McDonald v. Ames Supply Co., 22 N.Y.2d 111 (1968)

Personal service on a corporation requires delivery of the summons to a person authorized to receive service; leaving it with a receptionist who is not an employee of the corporation, even if the receptionist later delivers it to the correct person, does not constitute valid service.

Summary

McDonald sued Ames for injuries sustained from a defective can of spray paint. Ames then attempted to serve a third-party complaint on Aerosol, the manufacturer of the defective spray head, by leaving the summons with a receptionist in Aerosol’s New York office. The receptionist, not an employee of Aerosol, later gave the summons to Aerosol’s eastern sales manager, Schlossman. The court held that this did not constitute valid personal service on Aerosol because the summons was not “delivered” to an authorized agent of the corporation as required by CPLR 311. The requirement of delivery necessitates more than leaving the summons with any available person.

Facts

• John McDonald was injured by a defective can of spray paint in 1961.
• McDonald sued Ames Supply Co., the seller of the paint can, alleging negligence and breach of warranty.
• Ames then attempted to serve a third-party summons and complaint on Aerosol Research Co., the manufacturer of the spray head, on November 19, 1965.
• The process server left the summons with a receptionist in Aerosol’s New York office, who was not an employee of Aerosol.
• The receptionist later handed the summons to Jack Schlossman, Aerosol’s eastern sales manager.
• Aerosol was not licensed to do business in New York.

Procedural History

• McDonald sued Ames; Ames then filed a third-party complaint against Aerosol.
• Aerosol defaulted on the third-party complaint.
• The trial court severed the main action and the third-party action.
• McDonald recovered against Ames in the main action.
• Ames was awarded recovery over against Aerosol after inquest on the default.
• Aerosol moved to dismiss the third-party complaint for lack of personal jurisdiction.
• The Special Referee quashed service and dismissed the third-party complaint.
• The Appellate Division affirmed.
• The Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the requirement of CPLR 311 that the summons be “delivered” to a person authorized to receive service for a corporation is satisfied when the summons is left with a receptionist, not employed by the corporation, who later redelivers it to the proper person.

Holding

1. No, because personal delivery of a summons to the wrong person does not constitute valid personal service, even if the summons ultimately reaches the party to be served.

Court’s Reasoning

The Court reasoned that CPLR 311 requires that service be made by “delivering the summons” to a specified agent of the corporation. Leaving the summons with a receptionist who is not an employee of the corporation does not constitute valid delivery, even if the receptionist later hands it to an authorized agent. The Court emphasized the importance of adhering to the statutory requirements for service of process to ensure proper notice and protect against default judgments. The Court cited numerous prior cases holding that personal delivery to the wrong person is insufficient, even if the summons eventually reaches the correct party. The Court distinguished cases where the process server acted reasonably and diligently in attempting to effect service, such as when a defendant resists service, finding no evidence of such diligence here. The court reasoned that upholding service in this case would “encourage carelessness, or worse, thus increasing the risk of default by parties who in fact fail to receive the summons.” The court distinguished the facts from situations where process servers have acted with due diligence and where the redelivery was “so close both in time and space that it can be classified as part of the same act”.