Opinion
Argued January 6, 2005.
Decided February 10, 2005.
Appeal, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered March 19, 2004. The Appellate Division affirmed an order of the Supreme Court, Cattaraugus County (Larry M. Himelein, J.), which had denied defendant U-Haul International, Inc.'s motion to dismiss the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, entered March 19, 2004, properly made?"
Reed v. Gowanda Nursing Home, 5 AD3d 987, affirmed.
Brown Tarantino, LLP, Buffalo ( Margaret K. Hey of counsel), for appellants. Brady Swenson, Salamanca ( Thomas C. Brady of counsel), for respondents.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
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 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.
Order affirmed, etc.