614 N.E.2d 712 (N.Y. 1993)
Plaintiff Kleeman had been nonsuited in a prior medical malpractice action against Dr. Neils Lauersen for failure to properly serve the defendant doctor before the statute of limitations on her claim expired.1 She subsequently brought this action against the lawyers she had retained to prosecute the first action, defendant Rheingold and his law firm.2
With only five days remaining before the statute of limitations would expire on her claim against Dr. Lauersen, the defendant prepared a summons and complaint.3 On November 5, 1978, two days before the limitations period was to run, the defendant delivered the prepared documents to Fischer’s Service Bureau, a process service agency regularly used by the law firm, with the instruction that process was to be served immediately.4 Fischer’s, not the defendant, selected the licensed process server who would actually deliver the papers, and Fischer’s and the process server determined the precise manner of effecting service.5
Although the process server apparently delivered the papers on time, the medical malpractice claim was ultimately dismissed when a traverse hearing revealed that the process server had given the papers to Dr. Lauersen’s secretary rather than to Dr. Lauersen himself.6 By the time the traverse hearing was held, the statute of limitations had expired and the plaintiff had no further legal recourse against the doctor.7 The defendants then attempted to recover on the plaintiff’s behalf by alleging theories of liability against other parties. These claims, however, were all resolved against the plaintiff in January of 1987.8
The plaintiff subsequently commenced the present legal malpractice action against the defendant and his law firm, claiming liability for the negligence of the process server retained to serve Dr. Lauersen. The defendants moved for summary judgment and the plaintiff cross-moved.9 The trial court granted the defendants’ motion for summary judgment, a divided Appellate Division affirmed, and the Court of Appeals granted review.10
Whether an attorney may be held vicariously liable to his or her client for the negligence of a process server whom the attorney has hired on behalf of that client?11
An attorney owes a nondelegable duty to the client to exercise care in the service of process and therefore may be held vicariously liable for the negligence of a process server retained to perform that task, even if the process server is an independent contractor, because timely and accurate service is integral to commencing an action, implicates the Code of Professional Responsibility, aligns with client expectations, and serves sound public policy given attorneys' exclusive franchise to practice law.12
Yes. The duty of an attorney to exercise care in serving process on behalf of a client is nondelegable. It is central to commencing an action and implicates important public policies, as evidenced by the Code of Professional Responsibility and the client's reasonable expectations. In this case, defendant Rheingold delivered the summons and complaint to Fischer’s Service Bureau with instructions to serve immediately.13
However, the process server selected by Fischer’s served the papers on the doctor's secretary rather than the doctor himself.14 This resulted in dismissal after the statute of limitations had expired.15 Therefore, the defendants may be held vicariously liable for that negligence under the nondelegable duty exception to the independent contractor rule.16
The attorney may be held vicariously liable to the client for the negligence of the process server.17
Related opinions on this issue
Judge Bellacosa concurs in the result. He would resolve the case on the narrower ground that questions of fact exist as to whether the defendant law firm was negligent in choosing its process server.18 He would also resolve the case on the narrower ground that questions of fact exist as to whether the defendant law firm failed to obtain an automatic 60-day extension under CPLR 203 (b) (5).19 He argues that the majority's broad rationale classifying service of process as a nondelegable duty opens up an unrealistic and undue liability channel. This applies not only with respect to attorneys and process servers but by analogous extension to many other relationships in which attorneys retain specialists and experts.20 This broad new rule would require attorneys to inquire beyond any facially sufficient affidavit of service. For practical purposes, it would compel them to assume the role of process servers themselves. This result is particularly burdensome for small firms and solo practitioners.21
He notes that the majority's approach conflicts with lower court decisions and at least one sibling state that continue to classify outside process servers as independent contractors. He would retain that classification so that attorneys would not be liable on a respondeat superior basis.22