Supreme Court, Warren County, August 10, 2020

Law Office of Martin & Martin, Glens Falls (Trinidad M. Martin of counsel), for plaintiff.

Presently before the court is plaintiff's order to show cause which, in lieu of signing, was accepted as an ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico.

Plaintiff Tiffany Anne Sweet-Martinez and defendant Florencio Hernandez Martinez were married on November 17, 2007. Defendant was thereafter deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no-fault divorce on December 28, 2019 (see Domestic Relations Law § 170 [7]). There are no children of the marriage and, according to plaintiff, "all property has been equitably distributed, all debt has been allocated, [and] no maintenance is warranted."

In support of the motion, counsel for plaintiff states in pertinent part:

"I called defendant at his working telephone number . . . and spoke with him regarding sending him the papers to sign accepting service and consenting to the divorce. . . .

"Defendant confirmed his address for my mailings, consistent with an address plaintiff had on file for [him], written [in his] handwriting [on a] return label . . . .

"Per this conversation, on January 10, 2020 the summons with notice, admission of service, and [a] proposed [s]tipulation were mailed to defendant [at] the address designated by [him]."

Defendant did not respond and, as a result, the papers were sent to him again on March 9, [*2]2020—"this time with his original last name switched with his middle name to be consistent with the way his name appeared on the return label [he] had sent." Counsel informs that "defendant [still] has not responded [to date] and neither of the . . . mailings [have been] returned." Based upon "defendant's . . . reluctance to cooperate . . . and [her client's] limited resources," counsel now requests that the court permit service upon defendant via FedEx International Economy mail.

To the extent that the motion papers failed to include anything with respect to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No. 6638 [1965]) (hereinafter{**68 Misc 3d at 877} the Hague Convention)—to which Mexico is a party—the court invited (1) a supplemental affirmation outlining what, if any, steps have been taken to serve defendant in accordance with the provisions of the Hague Convention; and (2) a memorandum of law on the issue of whether the alternative method of service proposed is permissible under the Hague Convention.

These supplemental submissions indicate that "[o]n June 12, 2020, [counsel] prepared and submitted by mail . . . a Request for Service Abroad of Judicial or Extrajudicial Documents via a Central Authority—being the main channel of transmission per the Hague [Convention]—to the designated receiving authority in Mexico." Counsel has not yet heard anything back.

The submissions then argue that service upon defendant by mail is permissible under article 10 (a) of the Hague Convention, which offers as follows: "Provided the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad."

In this posture the court observes that Mexico has made the following declarations in relation to article 10 (a):

"[T]he United Mexican States are opposed to the direct service of documents through diplomatic or consular agents to persons in Mexican territory according to the procedures described in sub-paragraphs a), b) and c) [of article 10], unless the Judicial Authority exceptionally grants the simplification different from the national regulations and provided that such a procedure does not contravene public law or violate individual guarantees. The request must contain the description of the formalities whose application is required to effect service of the document" (see Declarations made at the moment of accession [1999], available at https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=412&disp=resdn, cached at http://www.nycourts.gov/reporter/webdocs/HCCH _ Declaration_reservation_notification.pdf).

It is argued that under this declaration, if the court were to order service by postal channels, such service would be acceptable to Mexico because service by mail does not contravene public law or violate individual guarantees.

Although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright{**68 Misc 3d at 878} objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. International Transactions, Ltd. v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND Tex 2002]; In re Marriage of Root and Hurtado, 185 Wash App 1009 [2014] [table; text at 2014 WL 7341131, *9, 2014 Wash App LEXIS 3004, *26-28 (2014)]). To that end, the court finds that service upon defendant via FedEx International Economy mail to his last known address in Mexico is permissible—under both CPLR 308 (5) and article 10 (a) of the Hague Convention.

Therefore, having considered the affirmation of Trinidad M. Martin, Esq., dated June 2, 2020, together with exhibits "A" through "D" attached thereto; supplemental affirmation of Trinidad M. Martin, Esq., dated July 29, 2020, together with exhibit "A" attached thereto; and memorandum of law of Trinidad M. Martin, Esq., dated July 29, 2020, it is hereby ordered that the motion is granted and plaintiff is hereby authorized to serve defendant by FedEx International Economy mail to his last known address in Mexico; and it is further ordered that the deadline to effectuate service is hereby extended to 30 days from the date of this decision and order; and it is further ordered that plaintiff shall file proof of service with the Warren County Clerk within 15 days of the completion of service, simultaneously providing the court with a copy of such proof.