Alternative Service Allowed Upon Foreign Corporation Where Statutory Service Is Impracticable

Posted: June 3, 2026 / Written by: Ian Weiss, Samuel L. Butt, Thomas A. Kissane, Channing J. Turner / Category Service of Process

Alternative Service Allowed Upon Foreign Corporation Where Statutory Service Is Impracticable

On April 17, 2026, Justice Joel M. Cohen of the New York County Commercial Division granted a motion to permit alternative service upon an out-of-state corporation. The case is Agile Capital Funding LLC v. Solar4america Technology Inc., Index No. 654061/2025.

Plaintiff Agile Capital Funding LLC brought contract and other claims against Solar4america Technology Inc., certain of its affiliates, and Solar’s principal, arising from an agreement under which Agile was to purchase a specified percentage of Solar’s future receivables. One of the affiliates sued was SPI Energy Co., Ltd. (“SPI Energy”), which “is currently in liquidation in the Cayman Islands, with the process being overseen by court appointed Joint Official Liquidators (‘JOLs’)”. Slip op., p. 1.

Arguing that service by the statutory means was impracticable, plaintiff sought leave to effect alternative service on SPI Energy. Justice Cohen applied CPLR 311(b) (which governs alternate means of personal service upon corporations where service under 311(a) is impracticable) rather than 308(5) (the provision plaintiff moved under, which applies to natural persons.) CPLR 311(a) allows service “‘upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive such service’” or, under BCL 307, by service on the New York Secretary of State in combination with either personal service or registered mail with return receipt requested. Id., p. 3.

The Court found service under CPLR 311(a) to be impracticable and granted alternative service, explaining:

Here, the record indicates that SPI Energy has no current active U.S. operations or physical presence in New York or California, and that there is no registered agent or individual available for service. SPI Energy is in official liquidation in the Cayman Islands, with its assets and management fully under the control of the JOLs. SPI Energy’s former officers and directors no longer exercise authority over its affairs; those functions have been assumed by the JOLS . . . .

The Court recognizes that the JOLs . . . are court-appointed fiduciaries empowered to manage SPI Energy’s affairs and carry on its business insofar as it is necessary for its winding up (id. ¶¶ 5, 8–9). They could be regarded as agents of the company for purposes of liquidation, but they are located in Grand Cayman and neither they nor their counsel have consented to accept service of process on behalf of SPI Energy. In fact, Broadhurst LLC assert that any attempt to serve the company, its registered office, the firm or the JOLs would require leave of the Grand Court of the Cayman Islands. Under these circumstances, service on the JOLS through the conventional means under CPLR 311(a)(1) and BCL 307 is impracticable.

Slip op., pp. 3.

Noting his wide latitude, once the impracticability standard is satisfied, to fashion means of service adapted to the particular facts of the case subject to the requirements of due process, Justice Cohen authorized service upon SPI Energy via email to the JOLs. Id., p. 4.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning service of process.