defendants moved to dismiss the complaint, contending that service by mail upon them was not permitted by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No 6638 [1969] ) (hereinafter the Hague Convention). Supreme Court granted the motion on that basis, noting that it was bound to do so by virtue of this Court’s decision in Reynolds v. Woosup Koh, 109 A.D.2d 97, 490 N.Y.S.2d 295 [1985] and cogently suggesting that Reynolds be revisited in light of subsequent developments in the law. Plaintiff and Graham, which cross-claimed against defendants, separately appeal.

 

Plaintiff asserts that Silver Creek was served pursuant to Business Corporation Law § 307, but the affidavit of service recites that service was made pursuant to Vehicle and Traffic Law § 253.

 

We reverse. Both the United States and Canada are signatories to the Hague Convention, a multilateral treaty “intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad” (Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S.Ct. 2104, 100 L.Ed.2d 722 [1988]; see Fernandez v. Univan Leasing, 15 A.D.3d 343, 344, 790 N.Y.S.2d 155 [2005] ). The treaty requires each signatory to establish a central authority that receives international service requests and thereafter serves documents “by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible with that law” (Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. at 699, 108 S.Ct. 2104). Nothing in the Hague Convention, however, requires litigants to rely upon the central authority and a signatory “may consent to [additional] methods of service within its boundaries” (id.; see Vazquez v. Sund Emba AB, 152 A.D.2d 389, 393, 548 N.Y.S.2d 728 [1989] ).

 

In that regard, article 10(a) of the Hague Convention preserves a litigant’s “freedom to send judicial documents, by postal channels, directly to persons abroad” in the absence of any objection by the destination state (emphasis added). While Canada has made clear that it “does not object to service by postal channels” (Accession, 1529 UNTS 499, 499 [1989] ), some New York courts have determined that article 10(a) does not authorize service by mail. This Court and the First Department have both adopted that interpretation, concluding that the use of the term “send” in article 10(a)—as opposed to “service,” which is ubiquitous elsewhere in the treaty—signifies “something other than ‘service’ in the legal sense, such as the mere transmittal of notices and legal documents which need not be ‘served’ ” (Reynolds v. Woosup Koh, 109 A.D.2d at 99, 490 N.Y.S.2d 295; see Sardanis v. Sumitomo Corp., 279 A.D.2d 225, 229, 718 N.Y.S.2d 66 [2001] ). The Second and Fourth Departments have held to the contrary, pointing to the history and usage of the Hague *656 Convention in determining that article 10(a), while perhaps carelessly drafted, nevertheless allows service by mail (see Fernandez v. Univan Leasing, 15 A.D.3d at 344, 790 N.Y.S.2d 155; Rissew v. Yamaha Motor Co., 129 A.D.2d 94, 96–98, 515 N.Y.S.2d 352 [1987] ). A similar division has arisen among the federal circuit courts of appeal that have addressed the scope of article 10(a), with the Second Circuit adopting the latter view (compare Brockmeyer v. May, 383 F.3d 798, 801–802 [9th Cir.2004] and Ackermann v. Levine, 788 F.2d 830, 839–840 [2d Cir.1986], with Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 384–385 [5th Cir.2002] and Bankston v. Toyota Motor Corp.,889 F.2d 172, 173–174 [8th Cir.1989] ).

 

Plaintiff now asks us to revisit our holding in Reynolds and, contrary to defendants’ contention, this issue is properly before us. Moreover, the weight of authority—much of it having arisen after Reynolds—persuades us that a departure from our prior holding is appropriate.

 

The starting point in interpreting any treaty is its text and the context in which its words are used. Article 1 of the Hague Convention states that the treaty applies only “where there is occasion to transmit a judicial or extrajudicial document for service abroad” (Hague Convention, 20 UST at 362 [emphasis added] ). Indeed, the explicit, limiting effect of article 1 was deliberate, addressing criticisms that language in the draft treaty “suggested that [it] could apply to transmissions abroad that do not culminate in service” (Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. at 701, 108 S.Ct. 2104). As such, article 10 facilitates the service of documents by permitting signatories to consent to alternate service methods, with article 10(b) and (c) both referring to the freedom of specified individuals “to effect service of judicial documents.” While article 10(a), in contrast, refers to “the freedom to send judicial documents” (emphasis added), the express limitation of the Hague Convention’s scope to the service of documents renders article 10(a) meaningless if it is interpreted as applying only to documents that are sent, but not served, by mail.

 

To the extent that the language of article 10(a) is ambiguous—in that reliance upon its obvious meaning would lead to “a result inconsistent with the” treaty’s intent as expressed in article 1 (Maximov v. United States, 373 U.S. 49, 54, 83 S.Ct. 1054, 10 L.Ed.2d 184 [1963]; accord Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 [1982] )—we are required to “look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties” in order to ascertain the true meaning of article 10(a) (Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 87 L.Ed. 877 [1943]; see Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535, 111 S.Ct. 1489, 113 L.Ed.2d 569 [1991] ). A review of the history of the negotiations reveals that the treaty’s drafters “intended the language [of article 10(a) ] to include the service of process” (1 Ristau, International Judicial Assistance [Civil and Commercial] ¶ 4–28, at 167 [1984] ). Indeed, the official account of the conference that resulted in the Hague Convention stated that the first paragraph of article 10 “was intended to permit service by mail” (Brockmeyer v. May, 383 F.3d at 802), and the American delegation to the conference agreed that article 10 allowed “alternative channels for the transmission of the documents for the purpose of service ” (Unification of the Rules of Private International Law: Report of the U.S. Delegation to the 10th Session of the Hague Conference on Private International Law, October 7–28, 1964, Dept St Bull, Feb. 22, 1965, at 269 [emphasis added] ).

 

*657 The drafters’ view of article 10(a) is reinforced by the subsequent actions of signatories to the Hague Convention, a majority of whom make “no objection to the service of judicial documents coming from abroad directly by mail in their territory” (Permanent Bureau of Hague Conference, Report on Operation of Convention of 15 November 1965 on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 17 ILM 312, 326 [1978]; see Table Reflecting Applicability of Articles 8, 10 [a], [b] and [c], 15and 16of the Hague Service Convention, available at http:// www. hcch. net/ upload/ applicability 14 e. pdf [accessed Dec. 13, 2011] ). Moreover, special commissions convened to study the operation of the treaty have consistently noted that article 10(a) preserves the right to serve process by mail, notwithstanding the holdings of “certain courts in the United States of America … that service of process abroad by mail was not permitted under the Convention” (Special Commission of April 1989 on Operation of Hague Conventions of 15 November 1965 on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 1970 on Taking of Evidence Abroad in Civil or Commercial Matters, Report on Operation of Hague Service Convention and Hague Evidence Convention, 28 ILM 1556, 1561 [1989]; see Special Commission on Practical Operation of Hague Apostille, Evidence and Service Conventions, Conclusions and Recommendations on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, at 11 [2003], available at http:// www. hcch. net/ upload/ wop/ lse_ concl_ e. pdf [accessed Dec. 13, 2011] ). The United States Department of State holds the same view, and its opinion, while not conclusive, “is entitled to great weight” (Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. at 184–185, 102 S.Ct. 2374).

 

It is therefore now evident that article 10(a) of the Hague Convention permits service of process by mail and, as such, plaintiff was free to serve defendants pursuant to Vehicle and Traffic Law § 253 (see Fernandez v. Univan Leasing, 15 A.D.3d at 344–345, 790 N.Y.S.2d 155; see also Aranzullo v. Collins Packing Co., 18 A.D.2d 1068, 239 N.Y.S.2d 398 [1963], affd. 14 N.Y.2d 578, 248 N.Y.S.2d 874, 198 N.E.2d 255 [1964] ). Inasmuch as we further reject defendants’ argument that the requirements of section 253 were not met, we conclude that Supreme Court acquired jurisdiction over them and their motion to dismiss must be denied.

 

Plaintiff’s remaining arguments are rendered academic in light of the foregoing.

 

ORDERED that the order is reversed, on the law, with costs to defendant Graham Corporation, and motion denied.

 

SPAIN, KAVANAGH, STEIN and EGAN, Jr., JJ., concur. 

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