CORBO v. (and other titles). (2000)

In an action, inter alia, to fix an attorney's fee, the plaintiff appeals, by permission, from an amended order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated July 15, 1998, which reversed an order of the Civil Court of the City of New York, Richmond County (Straniere, J.), dated June 30, 1997, dismissed the complaint on the ground of lack of jurisdiction, and denied the plaintiff's motion to withdraw as counsel in 11 other actions.

ORDERED that the amended order is affirmed, with costs.

 Under CPLR 308(5), a court is vested with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4) are “impracticable” (CPLR 308 [5];  see, Astrologo v. Serra, 240 A.D.2d 606, 659 N.Y.S.2d 481;  see also, Kelly v. Lewis, 220 A.D.2d 485, 632 N.Y.S.2d 186).   However, the court is without power to direct service of process pursuant to CPLR 308(5) absent a showing by the moving party that service is impracticable under the other subdivisions (see, Cooper-Fry v. Kolket, 245 A.D.2d 846, 666 N.Y.S.2d 775;  Hillary v. Grace, 213 A.D.2d 450, 623 N.Y.S.2d 620;  Tetro v. Tizov, 184 A.D.2d 633, 584 N.Y.S.2d 893;  Franchido v. Onay, 150 A.D.2d 518, 541 N.Y.S.2d 113).   Since the plaintiff failed to show that serving the defendant under CPLR 308(1), (2), or (4) would be impracticable, dismissal of the complaint was proper (see, Tetro v. Tizov, supra).

The plaintiff's remaining contention is without merit (see, United States v. O'Neil, 118 F.3d 65, 71-72, cert. denied 522 U.S. 1064, 118 S.Ct. 728, 139 L.Ed.2d 666;  Artache v. Goldin, 173 A.D.2d 667, 570 N.Y.S.2d 238;  Loeb Rhoades & Co. v. Devries, 50 A.D.2d 552, 375 N.Y.S.2d 1022;  State of New Hampshire v. Emanuel, 139 N.H. 57, 649 A.2d 53).

MEMORANDUM BY THE COURT.