Id., 22 N.Y.2d at 115, 291 N.Y.S.2d at 331, 238 N.E.2d at 726. See alsoLeo v. General Electric Co., 111 F.R.D. 407, 412-13 (E.D.N.Y.1986). The redelivery must be " so close both in time and space that it can be classified as part of the same act." McDonald, 22 N.Y.2d at 115, 291 N.Y.S.2d at 332, 238 N.E.2d at 728 ( quotingGreen v. Morningside Heights Housing Corp., 13 Misc.2d 124, 125, 177 N.Y.S.2d 760 (Sup.Ct.N.Y. County), aff'd, 7 A.D.2d 708, 180 N.Y.S.2d 104 (1st Dep't 1958)).

Further, no evidence exists to suggest that Plaintiffs used due diligence in relying on the representations of a receptionist at an office foreign to RJP. See Leo v. Gen. Elec. Co., 111 F.R.D. 407, 412 (E.D.N.Y. 1986); see also Lowney v. New York State Div. of Human Rights, 889 N.Y.S.2d 463, 463 (N.Y. App. Div. 2009) (holding invalid process attempt on state officer where process left with secretary, even though officer ultimately received actual notice of proceeding). Even though Frias seemingly asked Mr. Munsie if RJP could be found at EMI's headquarters, it would seem a strange result to find valid service where a process server effects service at a location where a corporation cannot be found — regardless of the receptionist's response.

New York courts have upheld service where a process server acts with "due diligence in attempting to fulfill the statutory requirements of personal delivery, but nevertheless serves a person not authorized to accept service and that person redelivers the papers to one who is authorized to accept service." Leo v. General Electric Co., 111 F.R.D. 407, 412-13 (S.D.N.Y. 1986) (citing McDonald v. Ames Supply Co., 22 N.Y.2d 111 (1968)) (footnote and internal punctuation omitted). But the New York Court of Appeals has "refused to recognize delivery of process to another person as constituting personal delivery to defendant.

Courts within the Second Circuit have adopted this broadening approach. See, e.g., Melkaz Int'l Inc. v. Flavor Innovation Inc., 167 F.R.D. 634, 642-43 (E.D.N.Y. 1996) (holding service on corporation proper where process server went to corporate defendant's headquarters, identified himself to an employee of corporate defendant and stated that he was there to serve legal papers, and the employee then directed him to another employee who accepted service, even though neither employee was authorized to accept service and neither represented that she was in fact so authorized, because both were obviously corporate defendant employees and the employee re-delivered the summons and complaint to an employee authorized to accept service on the same date); Leo v. Gen. Elec. Co., 111 F.R.D. 407, 414 (E.D.N.Y. 1986) (sustaining service under either the theory of apparent authority or re-delivery where the corporate defendant secretary approached the process server from behind the locked lobby doors and was thus clearly a corporate defendant employee, and it was uncontested that upon receiving process, the secretary immediately re-delivered the papers to the managing agent authorized to receive process).

Id., 22 N.Y.2d at 115, 291 N.Y.S.2d at 331, 238 N.E.2d at 726. See also Leo v. General Electric Co., 111 F.R.D. 407, 412-13 (E.D.N.Y. 1986). The redelivery must be "so close both in time and space that it can be classified as part of the same act."

Since the 1980 decision in Fashion Page, many courts have followed its precedent by construing § 311 liberally. See e.g., Central Savannah River v. White Eagle Int'l., 117 Misc.2d 338, 458 N.Y.S.2d 167 (Sup.Ct.Nassau Cty. 1983) (service upheld where process server relied on corporate employees to identify proper person to accept service); Von Thaden v. S.J. Groves Sons Co., 97 A.D.2d 677, 469 N.Y.S.2d 172 (3d Dept. 1983) (service upheld on individual to whom server was directed, where process server identified himself and stated his purpose); Leo v. General Electric Co., 111 F.R.D. 407 (E.D.N.Y. 1986) (service of process upheld on secretary who declared that she could accept service of process for branch manager unavailable at the time); Kuhlik v. Atlantic Corp. Inc., supra (service of process upheld on receptionist who stated that she could accept such papers.) The courts have emphasized that the purpose of § 311 has not been rendered meaningless by this increasingly broad reading of the statute.

In particular, the New York courts have allowed for "redelivery," where the process server acts with due diligence in trying to fulfill the statutory requirements, nevertheless serves a person not authorized to accept service, and that person then redelivers the papers to one who is authorized to accept service. See Leo v. Gen. Elec. Co., 111 F.R.D. 407, 412 (E.D.N.Y. 1986). In Seward & Kissel v. Smith Wilson Co., Inc., the court held that service was proper where a plaintiff made a "good faith effort to deliver" to a corporation's officer, and the receptionist, though not authorized to accept service, "agreed to deliver them to the proper person" and the appropriate person "ultimately received process."

Nor is there any evidence showing that Morrison acted as a receptionist for the corporate Insureds or as Porter's personal secretary. Cf. Luv N' Care, Ltd. v. Babelito, S.A., 306 F. Supp. 2d 468, 471 (S.D.N.Y. 2004) ("The typical case involves a secretary or receptionist who is closely connected to the proper person for service and who accepts the papers on that person's behalf.");Melkaz, 167 F.R.D. at 642 (citing cases); Leo v. Gen. Elec. Co., 111 F.R.D. 407, 413 (E.D.N.Y. 1986) (citing cases). Although AIC's process server and counsel both attest that Morrison was Porter's "office manager," there is no evidence of the size of Porter's office or Morrison's role therein.

The list of such potentially binding actions includes receipt, and acknowledgment of receipt, of service of process. See Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 272, 428 N.Y.S.2d 890, 893-94, 406 N.E.2d 747 (1980); Recyclers Consulting Group, 1997 WL 615014, at *4; Leo v. Gen Elec. Co., 111 F.R.D. 407, 411 (E.D.N.Y. 1986); see also Morrison, 230 A.D.2d at 256, 657 N.Y.S.2d at 723 (upholding pre-answer stipulation waiving defense of no personal jurisdiction).

A person who is invested with general power, involving the exercise of judgment and discretion, as distinguished from an ordinary agent or employee, who acts in an inferior capacity, and under the direction and control of superior authority, both in regard to the extent of the work and the manner of executing the same.Black's Law Dictionary 59 (5th ed. 1979); cf. Leo v. General Electric, 111 F.R.D. 407, 411 (E.D.N.Y.) (applying this definition in the service of process area). Another definition of the term comes from California law, which directs a court to look to "the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy."