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Court Declines to Play Along with Defendant’s Game of “Catch Me If You Can”

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  • Posted on: Sep 7 2022

By: Jeffrey M. Haber

Sometimes, a plaintiff will find it difficult to serve a defendant with process. There can be many reasons for such difficulties. Avoidance is one such reason. After all, no one wants to be sued.

When a defendant tries to avoid service, a plaintiff may request permission from the court to serve the defendant using alternative means, such as service by publication. That was the situation in Big Yuk Chiu v. Louzon, 2022 N.Y. Slip Op. 32941(U) (Sup. Ct., N.Y. County Aug. 31, 2022) (here). As shown in Big Yuk Chiu, the courts do not engage in “catch me if you can” games.

Big Yuk Chiu was an action to recover on a guaranty. Defendant moved to dismiss on the ground that he was never served. He claimed that the affidavit of service, which asserted that defendant was served via “nail and mail” at an address on Prince Street in New York City, was not sufficient because he does not live there. Defendant claimed that he resides, and has resided, in Paris, France. Defendant did not, however, provide an address of where he lives.

In opposition and in support of his cross-motion, plaintiff asked the motion court for an extension of time to serve defendant, that he be permitted to serve defendant via his counsel or, in the alternative, for leave to serve defendant in some other way. Plaintiff maintained that, as shown on a deed for a separate property (located on Thompson Street in Manhattan), defendant resided in Manhattan.

As an initial matter, the motion court held that defendant adequately established that service was not properly effectuated. The motion court accepted defendant’s averment that he does not live in Manhattan, but noted that in his supporting documentation, defendant failed to provide the street address in Paris on which he lives.

Turning to plaintiff’s cross-motion to serve defendant using alternative means, the motion court granted the motion. “CPLR 308(5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4), which provide for service by personal delivery, delivery and mail, and affixing and mailing, respectively, are impracticable. The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4) nor make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4). Once the impracticability standard is satisfied, due process requires that the method of service be ‘reasonably calculated, under all the circumstances, to apprise’ the defendant of the action.”1 

The motion court found that plaintiff demonstrated that he identified a probable address for defendant in New York City.2 But, having done so only left “plaintiff in a tough predicament, one that [was] obviously impracticable. He must now try to find where defendant lives in Paris and then spend the resources necessary to serve him via the Hague Convention.”3 The motion court “decline[d] to play along with defendant’s game of ‘Catch Me If You Can.’”4 The motion court reasoned that “[d]efendant clearly knows about this case having already learned about it due to plaintiff’s efforts – and so an alternative means of service [was] appropriate.”5 

However, the motion court declined to allow service by serving the attorney who brought the motion, as plaintiff requested. “If courts appointed the attorney as the defendant’s agent for service of process,” noted the motion court, “then there would be no need for traverse hearings or any real attempts to properly serve defendants; no defendant could ever win a jurisdictional challenge if judges issued opinions saying, in effect, that ‘service was bad but just email the attorney defendant hired to challenge service to make it good.’”6 The motion court also opined that allowing service on the attorney would “disincentivize parties from seeking counsel altogether.”7

Since plaintiff did not provide an email address for defendant, the motion court held that publication was an acceptable means to serve defendant.8 In so holding, the motion court noted that “service by publication [was] a method of notice that [was] least calculated to notify a defendant about the case. However, posting notices in publications based in Manhattan (both of which have an online presence) about a case concerning a breach of a guaranty for a property located in Manhattan [was] sufficient under these circumstances,” said the Court.9 “After all, plaintiff alleges that defendant signed a guaranty in connection with a store in Manhattan and defendant now owes plaintiff nearly $700,000.”10 

In conclusion, the motion court found that there was “no reason to make plaintiff hunt all over the world when plaintiff already showed that he followed the document trail in front of him and that defendant [was] fully aware of this action. Now defendant is also fully aware of the publications in which notice of this lawsuit will be published.”11

Takeaway

CPLR § 308(5) empowers a court to direct the use of alternative methods of service when the customary methods are impracticable. Such impracticability may result when, as in Big Yuk Chiu, the defendant intentionally evades or resists service. When that happens, courts will “decline[] to play along with defendant’s game of ‘Catch Me If You Can.’”12


Footnotes

  1. Slip Op. at *2 (quoting, Jean v. Csencsits, 171 A.D.3d 1149, 1149-50 (2d Dept. 2019) (internal quotations and citations omitted)).
  2. Id. at *3.
  3. Id.
  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. Id. at *3 (citing, Fid. Nat. Tit. Ins. Co. v. Smith, 2015 N.Y. Slip Op. 32497(U) (Sup. Ct, N.Y. County 2015)).
  9. Id. at *4.
  10. Id.
  11. Id.
  12. Id. at *3.

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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