I dissent from the majority which affirms the grant of summary judgment to defendants, but on narrower grounds than does Justice Milonas.
Defendants failed to take the precaution against defective service entailed in filing the summons and complaint with the County Clerk as provided in CPLR 203 (b) (5), so as to extend the period of limitation for sixty days. While I agree with the majority that an attorney should not be held vicariously liable for the negligence of a licensed process server who is employed by an independent process service agency to which the attorney has entrusted the summons for service, the inquiry should not end there. Whether the failure to file the summons with the County Clerk, thereby extending the period of limitation, was, in these circumstances, malpractice on the part of the defendant attorneys is a question of fact which should be determined at trial.
Accordingly, I would reverse the order granting summary judgment to the defendants, and reinstate the complaint. [See, 148 Misc 2d 853.]