Caseflicks

New York Supreme Court • 2015

Baidoo v. Blood-Dzraku

48 Misc. 3d 309 | 5 N.Y.S.3d 709

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Takeaway

In short, an authenticated, actively used social-media account can be the sole means of serving a summons when conventional methods are impracticable and messaging is likely to provide actual notice.

Background

The wife sought a divorce but could not locate her husband to serve him with a summons. The couple had never lived together, and he had left his last known address years earlier. He told her he had no fixed address or job and refused to make himself available for service. Investigators could not find him.

In this original divorce action, the wife applied ex parte for permission to serve the summons solely through a private message to his Facebook account. She submitted evidence that the account belonged to him and that he used it regularly.

Issues

Issue #1

Whether a divorce summons may be served solely by private Facebook message when conventional methods are impracticable.

Holding

Yes. On this record, Facebook messaging was reasonably calculated to notify the husband of the divorce action, and the court authorized it as an alternative method of service under CPLR 308(5).

Reasoning

New York ordinarily requires personal delivery of a divorce summons. CPLR 308(5) permits a court to devise another method when personal, substitute, and nail-and-mail service are impracticable, provided the method is reasonably calculated to give the defendant notice.

The wife could not personally serve her husband because she could not find him despite diligent efforts. Substitute and nail-and-mail service were likewise impracticable because both required a home or business address she did not have.

The wife’s documented Facebook exchanges with her husband and her identification of his photographs persuaded the court that the account was his. Those exchanges also showed that he logged in regularly, making it likely that he would see a private message containing the summons.

Although earlier decisions had allowed Facebook service only alongside another method, the wife had no usable email or mailing address. Newspaper publication was legally available but highly unlikely to reach the husband. Due process favored the method most likely to give him actual notice, not the more traditional method.

The court directed the wife’s attorney to send the summons through her account once a week for three weeks or until the husband acknowledged it. After the first message, the wife and her attorney were also to call and text him to alert him to check Facebook.