In the Matter of Genger, No. 2008-0017 (N.Y. Sur. Ct. Apr. 22, 2015) 

[click for opinion]

This case involved a surrogate’s court proceeding in New York in which a necessary party, the contingent remainder beneficiary, was located in Israel.  Service was made through registered mail, return receipt requested.  The contingent remainder beneficiary moved to dismiss on the ground that service by registered mail in Israel was not permitted under the Hague Service Convention (the “Convention”).

The decision turned on Article 10(a) of the Convention, which provides, in relevant part:

Provided the State of destination does not object, the present Convention shall not interfere with -

a)   the freedom to send judicial documents, by postal channels, directly to persons abroad[.]

The issue that has arisen in many cases is whether the use of the word “send” in this provision applies to “service” of process.  The federal courts are split on the issue.  The New York state court system has four different appellate divisions.  The Second, Third and Fourth Departments hold that Article 10(a) applies to service of process.  However, the First Department, which includes New York City, holds that service of process may not be made by mail.  The Surrogate’s court here was within the First Department and, therefore, held that the service of process under the Convention by registered mail was not valid service.  The case against the contingent remainder beneficiary was therefore dismissed.

David Zaslowsky of the New York office contributed to this summary.