## Facts

- Janet Kleeman retained Paul D. Rheingold and his law firm to prosecute a medical malpractice claim against Dr. Neils Lauersen.
- Two days before the limitations period expired, the firm delivered a summons and complaint to a process service agency with instructions that service be made immediately.
- The agency, not the attorneys, selected the licensed process server and controlled the method of service.
- The process server delivered the papers to the doctor’s secretary rather than personally serving the doctor.
- Service was found improper at a traverse hearing, and the medical malpractice action was dismissed after the statute of limitations had run, leaving Kleeman without recourse against the doctor.
- After unsuccessful attempts to pursue alternative theories, Kleeman sued the attorneys for legal malpractice, seeking to hold them responsible for the process server’s negligence.

## Issues

1. Whether an attorney may be held vicariously liable to a client for negligent service of process performed by a process server characterized as an independent contractor.
2. Whether the attorney-client relationship imposes a nondelegable duty on attorneys to use reasonable care to ensure proper and timely service of process in an action they commence.

## Decision

- The Court of Appeals modified the Appellate Division’s order.
- It held that an attorney has a nondelegable duty to a client to exercise ordinary reasonable care to ensure proper service of process.
- Because the duty is nondelegable, the attorneys could be vicariously liable for the process server’s negligence despite the server’s independent-contractor status.
- The court denied defendants’ motion for summary judgment, allowing the malpractice action to proceed.

## Legal Principles

- Proper service of process is an essential step in commencing an action and securing jurisdiction; ensuring it is properly effected falls within the attorney’s professional responsibility to the client.
- An attorney’s duty to exercise reasonable care to see that service is properly and timely made is nondelegable; delegation to a process server does not eliminate potential liability.
- The general rule that a hirer is not liable for an independent contractor’s negligence yields when public policy and the nature of the undertaking justify treating the duty as nondelegable, including when client protection depends on the attorney’s oversight.

## Conclusion

The court held that attorneys cannot avoid malpractice exposure for defective service of process by outsourcing service to an independent process server; the attorney remains responsible to the client for reasonable care in ensuring proper and timely service, and the case could proceed on a vicarious-liability theory.


Kleeman v. Rheingold, 81 N.Y.2d 270 (N.Y. 1993)