Alfred E. Mann Living Trust v. ETIRC Aviation S.a.r.l.

Civil Practice

New York Law Journal

Justice Saxe

The Alfred E. Mann Living Trust and Luxembourg-based ETIRC Aviation S.a.r.l. agreed to provide $10 million each to Eclipse Aviation Corp. The trust provided ETIRC's $10 million share of the funding, and ETIRC had to repay the trust under a $10 million promissory note, which defendant appellant Pieper signed as ETIRC's managing director. Pieper also signed an unconditional, irrevocable personal guaranty. ETIRC defaulted on the note. Together, the guaranty and funding agreement provided for service of process to Pieper by e-mail to two specified e-mail addresses. He also waived, in writing, any right to formal service of process in an action under his guaranty. The trust served its CPLR §3213 motion on Pieper by e-mail process while he lived in the Netherlands. The First Department upheld Supreme Court's award to the trust of $10.2 million plus interest of $2,796 per diem from Feb. 28, 2009. The First Department also affirmed Supreme Court's rejection of Pieper's improper service defense, finding his waiver of personal service freed him from legal requirements otherwise dictating the manner in which he was served with process, both under CPLR 308 and, given his presence in the Netherlands, under the Hague Convention.