667 N.Y.S.2d 770 | N.Y. App. Div. | 1998
Appeal from an order of the Supreme Court (Bradley, J.), entered November 25, 1996 in Ulster County, which denied defendant’s motion to dismiss the complaint for lack of personal jurisdiction.
On December 10, 1993, plaintiff filed a summons and complaint alleging causes of action in negligence and strict
In its brief to this Court, defendant argues that service was not properly effected because it was not done in strict compliance with Business Corporation Law § 307, which defines the procedure to be followed when serving an unauthorized foreign corporation via the Secretary of State. Plaintiff denies that she attempted to effect service under Business Corporation Law § 307 and that any failure to comply with its provisions is irrelevant because service was made pursuant to CPLR 311.
Initially, we find that Business Corporation Law § 307 does not provide the only method by which an unauthorized foreign corporation may be served; rather, it is merely an alternative to CPLR 311. “Service of process on a foreign corporation that is doing business * * * in this State without authorization may be effected, in addition to the methods specified in section 307 of the Business Corporation Law, by delivery to a ‘managing or general agent’ or to ‘any other agent authorized by appointment or by law to receive service’ ” (Low v Bayerische Motoren Werke AG., 88 AD2d 504, 505, quoting CPLR 311 [former (1)] [emphasis supplied]). Strict compliance with Business Corporation Law § 307 is required only when a plaintiff “chooses” to acquire personal jurisdiction over a defendant pursuant to such statute (Stewart v Volkswagen of Am., 81 NY2d 203, 208), clearly implying that it is not the sole method for serving an unauthorized foreign corporation.
Defendant next contends that even if Business Corporation Law § 307 is inapplicable, service was improper because the affidavit of service required by CPLR 311 lacked sufficient factual information, i.e., a description of the person upon whom pro
Defendant’s final contention is that service was improper because plaintiff served the wrong corporation. Notwithstanding defendant’s denials about not manufacturing the subject toaster, service of process upon a subsidiary corporation can effectuate service on its parent under appropriate circumstances (see, Taca Intl. Airlines v Rolls-Royce of England, 15 NY2d 97). Without further development of the record regarding “Black & Decker’s” corporate structure, we find that Supreme Court, on the record then before it, did not err in denying the motion to dismiss without prejudice to renew.
Mikoll, J. P., Crew III, White and Peters, JJ., concur. Ordered that the order is affirmed, with costs.
Business Corporation Law § 307 (e) specifically provides that “[n]othing in this section shall affect the right to serve process in any other manner permitted by law” (see, Siegel, NY Prac § 95, at 26 [2d ed, 1997 Supp]).