Any lawsuit has to be served on the opposing party. Some defendants try to get cute and hide from the process server or otherwise attempt to prevent service. Not a good idea in the long run. They will usually get you eventually. In a recent decision by the Supreme Court, New York County (Big Yuk Chiu v Louzon, 2022 NY Slip Op 32941(U)), the judge was not amused by one defendant’s antics in this department and declined to play along with the defendant’s game of “Catch me if you Can.”
Plaintiff tried serving the defendant at an address that he believed to be the defendant’s address. When the process server couldn’t find the defendant there, he chose an alternative way of service, which is allowed under New York’s rules of civil procedure. It is called nail and mail. Plaintiff then filed affidavits of service with the court.
Then an attorney appeared for the defendant and filed a motion to dismiss, basically saying the lawsuit has to be dismissed because the defendant was not served. They claimed that the nail and mail service was improper because the defendant does not live at the nail and mail address. They even submitted proof that the defendant lived in Paris, but blacked out the actual address to make it harder for the plaintiff to serve the defendant in Paris.
Plaintiff then said, ok, but please judge, order that we can serve on the defendant’s attorney (who obviously knew about this lawsuit) or tell us how to serve the defendant otherwise, because we tried and couldn’t.
The judge wouldn’t play along with the defendant’s tricks.
“CPLR 308(5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4), which provide for service by personal delivery, delivery and mail, and affixing and mailing, respectively, are impracticable. The impracticability 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). Once the impracticability 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” (Jean v Csencsits, 171 AD3d 1149, 1149-50, 99 NYS3d 348 [2d Dept 2019] [internal quotations and citations omitted]).
Here, plaintiff demonstrated that he identified a probable address for defendant—the Prince Street address. The deed for the Thompson Street property (another place where plaintiff tried to serve defendant) states that defendant lives at the Prince Street address (NYSCEF Doc. No. 16). And while defendant asserts that he lives in Paris, he redacted his address in Paris in the tax returns he submitted in connection with this record (NYSCEF Doc. No. 20). In reply, plaintiff pointed out that Google searches for defendant’s residence reveals only the Prince Street address and nothing in Paris.
That, of course, leaves plaintiff in a tough predicament, one that is obviously impracticable. He must now try to find where defendant lives in Paris and then spend the resources necessary to serve him via the Hague Convention. The Court declines to play along with defendant’s game of “Catch Me If You Can.” Defendant clearly knows about this case- having already learned about it due to plaintiff’s efforts- and so an alternative means of service is appropriate.
The Court declines to allow service by serving the attorney who brought the motion as plaintiff requests. If courts appointed the attorney as the defendant’s agent for service of process, then there would be no need for traverse hearings or any real attempts to properly serve defendants; no defendant could ever win a jurisdictional challenge if judges issued opinions saying, in effect, that “service was bad but just email the attorney defendant hired to challenge service to make it good.” Of course, it would also disincentivize parties from seeking counsel altogether. Plaintiff did not provide an email address for defendant. That leaves publication as a means to serve. Therefore, plaintiffs may effectuate service via publication (Fid. Nat. Tit. Ins. Co. v Smith, 2015 N.Y. Slip Op. 32497[U] [Sup Ct, New York County 2015] [permitting service by publication in a fraud and negligent misrepresentation case]). Undoubtedly, service by publication is a method of notice that is least calculated to notify a defendant about the case. However, posting notices in publications based in Manhattan (both of which have an online presence) about a case concerning a breach of a guaranty for a property located in Manhattan is sufficient under these circumstances.
After all, plaintiff alleges that defendant signed a guaranty in connection with a store in Manhattan and defendant now owes plaintiff nearly $700,000. The Court finds there is no reason to make plaintiff hunt all over the world when plaintiff already showed that he followed the document trail in front of him and that defendant is fully aware of this action. Now defendant is also fully aware of the publications in which notice of this lawsuit will be published.
So there you have it, the motion to dismiss was a big waste of time and money. Rarely does such a motion make sense, because they will eventually serve you. There is an exception: If a statute of limitations ran out after the alleged defective service, it could be the end of the lawsuit for good.
