Law School Case Brief
Baidoo v Blood-Dzraku - 48 Misc. 3d 309
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.
Baidoo and Blood-Dzraku married in 2009, but they never resided together. The last address Baidoo has for Blood-Dzraku is an apartment that he vacated in 2011. Baidoo had spoken with Blood-Dzraku by telephone on occasion and he told her that he had no fixed address and no place of employment. He also refused to make himself available to be served with divorce papers. Baidoo hired firms to assist in locating Blood-Dzraku but they were unsuccessful in their efforts. The post office had no forwarding address for him and there was no billing address linked to his prepaid cell phone. Even the Department of Motor Vehicles had no record of him. Inasmuch as Baidoo was unable to find Blood-Dzraku, personal delivery of the summons to him was an impossibility.
Baidoo then resorted to message Blood-Dzraku via Facebook to serve divorce summons. She then asked the court to rule that service via Facebook message constituted an appropriate form of alternative service under CPLR 308(5).
Did Baidoo’s private message to Blood-Dzraku via Facebook amount to valid service of divorce summons?
Baidoo was permitted to serve defendant husband Blood-Dzraku a divorce summons by sending a private message through Blood-Dzraku’s social media account. Baidoo demonstrated her inability to personally serve Blood-Dzraku the alternative methods for service prescribed by CPLR 308 as they would be impracticable, and that service through the social media account could reasonably be expected to give Blood-Dzraku actual notice of the divorce action. 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 allowed a court to go beyond any of the specifically prescribed methods of service and devise a method that fit the particular circumstances of the case. Inasmuch as Baidoo was unable to find Blood-Dzraku, she demonstrated a sound basis for seeking alternative service pursuant to CPLR 308(5), verified that the account in question belonged to Blood-Dzraku, and that he regularly logged on to the account. Given that Baidoo had no way of finding defendant's email address or a viable last known address, she had a compelling reason to make the social media site the sole, rather than supplemental, means of service. Service by Facebook, albeit novel and non-traditional, was the form of service that most comported with the constitutional standards of due process in this case.
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