Practice point: Defendants'
witness at the traverse hearing worked in an office at which plaintiff's law
firm had previously served process without
challenge. This was known to the process server, who was a
lawyer at the firm. A substantial responsibility held by defendants' witness was
to accept service of subpoenas served on defendants. The process server testified
that he handed the summons and complaint to defendants' witness after having
asked several people in defendants' office where he should go to serve
the papers, and having been directed towards the area where her cubicle
was located. Defendants' witness could not recall whether she ever had an
encounter with the process server, and neither did she deny it.
The Appellate Division determined that, viewed objectively, these circumstances compel the
conclusion that service on defendants was calculated to give fair notice of the claims against them. The Appellate Division noted
that the hearing court did not appear to base its conclusion on any
credibility determinations. Instead, it found that both defendants' witness and the process server were inexperienced with service of
process, leading to their mutual confusion. The Appellate Division found this to be an insufficient basis to dismiss the complaint, and it was reinstated.
Student note: In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed. In addition, CPLR 311, pursuant to which
plaintiff purported to make service, is to be liberally construed in
determining whether service was made on a corporation by delivering the
summons to one of the persons delineated in the statute.
Case: Wells v. Continuum Health Partners, Inc., NY Slip Op 04850 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Qualified privilege.
