Summary
finding negligence as a matter of law where attorney failed to effect proper service in client's action and statute of limitations subsequently barred further action
Summary of this case from Worth v. Tamarack American, Div. of Great American, (S.D.Ind. 1999)Opinion
December 27, 1994
Appeal from the Supreme Court, New York County (Carol Huff, J.).
Attorneys owe their clients a nondelegable duty of care in the service of process once they have undertaken to commence an action (Kleeman v Rheingold, 81 N.Y.2d 270). The traverse hearing in the medical malpractice action defendants attorneys undertook to commence in plaintiffs' behalf determined that service was not properly effected upon the hospital defendant and one of the physician defendants named therein, and there is no dispute that the Statute of Limitations subsequently ran, barring plaintiffs' claims against those parties. Concerning the third defendant in the malpractice action, another physician, it makes no difference whether defendants, as they assert, misnamed him, making it an exercise in futility to enter a default judgment against a nonexistent person, or failed to enter a default judgment against a properly named party within a year after the default, since in either case defendants were negligent. Accordingly, we limit the issues for trial to the extent of finding that the attorney defendants were negligent in failing to properly commence plaintiffs' medical malpractice action (CPLR 3212 [g]). Such a finding, however, is not enough to entitle plaintiffs to summary judgment on the issue of liability. In addition, plaintiffs must demonstrate that they "would have prevailed in the underlying action * * * if the negligence had not occurred" (Kleeman v Rheingold, supra, at 278), and actual damages (see, Lauer v Rapp, 190 A.D.2d 778, 779). We have examined the "parties"' additional arguments raised on these cross appeals and find no basis for disturbing the balance of the August 24, 1994 orders or the other interlocutory orders brought up for review.
Concur — Kupferman, J.P., Ross, Williams and Tom, JJ.