81 N.Y.
2d 270 (1993)
Janet Kleeman, Appellant,
v.
Paul D. Rheingold et al., Respondents.
Court of Appeals of the State of New York.
Argued March 23, 1993.
Decided 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.
Chief Judge KAYE and Judges SIMONS, HANCOCK, JR., and SMITH concur with Judge
TITONE; Judge BELLACOSA concurs in result in a separate opinion.
272*272TITONE, J.
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 ¶ 11.) 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 273*273 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) and Ostrander v Holm's Vil. Travel (87 Misc 2d 1049), 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.) 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.
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; Gravelle v
Norman, 75 N.Y.2d 779, 782; Besner v Central Trust Co., 230 N.Y. 357, 362; Prosser and
Keeton, Torts § 71 274*274 [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; 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; 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 NW 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, at 118), 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; 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, at 118-119). The exception is often
invoked where the particular duty in question is one 275*275 that is imposed by regulation or
statute (e.g., Gravelle v Norman, supra; Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 300).
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, at 119).
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, 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). Furthermore, proper
service of process is a particularly critical component of a lawyer's over-all responsibility for
commencing a client's lawsuit, since a mistake or oversight in this area can deprive the
client of his or her day in court regardless of how meritorious the client's claim may be.
Given the central importance of this duty, our State's attorneys cannot be allowed to evade
responsibility for its careful performance by the simple expedient of "farming out" the task to
independent contractors.
The existence of an extensive and comprehensive Code of Professional Responsibility that
governs the obligations of attorneys to their clients reinforces our conclusion. Under the
Code, a lawyer may not "seek, by contract or other means, to 276*276 limit prospectively the
lawyer's individual liability to a client for malpractice" (DR 6-102, 22 NYCRR 1200.31).
Moreover, the Code forbids lawyers from "[n]eglect[ing] legal matter[s] entrusted to [them]"
(DR 6-101 [A] [3], 22 NYCRR 1200.30 [a] [3]), enjoins them to assist in "secur[ing] and
protect[ing] available legal rights" (EC 7-1) and requires them to represent their clients as
zealously as the "bounds of the law" permit (Canon 7). All of the latter ethical and
disciplinary considerations are implicated when a client's lawsuit is undermined — or even
defeated — as a consequence of carelessness in the service of process.
Our conclusion is also supported by the perceptions of the lay public and the average client,
who may reasonably assume that all of the tasks associated with the commencement of an
action, including its formal initiation through service of process, will be performed either by
the attorney or someone acting under the attorney's direction. While it may be a common
practice among attorneys to retain outside agencies like Fischer's to assist them in effecting
service, that custom is not necessarily one of which the general public is aware. Even
where a client is expressly made aware that a process serving agency will be retained, it is
unlikely that the client will understand or appreciate that the process serving agency's legal
status as an "independent contractor" could render the retained attorney immune from
liability for the agency's negligence. Under established principles, the client's reasonable
expectations and beliefs about who will render a particular service are a significant factor in
identifying duties that should be deemed to be "nondelegable" (see, Restatement, op. cit., §
429; see also, Feliberty v Damon, supra, at 120).
Finally, we conclude that permitting lawyers to transfer their duty of care to process servers
would be contrary to sound public policy. In this State, licensed attorneys have been
granted an exclusive franchise to practice law, with the understanding that they have both
the specialized knowledge and the character required to represent clients in a competent,
diligent and careful manner. Under this system, lawyers are authorized to hold themselves
out as being uniquely qualified to manage their clients' legal affairs, a task that
unquestionably includes the commencement of lawsuits. While it is true that the State also
licenses nonlawyers to perform certain discrete, law-related tasks such as service of
process (see, General Business Law art 8), the existence of that licensing system certainly
does not evince a governmental intent to 277*277 relieve attorneys of the responsibilities
implicit in their franchise. To the contrary, the purpose of the licensing system for process
servers is to "combat a continuing and pervasive problem of unscrupulous service
practices" in order to protect defendants who might otherwise be deprived of their day in
court or be victimized by "fraudulent default judgments" (Matter of Barr v Department of
Consumer Affairs, 70 N.Y.2d 821, 822; accord, Givens, Practice Commentary, McKinney's
Cons Laws of NY, Book 19, General Business Law art 8, at 128-130). That purpose is
obviously unrelated to the entirely separate goal of assuring clients who are would-
be plaintiffs that their process will be timely served in a manner that complies with the
complex requirements of CPLR articles 2 and 3, as well as with the numerous other
statutory provisions relating to commencement of actions (see, e.g., Business Corporation
Law §§ 304-308) and the formidable body of case law illuminating those statutes. The
responsibility for achieving that goal — and the liability for negligent failures to achieve it —
must remain squarely on the shoulders of trained and licensed attorneys who, as members
of a "learned profession," alone have the necessary knowledge and experience to protect
their clients' rights (cf., Feliberty v Damon, supra, at 120 [refusing to impose nondelegable
duty to provide competent defense on insurers, because "insurer necessarily must rely on
independent counsel to conduct the litigation" and is, in fact, barred from interfering with
independent counsel's "professional judgment"]).
Before closing, we note that, contrary to the concurrer's suggestion that our ruling has a far
broader application, the nondelegable duty of care that we have recognized in this case is
limited to the discrete and unique function of commencing an action through service of
process. Furthermore, the duty extends only to clients who have retained an attorney for the
purpose of commencing a lawsuit. We do not decide here the entirely separate question of
an attorney's liability for the wrongs that a retained process server may commit against a
potential defendant or another third party (see, e.g., Balzano v Lublin, 162 AD2d
252; Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607, supra; see also, Kersten v
Van Grack, Axelson & Williamowsky, 92 Md App 466, 608 A2d 1270). Nor do we consider
the right of an attorney who has been held liable for the negligence of a retained process
server to pursue whatever contractual or tort remedies that the attorney may have against
that process server. We hold only that an attorney 278*278 has a nondelegable duty to his or
her clients to exercise due care in the service of process and that, accordingly, an attorney
may be held liable to the client for negligent service of process, even though the task may
have been "farmed out" to an independent contractor. [3]
In view of this conclusion, it is evident that the courts below erred in granting defendants'
motion for summary judgment dismissing the complaint. If there was negligence in the effort
to effect service of process in plaintiff's failed action against Dr. Lauersen, plaintiff is entitled
to hold defendant vicariously liable, and she may recover in damages if she can
demonstrate that this negligence was the proximate cause of any pecuniary injury she
sustained. We note, however, that plaintiff is not herself entitled to summary judgment on
the liability question at this point in the litigation, since she still must demonstrate both that
the retained process server acted negligently and that she would have prevailed in the
underlying action against Lauersen if the negligence had not occurred (see, e.g., Kerson
Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine , 45 N.Y.2d 730). Thus, the denial
of plaintiff's cross motion for partial summary judgment was proper. Finally, since we are
holding that neither party is entitled to summary judgment on plaintiff's single cause of
action for legal malpractice, we need not now consider the viability of the other theories that
plaintiff has advanced to support defendants' liability. [4] At this point in the litigation, it
suffices to hold that defendants' nondelegable duty to plaintiff provides a legally viable basis
for imposing liability on them.
Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff, by
denying defendants' motion 279*279 for summary judgment dismissing the complaint and, as
modified, affirmed.
BELLACOSA, J. (concurring).
While I agree with the Court's result, I am unable to join in the broad rationale upon which it
is premised. This case should be more prudently resolved on the narrower ground that
questions of fact exist as to whether the defendant law firm was negligent in choosing its
process server and in failing to obtain an automatic 60-day extension under CPLR 203 (b)
(5).
The remedial rescue device, CPLR 203 (b) (5), which has been described as the
"skyscraper on the statute of limitations landscape" (Siegel, NY Practice, at 56 [2d ed
1991]), was enacted to aid attorneys, such as the defendants, whose clients are faced with
the imminent running of the Statute of Limitations. The allegations with respect to
defendants' failure to take advantage of this statutory remedy raise questions of fact barring
dismissal of the plaintiff's complaint.
Also, since attorneys may be liable for their own negligence in selecting a particular process
server, and since plaintiff alleges that the entity chosen by defendants, Fischer's Service
Bureau, Inc., had a reputation for poor and sloppy service, there are fact issues here which
suffice to defeat defendants' summary judgment motion for dismissal.
The Court's result is reached instead by classifying service of process, for the first time, as a
nondelegable duty of the attorney. This rationale opens up an unrealistic and undue liability
channel not only with respect to the relationship of attorneys to process servers but, by
analogous extension, also to many other relationships in which attorneys retain specialists
and experts in the discharge of their professional obligations to clients.
This broad new rule requires, in effect, that an attorney inquire beyond any facially sufficient
affidavit of service of process to verify personally the facts that underlie it. This contradicts
the justification and practicality for the long-standing practice of utilizing and relying on
independent process servers. For practical purposes, it will compel attorneys to assume the
role of process servers themselves. While many large firms already have such in-house
operatives, attorneys practicing in small firms and solo practitioners may now also have no
choice but to hire in-house process servers so that the lawyers can always maintain direct
supervision and control over them. No other way is left to avoid potential liability
to 280*280 disgruntled or harmed clients. Since the ordinary question-of-fact path is available
through which plaintiff's cause may proceed beyond summary judgment, I see no
justification or necessity for paving this boulevard route to that same result.
Notably, the rule that would make an attorney liable for the acts of an outside process
server on the basis announced in this case also conflicts with the useful teachings of
several of our lower courts and at least one sibling State. They continue the classification of
"outside" process servers as independent contractors (see, e.g., Balzano v Lublin, 162
AD2d 252, 253; Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607, 610-
611; Kersten v Van Grack, Axelson & Williamowsky , 92 Md App 466, 608 A2d 1270). This
approach is prudent because attorneys in these situations have no effective control over the
particular manner in which selected process servers do their jobs. The long-standing
classification of process servers as independent contractors should be retained, with the
result that attorneys would not be liable to plaintiff on a respondeat superior basis for the
negligent acts of process servers (Rosenberg v Equitable Life Assur. Socy., 79 N.Y.2d 663,
668; Feliberty v Damon, 72 N.Y.2d 112, 118).
Accordingly, I would modify to deny defendants' motion for summary judgment but on the
more narrowly expressed basis.
Order modified, etc.
[1] Notably, although often classified as an "exception," this category may not be a true exception to the general rule,
since it concerns the employer's liability for its own acts or omissions rather than its vicarious liability for the acts and
omissions of the contractor.
[2] A fourth category — i.e., cases in which the employer is held liable for risks "inherent in the work itself" — has
been identified by one noted commentator (Prosser and Keeton, op. cit., at 515-516).
[3] Contrary to the concurrer's concern about the practical implications of our holding, we find nothing untoward or
"unrealistic" about a rule that holds practicing attorneys responsible to their clients for the negligence of the process
servers they choose to retain. Further, we see no sound reason for permitting attorneys who happen to use outside
process servers to escape liability while attorneys who use in-house staff to perform the same functions can be held
liable under ordinary principles of respondeat superior.
[4] In response to the concurrence, however, we find it necessary to note that the theory of liability we have approved
herein is not interchangeable with the theories of liability the concurrer would permit, since the latter requires plaintiff
to prove that defendants were negligent in their own right while the former does not. Thus, contrary to the concurrer's
contention, this case may not be resolved on the narrower ground the concurrence advances without the need to
address the vicarious liability question that plaintiff's appeal presents.
