Baidoo v. Blood-Dzraku

• Decision Date: 27 March 2015
• Docket Number: 310947/2014
• Parties: Ellanora Arthur BAIDOO, Plaintiff, v. Victor Sena BLOOD–DZRAKU, Defendant.
• Court: New York Supreme Court

48 Misc.3d 309

5 N.Y.S.3d 709

2015 N.Y. Slip Op. 25096

Ellanora Arthur BAIDOO, Plaintiff

v.Victor Sena BLOOD–DZRAKU, Defendant.

310947/2014

Supreme Court, New York County, New York.

March 27, 2015.

Andrew J. Spinnell, Esq., New York City, for the plaintiff.

Opinion

MATTHEW F. COOPER, J.

As recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by email. Since then, email has all but replaced ordinary mail as a means of written communication. And while the legislature has yet to make email a statutorily authorized method for the service of process,¹ courts are now routinely permitting it as a form of alternative service.

The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many people.² Thus, it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered. In this matrimonial action, the issue before the court, by way of plaintiff-wife's ex parte application, is whether she may serve defendant-husband with the divorce summons solely by sending it through Facebook by private message to his account.

The standard method—or perhaps better stated, the method of first resort—for serving the summons in a divorce action is personal delivery to a defendant (New York Domestic Relations Law [DRL] § 232[a] ). This reflects the great emphasis that this state places on insuring that a person who is being sued for divorce—a proceeding that can have immeasurable financial and familial consequences—be made aware of and afforded the opportunity to appear in the action. The problem with personal service, of course, is that in order for it to be accomplished, a plaintiff must be able to locate the defendant. Even where a defendant's whereabouts are known, there are times when it is logistically difficult, if not impossible, for a process server to gain the close proximity necessary for personal delivery.

Fortunately, the Domestic Relations Law provides a remedy for a person who is seeking a divorce but faces the prospect of being unable to effect personal service. DRL § 232 permits plaintiffs to request permission to utilize one of the alternative methods allowed under the Civil Practice Law and Rules (CPLR) that does not require “in-hand” delivery to the defendant.

One such method, often referred to as “ substitute service,” involves delivering the summons to a person of “suitable age and discretion” at the defendant's “actual place of business, dwelling or usual place of abode” (CPLR 308[2] ). Another method, known as “nail and mail” service, requires affixing the summons to the door of a defendant's “actual place of business, dwelling or usual place of abode” (CPLR 308[4] ), and then, as with “substitute service,” mailing a copy to the defendant's “last known address” or “actual place of business.” A third method is “publication service,” where the summons is printed in a newspaper designated by the court and which can be granted upon a showing that “service cannot be made by another prescribed method with due diligence” (CPLR 315 ).

Additionally, pursuant to CPLR 308(5), a court, upon a plaintiff's ex parte application, may direct the manner by which service is to be made. This allows a court to go beyond any of the specifically prescribed methods of service and devise a method that fits the particular circumstances of the case. An application for alternative service under CPLR 308(5) can be granted only upon a sufficient showing that personal service, “substitute service,” or “nail and mail” service would prove “impracticable.” Case law, in accordance with well-established constitutional principles, further imposes the requirement that the method devised by the court be one that is “reasonably calculated, under all the circumstances, to apprise [the defendant] of the pendency of the action” (Hollow v. Hollow, 193 Misc.2d 691, 696, 747 N.Y.S.2d 704 [Sup.Ct., Oswego County, 2002] [quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ] ).

In the instant application, plaintiff asks the court to find that service of the divorce summons via a social media site, in this case Facebook, constitutes an appropriate form of alternative service under CPLR 308(5). Moreover, contending that she has no other way to reach defendant, she requests that this judicially-crafted method of service be designated the only means by which notice of the divorce action is given. In order for her application to be granted, plaintiff must first demonstrate that she is unable to have the summons personally served on defendant, the method of service initially prescribed by DRL § 232(a). Next, she must show that it would be “impracticable” to serve him by “substitute service” on a person of suitable age and discretion (CPLR 308[2] ) or by using “nail and mail” (CPLR 308 [4 ] ). Finally, she must show that sending the summons through Facebook can reasonably be expected to give him actual notice that he is being sued for divorce.

Plaintiff has easily met the requirement of demonstrating that she will be unable to effect personal service on defendant. Although the parties married in 2009, they never resided together, and the last address plaintiff has for defendant is an apartment that he vacated in 2011. Plaintiff has spoken with defendant by telephone on occasion and he has told her that he has no fixed address and no place of employment. He has also refused to make himself available to be served with divorce papers. As detailed in her attorney's affirmation, the investigative firms that plaintiff hired to assist in locating defendant have all been unsuccessful in their efforts, the post office has no forwarding address for him, there is no billing address linked to his pre-paid cell phone, and the Department of Motor Vehicles has no record of him. Inasmuch as plaintiff is unable to find defendant, personal delivery of the summons to him is an impossibility.

Similarly, plaintiff has shown that it would be an exercise in futility to attempt the two alternative service methods provided for by CPLR 308. Both “substitute service” and “nail and mail” service require knowledge of the defendant's “actual place of business, dwelling or usual place of abode” (CPLR 308[2], [4] ). The record establishes that plaintiff has been unsuccessful in obtaining either a business or home address for defendant, even though she has diligently sought that information. As a result, she has met her burden of demonstrating that it would be impracticable to attempt to serve defendant by either of these methods (see Franklin v. Winard, 189 A.D.2d 717, 592 N.Y.S.2d 726 [1st Dept.1993] ).

Having demonstrated a sound basis for seeking alternative service pursuant to CPLR 308(5), plaintiff must now show that the method she proposes is one that the court can endorse as being reasonably calculated to apprise defendant that he is being sued for divorce. This hurdle poses a number of challenges. First, there are only a handful of reported decisions, mostly from federal district courts, that have addressed the issue of service of process being accomplished through social media, with there being an almost even split between those decisions approving it and those rejecting it (compare Fed. Trade Commn. v. PCCare247 Inc., 2013 WL 841037 [S.D.N.Y., Mar. 7, 2013, No. 12 Civ. 7189(PAE) ] [allowing service of process in part by social media]; WhosHere, Inc. v. Orun, 2014 WL 670817 [E.D.Va., Feb. 20, 2014, Civ. No. 1:13–cv–00526–AJT–TRJ] [same]; Noel B. v. Anna Maria A., 2014 2014 N.Y. Misc. LEXIS 4708 [Fam.Ct., Richmond County 2014] [same] with Fortunato v. Chase Bank USA, N.A., 2012 WL 2086950 [S.D.N.Y., June 07, 2012, No. 11 Civ. 6608(JFK) ] [denying service by Facebook]; Joe Hand Promotions, Inc. v. Shepard, 2013 WL 4058745 [E.D.Mo., Aug. 12, 2013, No. 4:12cv1728 SNLJ] [same]; In re Adoption of K.P.M.A., 341 P.3d 38 [Okla., 2014] [same] ). Second, as will be further discussed, the cases permitting such service have done so only on condition that the papers commencing the lawsuit be served on the defendant by another method as well. Thus, in seeking permission to effectuate service of the divorce summons by simply sending it to defendant through a private Facebook message, plaintiff is asking the court, already beyond the safe harbor of statutory prescription, to venture into uncharted waters without the guiding light of clear judicial precedent.

Consideration must also be given to the fact that the way plaintiff proposes to provide defendant with notice of the divorce represents a radical departure from the traditional notion of what constitutes service of process. Even decisions from as recently as 2012 and 2013 have referred to the use of Facebook messaging for the purpose of commencing a lawsuit as being a “novel concept” (PCCare247 Inc., 2013 WL 841037 [permitting it as a supplemental method of service] ) and “unorthodox to say the least” (Fortunato, 2012 WL 2086950 [rejecting it as a means of service] ).

That a concept is new to the law is something that may very well require a court to exercise a high degree of scrutiny and independent legal analysis when judicial approval is sought. But a concept should not be rejected simply because it is novel or non-traditional. This is especially so where technology and the law intersect. In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology (see New England Merchants Natl. Bank v. Iran Power Generation &...