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Current Developments in the Commercial Divisions of the
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Posted: August 16, 2015

Contempt Motion Denied For Improper Service of Subpoena

On July 28, 2015, Justice Bransten of the New York County Commercial Division issued a decision in Board of Managers of the Setai Condominium Residences at 40 Broad St. v. 40 Broad, LLC, 2015 NY Slip Op. 31431(U), denying a motion for contempt for failure to respond to a subpoena because the subpoena had not properly been served, explaining:

CPLR Section 2303(a) provides that a subpoena duces tecum shall be served in the same manner as a summons. Service of a summons on an LLC, such as [the respondent], is governed by CPLR Section 311-a, which provides that service on any domestic limited liability company:

Shall be made by delivering a copy personally to (i) any member of the limited liability company in this state, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company in this state, if the management of the limited liability company is vested in one or more managers, (iii) to any other agent authorized by appointment to receive process, or (iv) to any other person designated by the limited liability company to receive process, in the manner provided by law for service of a summons as if such person was a defendant. Service of process upon a limited liability company may also be made pursuant to article three of the limited liability company law.

In addition to the four numbered methods of service on an LLC, the final sentence of CPLR Section 311-a allows for service according to Limited Liability Company Law Section 303. Limited Liability Company Law Section 303 states that service may be effecting on New York’s Secretary of State. N.Y. Limit. Liab. Co. ยง 303.

(Internal quotations and citations omitted). The the subpoena had been “delivered” to the respondent’s “office by handing” it to “a ‘Jane Doe,’ the person alleged to be ‘apparently in charge at that address.'” Without evidence that “‘Jane Doe’ was or appeared to be a member or a manager of” the respondent or “was authorized or designated to receive service pursuant to CPLR Section 311-a (iii) or (iv),” service was held to be improper.

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