Helen Reed v Gowanda Nursing Home

Reed v Gowanda Nursing Home 2005 NY Slip Op 01054 [4 NY3d 770] February 10, 2005 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 20, 2005

[*1] Helen Reed et al., Respondents,
v
Gowanda Nursing Home et al., Defendants, and U-Haul International, Inc., et al., Appellants.

Argued January 6, 2005; decided February 10, 2005

Reed v Gowanda Nursing Home, 5 AD3d 987, affirmed.

APPEARANCES OF COUNSEL

Brown & Tarantino, LLP, Buffalo (Margaret K. Hey of counsel), for appellants.

Brady & Swenson, Salamanca (Thomas C. Brady of counsel), for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Business Corporation Law § 307 (c) (2) requires a party who has served papers by mail on an out-of-state defendant to file proof of service within 30 days after "receipt of the return receipt signed by the foreign corporation, or other official proof of delivery or of the original envelope mailed." We are asked to decide whether an affidavit of compliance annexing a copy [*2]of the papers served—date and time stamped "Received" by out-of-state defendant U-Haul International, Inc.—is sufficient under the statute. In this case, there can be no doubt that plaintiff provided proof that defendant received the mailing shortly after it was sent by registered mail, return receipt requested, and that plaintiffs received no return receipt. Under the particular circumstances presented here, we agree with the motion court and Appellate Division that the complaint should not be dismissed for want of proper service on defendant U-Haul.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

Order affirmed, etc.