LEXSTAT NY CLS BUS CORP § 304
NEW YORK CONSOLIDATED LAW SERVICE
Copyright (c) 2004 Matthew Bender & Company, Inc.,
one of the LEXIS Publishing (TM) companies
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** THIS SECTION IS CURRENT THROUGH CH. 417, 08/26/2004 **
** With exceptions as detailed in the Online Product Guide **
BUSINESS CORPORATION LAW
ARTICLE 3. CORPORATE NAME AND SERVICE OF PROCESS
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
NY CLS Bus Corp § 304 (2004)
§ 304. Statutory designation of secretary of state as agent for service of process
(a) The secretary of state shall be the agent of every domestic corporation and every authorized foreign corporation
upon whom process against the corporation may be served.
(b) No domestic or foreign corporation may be formed or authorized to do business in this state under this chapter
unless in its certificate of incorporation or application for authority it designates the secretary of state as such agent.
(c) Any designation by a domestic or a foreign corporation of the secretary of state as such agent, which designation is
in effect on the effective date of this chapter, shall continue. Every domestic or foreign corporation, existing or
authorized on the effective date of this chapter, which has not designated the secretary of state as such agent, shall be
deemed to have done so. Any designation prior to the effective date of this chapter by a foreign corporation of an agent
other than the secretary of state shall terminate on the effective date of this chapter.
(d) Any designated post-office address to which the secretary of state shall mail a copy of process served upon him as
agent of a domestic corporation or a foreign corporation, shall continue until the filing of a certificate under this chapter
directing the mailing to a different post-office address.
Add, L 1961, ch 855, eff Sept 1, 1963.
Section heading, amd, L 1962, ch 417, eff Sept 1, 1963.
NOTES:
REVISION NOTE:
The secretary of state is the designated agent for service of process for domestic and authorized foreign corporations,
both existing and to be formed or authorized. All designations of agents of foreign corporations other than the secretary
of state terminate. Under Gen. Corp. L. § 213 such designations continued until terminated by the death, resignation,
or removal from the state of the designated agent. The filing of certificates of designation is not required.
The address designated for mailing of process continues. A change in such address of a domestic corporation is by
certificate of amendment or of change under § 805 and of an authorized foreign corporation by certificate of
amendment under § 1309.
CROSS REFERENCES:
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NY CLS Bus Corp § 304
This section referred to in § 109; CLS Priv Hous Fin § § 18, 75; CLS Unconsol ch 252-A § 12; ch 252-B § 16;
ch 264 § 12
Applicability of this section to companies organized under the Private Housing Finance Law, CLS Priv Hous Fin § §
18, 75
Applicability of this section to youth facilities project guarantee fund, CLS Unconsol Ch 264 § 12
FEDERAL ASPECTS:
Service of process in stockholder's derivative actions, 28 USCS § 1695
RESEARCH REFERENCES AND PRACTICE AIDS:
14 NY Jur 2d, Business Relationships § 71
15 NY Jur 2d, Business Relationships § § 1046, 1087
28 NY Jur 2d, Courts and Judges § 313
40 NY Jur 2d, Decedents' Estates § 1278
86 NY Jur 2d, Process and Papers § 52
NY Forms, Corporations 17:14(V), 17:15(IV)
MATHEW BENDER'S NEW YORK PRACTICE GUIDES:
1 New York Practice Guide: Business and Commercial § § 6.03, 6.18, 6.27
TEXTS:
Turano & Radigan, New York Estate Administration (1999, Matthew Bender) § 2-4(b)(7)
Weinstein, Korn, Miller, CPLR Manual (Matthew Bender) § § 3.02[c], 3.14[b]
2 White on New York Corporations (13 ed, Matthew Bender) PP 304.01 et seq
CASE NOTES
In an action by plaintiff New York corporation alleging that it made two contracts for the sale and delivery of fuel
oil with defendant Delaware Corporation and that defendant had failed to deliver the oil as agreed to plaintiff's barge at
defendant's designated New York harbor terminal, defendant's authorization to do business in New York and
concomitant designation of the secretary of state as its agent for surface of process pursuant to Bus Corp Law § 304(b)
constitutes consent to in personam jurisdiction under CPLR § 301. Augsbury Corp. v Petrokey Corp. (1983, 3d Dept)
97 App Div 2d 173, 470 NYS2d 787.
In an action against a foreign corporation, defendant-corporation was subject to personal service by delivery of
process to the Secretary of State where corporation's certificate of authority to do business in New York State was filed
in 1917 and was still in effect although the corporation no longer was doing business in New York. Robfogel
Mill-Andrews Corp. v Cupples Co. Mfrs. (1971) 67 Misc 2d 623, 323 NYS2d 381.
Notice of appropriation is not a "process" as defined by the Business Corporation Law and, therefore, personal
service is not perfected upon a corporation by serving a notice of appropriation upon the Secretary of State. Ebbets v
State (1976) 88 Misc 2d 358, 387 NYS2d 969, affd (3d Dept) 64 AD2d 794, 408 NYS2d 556, affd 47 NY2d 973, 419
NYS2d 972, 393 NE2d 1044.
Provisions of the Business Corporation Law authorizing service of process on the Secretary of State do not extend
the territorial jurisdiction of a city court outside the City of New York but merely provide an alternative method of
service since, if the requirements are met, personal service could be made upon such defendant directly. O'Rourke v
Ted's Ford, Inc. (1977) 89 Misc 2d 986, 393 NYS2d 160.
Territorial limitations upon service of summons contained the Uniform City Court Act and the Constitution with
respect to city courts outside of the City of New York do not prohibit the domestic and foreign corporations from
consenting to other means of acquiring jurisdiction, such as service upon the Secretary of State, even though such
consent is required as a precondition for doing business in the state. O'Rourke v Ted's Ford, Inc. (1977) 89 Misc 2d 986,
393 NYS2d 160.
Chapter 7 trustee failed to complete valid service of process on adversary defendants in a timely manner, or to offer
a basis for excusable neglect of completing the service, and his motion to excuse tardy service was denied.Goldstein v
Ill. Sec. Agency (In re Just for Feet, Inc.) (2003, BC DC Del) 299 BR 343, 41 BCD 246.
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NY CLS Bus Corp § 304
Where summons was mailed to defendant corporation by Secretary of State in care of its former counsel and, due to
clerical error in the mail room of the law firm, the unopened letter was returned to the Secretary of State marked
"Refused", default judgment would be opened for "mistake, inadvertence, surprise, or excusable neglect." Horn v
Intelectron Corp. (1968, SD NY) 294 F Supp 1153, 13 FR Serv 2d 1281.
The surviving corporation is liable for acts of merged corporation committed before merger where merger occurs
prior to commencement of action. Service is made personally upon surviving corporation or upon Secretary of State or
registered agent of corporation. 1971 Ops Atty Gen Sept 27.
CASE NOTES UNDER FORMER LAW
Failure to make service in accordance with the provisions of § 24 of the former Stock Corp. L. could be waived
where the corporation participated in the action on the merits, even though the corporation contended that it was
appearing specially. Re East River Sav. Bank (1945) 294 NY 356, 62 NE2d 601.
Where the designated agent for service of process upon a foreign corporation authorized to do business in this state
died, and the corporation designated no other person in his place, service of summons upon the secretary of state in an
action against said corporation upon a liability arising without this state was futile, where the defendant was not shown
to have property in this state, and on motion would be set aside. Eastern Products Corp. v Tennessee C., I. & R. Co.
(1918) 102 Misc 557, 170 NYS 100.
However, under § 213 of the former Gen. Corp. L. it was held that service of summons by the plaintiff, a resident
of this state, upon the secretary of state as agent for the defendant, a Florida corporation, based upon a transitory cause
of action arising in Florida, was invalid, since service, upon the agent designated solely by statute of the state wherein
suit is brought, is valid only in respect to cause of action originating in that state. Powell v Home Seekers' Realty Co.
(1928) 131 Misc 590, 228 NYS 131.
The provisions of the former Gen. Corp. L. and of the former Stock Corp. L. making the secretary of state statutory
agent for service of process on domestic and also on foreign corporations authorized to do business in New York
superseded former Civil Practice Act provisions to the extent of conflict, but were to be read in conjunction with the
latter to the extent that both could apply. Midvale Paper Board Co. v Cup Craft Paper Corp. (1940) 173 Misc 786, 19
NYS2d 135; Cohen v American Window Glass Co. (1941, DC NY) 41 F Supp 48, mod on other grounds (CA2 NY) 126
F2d 111.
Under the provisions of the former Gen. Corp. L. and the former Stock Corp. L. from which this section was
derived, either a domestic corporation, or a foreign corporation authorized to do business in New York, could be
effectively served with process by serving the secretary of state. Application of Weiss (1957) 5 Misc 2d 501, 164 NYS2d
504; Durand v Lipman (1937) 165 Misc 1, 299 NYS 769.
Where service was not made upon the Secretary of State pursuant to statute until after limitations had run against
the cause of action, the statute of limitations could be raised as a defense against the action notwithstanding a prior
ineffective attempt to make personal service of the sums. Federspiel v R. J. & E. Corp. (1962) 34 Misc 2d 44, 226
NYS2d 547.
Where a domestic corporation is served with process by serving the Secretary of State, default judgment taken
against the corporation is subject to opening upon an adequate showing of meritorious defense and that the corporation
never received copies of the process from the Secretary of State's office. Montulli v Sherlo Realty, Inc. (1962) 37 Misc
2d 655, 234 NYS2d 754, affd 18 AD2d 1139, 239 NYS2d 864.
Service or process upon a domestic corporation by serving the Secretary of State is deemed personal service upon a
designated agent under former § 228 of the Civil Practice Act and accordingly is not nullified by failure of the
Secretary of State's office to mail the papers to the corporation. Montulli v Sherlo Realty, Inc. (1962) 37 Misc 2d 655,
234 NYS2d 754, affd 18 AD2d 1139, 239 NYS2d 864.
Where the agent appointed to receive service of process died and no new agent had been appointed the federal
district court in New York obtained jurisdiction where service was made on the secretary of state even though it was a
foreign cause of action. Cohen v American Window Glass Co. (1942, CA2 NY) 126 F2d 111.