Commercial Division Blog

Posted: January 7, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Category Commercial

Court Denies Motion To Confirm Service Of Process On Brazilian Limited Liability Corporation Pursuant to BCL § 307 or CPLR § 311

On December 9, 2021, in Air Astana Jsc v. Embraer, S.A., 2021 NY Slip Op 32650(U), Justice Ostrager denied Plaintiff’s motion to deem service completed under BCL § 307 or CPLR § 311(b) .  The Court explained: 

Brazil, the domicile of defendant, has adopted the Hague Service Convention and, as is defendant's right, the defendant insists on service that complies with the Hague Service Convention. And while service via the Hague Service Convention may not be exclusive, it does preempt inconsistent methods of service. BCL § 307 authorizes service on foreign corporations via the Secretary of State, followed by a mailing pursuant to BCL § 307(b)(2). The mailing must be sent "by or on behalf of the plaintiff to such foreign corporation by registered mail with return receipt requested, at the post office address specified for the purpose of mailing process, on file in the department of state, or with any official or body performing the equivalent function, in the jurisdiction of its incorporation ..."

Plaintiff has established service on the Secretary of State (NYSCEF Doc. No. 8), but the subsequent mailing to defendant's General Counsel in Brazil via registered mail (NYSCEF Doc. No. 9) was not proper, notwithstanding that plaintiff received an acknowledgment of receipt from the defendant's General Counsel (NYSCEF Doc. No. 10) because the service did not comply with the Hague Service Convention…

As to alternative service under CPLR § 311(b), the Court denied the motion, holding:

In light of the case law and Brazil's insistence on service via the Hague Service Convention, plaintiff should attempt such service before asking the Court to approve alternate means.

The Court, however, did, pursuant to CPLR § 306-b, grant Plaintiff an extension of time to complete service via the Hague Service Convention.

The attorneys at Schlam Stone & Dolan frequently litigate service disputes and serve defendants in foreign countries.  Please contact the Commercial Division Blog editors at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such service.