HAROLD FLANNERY,APPELLANT, v. GENERAL MOTORS CORPORATION, ET AL.DEFENDANTS,
AND TRUXMORE, INC., & C.,RESPONDENT. (AND A THIRD-PARTY ACTION.)
86 N.Y.2d 771, 655 N.E.2d 176, 631 N.Y.S.2d 135
July 6, 1995
1 No. 293 SSM 41 (1995 NY Int. 189)
Decided July 6, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by David Jaroslawicz, for Appellant.
Submitted by Robert J. Giuffra, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs,
and the certified question answered in the negative. Plaintiff does
not contest that it failed to file an affidavit of compliance as
required by Business Corporation Law § 307(c)(2) . That defect is
jurisdictional and does not constitute a "mere irregularit(y)" subject
to cure (see, Flick v Stewart-Warner Corp., 76 NY2d 50, 57 (holding
that strict compliance with the procedures of Business Corporation Law
§ 307 is require d to effect service on an unauthorized foreign
corporation); Stewart v Volkswagen of Am., 81 NY2d 203, 207 (noting
"mandatory sequence and progression of service completion options"
necessary to acquire jurisdiction over foreign corporation not
authorized to do business in New York); David v Fuchs, 204 AD2d 253,
254, lv denied in part and dismissed in part 84 NY2d 1003; Smolen v
Cosco, Inc., 207 AD2d 441). Thus, plaintiff's failure to serve
defendant Truxmore Inc. in accordance with the strict requirements of
Business Corporation Law § 307(c)(2) divested Supreme Court of
jurisdiction over defendant and the motion to dismiss was properly
granted.
On review of submissions pursuant to section 500.4 of the Rules, order
affirmed, with costs, and certified question answered in the negative,
in a memorandum. Chief Judge Kaye and Judges Simons, Titone,
Bellacosa, Smith, Levine and Ciparick concur.
Decided July 6, 1995
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Submitted by David Jaroslawicz, for Appellant.
Plaintiff does not contest that it failed to file an affidavit of compliance as required by
That defect is jurisdictional and does not constitute a "mere irregularit" subject to cure
plaintiff's failure to serve defendant Truxmore Inc. in accordance with the strict
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs,
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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