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The Appellate Division, Second Department Rules on The Use of Publication as an Alternative Method of Service of Process On An Individual

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  • Posted on: Apr 26 2019

Proper service of process is necessary before the court can acquire personal jurisdiction over the defendant to a lawsuit.  If service of process is not properly effectuated the court is “…without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.”   Citimortgage, Inc. v. Twersky, 153 A.D.3d 1230 (2nd Dep’t 2017) (citations and internal quotation marks omitted). 

CPLR 308 sets forth several methods by which service of process may be effectuated on an individual.  CPLR 308(1) permits service to be made by personally delivering the summons to the defendant.  Pursuant to CPLR 308(2) service can be made by delivering the summons to ” a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business….”  Pursuant to CPLR 308(3), an agent designated under CPLR 318 can be served with the summons on behalf of the defendant.  In the event that “service under [CPLR 308 sections] one and two cannot be made with due diligence,” CPLR 308(4) permits service to be made “by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business….”  Service on an individual pursuant to CPLR 308(5) is the subject of this Blog and will be discussed further herein.

“Service of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person pursuant to CPLR 308.”   Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1174 (2nd Dep’t 2015) (citations and internal quotation marks omitted).  Even if a defendant becomes aware of a pending litigation it “will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308.”  Washington Mut., 127 A.D.3d at 1174 (citations omitted).  Indeed, where service of process is not properly effectuated, a defendant may move to dismiss a complaint on the ground that “the court has not jurisdiction of the person of the defendant.”  CPLR 3211(a)(8); Washington Mut., 127 A.D.3d at 1174.

Section 308 of the CPLR, which permits the court to direct an alternative method of service, provides:

Personal service upon a natural person shall be made by any of the following methods:

                                    *          *          *

    1. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

Service by publication is often directed by the court as a means of alternative service.  However, more creative methods of alternative service have been ordered.  For example, in Baidoo v. Blood-Dzraku, 48 Misc.3d 309 (Sup. Ct. N.Y. County 2015), plaintiff was unsuccessful in obtaining a business or home address for the defendant to serve a summons and complaint notwithstanding diligent efforts and, therefore, the Court found that plaintiff “met her burden of demonstrating that it would be impracticable to attempt to serve defendant [pursuant to CPLR 308 (2) or (4)].”  See Baidoo, 48 Misc.3d at 312.  The Baidoo Court having determined that plaintiff established a basis for relief under CPLR 308(5), analyzed whether plaintiff demonstrated that the proposed alternative method of service “is one that the court can endorse as being reasonably calculated to apprise defendant that he is being sued for divorce.”  See Baidoo, 48 Misc.3d at 312.

In Baidoo, the court permitted service of divorce papers through the defendant’s Facebook account after submitting proof verifying that the Facebook account through which service was to be made indeed belonged to the defendant.  See Baidoo, 48 Misc.3d at 314 – 315.   Because plaintiff had neither other physical addresses nor e-mail addresses for defendant, and because service by publication was thought to provide no actual notice at all, Facebook service only was deemed to be adequate.  See Baidoo, 48 Misc.3d at 315 – 316.  

Jean v. Csencsits, decided by the Supreme Court of the State of New York, Appellate Division, Second Department on April 24, 2019, addressed issues related to alternative service of process.   The plaintiff in Jean was the buyer under a contract for the sale of real property who sued the seller for specific performance after he failed to show up at a “time of the essence” closing.  Plaintiff unsuccessfully attempted to personally serve defendant at the San Diego, California, address provided on the contract of sale. The court then granted plaintiff’s ex parte application for an alternative method of service pursuant to CPLR 308(5), although the case does not indicate what method of service was directed.  Service was effectuated pursuant to the court’s order, but defendant failed to answer or appear and, accordingly, the court granted plaintiff’s motion to enter a default judgment and scheduled an inquest to calculate damages.

The Jean seller’s motion to vacate the default judgment was denied by supreme court and an appeal ensued.  The Second Department affirmed and, in so doing, held that defendant, seller, was properly served pursuant to CPLR 308(5) due to the impracticality of service pursuant to CPLR 308(1), (2) or (4).  The Court noted that the “impracticality 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).” Citations omitted.  “Once the practicality 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.”  (Citations and internal quotation marks omitted.)  In Jean, the Court determined that the service on the defendant was impractical and that the alternative method of service directed by supreme court was “reasonably calculated to apprise the seller of the of the action under the circumstances of the case.”

The Court also rejected defendants argument to vacate the default judgment pursuant to CPLR 317, which provides, inter alia, that:

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318 , within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense….

The Court found that defendant failed to demonstrate that “he did not receive actual notice of the summons and complaint in time to defend the action.”  Citations omitted.

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