| When a defendant fails to serve an answer to a complaint, CPLR 3215 provides a mechanism for obtaining a judgment on default by motion. For corporate defendants, this process almost invariably hinges on commencement documents served upon the Secretary of State. But what happens when that office fails to perform its mandated function to promptly forward these documents, as it has admittedly continued to do?
One of the most tried-and-true methods for corporate service is via the Secretary of State pursuant to CPLR 311(a)(1), incorporating Business Corporation Law (BCL) 306 (domestic) and 307 (foreign). (We will put aside, for purposes of this article, whether a corporation is subject to this state’s general jurisdiction based on constitutional parameters for their mere registration to do business here, which subject was neatly explored in a recent article authored by Adam C. Calvert and Brian Ramkissoon of Marshall Dennehey, NYLJ, Nov. 10, 2023, “Out-of-Staters Finding the Basis for Personal Jurisdiction”).
Service under this method obviates the need to determine at the outset of litigation when little is often known of the corporate structure of a defendant, who is legally authorized to accept service on behalf of that corporation. Suffice to say that unless you know exactly who is authorized to accept service on behalf of a corporation, guessing is a recipe for disaster should a deadline under a statute of limitations be approaching or if it provides a defendant a basis to vacate or dismiss based on your purportedly…
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