§ 311.Personal service upon a corporation or governmental subdivision.

The last six subdivisions of this section are substantially the same as subd 1 through 6 of CPA § 228.

Provisions with respect to service upon the mayor or comptroller of the city of New York have been dropped as unnecessary. Service upon the city of New York is usually made by delivering a copy of the summons to a clerk at a window provided for that purpose in the office of the corporation counsel. The clerk stamps a receipt on the summons. Merely leaving the summons and complaint at the window, if unattended, is not sufficient. Landsberg v City of New York, 243 App Div 740, 277 NY Supp 533 (2d Dept 1935). Since this system arranged by the corporation counsel for service of process appears to work well in practice, it has been retained. The danger of a successful challenge of the validity of service, made as described above, on the ground that the clerk was unauthorized to receive service is virtually nonexistent. The corporation counsel has informed the committee that every clerk detailed for duty at the window is designated to receive service in a writing filed in the office of the county clerk as required by CPA § 228(1). Even if, by chance, an unauthorized person were assigned to the window, the city of New York may be estopped from denying the validity of the service because the public has come to rely upon this system as the routine method of service upon the city. See Avery v O’Dwyer, 201 Misc 989, 110 NYS2d 569 (Sup Ct), modified on other grounds, 280 App Div 766, 113 NYS2d 686 (1st Dept 1952), affd, 305 NY 658, 112 NE2d 428 (1953).

The present requirement that a county be served by delivery of a copy of the summons to the chairman or clerk of the board of supervisors, the county clerk, or the county treasurer and by delivering or mailing another copy of the summons to the county attorney or to the clerk of the board of supervisors, has been changed to merely require service upon a county officer. The present requirement is onerous and no good reason is apparent why double service is necessary for a county and not for the other governmental units listed. Subd 7 has been broadened to include more than school districts. Subd 1 is a consolidation of § 229 and subparagraphs 8 and 9 of § 228 of the CPA. The former statutes distinguished in part between persons who may be served on behalf of a foreign as compared with a domestic corporation. Thus, under CPA § 229(3), the cashier, the assistant cashier, a director or the managing agent of a foreign corporation could not be served unless service could not be made upon one of the officers specified in § 229(1) or upon the Secretary of State. However, the officers listed in CPA § 229(3) could, in the first instance, be served on behalf of a domestic corporation, under § 228(8). Uniformity would appear to be desirable, especially because the server often does not know whether the corporation is domestic or foreign. The phraseology “officer, director, managing or general agent” is intended to simplify that found in CPA §§ 228(8), 229(1) and 229(3), without any change in substance; it is based upon Federal rule 4(d)(3).

The final sentence in subd 9 of the CPA § 228, extending the time to answer when service is made on the Secretary of State, is omitted. This extension is treated with other like provisions in an amendment to the last sentence of new CPLR § 3012.

No provision has been made for personal service upon an unincorporated association, since an association, as such, cannot be sued. It is not a legal entity separate from the persons who compose it. To maintain an action against an association it is necessary to serve all of its members. In addition, the president or treasurer of an association can be sued as the representative of all of the members, on a cause of action against the association. Gen Ass’ns Law §§ 13, 17. As defined in § 13 of the Gen Ass’ns Law, an “association” is any partnership, or other company of persons, which has a president or treasurer. However, as used in article 4 of the Gen Ass’ns Law, which requires an association doing business in New York to designate the Secretary of State as an agent for service of process, the term “association” means only a joint stock association or a business trust. Id. §§ 2(4), 18(1).

1996 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends that CPLR 311 be amended to reduce the risk of dismissals under CPLR 306-b(a) for failure to file timely proof of service where the plaintiff is acting with due diligence but service is impracticable. It proposes that, in all such cases, the court be authorized to direct alternative service upon motion without notice.

Under the recent technical filing requirements adopted for actions in the Supreme Court and County Courts (see, CPLR 306-b; L. 1992, c. 216), proof of service must be filed within 120 days after the commencement of an action, and within an even shorter time in certain special proceedings. In some circumstances not even the most diligent effort can meet this requirement. This is often the case with service upon corporations, as CPLR 308(5), which authorizes the court to direct an alternative method of service, has been held inapplicable to corporations (see, Lakeside Concrete Corp. v Pine Hollow Building Corp., 104 A.D.2d 551, 479 N.Y.S.2d 256, aff’d, 65 N.Y.2d 865, 493 N.Y.S.2d 309, 482 N.E.2d 1225 (1985).

It is even more notably the case when service has to be made on the corporation in a foreign country. Foreign service requires fulfillment of the demands of the Hague Convention. A given nation may require that service be made only through a governmental bureau, which may not be equipped, or disposed, to respond quickly enough to assure the receipt of proof of service in time to avoid the CPLR 306-b(a) automatic dismissal. The Hague Convention is concerned about the service of service, not with the nature of the proof of service that a particular court may insist upon, or with the time within which the particular court requires the proof of service to be filed. Hence the court, on an application under the addition to CPLR 311 proposed here, can, while doing nothing to conflict with the Hague Convention on service itself, include whatever directions may be needed about proof of service to satisfy CPLR 306-b(a).

Note that the problem does not arise in the federal courts, even though the New York 120-day period for service is modeled on Rule 4 of the Federal Rules of Civil Procedure. There are two reasons for this. One is that the 120-day time restriction was made inapplicable when service is made in a foreign country. Rule 4(m). The other is that in the federal practice the “[f]ailure to make proof of service does not affect the validity of service”, Rule 4 (l), contrary to New York practice under CPLR 306-b(a).

1998 Legislative Program of the New York State Judiciary:

Until 1992, New York civil practice deemed an action in Supreme or County Court to have been commenced, for purposes of the statute of limitations, as of the date of service of the summons and complaint upon defendant. In that year, the CPLR was amended to establish a filing system for commencement of actions — somewhat along the lines of the practice long followed in Federal courts. Under this system, codified in sections 306-a and 306-b, an action was deemed commenced once its summons and complaint were filed with the court. Following filing, the plaintiff would have 120 days to serve the defendant and file proof of service with the court. Should the plaintiff fail to file proof of service within this time period, the action automatically would be dismissed. This dismissal would be without prejudice, however. Should the action have become time-barred in the interim, plaintiff could still prosecute it provided it were re-commenced — by re-filing the summons and complaint with the court and paying the necessary filing fees — within another 120-days from that point.

Recognizing that there were circumstances in which service within the initial 120-day period would be extremely difficult to accomplish (e.g., service upon defendants residing in foreign countries), and that the statute provided no clear authority for extending that period under exigent circumstances, last year’s Legislature, at our urging, enacted several remedial amendments in section 306-b. First, it eliminated the requirement that proof of service be filed within the 120-day period. Second, it eliminated reference to the second 120-day filing period. Finally, it clarified that a court, upon good cause shown, could extend the 120-day post-filing period within which service upon defendant must be accomplished. Together, these changes conformed New York practice more closely to the filing system used in the Federal courts.

This measure proposes a technical change in CPLR 311(b), which dictates how personal service of a summons is to be made upon a foreign or domestic corporation. That section provides that the regular means of such service is to be by delivery to any one of several specified officials or agents of the defendant corporation. It also provides, however, that a court may devise an alternate method where service by the regular means would make compliance with other statutory provisions requiring the filing of proof of such service impracticable.

The precise change we propose is elimination of this predicate to judicially-ordered service — i.e., that compliance with requirements as filing proof of service would be impracticable — and substitution of the predicate that service upon the corporation within the 120-day service period be impracticable. This will conform the statute to last year’s changes in the service by filing statutes and elimination of the requirement that proof of service be filed.

Last year, the Legislature altered the procedure for commencing an action in Supreme or County Court by amending CPLR 306-b (L. 1996, c. 476). That chapter made commencement of an action in New York similar to that provided for in Federal Rule of Procedure 4(m). The Committee recommends that a technical amendment be made to CPLR 311(b) to bring it into conformity with the change in the time frame and procedures for effecting personal service.

Previously, under CPLR 306-b(a) parties had 120-days to serve and file proof of service or the action was “deemed dismissed”. For those who failed to make the first deadline, 306-b(b) granted them another 120-day extension, even if the statute of limitations had expired in the interim.

Chapter 476 eliminated the second 120-day period, the “deemed dismissed” language, and the need to file proof of service. The new statute simply grants a party 120 days to make service, and authorizes the court to grant extensions when necessary in “the interest of justice” or for good cause shown.

Section 311(b), which governs personal service upon a corporation or governmental subdivision when personal service cannot be effected under 306-b, needs to be amended to reflect the new, comprehensive 120 day period.

Add, L 1962, ch 308, § 1; amd, L 1976, ch 745, § 1; L 1977, ch 17, § 1; L 1996, ch 337, § 1, eff Jan 1, 1997; L 1998, ch 202, § 1, eff July 7, 1998; L 1999, ch 341, § 2, eff July 27, 1999.