Kleeman v. Rheingold

— Order and judgment, Supreme Court, New York County (Harold Tompkins, J.), entered January 25, 1991 and February 5, 1991, respectively, which granted the defendants’ motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment, and, order of the same court, entered April 30, 1991, which granted the plaintiff’s motion for reargument and, upon reargument, adhered to its original determination, affirmed, without costs. Shortly before the expiration of the applicable Statute of Limitations, the plaintiff retained the defendant law firm to commence a medical malpractice action against a physician on her behalf. The defendant, Paul D. Rheingold, a shareholder in the firm, prepared a summons and complaint and delivered them to the firm’s "regular” process serving company, Fischer’s Service Bureau, Inc. Rheingold advised the process serving company that the suit had to be commenced immediately, prior to the expiration of the Statute of Limitations. Rheingold subsequently received, by return mail, an affidavit of personal service, verifying, under oath, that Jerome Campbell had effectuated personal service upon the physician, who was accurately described, within the requisite time period. In his answer to the complaint in the medical malpractice action, the physician asserted the affirmative defenses of lack of personal jurisdiction and the expiration of the Statute of Limitations. Upon completion of a traverse hearing, the court held that jurisdiction had not been obtained over the physician because he had never been personally served. The action against him was therefore dismissed. The plaintiff thereafter instituted the instant action against the defendants for legal malpractice based on their purported failure to properly commence an action against the doctor within the statutory time limit. The defendants’ motion for summary judgment dismissing the complaint was granted by the Supreme Court which thereafter granted the plaintiff’s [119] motion for reargument but upon reargument, adhered to its original determination. The plaintiff maintains that the defendant law firm is liable to her for the negligence of the process server. However, we agree with the Supreme Court that, under New York law, an attorney cannot be held vicariously liable for the negligence of a process server when the process server is an independent contractor and further the attorney receives an affidavit of service in proper form (Balzano v Lublin, 162 AD2d 252; see, Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607, 611; see also, Robinson v Jacoby & Meyers, 167 AD2d 134). The defendant did not select the process server who attempted to deliver the summons and complaint, nor did he direct or control his actions with regard to the manner, time or place of service. The process server was acting as an independent contractor and not as an agent or subagent of the law firm. We have considered the plaintiff’s remaining contention and find it to be without merit. Concur—Kupferman, Ross and Asch, JJ. Milonas, J. P., and Rosenberger, J., each dissent in separate memoranda as follows: