If a Canadian is sued in a New York State court, one of the first areas of defense may be whether the New York State court has personal jurisdiction over the Canadian defendant. The analysis of whether there is personal jurisdiction is complex and will be the subject of a future article.
This article focuses on the process your New York State lawyer has to follow simply to get involved in the case to a sufficient extent that he or she will know what papers have been filed, what deadlines are approaching, and also be able to file papers in the case. Importantly, there is an unexpected pitfall that your lawyer should consider.
When a lawsuit is filed in New York State Supreme Court (which, despite its name, is the trial court level of the New York State court system), it is assigned an index number. All of the filings in the case can then be found and read online. Typically, a lawyer will want to be listed as a lawyer on the case so that any papers filed or orders issued by the court with the index number in the case will be electronically provided to the lawyer. In other words, the lawyer does not have to search for the filings because the filings will be emailed directly to the lawyer. Similarly, papers filed in the case must be electronically filed and the lawyer must be signed up to electronically file papers.
There are two ways to be registered to electronically receive and file papers in the case. One of those ways could result in a waiver of the defense that the court lacks personal jurisdiction over the defendant.
A lawyer for the defendant can file a Notice of Appearance, which will result in the lawyer receiving emails containing any papers filed or decisions made in the case. But the filing of a Notice of Appearance waives the defense of lack of personal jurisdiction over the defendant. In U.S. Bank N.A. v. Smith,i the issue was whether the defendants had waived the defense of lack of personal jurisdiction by informally participating in conferences with the court. The court found that the informal participation did not constitute a waiver of the defense of lack of personal jurisdiction. But the Second Department made clear that the filing of a Notice of Appearance is not an informal act and would waive the defense. The court explained that “[t]he filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.”
Accordingly, the important practice tip is that if there is a potential defense of lack of personal jurisdiction over the Canadian defendant, a Notice of Appearance is not the mechanism that should be used to access the court’s electronic notification system. Instead, the lawyer should file a Consent to E-Filing. Courts have held that filing a Consent to E-Filing does not waive the defense of lack of personal jurisdiction.ii
Even though the Consent to E-Filing is not a waiver of the defense of lack of personal jurisdiction, the lawyers get the benefit of knowing what is happening in the case. Where a party consents to e-filing, service of papers “shall” be made upon that party by filing electronically.iii Rule 202.5-B [b] [2] [ii] merely preserves the jurisdictional defenses that may be available to a litigant whose counsel agrees to electronic filing.iv
When representing a Canadian defendant, it is imperative that the practitioner not inadvertently waive the defense that the New York State court does not have the right to assert personal jurisdiction over the defendant.
i210 A.D.3d 725, 726 (2d Dep’t 2022).
iiSee Obstfeld v. Thermo Niton Analyzers LLC, 910 N.Y.S.2d 406, 406 (N.Y. Sup. Ct., King Cty. April 13, 2010). (“As defendants correctly argue, pursuant to CPLR 3012 (b), a Demand for Complaint “does not of itself constitute an appearance in the action,”), nor does consent to electronic filing constitute an appearance. The Uniform Rules for Trial Courts, 22 NYCRR 202.5-B [b] [2] [ii], provides that “[t]he filing of a consent to e-filing hereunder shall not constitute an appearance in the action.”
iii22 NYCRR 202.5-B [b] [2] [iii].
ivSee also 22 NYCRR 202.5-B [b] [2] [iii]. “The filing of a consent to e-filing hereunder shall not constitute an appearance in the action under CPLR 320.”