GULATI v. GULATI (2026)

Order, Supreme Court, New York County (Michael L. Katz, J.), entered October 28, 2025, which denied defendant husband's motion to stay, vacate, or dismiss the action on the grounds of improper service, lack of personal jurisdiction, failure to satisfy statutory residency requirements, and forum non convenience, unanimously affirmed, without costs.

The husband should have been permitted to raise challenges to the sufficiency of the evidence underlying a CPLR 308(5) ex parte order directing expedient service without the necessity of bringing a motion under CPLR 2221 (see e.g. Preza v. Sever's Gourmet, 212 A.D.2d 765, 765, 623 N.Y.S.2d 268 [2d Dept. 1995], lv denied 87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160 [1995]).  However, the court's order directing alternate service of process pursuant to CPLR 308(5) was a provident exercise of discretion (see Safadjou v. Mohammadi, 105 A.D.3d 1423, 1424, 964 N.Y.S.2d 801 [4th Dept. 2013];  Kelly v. Lewis, 220 A.D.2d 485, 485, 632 N.Y.S.2d 186 [2d Dept. 1995]).

The wife was unable to serve the husband after, among other things, sending process servers to multiple addresses at which he might have been found and on multiple days.  The process servers not only visited those locations but also remained there for extended periods awaiting his arrival.  Contrary to the husband's contention that the wife was required to exhaust every conceivable effort to locate him, impracticability under CPLR 308(5) does not require an extensive showing of due diligence, nor does it require proof that actual attempts were made under each and every statutory method of service (see Liebeskind v. Liebeskind, 86 A.D.2d 207, 210–211, 449 N.Y.S.2d 226 [1st Dept. 1982], affd 58 N.Y.2d 858, 460 N.Y.S.2d 526, 447 N.E.2d 74 [1983];  see also Safadjou, 105 A.D.3d at 1424, 964 N.Y.S.2d 801).  The methods of service authorized by the court, including leaving the documents with the doorman at the husband's residence, along with overnight mailings to the same address and the husband's place of business, and service by email were reasonably calculated to apprise the husband of the action and therefore satisfied due process (see Safadjou, 105 A.D.3d at 1424–1425, 964 N.Y.S.2d 801).

The durational residency requirement is satisfied because the parties, although spending a portion of the statutory relevant period out-of-state, maintained a residence in New York and returned to it with regularity (see Domestic Relations Law § 230;  Murjani v. Murjani, 123 A.D.3d 409, 409, 998 N.Y.S.2d 38 [1st Dept. 2014];  Jindal v. Jindal, 54 A.D.3d 605, 864 N.Y.S.2d 5 [1st Dept. 2008]).

The motion court providently exercised its discretion in denying that branch of the husband's motion which sought dismissal of the action on the ground of forum non conveniens, as the husband failed to demonstrate that New York is an inconvenient forum (see Wittich v. Wittich, 210 A.D.2d 138, 139, 620 N.Y.S.2d 351 [1st Dept. 1994]).