Service of process is a fundamental aspect of litigation, ensuring that defendants receive proper notice of legal proceedings against them. New York’s Civil Practice Law and Rules (CPLR) 308 outlines the acceptable methods for serving individuals. However, when traditional methods prove impracticable, courts may authorize alternative service methods under CPLR 308(5).
Traditional Methods of Service Under CPLR 308
Under CPLR 308, service of process may be effectuated through the following methods:
- Personal Delivery (CPLR 308(1)) – Directly handing the summons to the defendant.
- Leave and Mail (CPLR 308(2)) – Delivering the summons to a person of suitable age and discretion at the defendant’s home or business, followed by mailing it.
- Service on an Agent (CPLR 308(3)) – Serving an agent designated under CPLR 318.
- Nail and Mail (CPLR 308(4)) – Affixing the summons to the defendant’s home or business door and mailing it, but only after due diligence in attempting personal service.
While these methods provide a structured approach, there are cases where none of these options are feasible, prompting the need for alternative service.
Alternative Service Under CPLR 308(5)
When serving a defendant under CPLR 308(1), (2), or (4) is impracticable, CPLR 308(5) allows courts to fashion an alternative method of service. Courts have significant discretion in determining what constitutes “impracticability,” and the standard does not require exhaustive attempts under every statutory method. As noted in Astrologo v. Serra, 240 A.D.2d 606 (2d Dept. 1997), courts can permit alternative service without requiring due diligence under CPLR 308(4).
Further clarifying the standard, the Appellate Division in Bayview Loan Servicing, LLC v. Cave, 172 A.D.3d 985 (2d Dept. 2019), held that an applicant need not prove attempts under every statutory method but must demonstrate that traditional service is impractical. The court-approved method must be “reasonably calculated under the circumstances” to notify the defendant, as established in NMR e-Tailing LLC v. Oak Inv. Partners, 216 A.D.3d 572 (1st Dept. 2023).
Key Precedents on Alternative Service
The seminal case on alternative service is Dobkin v. Chapman, 21 N.Y.2d 490 (1968), which involved three separate cases where plaintiffs could not locate the defendants. The Court of Appeals permitted service via:
- Mailing to the defendant’s last known address and delivering a copy to their insurance carrier.
- Publication in a newspaper.
- Ordinary mail to the defendant’s last known residence.
Following Dobkin, courts have frequently approved service upon a defendant’s insurer when the defendant’s whereabouts are unknown, and the insurer is responsible for defending the claim. This approach was affirmed in Esposito v. Ruggerio, 193 A.D.2d 713 (2d Dept. 1993), and Fontanez v. PV Holding Corp., 182 A.D.3d 423, 424 (1st Dept. 2020), where the court directed that alternate service be made on the defendant’s insurer, even if the insurer had no knowledge of the defendant’s location. Similarly, in Cives Steel Co. v. Unit Builders, Inc., 262 A.D.2d 164 (1st Dept. 1999), service was permitted on a defunct corporation’s insurer.
Conclusion
CPLR 308(5) provides a crucial mechanism for ensuring defendants receive notice of legal actions when traditional methods fail. Courts routinely permit service upon a defendant’s insurance company when their whereabouts are unknown, ensuring that the litigation process continues without undue delays. As case law demonstrates, New York courts prioritize a practical and flexible approach, balancing due process with the realities of modern litigation