CPLR 308(5)

What is CPLR 308?

CPLR 308 is the New York Civil Practice Law and Rules section that governs service of process on a natural person (an individual defendant, as opposed to a corporation or LLC, which is covered by CPLR 311). CPLR 308 provides a hierarchy of service methods, and each method has its own technical requirements. Getting the procedure wrong means the court never acquires personal jurisdiction over the defendant — and the case can be dismissed for lack of jurisdiction at any point.

Key Takeaways

• CPLR 308 covers individual defendants. Corporations and LLCs are served under different statutes (CPLR 311 for corporations; CPLR 311-a for LLCs; Business Corporation Law § 306 for service via the Secretary of State).
• There is a practical hierarchy of methods: (1) personal delivery → (2) “suitable age and discretion” with mailing → (4) affix-and-mail when (1) and (2) cannot be made with due diligence → (5) court-ordered alternative service when (1), (2), and (4) are impracticable.
• (2) and (4) require additional filing of proof of service within 20 days of the delivery or affixing — missing this filing step has tanked otherwise valid service.
• (4) requires “due diligence” in attempting (1) and (2) first. (5) requires “impracticability” — a different and somewhat more relaxed standard after Fontanez v PV Holding Corp.
• Service on the Secretary of State under CPLR 308(5) is the most common form of court-ordered alternative service, particularly when the defendant cannot be located.
• Defective CPLR 308 service can be cured by leave of court in some circumstances under CPLR 305 and CPLR 306-b — but the cleaner route is getting the service right the first time.

CPLR 308(1) — Personal delivery

The simplest and most preferred method is personal delivery of the summons and complaint to the named defendant in hand. No witnesses, no mailing, no additional filing — just hand the papers to the defendant.

CPLR 308(1) provides the strongest jurisdictional record because there is no question of notice. The defendant has the papers in their hand; the affidavit of service describes the time, place, and physical description of the person served. Courts uphold (1) service even when the defendant later denies receipt, because the affidavit of service is prima facie evidence of proper service (see CPLR 4531).

When personal delivery is unavailable — the defendant is evading, traveling, or simply unreachable — the practitioner moves to (2).

CPLR 308(2) — Suitable age and discretion service

CPLR 308(2) permits service by:

1. Delivery of the summons to “a person of suitable age and discretion” at the defendant’s actual place of business, dwelling place, or usual place of abode; AND
2. Mailing the summons to the defendant at either their last known residence or their actual place of business in an envelope marked “personal and confidential” and not indicating on the outside that it is from an attorney or concerns an action against the defendant; AND
3. Filing proof of service with the clerk of the court within 20 days of either the delivery or mailing, whichever is later.

The “suitable age and discretion” person is typically an adult co-resident, a spouse, an adult roommate, or a co-worker at the business location. Courts read “suitable age and discretion” liberally — anyone old enough to understand the responsibility of passing the papers along generally qualifies.

The “actual place of business” must be the defendant’s current workplace, not a former employer or a building they visit occasionally. The “dwelling place or usual place of abode” similarly requires real connection — a vacation home or relative’s address where the defendant occasionally stays is typically not enough.

The most common (2) failure is forgetting the 20-day filing requirement. The service is not complete — and the statute of limitations does not toll — until proof of service is filed. A practitioner who serves on day 119 of a 120-day service window under CPLR 306-b but does not file proof of service for 21 days has missed the deadline.

CPLR 308(4) — Affix-and-mail (nail-and-mail) service

When CPLR 308(1) and (2) cannot be made with due diligence, CPLR 308(4) permits service by:

1. Affixing the summons to the door of the defendant’s actual place of business, dwelling place, or usual place of abode; AND
2. Mailing the summons to the defendant at the last known residence or actual place of business (same “personal and confidential” envelope rule as (2)); AND
3. Filing proof of service within 20 days (same as (2)).

The phrase “due diligence” in CPLR 308(4) is the gatekeeper. Courts require concrete, documented attempts at personal delivery and suitable-age-and-discretion service at varying times of day and on different days of the week before allowing affix-and-mail. The standard New York practitioner approach is three attempts on at least two different days, at different times (morning, afternoon, evening), with detailed affidavits describing each attempt.

Common (4) failures include:

• Two attempts at the same time of day on consecutive days (not “due diligence”)
• Affixing to a building lobby rather than to the actual apartment door (when the apartment door is accessible)
• Mailing to a stale “last known residence” the plaintiff knows the defendant no longer occupies
• Missing the 20-day proof-of-service filing

When the defendant’s actual location is genuinely unknown — not just hard to access, but unknown — (4) is unavailable and the practitioner must move to (5).

CPLR 308(5) — Court-ordered alternative service

When CPLR 308(1), (2), and (4) are “impracticable,” CPLR 308(5) permits the plaintiff to apply to the court for an order directing the manner of service. This is the catchall provision for cases where the defendant cannot be located through ordinary investigative effort.

The most common (5) order is service on the New York Secretary of State as agent for the unlocated individual defendant, coupled with a mailing to the last known address. Other (5) orders have authorized service by certified mail, by publication (rare), by email, and through social media in unusual circumstances.

The leading recent case on the (5) impracticability standard is Fontanez v PV Holding Corp., 2020 NY Slip Op 02173 (1st Dept. 2020). The First Department clarified that the plaintiff is not required to show due diligence to meet the impracticability threshold under CPLR 308(5) — a “relaxed” standard compared to (4).

In Fontanez, the plaintiff sought to serve defendant Mr. Yu, who could not be located at any known address. The plaintiff hired a professional process server who conducted comprehensive database searches including the Department of Motor Vehicles records, “Premium People Search,” and “IRB Search” databases. These efforts failed to produce a current address. The plaintiff served the summons and complaint on the New York Secretary of State and mailed notice by registered mail to Yu’s last known address. The defendant moved to dismiss for lack of personal jurisdiction; the motion court granted the plaintiff’s CPLR 308(5) application; the First Department affirmed:

“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).”

The takeaways from Fontanez:

• Multiple database searches plus DMV records is generally sufficient to show “impracticability.”
• Hague Convention attempts are not required when the plaintiff has no current address to send them.
• The (5) standard is not the (4) “due diligence” standard — courts owe deference to the plaintiff’s investigative posture rather than demanding documented (1)/(2)/(4) attempts.

That said, judges vary. As noted, “these 308(5) cases [produce] different results depending on who the judge is.” Some motion courts require a stronger evidentiary record before granting a (5) order — DMV records plus two database searches is the practical floor, but four or five distinct investigative channels is the defensible posture.

Common service-of-process mistakes that lead to dismissal

• Missing the 20-day proof-of-service filing under (2) or (4). Service is incomplete until proof is filed; the statute of limitations does not toll.
• “Last known address” that is no longer current. Courts have rejected (4) mailings to addresses the plaintiff knew or should have known the defendant had left.
• Service at a “usual place of abode” that’s a vacation home or relative’s address. The dwelling must reflect real connection, not occasional presence.
• Two attempts at the same time of day. Not “due diligence” under (4); courts want documented attempts at different times to capture different daily routines.
• Affixing to a building lobby door when the apartment door was reachable. The affidavit of service must describe the actual location of affixing.
• (5) application with no investigative record. Courts require some affidavit showing what was attempted before the alternative-service order; “we tried calling” is not enough.
• (5) on the Secretary of State without mailing to last known address. The order typically requires both — service on the Secretary plus a mailing — and skipping the mailing makes the service defective.

Frequently Asked Questions

What is CPLR 308?

CPLR 308 is the New York statute that governs how a summons is served on a natural person (an individual defendant). It provides four primary methods: personal delivery (1), suitable age and discretion service plus mailing (2), affix-and-mail with due diligence (4), and court-ordered alternative service when (1)(2)(4) are impracticable (5). Service on corporations and LLCs is governed by different statutes.

What is the difference between CPLR 308(1), (2), (4), and (5)?

(1) is direct in-hand delivery to the defendant. (2) is delivery to a person of suitable age and discretion at the defendant’s residence or workplace plus a mailing and proof-of-service filing. (4) is affixing the summons to the door plus a mailing, available only when (1) and (2) cannot be made with due diligence. (5) is court-ordered alternative service when (1), (2), and (4) are all impracticable — most commonly service on the Secretary of State plus a mailing to last known address.

When can I use CPLR 308(5) service in New York?

CPLR 308(5) is available when service under (1), (2), and (4) is “impracticable” — typically because the defendant cannot be located through ordinary investigative effort despite database searches, DMV records checks, and other reasonable steps. The First Department clarified in Fontanez v PV Holding Corp. (2020) that the plaintiff need not show “due diligence” for (5) — impracticability is a more relaxed standard.

How long do I have to file proof of service under CPLR 308?

Under CPLR 308(2) and (4), proof of service must be filed with the clerk of the court within 20 days of either the delivery or the mailing, whichever is later. Service is not complete until this filing is made, and the statute of limitations does not toll in the interim. Missing the 20-day window has tanked otherwise valid service.

What is “due diligence” under CPLR 308(4)?

“Due diligence” under (4) is the documented effort to serve the defendant under (1) and (2) before resorting to affix-and-mail. New York courts generally require at least three attempts at different times of day (morning, afternoon, evening) on at least two different days, with detailed affidavits describing each attempt. Two attempts at the same time of day on consecutive days has been rejected as insufficient.

Can a corporate defendant be served under CPLR 308?

No. CPLR 308 covers natural persons (individuals). Corporations are served under CPLR 311 or Business Corporation Law § 306 (typically via the Secretary of State as agent). Limited liability companies are served under CPLR 311-a. Partnerships and associations have their own service statutes. Serving a corporation under CPLR 308 generally produces a jurisdictional defect.

What happens if CPLR 308 service is found defective?

A defendant who is improperly served can move to dismiss the action under CPLR 3211(a)(8) for lack of personal jurisdiction. If granted, the action is dismissed — and if the statute of limitations has run in the interim, the plaintiff may lose the claim entirely. In some circumstances the court may grant leave under CPLR 306-b to extend the service period or permit a re-do, but this discretion is not unlimited and depends on the facts.

Talk to a Long Island attorney about service of process

Service of process is the most procedurally technical step in litigation. The cost of getting it wrong is the loss of personal jurisdiction and, often, the loss of the claim itself. If you have a CPLR 308 service question — particularly a CPLR 308(5) application against a defendant you cannot locate — our Long Island personal injury practice handles these issues regularly across Nassau and Suffolk County Supreme Court. For broader reference on New York civil procedure, see our legal encyclopedia.

Initial consultations are free. Call (516) 750-0595.

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