Key Takeaway
New York court ruling on proper service requirements for foreign LLCs under LLC Law sections 304 and 307, including Secretary of State delivery and direct notice procedures.
Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 2017 NY Slip Op 06065 (2d Dept. 2017)
I am sure many of you out there have process servers engaging in BLC 307 and LLC 304 service who are not following all of the steps required to effectuate proper service. This is my second time at the rodeo so shame on me. This partner messed up again…
Service can be as difficult as solving a rule against perpetuities question in first year property class. That said, the Court has now told all of you what must be done EXACTLY to effectuate service.
On my end, I told the process servers what they need to do and demanded refunds for cases that need to be refiled. On your end (the reader), DO NOT repeat my mistakes. You have been warned. Here are the rules:
“First, service upon the unauthorized foreign limited liability company may be made by personal delivery of the summons and complaint, with the appropriate fee, to the Secretary of State (see Limited Liability Company Law § 304). Second, in order for the personal delivery to the Secretary of State to be “sufficient,” the plaintiff must also give the defendant direct notice of its delivery of the process to the Secretary of State, along with a copy of the process. The direct notice may be sent to the defendant by registered mail, return receipt requested, to the defendant’s last known address (see Limited Liability Company Law § 304). Third, after process has been delivered to the Secretary of State and direct notice of that service has been sent to the defendant, the plaintiff must file proof of service with the clerk of the court. That proof of service must be in the form of an “affidavit of compliance.” The affidavit of compliance must be filed with the return receipt within 30 days after the plaintiff [*2]has received the return receipt from the post office. Service of process shall be complete 10 days after the affidavit of compliance has been filed with the clerk with a copy of the summons and complaint (Limited Liability Company Law § 304). Strict compliance with Limited Liability Company Law § 304 is required, including as to the filing of an “affidavit of compliance”
What is an affidavit of compliance? Good question, because that is what was not uploaded in Global. This is what one looks like (modify for proper service type):
Have a happy Thursday.
