HOW TO SERVE LEGAL PAPERS BY EMAIL IN NEW YORK

This article will provide guidance on How To Serve Legal Papers By Email In New York?  Since the early 2000s, New York courts have increasingly accepted the electronic filing of legal issues and submission of requirements. New York City process service, who have traditionally been instructed to hand deliver papers to recipients in person, had no such alternative open to them. In 2008, a case established ‘e-service’ as a precedent in New York’s civil court. Check out What is a Process Server? or What is Process Service?

BACKGROUND

It seems that the plaintiffs in Snyder v. Alternate Energy, Inc. were unable to ascertain the defendants’ location despite their best efforts and a previous request for more time to effect service. The only contact information they had was an email address. This is why the plaintiffs asked the court for authorization to serve the defendants electronically, through email.

The court determined that conventional means of service were impossible after reviewing the plaintiff’s supporting evidence (such as a description of the steps taken to locate the defendants and serve them personally). He sided with the claimant and allowed service to be made through email. The approach used in Snyder v. Alternate Energy Inc. is now routinely used for motions for electronic service.

ELECTRONIC MAIL SERVICE IN NEW YORK

To get a court order allowing service of process through electronic mail, the applicant must meet certain requirements and follow the application procedure.  To comply with CVP 308 of the Civil Practice Law and Rules, the plaintiff’s side must first try to serve the defendant through conventional methods, either via [A.] individual process serving (personal delivery;)[B.] entrusting a third party to deliver legal documents to the defendant (substituted delivery;) [C.] discreetly delivering the legal documents to the defendant’s home, place of employment, and other possible hangouts (conspicuous delivery)

The applicant must include either a memorandum of law or a thorough description of the plaintiffs’ efforts to locate and serve the defendant.  They must submit an ex parte petition to the court requesting that they be allowed to serve the requisite paperwork by electronic mail.

A successful motion to dismiss would need the plaintiff to send the legal documents through email on two separate days.

The subject line of the email has to read ‘LEGAL PAPERS OPEN ATTACHMENT IMMEDIATELY,’ and copies of the approved ex parte motion and the summons/complaint should be sent to the defendant.

CPLR 308 AND THE REQUIREMENTS OF SERVICE

 When service cannot be made by personal delivery, ‘leave and mail,’ or ‘nail and mail,’ the court may, in its discretion, devise a method of service upon ex parte motion and without notice under C.P.L.R. 308(5), but only if [A.] the party seeking service makes an ex parte motion for expedited service, and [B.] the court is satisfied that service is ‘impracticable.’ 

N.Y. C.P.L.R. 308(5) is often known as ‘expedient service’ and ‘alternative service.’  In Dobkin v. Chapman (a consolidation of three appeals in which plaintiffs sought compensation for injuries they sustained in car accidents), it was held that a plaintiff could not recover damages unless he or she first established that the defendant was negligent. 

An email has become a common method of communication; in certain situations, it may be reasonably expected to serve as notice of an action, as was the case in Snyder v. Alternate Energy, Inc. Defendant’s waiver of statutory notice in favor of e-mail notification was upheld as due process.

The plaintiff is required to exhaust all reasonable means of locating the defendant and effecting service, including the use of publicly available resources and private investigators. If the defendant’s domicile is inaccessible, this is sufficient for service requirements.

WHAT HAPPENS WHEN THERE IS A LACK OF ALTERNATIVES

The facts in Snyder v. Alternate Energy Inc provide more of an everyday aspect of email service.  Although the plaintiff was unable to pinpoint when or where she last saw defendant Peter Nelson, she did electronic exchange mail and instant messages with him a few times. The plaintiff presented evidence to the court that it had attempted to track down the defendants, including that Mr. Nelson kept up a consistent online presence. The plaintiff had already emailed Mr. Nelson to ask for his physical address days before applying with the court for alternative service. 

In light of the fact that the court had already concluded that statutory service was impossible, it turned its attention to constitutional due process requirements of service and the reality of e-mail as a means of communication. The issue was whether or not a defendant might reasonably be expected to receive notice of a lawsuit by electronic mail. 

There are more conventional substitutes for personal service to email. Summonses may be served in a few different ways, including having them published in a newspaper, hand-delivered to the defendant’s relatives or an attorney, or sent to the defendant’s last known address. In these cases, there is no assurance that the receiver will read the message: service by publishing is very unlikely to be seen, and mail is never a sure thing to getting to its destination. As seen in Snyder, the defendant’s actions often prove uncontrovertibly that they could be contacted online. It is reasonable to expect that they would get notice of the pending action if conveyed by e-mail due to their online presence and past e-mail conversations. 

Concerns that an e-mail might be ignored, deleted, or captured in a spam filter were allayed by Snyder’s court-ordered mix of messages. Summonses were served on Mr. Nelson by sending him two emails with conspicuous subject lines, mailing paper notice to his last known homes in Connecticut and New York, and calling his mobile phone to tell him of the service.  The court supplemented the electronic mail service with additional measures meant to get the attention of the defendants.

Service of process is then reasonably calculated to apprise the defendant of the action and thus comports with the requirements of due process. This is especially so when the defendant voluntarily has provided their email address as a way of reaching out to them.  In this case, a waiver of personal service in favor of electronic mail is the same as a waiver of personal service in favor of regular mail. Since the defendant’s e-mail address was his designated business address for the duration of this agreement, its usage was not in question. Allowing service through email is conceptually similar to the widespread use of e-filing in courts across the nation, in which parties to a case consent in advance to receive court communications electronically.  

PROCEDURE FOR AUTHORIZING ELECTRONIC SERVICE OF PROCESS PURSUANT TO C.P.L.R. 308(5)

The party seeking alternative service from the court must file an ex parte application in accordance with C.P.L.R. 308(5). Otherwise, even if the defendant receives the summons, service may not be complete.

In the case of Badenhop v. Badenhop, a divorce proceeding, the movant incorrectly sought alternative service with an order to show cause.  Alternative service must be sought via a motion ‘and resolved ex parte upon affidavits which prove that service is impossible,’ as stated by the court.  What constitutes ‘impracticable’ for Section 308(5) must be determined on a case-by-case basis. In this case, any other kind of assistance would be fruitless. The court is allowed the authority to create new ways appropriate to the individual facts of the case in order to remedy the unexpected conditions in which the plaintiff cannot stick to the approved techniques. 

If it can be shown that alternative methods of service are not feasible, that’s all that’s required. To this end, the plaintiff will have to file suit. Similarly,  the plaintiff is not needed to show that they had made every effort to avoid resorting to service as provided for under CPLR 308(5). CPLR 308(5)’s sole restriction is that other methods of service must be impossible. Compared to the ‘due diligence required by Subdivision 4, this criterion is more lenient. 

To get a court to mandate service of process under C.P.L.R. 308(5), the movant must prove that delivery via any other statutory means is hopeless and impossible. In each instance, the answer will vary based on the specifics. Due diligence is the gold standard, and it is important to distinguish between it and the impractical.  Nothing here seems to alter the analysis used to demonstrate impracticability. 

The affidavits ‘described the plaintiffs’ extensive efforts to locate the specific defendant and their continuous failure to do so.’ Although the defendant was never formally served, the affidavits demonstrated that the plaintiff made extensive inquiries and several efforts to serve the defendant without success. 

A plaintiff who wants to serve documents in a manner other than those specifically allowed by law must prove that the other means of service were ineffective.  Affidavits from lawyers, litigants, and process servers are common forms of such evidence. A motion for alternative service will be dismissed if it is not supported by appropriate evidence. In order to avoid violating the 14th Amendment’s Due Process Clause, plaintiffs need to prove impracticability through evidence, including affidavits, receipts, search records, and cost assessments. Affidavits by witnesses with first-hand knowledge are required to provide ‘[a] factual basis detailing when, date, location, and techniques employed to meet the service criteria.’ To fulfill the statutory requirement of ‘impracticable,’ the individual will need more than just an inconvenience.

A defendant’s right to due process under the 14th Amendment requires that they get notice of the lawsuit in a manner that is ‘reasonably calculated,’ taking into account all relevant factors.

Due to the lack of a uniform standard for satisfying this constitutional mandate, the courts must look at each case to assess whether or not the mandated manner of service is likely to provide the defendant with enough notice of the action. 

THE BENEFITS OF EMAIL SERVICE

C.P.L.R. 308(5) authorizes the service of process via electronic mail. The practice has its detractors. E-mail is seen as a relaxed means of contact. A sent email may or may not be received by the receiver. It might be lost to spam filters, removed, or just lost in a packed inbox.

There is no confirmation from the receiver that they read the letter, unlike with a signed mail receipt. Any recipient of the email might request a reply.

The legal system is aware of these conditions but often rejects them as justifications. In a similar vein, courts deter the plaintiff by demanding a judgment that service by statutory methods is impractical. In order to satisfy the constitutional mandate that ‘notice be given in a manner reasonably adapted to have its intended result,’ courts may resort to any means at their disposal. The use of a phone call, a text message, a newspaper ad, or a letter in the mail are all examples of this persistent follow-up.

The C.P.L.R.’s authors anticipated that there would be cases when the defendant wouldn’t be properly served. This risk is not exclusive to electronic mail but is present in all forms of delivery. A person who learns of a final decision rendered against her may, under the C.P.L.R., ‘defend [an] action within one year.’ This allows the defendant’s voice to be heard even after the case has been decided. Concerns about including email as a standard method of notification have been appropriately addressed in the C.P.L.R.

Alternative service methods, such as contacting customers through e-mail, are gaining popularity.

As long as the court continues to order additional precautions to maximize notice to the defendant, the advantages of emailed service significantly exceed the hazards. An E-mail will continue to serve New York’s legal system well so long as its users follow the three-part standard outlined in C.P.L.R. 308(5). Click Here for information on Why Do Process Servers Exist?

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Sources

1. False v. Hollow defines ‘impracticable’ and then concludes that the age requirement for service under C.P.L.R. 308(1), (2), and (4)

2. It states, ‘A person may be appointed by a natural person, corporation, or partnership as an agent for service in a letter…’ According to Article 318 of the New York Civil Practice Law and Rules 

3. Saulo v. Noumi, 501 N.Y.S.2d 95, 96 (App. Div. 2d Dept. 1986); Markoff v. S. Nassau Cmty. Hosp., 458 N.Y.S.2d 672, 673 (App. Div. 2d Dept. 1983); 

4. Dobkin v. Chapman, 236 N.E.2d 451 (N.Y. 1968)

5. Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L. 27

6. In Snyder, the plaintiff claimed that the defendants had failed to pay for services rendered and related costs. Snyder examined the usefulness of electronic mail for regular contact. As part of a unique strategy for alternative service, the court authorized Snyder to email Energy Inc. and its president, Peter Nelson. To prove that Snyder’s service on Energy Inc. and Peter Nelson could not be made in person or by mail, the plaintiff produced affidavits from lawyers, process servers, and herself. The plaintiff presented evidence that it had exhausted all reasonable means of locating either defendant’s residential or commercial address (such as subpoenaing a telephone service, using person locators, and perusing court dockets) without success. As of 2013, the defendants have disappeared from their New York and Connecticut residences without providing any kind of forwarding address. 

7. Similarly, in Alfred E. Manning Trust, the defendant had previously consented to receive e-mail contacts.

8. The case number that comes in at number 56 is Badenhop v. Badenhop, which was decided in 1981 by the Appellate Division, Second Department of New York.

9. This finding is supported by C.P.L.R. 306(c), which states that specifics on attempted service under subdivisions 1, 2, and 3 must be provided when service is made under subdivision 4. That is to say, proof of due diligence requires details on each effort to serve the requisite paperwork. Subdivision 5 service, however, has no such prerequisite.

10. A case in point is Deason v. Deason, 296 N.E.2d 229, 230. (N.Y. 1973). The New York Court of Appeals encouraged the parties to file for a ruling on whether judicially designed service under N.Y. C.P.L.R. 308(5) is acceptable instead of service by publication to save money for the local government. 

Since N.Y. C.P.L.R. 308 and N.Y. DOM. REL. LAW 232 forbids the use of substituted service under sections 2, 3, and 4 in marital cases; the court granted the motion, finding that plaintiff had exhausted all other reasonable alternatives of statutory service.

11. There was no physical location listed for the defendant in Phillip Morris USA Inc. v. Veles, Ltd.; therefore, it seemed as if all business was done online. The defendant in Chanel, Inc. v. Zhixian also ran a company solely online but concealed its location. 85 The plaintiffs established in each instance that the defendants would likely get notice of the lawsuit if it were sent by electronic mail. For example, in Phillip Morris, the court said that the ‘plaintiff had abundantly proved the substantial chance that the defendants would receive and reply to e-mail messages’ by proving that the defendants relied heavily on their website and often spoke with clients through e-mail.