Defendant bails, “nail and mail” fails, so e-mail of summons prevails

Service of process by e-mail allowed where traditional methods “impracticable.”

Plaintiffs Tishman and Wilkinson filed a lawsuit against defendant Pine, but had difficulty serving Pine with the summons. The plaintiffs tried the conventional methods of service under New York law, such as personal delivery. They even tried the “nailing and mailing” method by affixing a copy of the summons to the door of Pine’s residence, then sending a copy in the mail.

Tishman and Wilkinson had information, however, that led them to believe Pine was out of the country. Knowing this, they wanted to be sure that service was properly effected. Accordingly, they petitioned the court for permission to serve Pine by e-mail, pursuant to N.Y. C.P.L.R. §308(5), which allows service by such manner as the court directs, when the more conventional methods are “impracticable.”

The court allowed service of the summons to an e-mail address Pine had used in a classified ad listing his house for sale. The court held that given the uncertainty about the success of the attempted “nailing and mailing” effort, and the fact that the Pine’s attorneys wouldn’t give a clear answer as to where Pine was living, alternative service by e-mail was appropriate.

Tishman v. The Associated Press, (Slip Op.) 2005 WL 288369 (S.D.N.Y. February 6, 2006).