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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: August 21, 2016

Service on Corporate Officer Found Insufficient When Officer Was Adverse Party

On August 11, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Som v. Peter Som, Inc., 2016 NY Slip Op. 31539(U), holding that service on a corporation’s CEO was insufficient service of the corporation when the CEO was suing the corporation, explaining:

[T]he court cannot recognize plaintiffs attempt to serve defendant by delivering a copy of the summons and summary judgment motion to himself. The court has discretion to invalidate service based on a case’s particular circumstances. It is true that delivering a summons to a corporation’s CEO will normally suffice as service on the corporation. The Court of Appeals has held that in general, a corporate officer’s position is such as to lead to a just presumption that notice to them will be notice to the corporation. Nevertheless, in this case, plaintiffs interests as defendant’s CEO necessarily conflict with plaintiffs interests as the sole individual suing defendant in this lawsuit. The court cannot reasonably assume that service on plaintiff himself constitutes effective notice to defendant. The court finds that plaintiffs self service does not give rise to a presumption of notice to defendant, and that plaintiff’s service is inadequate.

(Internal quotations and citations omitted).

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