On December 9, 2021, Justice Ostrager of the New York County Commercial Division issued a decision in Air Astana JSC v. Embraer, S.A., 2021 NY Slip Op. 32650(U), holding that service on a Brazilian defendant under BCL 307 must satisfy the requirements of both the BCL and the Hague Convention, explaining:
Plaintiff first moves to confirm that the service of process it completed pursuant to BCL § 307 was valid. Although defendant, a Brazilian limited liability corporation, has consented to the jurisdiction of the New York courts and the application of New York law, it has not waived service of process. And while defendant does not dispute that both its General Counsel in Brazil and its New York counsel received notice of this action and a copy of the pleadings, notice, standing alone, does not satisfy the requirements of service of process.
Brazil, the domicile of defendant, has adopted the Hague Service Convention and, as is defendant’s right, the defendant insists on service that complies with the Hague Service Convention. And while service via the Hague Service Convention may not be exclusive, it does preempt inconsistent methods of service. BCL § 307 authorizes service on foreign corporations via the Secretary of State, followed by a mailing pursuant to BCL § 307(b)(2). The mailing must be sent by or on behalf of the plaintiff to such foreign corporation by registered mail with return receipt requested, at the post office address specified for the purpose of mailing process, on file in the department of state, or with any official or body performing the equivalent function, in the jurisdiction of its incorporation.
Plaintiff has established service on the Secretary of State, but the subsequent mailing to defendant’s General Counsel in Brazil via registered mail was not proper, notwithstanding that plaintiff received an acknowledgment of receipt from the defendant’s General Counsel because the service did not comply with the Hague Service Convention. Contrary to plaintiff’s claim, the mailing is a part of the service requirement and does not merely function as notice to the defendant. Because the mailing is part of the service requirement, it triggers the application of the Hague Service Convention and must be completed in accordance with the terms of the Convention where, as here, Brazil has objected to service by mail and insists upon service via the Brazilian Central Authority pursuant to the Hague Service Convention. The mailing here to defendant’s General Counsel in Brazil, while received, did not comply with BCL § 307(b)(2), which triggered the Hague Service Convention requirement of service through the Central Authority. Plaintiff’s reliance on Sardanis v Sumitomo Corp., 279 AD2d 225 (1st Dep’t 2001), to argue otherwise is misplaced, as the First Department in Mutual Benefits expressly declined to follow Sardanis. In any event, Brazil has objected to service by mail directly to persons abroad.
(Internal citations omitted).