Kleeman v. Rheingold

In Kleeman v. Rheingold (81 N.Y.2d 270 [1993]) the Court of Appeals held that a lawyer had a nondelegable duty to see to the proper delivery of process, and a process server's failure was thus properly visited on the lawyer. The nature of the attorney's duty when orchestrating service under the Hague Convention is necessarily different. In situations involving service under the Hague Convention the treaty mandates the delegation of the duty and actuality of service to a foreign sovereign over whom the litigant, definitionally, has absolutely no control. All that an attorney can do regarding service pursuant to the Hague Convention is follow the proper procedures to cast his client on the tender mercies of a foreign sovereign which may or may not have much interest in effecting the involvement of its citizens in litigation in the United States. Once the papers have been successfully delivered to the sovereign, the domestic litigant's counsel has done all she can, and if additional months--or years--are required to let the sovereign work his will, so be it, and courts should routinely correspondingly extend the time provided to complete the task of achieving proper service under the Hague Convention. The Court of Appeals held that 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 the client, because the attorney has a nondelegable duty to the client. However, the Court specifically did not decide the separate question of an attorney's liability for wrongs a retained process server may commit against a potential defendant or another third party. (81 NY2d at 277.) In Kleeman v. Rheingold, Judge Bellacosa, concurring, opined that he would have denied summary judgment to the defendant attorneys, "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 ... had a reputation for poor and sloppy service ... ." (81 NY2d at 279.)