HAMILTON v. FOSTER (2026)

The following papers efiled on NYSCEF were used on this motion: 1-8.

Upon the foregoing papers, having heard oral argument on July 2, 2026, due deliberation having been had, and an oral decision having been delivered from the bench, the Court issued an order that day permitting alternative service of the summons and complaint. This decision elaborates on the Court's reasoning.

Background

Plaintiff John Hamilton commenced this action against Defendant Michael Foster by filing a summons and complaint on April 16, 2026 (see NYSCEF Doc Nos. 1, 4). The complaint alleged that Defendant owed Plaintiff at least $265,000.00 arising from a written investment and repayment relationship (see id.). According to the complaint, the relationship began with a written promissory note, was amended in writing, was supplemented by additional contributions, and was later acknowledged by Defendant in a written Debt and Repayment Agreement (see id.). Plaintiff alleged that Defendant acknowledged owing $265,000.00, agreed to repayment terms, accepted personal responsibility for repayment, failed to make required payments, and failed to cure after a final demand letter (see id.).

The summons and complaint captioned the Defendant as Michael Foster and listed his address as 300 Hart Street, Brooklyn, New York 11206 (see NYSCEF Doc No. 1). The notice of motion and supporting affirmation identified Defendant as Michael David Foster (see NYSCEF Doc Nos. 2, 3). The Request for Judicial Intervention (RJI) listed Defendant as Michael Foster and reflected the same Brooklyn address, telephone number, and email address relied upon in the motion papers (see NYSCEF Doc No. 6).

Plaintiff moved for an order authorizing alternative service pursuant to CPLR 308 (5). Plaintiff sought leave to serve Defendant by email, text message, WhatsApp message, and first-class mail. Plaintiff also requested, to the extent necessary, an extension of time to serve pursuant to CPLR 306-b.

Plaintiff retained professional process servers to attempt service (see NYSCEF Doc Nos. 3, 4). One process server attempted service at 300 Hart Street, Brooklyn, New York 11206, on April 17, 2026, at 6:40 p.m. The process server was unable to complete service at that location (see id.) The premises was a multi-unit building, and the process server was unable to identify Defendant's apartment or otherwise locate Defendant at that address (see id.)

Plaintiff also submitted proof of attempted service at 13113 Burleigh Street, Upper Marlboro, Maryland 20774 (see NYSCEF Doc Nos. 3, 4). Plaintiff stated that this address was identified after a skip trace was conducted. A process server attempted service at that address on April 24, 2026 at 1:37 p.m. (see id.). The process server was unable to complete service. According to Plaintiff's supporting papers, an elderly man who identified himself as Mr. Robinson stated that the occupants rented from Ms. Foster, that Ms. Foster lived out of state, and that the occupants were unfamiliar with Michael Foster (see NYSCEF Doc No. 4).

Plaintiff identified Defendant's email addresses, cell phone number, and WhatsApp number (see NYSCEF Doc Nos. 3, 4). Plaintiff stated that he sent multiple emails to Defendant and that Defendant later discussed the contents of those emails with Plaintiff in later communications or conversations (see id.). Plaintiff also submitted documentation that he contended showed that Defendant used or is associated with the email addresses, phone number, and WhatsApp number (same as cell phone) identified in the motion papers (see id.).

Plaintiff filed this motion on May 4, 2026. The RJI identified the nature of judicial intervention as a notice of motion seeking alternative service, and it and the notice of motion listed the return date as June 8, 2026 (see NYSCEF Doc Nos. 2, 6). The motion was thereafter calendared for July 2, 2026 (see NYSCEF Doc No. 7). The record contained no papers in opposition.

Movant's Contentions

Plaintiff contended that ordinary service under CPLR 308 (1), CPLR 308 (2), and CPLR 308 (4) had proven impracticable. Plaintiff argued that alternative service was warranted because professional process servers attempted service at two separate addresses associated with Defendant and were unable to complete service at either location (see NYSCEF Doc No. 3).

Plaintiff further contended that the proposed alternative methods were reasonably calculated to give Defendant actual notice. Plaintiff relied on the claimed association between Defendant and the email addresses, the cell phone number, and the WhatsApp number using that same telephone number. Plaintiff asserted that Defendant had used or been associated with those electronic contact methods and that Defendant later discussed the contents of emails Plaintiff had sent.

Plaintiff therefore sought an order permitting service of the summons and complaint by email, text message, and WhatsApp message. Plaintiff also requested that service be deemed complete upon the filing of proof of transmission and proof of mailing, or at such other time as the Court directed.

Discussion

CPLR 308 governs personal service upon a natural person. CPLR 308 (1) permits service by delivering the summons within the state to the person to be served. CPLR 308 (2) permits service by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served, followed by mailing in the manner required by the statute. CPLR 308 (4) permits affixing the summons to the door of the actual place of business, dwelling place, or usual place of abode of the person to be served, followed by mailing, where service under CPLR 308 (1) and CPLR 308 (2) cannot be made with due diligence.

CPLR 308 (5) provides that service may be made “in such manner as the court, upon motion without notice, directs,” if service is impracticable under CPLR 308 (1), CPLR 308 (2), and CPLR 308 (4).¹ The statute therefore permits the Court to fashion an alternative method of service when the ordinary statutory methods are impracticable. Unlike CPLR 308 (4), which requires a showing of due diligence before “nail and mail” service may be used, CPLR 308 (5) affords the Court flexibility to fashion an alternative method of service appropriate to the circumstances presented.

New York courts have consistently held that CPLR 308 (5) vests the court with broad discretion to authorize an alternative method of service once the plaintiff demonstrates that service under CPLR 308 (1), CPLR 308 (2), and CPLR 308 (4) is impracticable. Whether service is impracticable depends upon the facts and circumstances of the particular case (see Wells Fargo Bank, NA v Patel, 175 AD3d 1350, 1351 [2d Dept 2019]; cf. Contimortgage Corp. v Isler, 48 AD3d 732 [2d Dept 2008]). A showing of impracticability under CPLR 308 (5) does not require proof of actual prior attempts to serve under each method listed in CPLR 308(1), CPLR 308(2), and CPLR 308(4), and it does not require the more stringent due diligence showing required for service under CPLR 308 (4) (Wells Fargo Bank, NA, 175 AD3d 1350; Contimortgage Corp., 48 AD3d 732.)

The First Department recently applied the same rule in Gulati v Gulati, (246 AD3d 508 [1st Dept 2026]). There, the court held that alternative service under CPLR 308 (5) was a provident exercise of discretion where the plaintiff had been unable to serve the defendant after sending process servers to multiple addresses on multiple days, and where the authorized methods, including email, were reasonably calculated to apprise the defendant of the action. Gulati confirms that CPLR 308 (5) does not require a plaintiff to exhaust every conceivable effort to locate a defendant before seeking alternative service (see id.) Likewise, the Second Department has recognized that CPLR 308 (5) authorizes alternative service where traditional methods of service have proven impracticable (MTGLQ Invs., L.P. v Mayers, 209 AD3d 1009 [2d Dept 2022]; Contimortgage Corp., 48 AD3d at 734.)

Once the impracticability standard is satisfied, the alternative method selected by the court must satisfy due process. Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the action and afford them an opportunity to be heard (see Mullane v Central Hanover Bank & Trust Co., 339 US 306 [1950]). The method of service need not guarantee that the defendant will receive actual notice, but it must be reasonably calculated to provide notice under the circumstances (see Bossuk v Steinberg, 58 NY2d 916 [1983]; Safadjou v Mohammadi, 105 AD3d 1423 [4th Dept 2013]; Harkness v Doe, 261 AD2d 846 [4th Dept 1999]). The Second Department has likewise held that alternative methods of service satisfy CPLR 308 (5) where they are reasonably calculated to apprise the defendant of the action (cf. Contimortgage Corp., 48 AD3d 732).

New York courts have approved service by email and other alternative methods when the ordinary statutory methods are impracticable and the proposed method is reasonably calculated to provide notice (Safadjou, 105 AD3d 1423; Gulati, 246 AD3d 508; Contimortgage Corp., 48 AD3d 732. In Safadjou, the Fourth Department affirmed an order permitting email service where the record supported the conclusion that email service was reasonably calculated to apprise the defendant of the pending lawsuit (Safadjou, 105 AD3d 1423). In Gulati, the First Department affirmed an order authorizing alternative service that included email after efforts at multiple addresses proved unsuccessful (Gulati v Gulati, 246 AD3d 508 [1st Dept 2026].

Here, Plaintiff has established impracticability under CPLR 308 (5). Plaintiff attempted ordinary service through professional process servers at two addresses (see NYSCEF Doc Nos. 3, 4). One address was the Brooklyn address listed for Defendant in the summons and complaint and RJI (see NYSCEF Doc Nos. 1, 6). The other was a Maryland address identified after a skip trace (see NYSCEF Doc Nos. 3, 4). Neither attempt resulted in completed service.

The Brooklyn attempt failed because the Hart Street location was a multi-unit building and the process server was unable to identify or locate Defendant at the premises (see NYSCEF Doc Nos. 3, 4). The Maryland attempt failed because the person encountered at that address stated that the occupants rented from Ms. Foster, that Ms. Foster lived out of state, and that the occupants were unfamiliar with Michael Foster (Id.) Plaintiff therefore made more than make a conclusory assertion that Defendant could not be found. Plaintiff used process servers, attempted service at two locations, and submitted documentation explaining why those attempts failed. (NYSCEF Doc No. 4). Under the facts presented, Plaintiff has shown that service under CPLR 308(1), CPLR 308(2), and CPLR 308(4) was impracticable.

The methods authorized in the Court's signed order were reasonably calculated to apprise Defendant of this action:

The motion by Plaintiff seeking alternate service of the summons and complaint is GRANTED. Plaintiff is granted leave to serve them on Defendant by ALL of the following modalities of service:

(1) Email PDF to [redacted].

(2) Email PDF to [redacted].

(3) Text PDF to [redacted].

(4) What's App PDF to [redacted].

(5) First-class mail with certificate of mailing to 300 Hart Street, Brooklyn, NY 11206.

(6) First-class mail with certificate of mailing to 13113 Burleigh Street, Upper Marlboro, MD 20774. (NYSCEF Doc No. 8.)

Plaintiff's proof connected Defendant to email addresses, the mobile phone number, and a WhatsApp account. Plaintiff stated that Defendant later discussed the contents of emails sent to him, which supported the conclusion that email service to the provided addresses was reasonably calculated to reach Defendant. Plaintiff also submitted materials showing an association between Defendant and the cell phone number.

The signed order authorized service by email  ² , text message, WhatsApp, and first-class mail with certificate of mailing to both physical addresses in combination. Those methods, used together, provided multiple channels of notice. The electronic methods were directed to contact information that Plaintiff has linked to Defendant. The mailings were directed to the Brooklyn address listed in the summons, complaint, and RJI, and to the Maryland address identified through location efforts. Although service was not completed previously at those addresses, mailing to them in combination with electronic service increased the likelihood that Defendant would receive notice.

This is consistent with CPLR 308 (5) and due process. The Court did not authorize a single speculative method of service. The Court authorized multiple methods connected to Defendant by the record. Since those methods were reasonably calculated under the circumstances to apprise Defendant of the action, alternative service was appropriate.

Further, the court surmised that in this third decade of the 21st century, communication takes place more so via electronic methods than by “snail mail” (see People v Unknown Parties in Ownership and/or Control of Digital Wallet Addresses, 87 Misc 3d 950 [Sup Ct, Queens County 2025] [non-fungible token hyperlinked to the website containing pleadings, airdropped to each of defendants' cryptocurrency wallets]; Chris Edwards, Snail Mail in Decline [Oct. 2, 2025] [available at https://www.cato.org/blog/snail-mail-decline]; Steven Levy, The End of Snail Mail? [Oct. 13, 2001], https://www.nbcnews.com/id/wbna3067549 [last accessed Sept. 7, 2026]). Therefore, permitting electronic service in addition to snail mail would facilitate delivery to a defendant and was likely to result in receipt.

Plaintiff also requested an extension of time to serve pursuant to CPLR 306-b to the extent necessary (see NYSCEF Doc Nos. 2, 3). CPLR 306-b requires service of the summons and complaint within 120 days after commencement of the action. If service is not made within that time, the court, upon motion, may extend the time for service upon good cause shown or in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

The Court did not need not grant any separate CPLR 306-b relief to supplement the signed order. Plaintiff commenced this action on April 16, 2026 and filed the within motion on May 4, 2026. The motion was heard on July 2, 2026. The motion was made and decided within the 120-day period with sufficient time to effectuate service as per the Court's order via alternative service. Therefore, no separate extension of time was necessary.

Accordingly, Plaintiff's motion for alternative service pursuant to CPLR 308 (5) was GRANTED.

FOOTNOTES

1.   CPLR 308 (3), delivery to a designated agent, is not relevant to the consideration of this motion.

2.   Whereas Plaintiff sought leave to serve one email address, the Court directed service at both email addresses in the record.

Aaron D. Maslow, J.