Flannery v. General Motors Corp.

Full title: HAROLD FLANNERY, Appellant, v. GENERAL MOTORS CORPORATION et al.…

Court: Court of Appeals of the State of New York

Date published: Jul 6, 1995

86 N.Y.2d 771 (N.Y. 1995)

631 N.Y.S.2d 135

655 N.E.2d 176

Opinion

Decided July 6, 1995

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Edward H. Lehner, J.

Jaroslawicz Jaros, New York City (David Jaroslawicz of counsel), for appellant.

Dougherty, Ryan, Giuffra Zambito, New York City (Robert J. Giuffra and Thomas P. Giuffra of counsel), 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 he 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 N.Y.2d 50, 57 [holding that strict compliance with the procedures of Business Corporation Law § 307 is required to effect service on an unauthorized foreign corporation]; Stewart v Volkswagen of Am., 81 N.Y.2d 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 A.D.2d 253, 254, lv denied in part and dismissed in part 84 N.Y.2d 1003; Smolen v Cosco, Inc., 207 A.D.2d 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.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, etc.