48 Misc. 3d 309
N.Y. Sup. Ct.2015Background
- Wife seeks permission (ex parte) to serve husband with divorce summons solely via Facebook private message under CPLR 308(5).
- Parties never lived together; husband has no fixed address or employer since 2011 and refuses to be served.
- Wife’s investigators, USPS, DMV, and phone records failed to produce a current physical or email address for husband.
- Personal service and CPLR 308(2)/(4) substitute or "nail and mail" are impracticable because no known residence or business address exists.
- Publication (CPLR 315) is available but unlikely to actually notify husband; wife has demonstrated that Facebook account appears to be the husband’s and that he logs in.
- Court conditions: attorney must message from wife’s Facebook account, identify himself, attach or link the summons weekly for three weeks (or until acknowledged), and follow up by call/text.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may authorize Facebook-only service under CPLR 308(5) | Facebook message is the only practicable means to give notice given inability to locate husband | Facebook is novel/unreliable; traditional methods (publication) or supplemental methods should be used | Court allowed Facebook-only service here: reasonably calculated to notify under due process given facts |
| Whether plaintiff showed personal service impracticable | Demonstrated inability to find or serve husband despite diligence | Husband’s absence/noncooperation does not excuse stricter standards | Court found personal service impracticable on this record |
| Whether substitute service or nail-and-mail practicable | No known dwelling or business address; investigators unable to locate husband | Those statutory alternatives are preferred when feasible | Court found those methods impracticable here |
| Whether additional backup service (email/publication) required | No viable email or current address exists; publication unlikely to notify husband | Other courts required supplemental methods when permitting social-media service | Court declined to require backup here because Facebook was most likely to effect actual notice |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due-process standard: notice reasonably calculated to apprise interested parties)
- Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (broader constitutional principle permits judicially-devised alternative service to adapt to technology)
- New England Merchants Natl. Bank v. Iran Power Generation & Transmission Co., 495 F. Supp. 73 (S.D.N.Y. 1980) (courts should account for technological changes in service methods)
- Franklin v. Winard, 189 A.D.2d 717 (1st Dep't 1993) (party must show impracticability of substitute service methods under CPLR 308)
- In re Adoption of K.P.M.A., 341 P.3d 38 (Okla. 2014) (declining to allow service via Facebook)