Serving Out-of-State Defendants in New York: CPLR 313, 308(5), and Contractual Service Methods

By Jesse Langel, Esq., LL.M.

| August 07, 2024

Introduction

New York commercial litigation involves complex service of process challenges, especially for out-of-state defendants. Here are three key aspects of service that are explained thoroughly in this blog:

The interplay between traditional service methods and court-ordered alternative service under CPLR 308(5), including when and how courts authorize alternative methods when conventional approaches prove impracticable
The application of CPLR 313 for serving out-of-state defendants, including its interaction with New York's long-arm jurisdiction and its practical implications for interstate commercial disputes
The role and enforceability of contractual service agreements, including how parties can prospectively agree to specific service methods and the limitations on such agreements

A firm command of the various service rules translates into better representation, I'm pleased to say. At the bottom of this blog is a quiz.

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Understanding Basic Service Methods in New York

Before exploring alternative service and out-of-state service provisions, it's essential to understand the foundation of service methods under New York law. CPLR 308 provides the basic framework for service of process on natural persons within New York:

Personal service (CPLR 308(1))
Delivery and mail service (CPLR 308(2))
Service on a person of suitable age and discretion (CPLR 308(2))
"Nail and mail" service after due diligence (CPLR 308(4))
Court-ordered alternative service (CPLR 308(5))

These methods exist within a broader context of constitutional due process requirements, which mandate that any method of service must be reasonably calculated to provide actual notice to the defendant of the pending action.

Quiz about alternative service and contractual service

CPLR § 313: Serving Out-of-State Defendants

CPLR § 313 provides the foundational authority for serving defendants outside New York State. The statute reads:

"A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction."

Purpose and Application

CPLR 313 serves several key purposes:

Extends New York's service methods beyond state borders
Ensures jurisdictional reach over qualified defendants
Provides flexibility in who can serve process
Simplifies out-of-state service procedures
Effectively "removes state lines" for service purposes
Enhances the ability to acquire personal jurisdiction

Key Elements for Application

For CPLR 313 to apply, one of two conditions must be met:

The defendant must be domiciled in New York, or
The defendant must be subject to New York court jurisdiction under CPLR 301 (general jurisdiction) or 302 (long-arm jurisdiction)

Case 1: Personal Jurisdiction Over Non-Resident Based on Transacting Business in New York

A New York bank sued a Massachusetts business trust to recover on a promissory note. The defendant challenged personal jurisdiction, arguing it lacked sufficient contacts with New York. The court upheld jurisdiction based on the defendant's purposeful activities in New York related to the loan transaction, including making the note payable in New York, maintaining compensating balances in a New York account, and a representative's visit to the bank's New York office.

Key Legal Principles:

Under New York's long-arm statute (CPLR 302(a)(1)), courts may exercise personal jurisdiction over a non-domiciliary who transacts any business within the state.
In determining whether a defendant has transacted business in New York, courts look at the totality of the defendant's purposeful acts within the forum related to the contract.
Maintaining compensating balances in a New York bank account as an important part of a loan agreement can be a significant factor in establishing jurisdiction, even if the defendant has no physical presence in the state.

Conclusion: The court's decision emphasizes that personal jurisdiction can be established through a combination of purposeful activities related to a transaction, even if no single act alone would be sufficient. This ruling provides guidance on how courts may interpret "transacting business" under New York's long-arm statute in the context of financial transactions.

Citation: Sterling Nat. Bank & Trust Co. of N.Y. v Fidelity Mortgage Investors, 510 F2d 870 (2d Cir 1975).

International Considerations

When service must be made in foreign countries, CPLR 313 may need to yield to international treaties like the Hague Convention. In such cases, practitioners must consider:

Whether the foreign country is a signatory to relevant treaties
Local service requirements in the foreign jurisdiction
Available methods under international agreements
Potential need for translation of documents

Case 2: Denial of E-mail Service Under Federal Rule of Civil Procedure 4(f)(3)

A pharmaceutical company sought permission to serve foreign defendants by e-mail in a lawsuit involving internet domains. The court denied the motion without prejudice, finding insufficient evidence that e-mail service would effectively reach the defendants or that traditional service methods were impossible.

Key Legal Principles:

Under Rule 4(f)(3), alternative service methods must comport with due process by being reasonably calculated to provide notice to defendants.
Courts must balance the limitations of e-mail service against its benefits in each particular case.
Plaintiffs must demonstrate diligent efforts to locate and serve defendants through traditional means before resorting to alternative service methods.

Conclusion: The court's decision emphasizes the need for plaintiffs to thoroughly investigate and exhaust traditional service methods before seeking alternative service, particularly when dealing with internet-based defendants. It also highlights the court's cautious approach to e-mail service, requiring strong evidence that such service would effectively reach defendants.

Citation: Pfizer Inc. v Domains By Proxy, 2004 WL 1576703, at *1-2 (D Conn July 13, 2004).

Case 3: Federal Court Upholds Email Service on Foreign Internet Business in Trademark Case, Affirming Validity of Court-Ordered Alternative Service Methods

The case involves a trademark infringement suit against a foreign internet business. The plaintiff sought and received court approval for alternative service methods, including email. The defendant challenged the service, personal jurisdiction, and subsequent default judgment.

Key Legal Principles:

Court-ordered alternative service under Rule 4(f)(3) is equally valid as other methods and does not require exhausting other options first.
Alternative service methods must comport with constitutional due process, being reasonably calculated to provide notice and opportunity to respond.
Email service can be a valid method when authorized by the court and appropriate to the circumstances.

Conclusion: The court upheld the alternative service methods, finding them constitutionally adequate and emphasizing the court's discretion in authorizing such methods for international defendants. This case established email as a potentially valid service method when court-approved and appropriate to the specific circumstances.

Case Citation: Rio Props. v Rio Intl. Interlink, 284 F3d 1007 (9th Cir 2002).

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Practical Implications for Borrowers

For borrowers outside New York who have agreements with New York lenders, CPLR 313 has significant implications:

Potential for being sued in New York despite living elsewhere
Various methods of receiving legal notice
Special considerations for international borrowers
Options for challenging service
Implications for estate representatives
Rights regarding service methods

Court-Ordered Alternative Service Under CPLR 308(5)

Alternative service refers to methods of serving legal documents that differ from traditional methods prescribed by law. Under CPLR 308(5), courts can authorize alternative service when traditional methods prove impracticable.

CASE 4: Expedient Service Under CPLR 308(5) When Other Methods Are Impracticable

The Appellate Division addressed whether an ex parte order authorizing expedient service under CPLR 308(5) was proper in a divorce action where the wife fled the jurisdiction to avoid service before the Equitable Distribution Law took effect. The court held that expedient service was warranted when other methods of service were impracticable, even without showing prior attempts at service.

Key Legal Principles:

Expedient service under CPLR 308(5) requires only a showing that other methods of service are impracticable, not that prior attempts at service were made.
The standard for "impracticability" under CPLR 308(5) is less stringent than the "due diligence" required for nail and mail service under CPLR 308(4).
A defendant's deliberate evasion of service can justify a finding that other methods of service are impracticable, warranting expedient service.

Conclusion: The main takeaway is that courts have discretion to authorize expedient service under CPLR 308(5) when circumstances make other methods impracticable, particularly when a defendant deliberately evades service. This decision emphasizes the flexibility of CPLR 308(5) in addressing unpredictable situations where traditional service methods would be futile.

Case citation: Liebeskind v Liebeskind, 86 AD2d 207, 449 NYS2d 226 (1st Dept 1982), affd 58 NY2d 858 (1983).

The "Impracticability" Standard

"Impracticability" under CPLR 308(5) refers to situations where standard service methods under CPLR 308(1), (2), and (4) cannot be effectuated or would be unreasonably difficult. Key principles include:

Burden of Proof: Plaintiff must establish impracticability through affidavits from those with personal knowledge
Showing of Efforts: Detailed documentation of steps taken to attempt service
No Due Diligence Requirement: Prior attempts at each method not required
Futility Analysis: Courts consider whether other attempts would be futile
Circumstances Evaluation: Courts assess specific situations like unknown addresses
Foreign Residency Considerations: Foreign residence alone doesn't justify alternative service

CASE 5: Improper Use of CPLR 308(5) for Substituted Service in Divorce Action

In a divorce action, the Appellate Division, Second Department addressed the improper use of CPLR 308(5) for substituted service when the defendant's out-of-state address was known. The court reversed the lower court's decision that had authorized substituted service and determined that jurisdiction over the defendants had not been acquired.

Key Legal Principles:

CPLR 308(5) authorizes substituted service only when service is impracticable under other methods, and this determination should be made ex parte upon affidavits.
When a defendant's out-of-state address is known, service should be attempted at that address pursuant to CPLR 302(b) and CPLR 313 before resorting to substituted service.
A single unsuccessful attempt at service at each of a defendant's known addresses is insufficient to justify the use of substituted service under CPLR 308(5).

Conclusion: The main takeaway is that courts should not authorize substituted service under CPLR 308(5) without a sufficient showing of impracticability of other service methods, especially when the defendant's out-of-state address is known. This case emphasizes the importance of exhausting traditional service methods before seeking court-ordered alternative service.

Case Citation: Badenhop v Badenhop, 84 AD2d 771, 444 NYS2d 112 (2d Dept 1981).

CASE 6: Validity of Alternative Service Under CPLR 308(5) When Traditional Methods Are Impracticable

The Appellate Division addressed the validity of alternative service methods in a negligence action where traditional service attempts failed due to the defendant's unknown whereabouts. The court upheld the lower court's order allowing service on the defendant's insurance-appointed attorney under CPLR 308(5), while dismissing previous ineffective service attempts.

Key Legal Principles:

"Nail and mail" service under CPLR 308(4) requires affixing the summons to the defendant's actual dwelling place, not just the last known address.
Service under CPLR 308(5) may be authorized when there is sufficient evidence that service under CPLR 308(1), (2), or (4) is impracticable.
Alternative service methods must be reasonably calculated to give the defendant notice of the proceeding, even if the defendant's exact whereabouts are unknown.

Conclusion: The main takeaway is that courts may authorize alternative service methods under CPLR 308(5) when traditional methods are impracticable, provided the chosen method is reasonably likely to inform the defendant of the action. This case demonstrates the court's flexibility in ensuring due process while balancing the plaintiff's right to pursue their claim against an elusive defendant.

Case Citation: Gibson v Salvatore, 102 AD2d 861, 476 NYS2d 930 (2d Dept 1984)

CASE 5: Insufficient Evidence for Expedient Service Under CPLR 308(5)

The Appellate Division addressed whether the plaintiff provided sufficient evidence to warrant authorization for expedient service under CPLR 308(5) in an automobile accident case. The court reversed the lower court's decision, finding that the plaintiff failed to demonstrate that service was impracticable under CPLR 308(1), (2), or (4).

Key Legal Principles:

A plaintiff must show that service is impracticable under CPLR 308(1), (2), or (4) before seeking authorization for expedient service under CPLR 308(5).
Conclusory statements about attempts to locate the defendant are insufficient to justify expedient service.
Detailed, substantiated factual allegations about steps taken to effect service under prescribed methods are required to establish impracticability.

Conclusion: The main takeaway is that courts require a thorough and well-documented showing of impracticability before authorizing expedient service under CPLR 308(5). Plaintiffs must provide concrete evidence of their efforts to serve defendants through traditional methods before resorting to alternative service.

Case Citation: Franchido v Onay, 150 AD2d 518, 541 NYS2d 113 (2d Dept 1989).

Common Alternative Service Methods

Courts may authorize various alternative methods including:

Email service
Service by certified or registered mail
Publication
Other creative methods reasonably calculated to give notice

Case 6: E-mail as Valid Alternate Service Method Under CPLR 308(5) and 311(b)

Plaintiffs in the energy business sought to serve process on defendants, an energy investment company and its president, who could not be located through conventional means. The court granted plaintiffs' motion under CPLR 308(5) and 311(b) to serve process via e-mail, finding that conventional service was impracticable and that e-mail service was reasonably calculated to provide notice to the defendants.

Key Legal Principles:

Under CPLR 308(5) and 311(b), courts have wide latitude to fashion alternate means of service when conventional methods are impracticable, as long as the chosen method is reasonably calculated to give notice to the defendant.
A plaintiff can demonstrate that service by conventional means is impracticable under CPLR 308(5) and 311(b) by showing diligent but unsuccessful efforts to obtain information regarding a defendant's current location.
E-mail service can be an appropriate form of alternate service under CPLR 308(5) and 311(b) when the plaintiff shows that the defendant regularly uses the e-mail address in question.

Conclusion: The court's decision interprets CPLR 308(5) and 311(b) to allow for e-mail service in the digital age, recognizing that e-mail can be an effective means of providing notice when traditional methods fail. This ruling opens the door for more widespread use of e-mail service in appropriate circumstances, potentially modernizing the process of initiating lawsuits under these statutes.

Citation: Snyder v Alternate Energy Inc., 19 Misc 3d 954, 857 NYS2d 442 (Civ Ct 2008).

Distinguishing Alternative Service from Other Methods

Alternative service under CPLR 308(5) differs from:

Substituted service under other parts of CPLR 308
Contractually agreed service methods
Expedient service (though terms are often used interchangeably)

Case 7: Impracticability of Service and Need for Evidentiary Hearing in Mortgage Foreclosure Action

In this mortgage foreclosure case, the defendant appealed an order denying her motion to vacate an order of reference and dismiss the complaint for lack of personal jurisdiction. The key issue was whether service of process on the defendant was impracticable, justifying alternative court-authorized service methods. The Appellate Division held that an evidentiary hearing was necessary to resolve factual disputes about the impracticability of service before ruling on Cave's motion.

Key Legal Principles:

Whether service is impracticable under CPLR 308(5) depends on the specific facts and circumstances of each case.
To justify alternative service under CPLR 308(5), a plaintiff need not meet the more stringent "due diligence" standard required for nail and mail service under CPLR 308(4).
When there are factual disputes about the impracticability of service, a hearing is necessary before determining a motion to dismiss for lack of personal jurisdiction.

Conclusion: The main takeaway is that courts should conduct evidentiary hearings to resolve factual disputes about the impracticability of service before ruling on motions to dismiss for lack of personal jurisdiction in mortgage foreclosure actions. This ensures proper consideration of all relevant circumstances surrounding service attempts.

Citation: Bayview Loan Servicing, LLC v Cave, 172 AD3d 985 (2d Dept 2019).

Contractual Service Agreements

Unlike court-ordered alternative service under CPLR 308(5), parties may contractually agree to specific methods of service in advance. These agreements operate under principles of contractual freedom rather than as a form of alternative service requiring court approval.

Case 8: Electronic Signature Dispute in Commercial Receivables Agreement Leads to Partial Summary Judgment and Raises Questions of Signature Authenticity

This case involves a dispute over a receivables agreement between a financial company and several corporate and individual defendants. One defendant claimed she did not sign the agreement, which contained an electronic signature. The court granted summary judgment against non-answering defendants but denied it for the defendant who disputed her signature, finding an issue of fact regarding the validity of the electronic signature.

Key Legal Principles:

Electronic signatures can be valid and enforceable under New York law, but their validity depends on compliance with the Electronic Signatures and Records Act (ESRA) and evidence of the signer's intent to be bound.
Parties can contractually waive statutory rules regarding service of process and agree to choice-of-law provisions in contracts.
On a motion to dismiss, courts must accept the facts alleged in the complaint as true and determine if they fit within any cognizable legal theory.

Conclusion: The main takeaway is that while electronic signatures are generally valid in New York, courts require sufficient evidence to establish their authenticity and the signer's intent when challenged. This case highlights the importance of properly documenting and explaining electronic signature processes in commercial agreements.

Citation: AJ Equity Group LLC v Office Connection, Inc., 80 Misc 3d 1233(A) (Sup Ct, Monroe County 2023).

Key Distinctions from Alternative Service

Important differences between contractual service agreements and CPLR 308(5) alternative service:

Timing: Contractual agreements are made before disputes arise; CPLR 308(5) applies during litigation
Court Approval: Contractual methods don't require court pre-approval
Legal Basis: Based on contract law rather than civil procedure rules
Enforcement: Challenged through contract principles rather than service rules

Enforceability Considerations

When evaluating contractual service provisions, courts consider:

Due process requirements
Commercial vs. consumer context
Sophistication of parties
Reasonableness of agreed methods
Evidence of actual notice

Case 9: Supreme Court Holds Personal Jurisdiction in Interstate Franchise Agreements

A Florida-based franchisor sued a Michigan-based franchisee in Florida for breach of contract. The Supreme Court held that the exercise of personal jurisdiction over the out-of-state franchisee in Florida did not violate due process, given the franchisee's substantial and continuing relationship with the franchisor's Florida headquarters.

Key Legal Principles:

The Due Process Clause requires that a defendant have "minimum contacts" with the forum state such that maintaining the suit does not offend traditional notions of fair play and substantial justice.
A defendant's contract with an out-of-state party alone does not automatically establish sufficient minimum contacts; courts must evaluate prior negotiations, contemplated future consequences, terms of the contract, and the parties' actual course of dealing.
When a defendant has purposefully established minimum contacts with a forum state, the burden shifts to the defendant to present a compelling case that other considerations would render jurisdiction unreasonable.

Conclusion: The case establishes that personal jurisdiction over an out-of-state franchisee can be constitutional when the franchisee has deliberately reached out to create a substantial and continuing relationship with the franchisor's home state. The Court also noted that forum selection clauses in contracts are valid and enforceable as long as they are not unreasonable or unjust.

Citation: Burger King Corp. v Rudzewicz, 471 US 462 (1985).

Forum Selection and Service Provisions

The intersection of forum selection clauses and service provisions raises specific considerations:

Relationship to personal jurisdiction
Impact on enforcement
Interstate commerce implications
Choice of law considerations

Case 10: Personal Jurisdiction Over Non-Resident Based on Transacting Business in New York

Key Legal Principles:

Under New York's long-arm statute (CPLR 302(a)(1)), courts may exercise personal jurisdiction over a non-domiciliary who transacts any business within the state.
In determining whether a defendant has transacted business in New York, courts look at the totality of the defendant's purposeful acts within the forum related to the contract.
Maintaining compensating balances in a New York bank account as an important part of a loan agreement can be a significant factor in establishing jurisdiction, even if the defendant has no physical presence in the state.

Citation: Sterling Nat. Bank & Trust Co. of N.Y. v Fidelity Mortgage Investors, 510 F2d 870 (2d Cir 1975).

Special Considerations for Electronic Service

When contracts specify electronic service methods:

Proof of receipt requirements
Technical specifications
Backup service methods
Record-keeping obligations

Case 11: Denial of E-mail Service Under Federal Rule of Civil Procedure 4(f)(3)

Key Legal Principles:

Under Rule 4(f)(3), alternative service methods must comport with due process by being reasonably calculated to provide notice to defendants.
Courts must balance the limitations of e-mail service against its benefits in each particular case.
Plaintiffs must demonstrate diligent efforts to locate and serve defendants through traditional means before resorting to alternative service methods.

Citation: Pfizer Inc. v Domains By Proxy, 2004 WL 1576703, at *1-2 (D Conn July 13, 2004).

International Service Challenges

International service requires careful navigation of:

Treaty obligations
Local law requirements
Translation requirements
Time considerations
Authentication issues

Case 12: Federal Court Upholds Email Service on Foreign Internet Business in Trademark Case, Affirming Validity of Court-Ordered Alternative Service Methods

Key Legal Principles:

Court-ordered alternative service under Rule 4(f)(3) is equally valid as other methods and does not require exhausting other options first.
Alternative service methods must comport with constitutional due process, being reasonably calculated to provide notice and opportunity to respond.
Email service can be a valid method when authorized by the court and appropriate to the circumstances.

Case Citation: Rio Props. v Rio Intl. Interlink, 284 F3d 1007 (9th Cir 2002).

Electronic Service in the Digital Age

Evolution of electronic service requires consideration of:

Email service reliability
Digital platforms and social media
Electronic signature verification
Cybersecurity concerns
Record retention

Case 13: Personal Jurisdiction as a Waivable Right and Rule 37 Sanctions

The Supreme Court addressed whether a federal district court could use sanctions under Rule 37(b) of the Federal Rules of Civil Procedure to establish personal jurisdiction over foreign defendants who failed to comply with discovery orders. The Court held that such sanctions do not violate due process and can be used to establish personal jurisdiction.

Key Legal Principles:

Personal jurisdiction is an individual right that can be waived, unlike subject matter jurisdiction which is a limitation on federal power.
Rule 37(b) sanctions establishing jurisdictional facts as true do not violate due process if properly applied.
A court's exercise of personal jurisdiction through Rule 37 sanctions is subject to the same due process analysis as other assertions of jurisdiction.

Conclusion: The main takeaway is that personal jurisdiction is a waivable right, and courts can use properly applied discovery sanctions to establish jurisdiction over non-compliant defendants. This ruling affirms the broad discretion of trial courts in managing discovery and enforcing their orders.

Citation: Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982).

Shared Business Environments

Modern business arrangements create unique service challenges:

Virtual offices
Coworking spaces
Remote work arrangements
Multiple business locations

Case 14: Traverse Hearing Required for Conflicting Service Affidavits in Shared Office Space

In a complex business dispute, the court addressed jurisdictional challenges based on alleged improper service. One defendant personally denied being served, claiming an unauthorized person in his shared office space received the documents. The court held that these conflicting averments necessitated a traverse hearing to determine the validity of service.

Key Legal Principles:

Personal denial of service by a defendant requires a traverse hearing when it conflicts with the process server's affidavit.
Service under CPLR 308(2) must be made at the defendant's actual dwelling place or usual place of abode.
Shared office spaces can complicate service, requiring careful examination of the recipient's authority to accept service.

Conclusion: The case underscores the importance of proper service in establishing jurisdiction, particularly in shared business environments. When faced with conflicting accounts of service, courts should conduct traverse hearings to resolve factual disputes and ensure due process.

Citation: Slutzky v Aron Estates Corp., 157 Misc 2d 749, 753 (Sup Ct 1993).

Practical Guidance for Practitioners

Strategic Considerations:

Choosing Appropriate Service Methods:
- Assess defendant's location and circumstances
- Consider cost and time factors
- Evaluate likelihood of jurisdictional challenges
Documentation Requirements:
- Maintain detailed service attempt records
- Preserve electronic communication records
- Document basis for impracticability claims
Common Pitfalls to Avoid:
- Insufficient documentation of attempts
- Reliance on outdated contact information
- Failure to consider international requirements
Best Practices:
- Multiple verification methods
- Backup service strategies
- Regular update of contact information

Synthesis of Key Principles

The landscape of service of process in New York commercial litigation involves three distinct but interrelated mechanisms:

CPLR 313: Provides the framework for serving out-of-state defendants
CPLR 308(5): Enables court-ordered alternative service when traditional methods are impracticable
Contractual Service Agreements: Allow parties to establish service methods by agreement

Emerging Trends

The evolution of service methods continues to be shaped by:

Technological Advances:
- Blockchain verification
- AI-powered service tracking
- Digital identity verification
Business Evolution:
- Remote work implications
- Virtual business presence
- International commerce expansion
Legal Developments:
- Expanding acceptance of electronic service
- Evolution of due process standards
- International harmonization efforts

Practical Takeaways

Service Strategy Development:
- Early assessment of service challenges
- Proactive documentation practices
- Multi-layered service approaches
Risk Management:
- Regular review of service provisions
- Updated service protocols
- International compliance monitoring

Sample Forms and Resources

[SAMPLE] ATTORNEY AFFIRMATION IN SUPPORT OF MOTION FOR ALTERNATIVE SERVICE

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF [COUNTY]

--------------------------------------------------------------------X

[PLAINTIFF NAME], Plaintiff,

-against- Index No.: **[NUMBER]**

[DEFENDANT NAME], Defendant.

--------------------------------------------------------------------X

ATTORNEY AFFIRMATION IN SUPPORT OF MOTION FOR ALTERNATIVE SERVICE

[ATTORNEY NAME], an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under penalty of perjury:

I am the attorney for the Plaintiff in this action and am fully familiar with the facts and circumstances herein.
I make this affirmation in support of Plaintiff's motion for an order pursuant to CPLR 308(5) authorizing alternative service upon Defendant [DEFENDANT NAME].
This action arises from [BRIEF DESCRIPTION OF CASE, e.g., "a breach of contract"].
Defendant is a non-resident of New York, residing at [ADDRESS] in [STATE/COUNTRY].
The parties entered into a contract on [DATE], which contains a forum selection clause designating New York as the venue for any disputes arising from the agreement. Specifically, the clause states: [QUOTE FORUM SELECTION CLAUSE].
Despite this contractual agreement, service upon Defendant under CPLR 308(1), (2), and (4) is impracticable for the following reasons: a. [DETAIL ATTEMPTS AT SERVICE OR REASONS WHY TRADITIONAL SERVICE IS IMPRACTICABLE, e.g., "Three attempts at personal service were made at Defendant's last known address on [DATES] without success"] b. [CONTINUE LISTING REASONS, e.g., "Defendant's current whereabouts are unknown, and inquiries with known associates have yielded no information"]
In light of these circumstances, I respectfully submit that alternative service is warranted and propose the following method(s) of service: a. [PROPOSED METHOD OF SERVICE, e.g., "Email service to Defendant's last known email address: [EMAIL ADDRESS]"] b. [ADDITIONAL METHODS IF APPLICABLE, e.g., "Certified mail to Defendant's last known address"]
The proposed method(s) of service are reasonably calculated to apprise Defendant of the pendency of this action and afford an opportunity to be heard, as required by Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).
Courts have authorized similar methods of alternative service in cases involving out-of-state defendants bound by forum selection clauses. See Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L., 78 A.D.3d 137 (1st Dep't 2010).

WHEREFORE, it is respectfully requested that this Court grant Plaintiff's motion for alternative service and for such other and further relief as this Court deems just and proper.

Dated: [LOCATION], New York [DATE]

Question 1

Under CPLR 313, service outside New York must be made by:

A. Any person over 18 years old

B. Only New York-licensed process servers

C. Any person authorized to make service in either New York or the jurisdiction where service is made

D. Only attorneys licensed in the jurisdiction where service is made

Question 2

Alternative service under CPLR 308(5) requires:

A. Prior attempts at all other methods of service

B. Court approval before implementation

C. Agreement from the defendant

D. Publication in a newspaper

Question 3

For email service to be authorized under CPLR 308(5), courts typically require:

A. The defendant's written consent

B. Evidence that the defendant regularly uses the email address

C. International treaty compliance

D. Both regular and certified mail backup

Question 4

When a defendant's out-of-state address is known, before seeking alternative service under CPLR 308(5), a plaintiff should:

A. Publish notice in a local newspaper

B. Attempt service via social media

C. Attempt service at that address under CPLR 313

D. Wait 30 days before proceeding

Question 5

The "impracticability" standard under CPLR 308(5) requires:

A. The same showing as "due diligence" under CPLR 308(4)

B. Less stringent showing than "due diligence"

C. Three failed service attempts

D. Proof of defendant's deliberate evasion

Question 6

Under CPLR 313, service on a foreign corporation can be made:

A. Only through the Secretary of State

B. Only through diplomatic channels

C. Through a subsidiary that is a "mere department"

D. Only through corporate headquarters

Question 7

Sunday service under CPLR 313:

A. Is permitted for out-of-state service

B. Is prohibited even for out-of-state service

C. Depends on the receiving state's laws

D. Is permitted with court approval

Question 8

For contractual service provisions to be valid, they must:

A. Be notarized

B. Include backup service methods

C. Be reasonably calculated to provide notice

D. Specify exact timing requirements

Question 9

Personal jurisdiction based on a forum selection clause:

A. Always establishes valid service

B. Never requires proper service

C. Still requires valid service methods

D. Automatically allows email service

Question 10

When service is made in a non-treaty country:

A. Only diplomatic channels can be used

B. New York methods can be used freely

C. Local law must be followed

D. Service is not permitted

Question 11

Under CPLR 308(5), courts can authorize:

A. Only methods listed in the statute

B. Any method reasonably calculated to give notice

C. Only electronic methods

D. Only traditional methods

Question 12

Service on a deceased defendant's estate under CPLR 313:

A. Requires new jurisdiction over the executor

B. Is never permitted

C. Follows regular CPLR 313 rules if defendant was subject to jurisdiction

D. Must be through probate court

Question 13

For electronic service to be authorized, courts typically require:

A. Only the defendant's email address

B. Evidence of technological capability

C. International authorization

D. Defendant's consent

Question 14

In shared office spaces, service is:

A. Always valid if left with any occupant

B. Never valid

C. Requires examination of recipient's authority

D. Valid only during business hours

Question 15

For alternative service on foreign defendants:

A. Hague Convention always controls

B. Local law always controls

C. Treaties must be considered where applicable

D. Only U.S. methods apply

Question 16

Personal jurisdiction is:

A. Never waivable

B. Always waivable

C. Waivable unlike subject matter jurisdiction

D. Only waivable with court permission

Question 17

A forum selection clause:

A. Automatically establishes service methods

B. Must still comply with due process

C. Overrides service requirements

D. Only applies to domestic disputes

Question 18

Service through social media:

A. Is never permitted

B. Is automatically permitted

C. May be authorized under CPLR 308(5) with proper showing

D. Requires defendant's consent

Question 19

Service on a foreign subsidiary:

A. Never reaches parent company

B. Always reaches parent company

C. May reach parent if subsidiary is "mere department"

D. Requires separate service attempts

Question 20

Electronic signatures on service agreements:

A. Are never valid

B. Are automatically valid

C. Require evidence of authenticity and intent

D. Must be notarized

ANSWER KEY WITH EXPLANATIONS:

Question 1 - Answer: C Explanation: CPLR 313 specifically authorizes service by someone who is either authorized in NY or in the jurisdiction where service is being made. This provides flexibility while ensuring service follows jurisdictional rules.

Question 2 - Answer: B Explanation: Badenhop case established that court pre-approval is mandatory for alternative service under 308(5); can't proceed with alternative service methods without court authorization.

Question 3 - Answer: B Explanation: Snyder v Alternate Energy case establishes that courts require evidence that the email is regularly used, ensuring actual notice is likely to reach defendant.

Question 4 - Answer: C Explanation: Badenhop holds that when defendant's address is known, traditional service at that address must be attempted before seeking alternative service. Can't skip this step.

Question 5 - Answer: B Explanation: Liebeskind explicitly states that "impracticability" standard is less demanding than "due diligence." Court recognized need for flexibility in certain circumstances.

Question 6 - Answer: C Explanation: Taca Int'l Airlines allows service on foreign parent through subsidiary when subsidiary is merely a department of parent. Looks at actual relationship, not formal structure.

Question 7 - Answer: B Explanation: Eisenberg specifically holds that NY's Sunday service prohibition applies to out-of-state service under CPLR 313. Geographic location doesn't change this rule.

Question 8 - Answer: C Explanation: Constitutional due process requires notice reasonably calculated to reach defendant. This is fundamental requirement that contractual provisions can't override.

Question 9 - Answer: C Explanation: Burger King establishes that even with forum selection clause, constitutional due process requirements for service must still be met.

Question 10 - Answer: B Explanation: Morgenthau specifically allows use of NY service methods in non-treaty countries without following local law. Provides clear rule for these situations.

Question 11 - Answer: B Explanation: CPLR 308(5) gives courts broad discretion to fashion any method that meets due process. The Gibson case confirms courts can authorize creative methods if reasonably calculated to give notice.

Question 12 - Answer: C Explanation: Rosenfeld holds no separate jurisdictional basis needed for executor if deceased was subject to jurisdiction. Carries over original jurisdiction.

Question 13 - Answer: B Explanation: Rio Props. requires evidence that electronic service will actually work. Mere existence of email address isn't enough; need proof of technological viability.

Question 14 - Answer: C Explanation: Slutzky requires examination of recipient's actual authority in shared spaces. Can't assume anyone present can accept service; must verify authority.

Question 15 - Answer: C Explanation: Volkswagenwerk establishes that international treaties, when applicable, must be followed. Can't ignore treaty obligations when they exist.

Question 16 - Answer: C Explanation: Insurance Corp. of Ireland explicitly states personal jurisdiction can be waived, unlike subject matter jurisdiction. Fundamental distinction in jurisdictional law.

Question 17 - Answer: B Explanation: Constitutional due process requirements supersede all contractual provisions. Even with forum selection, basic notice requirements must be met.

Question 18 - Answer: C Explanation: Under CPLR 308(5)'s flexibility, courts can authorize social media service with proper showing of effectiveness. Must prove it will actually reach defendant.

Question 19 - Answer: C Explanation: Taca Int'l Airlines sets "mere department" test for reaching parent through subsidiary. Looks at actual control and integration, not just corporate formalities.

Question 20 - Answer: C Explanation: AJ Equity Group requires proof of authenticity and intent for electronic signatures. Can't just accept signature at face value; need evidence of validity.

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