Demartine v. BMR Owners Corp. ( 1987 )

OPINION OF THE COURT

John R. LaCava, J.

Defendants move for an order dismissing the complaint upon the ground that plaintiff failed to file the summons and complaint with the clerk of the court. Plaintiff argues in opposition that service was made upon the Secretary of State pursuant to Business Corporation Law § 306 and therefore no filing is necessary.

This is a negligence action wherein the plaintiff claims she slipped, fell and was injured on the sidewalk in front of defendants’ property as a result of defendants’ negligent acts and omissions in failing to properly maintain and clear the sidewalk. The summons and complaint were served on the Secretary of State on May 8, 1987. The summons and complaint were not filed with the clerk of the court.

UCCA 409 (b) states, "[t]he rules of the court may require the filing of the summons with the clerk in all cases or in designated categories of cases.”

The rules of this court do not require filing with the clerk where service is made personally upon the defendant. Pursuant to CPLR 311 (1) personal service upon a corporation is made by delivering the summons upon any agent authorized by appointment or by law to receive service. Business Corporation Law § 304 designates the Secretary of State as agent of every domestic corporation. Therefore, the summons and complaint herein were personally served upon the defendants and therefore no filing was required.

In accordance with the foregoing defendants’ motion to dismiss is in all respects denied.