Singer v. Black & Decker Mfg. Co.

• Decision Date: 02 September 1987
• Docket Number: No. CIV-84-1051E.,CIV-84-1051E.
• Citation: 668 F. Supp. 160
• Parties: Joseph C. SINGER, Individually and as Administrator of the Estate of Audrey M. Singer, Plaintiff, v. The BLACK & DECKER MANUFACTURING COMPANY, Defendant.
• Court: U.S. District Court — Western District of New York

668 F. Supp. 160

Joseph C. SINGER, Individually and as Administrator of the Estate of Audrey M. Singer, Plaintiff, v.The BLACK & DECKER MANUFACTURING COMPANY, Defendant.

No. CIV-84-1051E.

United States District Court, W.D. New York.

September 2, 1987.

Arthur N. Bailey, Jamestown, N.Y., for plaintiff.

William J. Love, Jr., Buffalo, N.Y., for defendant.

MEMORANDUM and ORDER

ELFVIN, District Judge.

This is a products liability action commenced in New York's Supreme Court and transferred to this Court.Now presented is the question whether, under section 307 of New York's Business Corporation Law ("BCL"), service of process upon the Secretary of State within the two-year period prescribed by statute for commencing wrongful death actions constitutes effective service of process sufficient to toll the running of the period set forth in the applicable statute of limitations when the defendant is a foreign corporation unauthorized to conduct business in New York and was not served with process by mail until after the expiration of the period.

Plaintiff Singer, individually and as administrator of the estate of Audrey Singer, brings this action under section 5-4.1 of New York's Estates, Powers, and Trust Law ("EPTL").He seeks monetary damages for the allegedly wrongful death of Audrey Singer.Pursuant to section 5-4.1, a wrongful death action must be brought within two years after the decedent's death.

The defendant is a foreign corporation, unauthorized to do business in New York.It is incorporated in Maryland and has its principal place of business in that state.The defendant has moved for summary judgment pursuant to Fed.R.Civ.P. rule 56 on the grounds that there are no genuine issues as to any material fact and that the defendant is entitled to summary judgment as a matter of law.

The facts involved in this case are largely not in dispute.On July 22, 1982, at approximately 3:00 p.m., Audrey Singer received an electrical shock while using a Black & Decker electric drill at her home in Ashville, N.Y. Allegedly as a result of this shock of electricity, she died approximately two hours later.

On July 20, 1984 and pursuant to BCL § 307, counsel for the plaintiff caused a summons with notice to be served personally upon the Secretary of State in Albany, N.Y.On August 13, 1984counsel mailed to the defendant(via registered mail, return receipt requested) copies of the summons, the notice, an "affidavit of service" upon the Secretary and proof of payment of the statutory fee.Upon receiving the return receipt signed by Black & Decker August 21, 1984 and in compliance with BCL § 307, plaintiff's counsel timely filed the required affidavit of compliance, together with the process and the signed return receipt, with the Clerk of Chautauqua County.

The defendant presently alleges that, although the Secretary of State was served prior to the July 22, 1984 expiration of the period of limitations, the plaintiff failed to effectuate timely service of process upon the defendant as process was not mailed to the defendant until August 13, 1984.It contends that, because the service of process was defective, this Court has not acquired jurisdiction over the defendant and the action is now time-barred.

Section 307 provides a method of effectuating service of process on unauthorized foreign corporations which are subject to the jurisdiction of the New York courts.Under this statute, a foreign unauthorized corporation actually doing business in New York is deemed to have designated New York's Secretary of State as its agent for the service of process.The statute reads, in pertinent part:

"(a) In any case in which a non-domiciliary would be subject to the personal or other jurisdiction of the courts of this state under article three of the civil practice law and rules, a foreign corporation not authorized to do business in this state is subject to a like jurisdiction.In any such case, process against such foreign corporation may be served upon the secretary of state as its agent. * * *."

Pursuant to BCL § 307(b) personal service of a copy of process on the Secretary of State is deemed sufficient to invoke jurisdiction of the court if a copy of the process and notice of service upon the Secretary of State are sent by registered mail with return receipt requested by or on behalf of the plaintiff to the foreign corporation.

BCL § 307(c) directs further that, within thirty days of receipt of the return receipt signed by the defendant foreign corporation, proof of service must be established by filing an affidavit of compliance, together with the process and the return receipt signed by the corporation, with the clerk of the court.The statute indicates that service of process shall be complete ten days after the filing of such papers with the court.

The effect of a plaintiff's serving the Secretary of State within the period of limitations yet failing to serve the foreign unauthorized corporation with process by mail during such period has not been determined by any New York court in a reported decision.However, it must be noted at the outset that BCL § 307 does not explicitly require compliance with the mailing provision before the expiration of the period of limitations in order to complete service of process upon the defendant.The statute merely provides that "such service shall be sufficient if notice thereof and a copy of the process are * * * (2) Sent by or on behalf of the plaintiff to such foreign corporation by registered mail with return receipt requested * * *."BCL § 307(b).

The defendant urges the court to view as analagous BCL § 307andsection 253.2 of New York's Vehicle and Traffic Law("VTL") and to apply the holding of Yarusso v. Arbotowicz,41 N.Y.2d 516, 393 N.Y. S.2d 968, 362 N.E.2d 600(1977)(decided under VTL § 253), to the case at bar.Section 253, the non-resident...