Court Upholds Service of Process By E-Mail

Synder v. Alternative Energy Inc., ___Misc. 3d___, NYLJ May 1, 2008, (N.Y. Co. May 1, 2008)(registration required) is an important case for civil procedure. A New York lower court upheld the service of process via email after it made a showing that other forms of service did not work.   

In this case, the plaintiffs sought  leave to serve defendant company and its president and owner via e-mail. Plaintiffs had tried to serve defendants at two last known addresses and to find defendants by performing a search of public records, online phone books and other person locators. Significantly,  plaintiffs' counsel was able to exchange e-mail messages with defendant president/owner. The court found that plaintiffs had made a sufficient showing as to its efforts to locate defendants and demonstrated actual attempts to serve, thereby establishing that they were entitled to a judicially devised form of alternate service. Since plaintiffs had shown that defendant president/owner was regularly using an e-mail address that by all indications was his, the court was able to conclude that service by e-mail was "reasonably calculated, under all the circumstances, to apprise defendants of the action brought against them." Thus, the court held that e-mail was an appropriate form of service.

The court recognized the importance of its decision. As the Court stated:

Over the last decade, the world has seen technology advance on a scale and at a speed that staggers the imagination; what is the latest technological innovation one year is outmoded the next. And nowhere have these advances been greater felt than in the area of communications. Ten years ago we communicated largely by telephone, mail or fax. Now it is e-mail that is the preferred method of communication, both locally and globally. Still, despite these unparalleled changes, the old methods for serving process endure as the only methods specifically prescribed by statute. Like many things, the service provisions of the CPLR remain firmly frozen in time.

Fortunately, the "broad constitutional principle" underlying judicially devised alternate service "unshackles the . . . courts from anachronistic methods of service and permits them entry into the technological renaissance." Rio Props. v. Rio Intl. Interlink, 284 F3d at 1017, as quoted by Hollow v. Hollow, 193 Misc 2d at 695. In the proper circumstances, such as those presented here, plaintiffs need not wait for the CPLR to be amended in order to be able to resort to service by e-mail. Our state courts already have the power to grant them the relief they seek.

This is an important case. The issue is relatively novel, though the court does several case involving email service. I am sure that we will see more of this in the future.

Mitchell H. Rubinstein