In an opinion yesterday, Judge Swain ruled that “leave and mail” service under the CPLR was inconsistent with due process when used on a nonresident, at least where the case arises outside New York. The petitioner had sought to confirm an arbitration award against an Indian citizen who lives abroad but who apparently rents an apartment in the Time Warner Center in Manhattan. While the respondent was in town, the petitioner left a copy at the Time Warner Center and mailed a second copy. Judge Swain found that the respondent would have to be personally served while here to satisfy due process:
[T]he parties have not proffered, and the Court’s own research has not disclosed, any decision upholding as constitutionally valid the exercise of jurisdiction over a transient served by a substituted method such as “leave and mail.” Nor does “leave and mail” appear to have 19th century antecedents as a general method of personal service. While it was authorized by New York law for state “residents,” the New York Civil Practice Act (“N.Y. C.P.A.”) characterized it as a method of “substituted service,” and it was available only by court order . . . . Current CPLR section 308(2), embracing “leave and mail” within the broad rubric of personal service, dates only to the 1960s.
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As the Supreme Court’s decision in International Shoe Co. v. Washington, 326 U.S. 310 (1945), makes clear, the foundational question in determining whether an exercise of jurisdiction comports with due process is whether it comports with “traditional notions of fair play and substantial justice.” There is simply no evidence of any tradition, in New York or elsewhere, of using service other than direct physical delivery to obtain general personal jurisdiction over nonresident defendants. Where, as in International Shoe and its progeny, the Supreme Court has considered the “exercise of jurisdiction over absent defendants in a manner that deviates from the rules of jurisdiction applied in the 19th century,” the Court “ha[s] held such deviations permissible, but only with respect to suits arising out of the absent defendant’s contacts with the State.” This is not such a lawsuit.