Draft - For Committee Discussion only. As of 12/2/97

AN ACT to amend the CPLR §310 and §311 with respect to service of process on limited liability partnerships, limited partnerships, limited liability companies, and professional limited liability companies and to repeal New York Limited Liability Company Law §303 with respect to same.

LAW AND SECTION REFERRED TO: CPLR §310 and §311

REPORT AND BILL PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES

THIS BILL IS APPROVED

This is an original bill proposed by the New York State Bar Association's Committee on Civil Practice Law and Rules.

The New York CPLR provides for service of process for partnerships in §310, and service of process for corporations in §311. However, service of process laws for Limited Liability Companies (LLC) and Professional Limited Liability Companies (PLLC) are contained in the New York Limited Liability Company Law §303, and not in the CPLR. Nor does the CPLR contain service of process provisions for Limited Liability Partnerships (LLP) or Limited Partnerships (LP), and New York Partnership Law Article 8-B creating LLP's likewise contains no provisions for service. The following proposals for amendments to the CPLR would consolidate the service of process laws found in the LLCL and include LLP's and LP's in the service provisions found in CPLR §310. The reason for the proposed change is to locate these provisions for service of process into Article 3 of the CPLR, where they belong.

I. Amendment to CPLR §310 for inclusion of LLP's and LP's.

To provide a comprehensive and clear service of process procedure for LLP's and LP's, CPLR §310 should be amended as follows (highlighted areas indicate additions):

(a) Personal service upon persons conducting a business as a partnership, Limited Liability Partnership, or Limited Partnership, may be made by personally serving the summons upon any one of them.

(b) Personal service upon said partnership, Limited Liability Partnership, or Limited Partnership, may also be made within the state by delivering the summons to the managing or general agent of the partnership, Limited Liability Partnership, or Limited Partnership, or the person in charge of the office of the partnership, Limited Liability Partnership, or Limited Partnership, within the state at such office and by either mailing the summons to the partner thereof intended to be served by first class mail to his last known residence or to the place of business of the partnership, Limited Liability Partnership, or Limited Partnership. Proof of such service shall be filed within twenty days with the clerk of the court designated in the summons; service shall be complete ten days after such filing; proof of service shall identify the person to whom the summons was so delivered and state the date, time of day and place of service.

(c) Where service under subdivision (a) and (b) of this section cannot be made with due diligence, it may be made by affixing a copy of the summons to the door of the actual place of business of the partnership, Limited Liability Partnership, or Limited Partnership, within the state and by either mailing the summons by first class mail to the partner intended to be so served to such person to his last known residence or to said person at the office of said partnership, Limited Liability Partnership, or Limited Partnership, within the state. Proof of such service shall be filed within twenty days thereafter with the clerk of the court designated in the summons; service shall be complete ten days after filing.

(d) Personal service on such partnership, Limited Liability Partnership, or Limited Partnership, may also be made by delivering the summons to any other agent or employee of the partnership, Limited Liability Partnership, or Limited Partnership, authorized by appointment to receive service; or to any other person designated by the partnership to receive process in writing, filed in the office of the clerk of the county wherein such partnership Limited Liability Partnership, or Limited Partnership, is located.

(e) If service is impracticable under subdivisions (a), (b), and (c) of this section, it may be made in such manner as the court, upon motion without notice directs.

II. Amendment to CPLR §311 for inclusion of the LLC and PLLC service of process laws.

New York LLC Law §303 should be repealed and re-created as New York CPLR §311-a. New York LLC Law §303 provides:

(a) Service of legal process on any domestic or authorized foreign limited liability company (or foreign limited liability company required to be authorized to do business in this state) shall be made by delivering a copy personally to (i) any member of the limited liability company in this state, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company in this state, if the management of the limited liability company is vested in one or more managers or (iii) the registered agent of the limited liability company in this state, in the manner provided by law for the service of a summons, as if such person was a defendant.

(b) Service of process on the secretary of state as agent of a domestic limited liability company or authorized foreign limited liability company shall be made by personally delivering to and leaving with the secretary of state or his or her deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such limited liability company shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such limited liability company at the post office address on file in the department of state specified for that purpose.

(c) Nothing in this section shall limit or affect the right to serve any process required or permitted by law to be served upon a limited liability company in any other manner now or hereafter permitted by law or applicable rules of procedure.

For the above reasons, this bill is APPROVED

Person Who Prepared The Report: Harry F. Mooney, Esq.

Chair of the Committee: Paul H. Aloe, Esq.