On January 6, 2022, Justice Platkin of the Albany County Commercial Division issued a decision in Contractors Compensation Trust v. $49.99 Sewer Man, Inc., 2022 NY Slip Op. 22004, holding that the Uniform Trial Court Rule regarding electronic service by agreement do not supplant the requirements of BCL § 304, explaining:
In contending that the Corporate Defendants properly were served, the Trust relies on the Uniform Rules for the New York State Trial Courts (“Uniform Rules”), which permit service of initiating papers by electronic means if the party served agrees to accept such service. The Trust asserts that the Secretary of State is the Corporate Defendants’ statutory agent for service of process and argues that the agent’s acceptance of service of the Complaint by flash drive, together with the statutory fee paid by Plaintiff for said service, constitutes an agreement to accept service by electronic means that is binding on the Corporate Defendants.
The Court begins its analysis with BCL § 304 (a), by which the Secretary of State is designated as the agent of every domestic corporation and every authorized foreign corporation upon whom process against the corporation may be served. In addition to such designation of the secretary of state, every domestic corporation or authorized foreign corporation may designate a registered agent in this state upon whom process against such corporation may be served. The term process is defined in this context to mean judicial process and all orders, demands, notices or other papers required or permitted by law to be personally served on a domestic or foreign corporation, for the purpose of acquiring jurisdiction of such corporation.
The method of service upon a corporate agent is prescribed by BCL § 306. Service of process on a registered agent may be made in the manner provided by law for the service of a summons, as if the registered agent was a defendant. In contrast, service of process on the secretary of state as agent of a domestic or authorized foreign corporation must be made by personally delivering to and leaving with the secretary of state duplicate copies of the process together with the statutory fee. Service of process on a corporation shall be complete when the secretary of state is so served.
Thus, the BCL contemplates the service of papers and provides that service on the Secretary of State, as the statutory agent for a corporation, shall be complete when duplicate copies of the initiatory papers have been personally delivered. There simply is nothing within this framework that allows the Secretary of State to relax the statutory requirements for service of process or to accept service on behalf of a corporation by a method other than the one established in BCL § 306(b).
Against this backdrop, it is apparent that the Trust’s reliance on the Uniform Rules is misplaced. The rule allowing electronic service where the party served agrees to accept such service cannot be read to apply to the Secretary of State acting as a statutory agent for a corporation. In such cases, the Secretary of State is limited to accepting process served via the method prescribed by BCL § 306(b), and service is not complete until made in accordance with such method. Indeed, a contrary interpretation of the Uniform Rules would place them in an impermissible conflict with the statutes governing service of process on corporations and other business entities.
Further support for this conclusion is found in the State Legislature’s recent enactment of an optional program for electronic service of process on corporations and other business entities. Effective January 1, 2023, business entities may, at their option, make an affirmative choice to receive service of process through electronic means. Such service shall be made by electronically submitting a copy of the process to the department of state together with the statutory fee through an electronic system operated by the department of state. Even if this new legislation had been in effect at pertinent times, however, service on the Corporate Defendants still would be improper because (i) the Corporate Defendants did not affirmatively elect to receive service by electronic means, and (ii) the Complaint was delivered on a flash drive, rather than through a secure portal operated by the Department of State.
Accordingly, the Trust has failed to demonstrate that the Court overlooked or misapprehended the facts and/or the law or otherwise erred in concluding that the Corporate Defendants had not been properly served under BCL § 306 and LLC Law § 303.
(Internal quotations and citations omitted).