ALFRED E. MANN v. ETIRC
78 A.D.3d 137 (2010)
910 N.Y.S.2d 418
ALFRED E. MANN LIVING TRUST, Respondent,
ETIRC AVIATION S.A.R.L., Defendant, and
ROLAND ("ROEL") PIEPER, Appellant.
Appellate Division of the Supreme Court of New York, First Department.
Decided October 19, 2010.
FRIEDMAN, MOSKOWITZ, FREEDMAN and ROMÁN, JJ., concur.
OPINION OF THE COURT
This appeal concerns the defense of improper service of process relied on by defendant guarantor Roland Pieper; specifically, he challenges the validity of service on him by e-mail while he was a resident of the Netherlands. The motion court rejected Pieper's defense because of the guaranty's provision waiving personal service of process and the provision in the related funding agreement, specifically referenced by the guaranty, authorizing service of notices, demands, requests or other communications by e-mail to Pieper at two specified e-mail addresses. For the reasons that follow, we affirm.
Plaintiff Alfred E. Mann Living Trust and defendant ETIRC Aviation S.A.R.L. entered into a funding agreement pursuant to which each agreed to provide $10 million in funding to a company known as Eclipse Aviation Corp. The parties further agreed that if the Trust provided ETIRC's $10 million share of the funding, ETIRC would be obligated to repay the Trust pursuant to the terms of a $10 million promissory note. The Trust subsequently provided the entire $20 million in financing and, pursuant to the funding agreement, the promissory note was executed by ETIRC, with Pieper signing as ETIRC's Managing Director. As the funding agreement required, Pieper also signed the separate unconditional, irrevocable and absolute personal guaranty covering ETIRC's obligations, which guaranty is the subject of this appeal.
The note and the guaranty each explicitly provided that it was governed by the laws of New York and that any legal action
to enforce it could be brought in New York courts, and expressly waived Pieper's right to service of process of any summons or complaint. Further, section 8 of the guaranty provides that "whenever any notice, demand, request or other communication shall or may be given to or served upon any party by any other party . . . each such notice, demand, request or other communication shall be delivered in accordance with the provisions of the Funding Agreement" (emphasis added). Section 8 of the funding agreement provides that such notice or service may be effected by e-mail to Pieper at two specified e-mail addresses.
It is undisputed that ETIRC defaulted on the promissory note and that the Trust served this CPLR 3213 motion on Pieper by e-mailing process to him at the addresses set forth in the funding agreement.
The comprehensive consent to jurisdiction, waiver of personal service, and waiver of any objection to lack of personal jurisdiction contained in the guaranty precludes a viable challenge to the court's jurisdiction over plaintiff's CPLR 3213 motion against Pieper. The provision reads: