Gillespie v. Inter-Continental Hotels Corp.

Gorski, J.

(dissenting). I respectfully dissent, inasmuch as I conclude that Supreme Court properly denied the pre-answer motion of defendant Grand Hotel Inter-Continental Paris SNC (Hotel) seeking to dismiss the amended complaint against it. As the majority states, “ ‘Business Corporation Law § 307 establishes a mandatory sequence and progression of service completion options to acquire jurisdiction over a foreign corporation not authorized to do business in New York’ ” (VanNorden v Mann Edge Tool Co., 77 AD3d 1157, 1158 [2010], quoting Stewart v Volkswagen of Am., 81 NY2d 203, 207 [1993]; see Business Corporation Law § 307 [b]). The statute requires that “notice of the service and a copy of the process ... be ‘[s]ent ... 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, or if no such address is there specified, to its registered or other office there specified, or if no such office is there specified, to the last [known] address of such foreign corporation’ ” (VanNorden, 77 AD3d at 1158, quoting Business Corporation Law § 307 [b] [2]).

In support of its motion, the Hotel challenged the court’s jurisdiction over it on the ground that plaintiffs’ affidavit of compliance with Business Corporation Law § 307 was silent with respect to whether the address where plaintiffs sent the notice of service and a copy of the process was the one registered for that purpose with the French equivalent of the department *1686of state. In opposition to the motion, plaintiffs submitted the affidavit of their attorney, who averred that, based on his research, the Paris address to which he sent the notice of service and a copy of the process was the address listed for the Hotel in the “official registry of French companies.” Thus, contrary to the conclusion of the majority, plaintiffs submitted evidence establishing that they “attempted to ascertain whether an address was on file with [the appropriate] French official or body.” Further, although it appears that the documents attached to the affidavit of plaintiffs’ attorney were from a commercial enterprise providing information regarding companies listed in that French registry, rather than from the official registry itself, the Hotel makes no allegation in reply that the address to which plaintiffs sent the process is not “the post office address specified for the purpose of mailing process, on file . . . with an[ ] official or body performing the equivalent function” of the Department of State (§ 307 [b] [2]). Thus, I conclude that plaintiffs met their burden of establishing “that the specified steps for gaining jurisdiction by service and notice were precisely followed in the delineated sequence set forth in the statute” (Stewart, 81 NY2d at 207-208). Notably, the procedures contained in Business Corporation Law § 307 are “calculated to assure that the foreign corporation[ ] in fact[ ] receives a copy of the process” (Flick v Stewart-Warner Corp., 76 NY2d 50, 56 [1990], rearg denied 76 NY2d 846 [1990]) and, here, there is no dispute that the Hotel actually received the process. I would therefore affirm. Present — Smith, J.P., Fahey, Garni, Lindley and Gorski, JJ.