On December 14, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in U.S. Bank N.A. v. RIY Realty LLC, 2021 NY Slip Op. 32711(U), dismissing the claims against a defendant for failure to serve the complaint as required by the parties’ agreement, explaining:
The guaranty provides, in relevant part, that:
Guarantor [i.e., the guaranty defendant] irrevocably submits to the nonexclusive jurisdiction of any Federal or state court sitting in New York, over any suit, action or proceeding arising out of or relating to this Guaranty. Guarantor irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. Guarantor hereby consents to arty and all process which may be served in any such suit, action or proceeding; (i) by mailing a copy thereof by registered and certified mail, postage prepaid, return receipt requested, to the Guarantor’s address shown below . . . and (ii) by serving the same upon the Guarantor in any other manner otherwise permitted by law, and agrees that such service shall in every respect be deemed effective service upon the Guarantor.Although the guaranty defendant contractually consented to personal jurisdiction, she is still entitled to be served with process in accordance with the . . . terms of the guaranty. Here, the affidavits of service establish that the guaranty defendant was served with process by personal service in accordance with CPLR 308 (1), as well as by first-class mail. No service of process by registered/certified mail as required by the guaranty was effectuated on the guaranty defendant in light of the plaintiff’s failure to comply with the aforementioned contractual requirement, the Court lacks personal jurisdiction over the guaranty defendant.
(Internal citations omitted).