Kleeman v. Rheingold

• Decision Date: 04 May 1993
• Citation: 614 N.E.2d 712,598 N.Y.S.2d 149,81 N.Y.2d 270
• Parties: , 614 N.E.2d 712 Janet KLEEMAN, Appellant, v. Paul D. RHEINGOLD et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 149

598 N.Y.S.2d 149

81 N.Y.2d 270, 614 N.E.2d 712

Janet KLEEMAN, Appellant, v. Paul D. RHEINGOLD et al., Respondents.

Court of Appeals of New York.

May 4, 1993.

Richard Frank, P.C., New York City (Kathleen Peratis, of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Edward A. Magro and Mark K. Anesh, of counsel), for respondents.

OPINION OF THE COURT

TITONE, Judge.

In a prior action brought to recover damages for alleged medical malpractice, plaintiff was nonsuited for failure properly to serve the defendant doctor before the Statute of Limitations on her claim expired. The threshold issue in this second malpractice action, which was brought by plaintiff against the lawyers she retained to prosecute the first, is 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.

According to the allegations in the present complaint, plaintiff, a victim of alleged medical malpractice, had originally retained defendant and his law firm to pursue her claim against Dr. Neils Lauersen. With only five days remaining before the Statute of Limitations on the claim would expire, defendant promptly prepared a summons and complaint. On November 5, 1978, two days before the Statute of Limitations was to run, defendant delivered the prepared documents to Fischer's Service Bureau, a process service agency regularly used by defendant's law firm, with the instruction that process was to be served "immediately." It is undisputed that Fischer's, not defendant, selected the licensed process server who would actually deliver the papers and that Fischer's and the process server, rather than defendant, determined the precise manner of effecting service.

Although the process server used by Fischer's apparently delivered the papers on time, plaintiff's 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 Dr. Lauersen himself. By the time the traverse hearing was held, the Statute of Limitations had expired and plaintiff had no further legal recourse against the allegedly negligent doctor. Defendants then attempted to recover on plaintiff's behalf by "alleging various and different theories of liability against certain other parties." (Plaintiff's verified complaint p 11.3) These claims, however, were all resolved against plaintiff in January of 1987.

Plaintiff subsequently commenced the present legal malpractice action against defendant and his law firm, claiming that they should be held liable for the negligence of the process server who had been retained to serve Dr. Lauersen on plaintiff's behalf. Defendants moved for summary judgment and plaintiff cross-moved. Plaintiff argued that defendants' liability could be predicated on a nondelegable duty of attorneys to exercise care in assuring proper service of their clients' legal process. Alternatively, plaintiff argued that the process server was defendants' agent and that, under settled agency law principles, they could therefore be held accountable for the process server's wrongful acts. Finally, plaintiff contended that defendants should be held liable because of their own negligence in selecting a process serving agency that was "not a particularly respected or reliable entity," in failing to supervise or monitor the work of that agency and, finally, in neglecting to file the summons and complaint with the appropriate County Clerk so as to obtain a 60-day toll of the Statute of Limitations on plaintiff's claim pursuant to CPLR 203(b)(5).

The trial court rejected all of plaintiff's arguments. Relying on Bockian v. Esanu Katsky Korins & Siger, 124 Misc.2d 607, 476 N.Y.S.2d 1009 and Ostrander v. Holm's Vil. Travel, 87 Misc.2d 1049, 386 N.Y.S.2d 597, the court concluded that a process server is an "independent contractor" rather than an agent of the employing attorney, since "[t]he attorney does not have control over the manner in which the task is performed." (148 Misc.2d 853, 855, 562 N.Y.S.2d 915.) Accordingly, the court held, the relationship between the process server and the attorney here did not provide a cognizable basis for holding the latter vicariously liable for the acts of the former. On reargument, the court also rejected plaintiff's claims regarding defendants' failure to supervise the process server, holding that defendants' duty was satisfied when they took the necessary steps to commence the action by retaining the services of a licensed process server.

On plaintiff's appeal, a divided Appellate Division affirmed for essentially the same reasons. 185 A.D.2d 118, 585 N.Y.S.2d 733. We now modify by denying defendants' motion for summary judgment. As plaintiff's attorneys, defendants had a nondelegable duty to her and, accordingly, they cannot evade legal responsibility for the negligent performance of that duty by assigning the task of serving process to an "independent contractor."

The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts (see, Rosenberg v. Equitable Life Assur. Socy., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840; Gravelle v. Norman, 75 N.Y.2d 779, 782, 552 N.Y.S.2d 86, 551 N.E.2d 579; Besner v. Central Trust Co., 230 N.Y. 357, 362, 130 N.E. 577; Prosser and Keeton, Torts § 71 [5th ed.]; see also, Restatement [Second] of Torts § 409 [1965]. Although several justifications have been offered in support of this rule, the most commonly accepted rationale is based on the premise that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor (Feliberty v. Damon, 72 N.Y.2d 112, 118, 531 N.Y.S.2d 778, 527 N.E.2d 261; Prosser and Keeton, op. cit., at 509).

Despite the courts' frequent recitation of the general rule against vicarious liability, the common law has produced a wide variety of so-called "exceptions" (see, Feliberty v. Damon, supra, at 118, 531 N.Y.S.2d 778, 527 N.E.2d 261; Restatement, op. cit., §§ 410-429). Indeed, it has been observed that the general rule "is now primarily important as a preamble to the catalog of its exceptions" (Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 201 Minn. 500, 503, 277 N.W. 226, 228; accord, La Count v. Hensel Phelps Constr. Co., 79 Cal.App.3d 754, 145 Cal.Rptr. 244 [general rule of nonliability applies only where no good reason can be found for departing from it]; Restatement, op. cit., § 409, comment b, at 370 [same]. These exceptions, most of which are derived from various public policy concerns (see, Feliberty v. Damon, supra, 72 N.Y.2d at 118, 531 N.Y.S.2d 778, 527 N.E.2d 261), fall roughly into three basic categories: negligence of the employer in selecting, instructing or supervising the contractor; ¹ employment for work that is especially or "inherently" dangerous (see, Wright v. Tudor City Twelfth Unit, 276 N.Y. 303, 307, 12 N.E.2d 307; see also, Rosenberg v. Equitable Life Assur. Socy., supra); and, finally, instances in which the employer is under a specific nondelegable duty (see generally, Restatement, op. cit., § 409, comment b, at 371). ²

The exception that concerns us here--the exception for nondelegable duties--has been defined as one that "requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted" (Restatement, op. cit., ch 15, topic 2, Introductory Note, at 394, quoted in Feliberty v. Damon, supra, 72 N.Y.2d at 118-119, 531 N.Y.S.2d 778, 527 N.E.2d 261). The exception is often invoked where the particular duty in question is one that is imposed by regulation or statute (e.g., Gravelle v. Norman, supra; Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 300, 405 N.Y.S.2d 630, 376 N.E.2d 1276). However, the class of duties considered "nondelegable" is not limited to statutorily imposed duties. To the contrary, examples of nondelegable common-law duties abound (e.g., Storrs v. City of Utica, 17 N.Y. 104; see generally, Prosser and Keeton, op. cit., at 511-512, and nn. 26-41).

There are no clearly defined criteria for identifying duties that are nondelegable. Indeed, whether a particular duty is properly categorized as "nondelegable" necessarily entails a sui generis inquiry, since the conclusion ultimately rests on policy considerations (Feliberty v. Damon, supra, 72 N.Y.2d at 119, 531 N.Y.S.2d 778, 527 N.E.2d 261).

The most often cited formulation is that a duty will be deemed nondelegable when " 'the responsibility is so important to the community that the employer should not be permitted to transfer it to another' " (id., at 119, 531 N.Y.S.2d 778, 527 N.E.2d 261, quoting Prosser and Keeton, op. cit., at 512). This flexible formula recognizes that the "privilege to farm out [work] has its limits" and that those limits are best defined by reference to the gravity of the public policies that are implicated (5 Harper, James and Gray, Torts § 26.11, at 73 [2d ed.]; see also, id., at 76-77).

Viewed in the light of these principles, the duty at issue here--that owed by an attorney to his or her client to exercise care in the service of process--fits squarely and neatly within the category of obligations that the law regards as "nondelegable." Manifestly, when an individual retains an attorney to commence an action, timely and accurate service of process is an integral part of the task that the attorney undertakes (see, 5 Harper, James and Gray, op. cit., at 76-77; cf., Feliberty v. Damon, supra, at 120, 531 N.Y.S.2d 778, 527 N.E.2d 261). Furthermore, proper service of process is a particularly critical component of a lawyer's over-all...