## Facts

- Plaintiffs sued International Security Bureau, Inc. and its officer/director, Arthur J. Schultheiss, for defamation based on an investigative report prepared for a third party.
- Plaintiffs attempted to serve International Security at its office by leaving the summons and complaint with Lenore Sobel, a long-time clerical/reception employee who was the only person present.
- Schultheiss was not personally served and submitted an affidavit stating he had never been served at home or office.
- International Security and Schultheiss, represented by the same attorney, interposed a single answer on behalf of both defendants that denied the merits and asserted, among other defenses, lack of personal jurisdiction.
- Plaintiffs moved to strike the jurisdictional defense; defendants cross-moved to dismiss for lack of personal jurisdiction.
- After a jurisdictional hearing, the trial court found service on the corporation defective and found no jurisdiction over Schultheiss; plaintiffs appealed.

## Issues

1. Whether delivery of process to Sobel at International Security’s office constituted valid service on the corporation under CPLR 311(1) as service on a “managing or general agent” (or comparable responsible employee).
2. Whether an unserved individual defendant submits to personal jurisdiction by joining in a joint answer addressing the merits where the same answer expressly asserts lack of personal jurisdiction.

## Decision

- The appellate court modified the order.
- It held service on International Security was valid under CPLR 311(1), and dismissal as to the corporation was reversed.
- It held Schultheiss was not subject to personal jurisdiction because he was not served and did not waive the defense by filing a joint answer that asserted lack of personal jurisdiction; dismissal as to him was affirmed.

## Legal Principles

- Under CPLR 311(1), service on a corporation is sufficient when made in a manner reasonably calculated to give the corporation notice and an opportunity to defend; courts may look to function and responsibility rather than formal job titles.
- Actual, timely notice to the corporation and prompt defense activity may support a finding that service on a responsible office employee satisfies CPLR 311(1).
- An individual defendant who has not been served does not make a voluntary general appearance merely by joining in a responsive pleading that simultaneously asserts lack of personal jurisdiction.
- A defendant may contest the merits in the same pleading that raises lack of personal jurisdiction without waiving the jurisdictional objection.

## Conclusion

The court sustained personal jurisdiction over the corporate defendant because office delivery to a responsible employee provided effective notice under CPLR 311(1), but it refused to treat an unserved officer’s participation in a joint answer—one that expressly preserved the jurisdictional defense—as a waiver or voluntary appearance.


Colbert v. Int’l Sec. Bureau, Inc., 79 A.D.2d 448, 437 N.Y.S.2d 360 (N.Y. App. Div. 2d Dep’t 1981)