Key Takeaway
Court clarifies CPLR 308(5) service requirements when traditional methods fail, addressing impracticability standards and due diligence expectations for process servers.
Understanding CPLR 308(5): When Traditional Service Methods Fall Short
Service of process is a fundamental requirement in civil litigation, ensuring defendants receive proper notice of legal proceedings against them. However, what happens when a defendant cannot be located through conventional means? New York’s Civil Practice Law and Rules (CPLR) provides alternative service methods, including CPLR 308(5), which allows service upon the Secretary of State when other methods prove impracticable.
The application of CPLR 308(5) can vary significantly depending on the court and judge hearing the case. This procedural variation creates uncertainty for practitioners navigating service of process challenges, particularly when dealing with defendants who may have relocated or are otherwise difficult to locate. Understanding when courts will find traditional service methods “impracticable” is crucial for successful litigation strategy.
Jason Tenenbaum’s Analysis:
Fontanez v PV Holding Corp., 2020 NY Slip Op 02173 (1st Dept. 2020)
This one is interesting as I encounter these 308(5) cases and I get different results depending on who the the judge is.
“The motion court properly determined that service upon Mr. Yu pursuant to CPLR 308(1), (2), or (4) was impracticable. Plaintiff served the summons and complaint on the Secretary of State of New York and mailed notice of this service with a copy of the pleadings to defendant Yu by registered mail to his last known address. She also hired a process server, who attempted to obtain Mr. Yu’s address through the Department of Motor Vehicles and through people search databases, including “Premium People Search” and “IRB Search.” Further, the motion court properly concluded that plaintiff’s attempts to serve through the Chinese Central Authority in accordance with the Hague convention would have been futile because she did not have defendant’s correct address (see Born To Build, LLC v Saleh, 139 AD3d 654, 656 ). Plaintiff was not required to show due diligence to meet the impracticability threshold under CPLR 308(5) (see Franklin v Winard, 189 AD2d 717 ).”
Key Takeaway
The First Department’s decision in Fontanez demonstrates that comprehensive search efforts through multiple databases and official channels can satisfy the impracticability standard for CPLR 308(5) service. Notably, courts do not require extensive due diligence showings when traditional service methods have been exhausted through reasonable investigative efforts. This ruling provides helpful guidance for practitioners dealing with procedural challenges in service of process cases.
