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PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff did not strictly comply with the requirements for service of process on defendant unauthorized foreign limited liability company. Plaintiff had been granted a default judgment dismissing the foreclosure proceeding as time-barred. Defendant’s motion to vacate the default judgment was denied. The Fourth Department dismissed the complaint (without prejudice) finding that the flaws in service deprived the court of jurisdiction:

Pursuant to [Limited Liability Company law 304], “[f]irst, 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 … . That was done by plaintiff in this case. “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 given to the defendant personally… . That was attempted by plaintiff, but the process server was unable to make personal service inasmuch as the property was “unoccupied.” In the alternative, “[t]he direct notice may be sent to the defendant by registered mail, return receipt requested”… . That was attempted by plaintiff in this case, but the mail was returned to plaintiff as undeliverable. …

… [P]laintiff failed to comply with step two of Limited Liability Company Law § 304. …  Inasmuch as plaintiff failed to comply with step two, she necessarily also failed to comply with step three, which would show that a party complied with the service requirements of section 304. Initially, we note that plaintiff filed an affidavit of service showing personal service upon the Secretary of State and a notation that service was made upon defendant by registered mail, return receipt requested, but she did not file an affidavit of compliance… . Moreover, because plaintiff did not comply with step two, she was unable to file a return receipt signed by defendant “or other official proof of delivery” … . Purportedly attached to the affidavit of service filed by plaintiff was a copy of the envelope mailed to defendant by registered mail and returned to plaintiff as undeliverable. Rather than showing proof of delivery, plaintiff showed just the opposite, i.e., that the process was not delivered to defendant. We therefore conclude that the motion to vacate the default judgment on the ground of lack of jurisdiction should have been granted… . Chan v Onyx Capital, LLC, 2017 NY Slip Op 08966, Fourth Dept 12-22-17

CIVIL PROCEDURE (SERVICE OF PROCESS, PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))/LIMITED LIABILITY COMPANY LAW (SERVICE OF PROCESS, PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))/SERVICE OF PROCESS (LIMITED LIABILITY COMPANY LAW,  PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))

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