## Facts

- Nathan Fenech drove a truck that allegedly damaged a bridge owned by the New York State Thruway Authority (the Authority) in New York.
- Silver Creek Transport, Ltd. owned the truck involved in the incident.
- Fenech and Silver Creek were residents of Canada.
- The Authority sued Fenech and Silver Creek seeking recovery for the bridge damage.
- The Authority attempted to serve both defendants in Canada by mail under New York’s Vehicle and Traffic Law provisions governing service on nonresident motorists.
- Defendants moved to dismiss, arguing that service by mail in Canada was barred by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention).
- Defendants contended that the Hague Service Convention requires use of the treaty’s “central authority” procedure and does not permit service of original process by mail.
- The Authority argued that Article 10(a) of the Hague Service Convention allows sending judicial documents by postal channels directly to persons abroad, and that this includes service of process by mail where the destination state has not objected.
- The Authority also relied on the fact that Canada had not objected to Article 10(a).
- The Supreme Court dismissed the complaint for improper service, relying on prior Third Department precedent that read Article 10(a) as allowing only the sending of documents, not service of process.
- The Authority appealed.

## Issues

1. Does Article 10(a) of the Hague Service Convention permit service of original process by international mail on defendants located in Canada when Canada has not objected to service through postal channels?
2. If Article 10(a) permits such service, was the Authority’s Vehicle and Traffic Law mailing method sufficient to defeat dismissal for improper service?

## Decision

- The Appellate Division held that Article 10(a) permits service of process by international mail where the forum’s law authorizes mail service and the destination state has not objected to postal service under the Convention.
- Because Canada had not objected to Article 10(a), the Hague Service Convention did not bar the Authority from serving Canadian defendants by mail under the applicable New York statute.
- The court rejected the narrower reading of Article 10(a) that treated “send” as excluding service of original process.
- The order dismissing the complaint for improper service was reversed, and the action was allowed to proceed.

## Legal Principles

- The Hague Service Convention is a controlling source of law for service abroad in civil cases when it applies, and state-law service methods must be evaluated for consistency with the Convention.
- Article 10(a) permits service of process by postal channels when: (i) the receiving state has not objected to Article 10(a), and (ii) the forum’s procedural law authorizes service by mail.
- A court should not treat the Convention’s central-authority method as the only permissible method when the Convention itself authorizes additional channels and the destination state has not opted out of them.
- When a defendant challenges service made abroad, dismissal is improper if the chosen service method is authorized by both the forum statute and the Hague Service Convention as applied to the destination state.

## Conclusion

In *New York State Thruway Authority v. Fenech*, the Third Department reversed dismissal for improper service, holding that the Hague Service Convention did not prohibit serving Canadian defendants by mail where Canada had not objected to Article 10(a) and New York law authorized service by that mailing method.


New York State Thruway Authority v. Fenech, 94 A.D.3d 17, 938 N.Y.S.2d 654 (2012)