for purposes of this motion that both of these types of return envelopes satisfy the statute, plaintiff has still failed to comply fully with the requirements of BCL section 307. The last requirement of this subsection states that "if acceptance was refused, a copy of the notice and process together with notice of the mailing by registered mail and refusal to accept shall be promptly sent to such foreign corporation at the same address by ordinary mail and the affidavit of compliance shall so state. . . ." N.Y. B.C.L. § 307(c)(2) (emphasis added). The affidavit of compliance that plaintiff filed with this court does not state that plaintiff performed this last step in the procedure. See Pertz Affidavit, Exhibit E. Therefore, the court concludes that plaintiff failed to comply strictly with the requirements of BCL section 307. Accordingly, the court holds that plaintiff's attempt to serve Dependable pursuant to BCL section 307 was insufficient to subject this defendant to the personal jurisdiction of this court.
Notwithstanding the fact that plaintiff failed to effect service on Dependable, this court need not dismiss this action. Securities and Exchange Commission v. Gilbert, 82 F.R.D. 723 (S.D.N.Y. 1979) (citing Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972)). In Grammenos v. Lemos, 457 F.2d 1067 (2d Cir. 1972), the Second Circuit held that the
standards set in Rule 4(d) for service on individuals and corporations are to be liberally construed, to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice. (citations omitted). . . . But there must be compliance with the terms of the rule, and absent waiver, incomplete or improper service will lead the court to dismiss the action unless it appears that proper service may still be obtained.
Id. at 1070 (citations omitted) (emphasis added). The decision in Flick does not mandate a different result. Although the court in Flick dismissed the complaint due to plaintiff's failure to comply strictly with the requirements of BCL section 307, the court had no other option. By the time it rendered its decision, the statute of limitations period had expired.
To the contrary, in the present case, there is no statute of limitations problem. Plaintiff was injured on June 14, 1991. Her causes of action are based on allegations of negligence and strict products liability for personal injuries she sustained in an industrial accident. Thus the applicable statute of limitations period is three years. See N.Y. Civ. Prac. L. & R. § 214(5). Furthermore, plaintiff contends that Mr. Sobieraj was Dependable's last president and that Dependable was never legally dissolved. Under these circumstances, it is at least arguable that Dependable received actual notice of this action. Therefore in accord with Grammenos, this court should not dismiss this complaint unless it appears that plaintiff cannot obtain proper service upon Dependable. At this time, no such showing has been made. In fact, it would appear that, at least with respect to timeliness, plaintiff may still be able to effect proper service on Dependable pursuant to either Fed. R. Civ. P. 4(c)(2)(C)(1) or (2). Accordingly, the court denies Dependable's motion to dismiss for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5) without prejudice and with leave to renew should plaintiff be unable to effect service successfully within 60 days of the date of this order.
For the reasons stated above, the court concludes that plaintiff has failed to effect service on Dependable pursuant to BCL section 307. Therefore at this juncture, this court lacks personal jurisdiction over Dependable. However, because it appears that plaintiff may still be able to effect proper service on this defendant, the court denies Dependable's motion to dismiss for insufficient service pursuant to Fed. R. Civ. P. 12(b)(5) without prejudice and with leave to renew should plaintiff be unable to effect serve successfully within 60 days of the date of this order.
IT IS SO ORDERED.
DATED: February 27, 1992
Syracuse, New York
Neal P. McCurn
Chief, U.S. District Judge