SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
April 21, 2008
THE PEOPLE OF THE STATE OF NEW YORK,
525 SHINNECOCK CO., INC.,
Appeal by permission from an order of the Justice Court of the Town of Southampton, Suffolk County (Thomas J. DeMayo, J.), entered August 15, 2006. The order denied defendant's motion pursuant to CPL 440.10 seeking to vacate a judgment convicting it of having an inadequate pool enclosure and to dismiss the accusatory instrument.
People v 525 Shinnecock Co., Inc.
Decided on April 21, 2008
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: McCABE, J.P., TANENBAUM and SCHEINKMAN, JJ
Order modified upon the law by providing that the branch of defendant's motion seeking to vacate the judgment of conviction is granted, the fine, if paid, is remitted and the matter remanded to the court below for all further proceedings; as so modified, affirmed.
Defendant corporation failed to appear in court as directed by a criminal summons to enter a plea to an accusatory instrument charging it with having an inadequate pool enclosure (Code of the Town of Southampton § 123-1 adopting New York State Uniform Fire Prevention and Building Code § 302.7.2.1). Upon defendant's default in appearing, the court below entered a plea of guilty and imposed a $1,000 fine (see CPL 600.20). Defense counsel thereafter brought a CPL 440.10 motion to vacate the judgment of conviction and to dismiss the accusatory instrument, asserting that there had been improper service of the summons. The summons, which bore the signature of a judge in the court below, had been mailed by a court clerk to the address given in the incorporation papers as the address to which the Secretary of State should mail a copy of any process served upon the Secretary as agent for the corporation (see Business Corporation Law § 402 [a] ). That address was the address of the attorney who had filed the incorporation papers in connection with the formation of the defendant.
CPL 600.10 governs the securing of court attendance by a defendant corporation in connection with an accusatory instrument filed in such court. CPL 600.10 (1) provides that a summons "must be served upon the corporation by delivery thereof to an officer, director, managing or general agent, or cashier or assistant cashier of such corporation or to any other agent of such corporation authorized by appointment or by law to receive service of process."
Applying the above language to the case at bar, we initially note that the papers submitted by defendant in support of the subject motion included no affidavit or affirmation by the attorney to whom the criminal summons was sent, David A. Kaminsky, Esq., expressly denying that he was one of the officials of the corporation specified in CPL 600.10 (1) or otherwise an agent of the corporation "authorized by appointment ... to receive service of process" (CPL 600.10 ; see also CPLR 318). Nor does an officer of defendant corporation submit an affidavit denying that Kaminsky was so authorized. Rather, the gist of defendant's argument was that service of the criminal summons had to be by "personal" delivery.
A review of the above-quoted language of CPL 600.10 (1) reveals no express provision that the delivery of the criminal summons must be "personal," and the other sections of the CPL contain no definition of delivery requiring the same (cf. CPL 150.40  relating to personal service of appearance tickets). One commentator has observed, "[c]uriously, there is no statutory direction as to how the summons is to be served. The original proposal (as published in 1967) required that the summons be served upon the defendant personally', and the staff comment noted that this requirement was not part of the old Code (Edward Thompson Edition, 65.40 p.98). The requirement was dropped however, without explanation, in the 1968 study bill" (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 130.40, at 540-541).
CPL 600.10 (1) may be compared to CPLR 311 (a) (1) which provides that "Personal service upon a corporation ... shall be made by delivering the summons as follows: 1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service" (emphasis added). In the arena of civil litigation, the Appellate Division has observed, "[P]ersonal delivery is the only method when a statute directs service of a process and is silent as to method" (Twentieth Century-Fox Film Corp. v Dupper, 33 AD2d 682, 682 ; cf. CPLR 312-a).
CPLR 312-a recognizes a form of "Personal Service by mail," which reads: "(a) Service. As an alternative to the methods of personal service authorized by section ... 311 ... of this article, a summons and complaint, or summons and notice ... may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the summons and complaint, or summons and notice ... together with two copies of a statement of service by mail and acknowledgment of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender." It should be noted that subdivision (d) provides a rather lengthy form and, even if it be assumed, without deciding, that compliance with CPLR 312-a would satisfy CPL 600.10 (1), the record contains no allegation or proof that it was sent or that the other provisions of the subdivision were fully complied with. Thus, CPLR 312-a cannot, in any event, be utilized to establish an authorized form of service of the criminal summons in the instant case.
Business Corporation Law § 306 (a) provides that service of process may be made upon a corporation's registered agent in the manner provided by law for the service of a summons, and Business Corporation Law § 306 (b) provides for service of process upon the Secretary of State by personal delivery to the Secretary who is to mail the process to a postal address given by the corporation in its incorporation papers. Even assuming without deciding that compliance with either of the aforementioned Business Corporation Law sections would satisfy CPL 600.10 (1), it appears that neither of such methods was employed in this case. It might be incidentally noted that "process" is defined by Business Corporation Law § 102 (a) (11) as "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 in any action or proceeding, civil or criminal, whether judicial ... or otherwise ..." (emphasis added).
Business Corporation Law § 402 (a) (7) requires that a certificate of incorporation designate the Secretary of State as agent for the service of process and designate a post office address to which the Secretary is to mail a copy of any process against the corporation which is served upon the Secretary. Service upon the Secretary, as statutory agent for the corporation, is to be made by delivery of duplicate copies of the process to the Secretary together with payment of a statutory fee (Business Corporation Law § 304 [b] ). Here, the defendant listed the address of the attorney who filed the incorporation papers as the address for use by the Secretary in mailing papers delivered to the Secretary as statutory agent for the corporation. While Business Corporation Law § 305 permits a corporation to designate a registered agent upon whom all process may be served, such provision is optional and defendant did not designate a registered agent.
We are of the view that the mere mailing of the criminal summons by a court clerk to the address given by the corporation as the address to which the Secretary of State should mail any process that was delivered to the Secretary on behalf of the corporation did not constitute a delivery as contemplated by CPL 600.10 (1) (see People v Eica Constr. Corp., 85 Misc 2d 1026 [Suffolk Dist Ct 1975]; 33 Carmody Wait 2d § 172:1538, at 169; 32A NY Jur 2d, Criminal Law § 1282, at 330), and, therefore, the default judgment against defendant corporation must not stand. This conclusion applies even assuming the term "delivery" in CPL 600.10 (1) is so broad as to encompass the methods of service of process authorized by other procedural statutes (see 33 Carmody Wait 2d § 172:1538, at 168-169). Mailing to the address given by the corporation in compliance with the command of Business Corporation Law § 402 (a) (7) may be done only by the Secretary of State and only after duplicate copies of process have first been delivered to the Secretary together with payment of the statutory fee (see Business Corporation Law § 306 [b] ). Accordingly, the branch of the subject motion seeking to vacate the judgment is granted.
The branch of the motion seeking dismissal of the criminal action, on the other hand, is denied. The case is remanded for all further proceedings. While there has been no valid service of a summons upon defendant directing it to appear before the court below at a designated future time in connection with the accusatory instrument (see CPL 130.10), the case remains pending as a result of its commencement by virtue of the filing of a sufficient accusatory instrument underlying the issuance of the summons (see CPL 100.05). Both the summons and the accusatory instrument filed in the court below satisfied statutory requirements for sufficiency (CPL 1.20 ; 130.10, 100.15, 100.40).
The other issues raised herein are either without merit or academic (see CPL 130.40 ; 170.30  [e]; 170.45, 210.45 ).
McCabe, J.P., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: April 21, 2008
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