BILL NUMBER: S9784

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the domestic relations law, in relation to modifying the
provisions regarding notice of a matrimonial action where the complaint
is not personally served with the summons

2.  
SOURCE OF BILL

This bill is being introduced at the request of the Judiciary, on the
recommendation of the Chief Administrative Judge's Matrimonial Practice
Advisory and Rules Committee.

3.  
PURPOSE OF BILL

This measure would modify the provisions regarding how notice of a
matrimonial action must be given in order to permit the court to take a
default judgment when the complaint is not personally served with the
summons and service is "impracticable" under paragraphs (1), ( 2), and
(4) of CPLR § 308, by permitting court-ordered alternative service of
              

the divorce summons by email in addition to publication pursuant to CPLR
§ 315.

4. 
SUMMARY OF PROVISIONS

Section 1 of the bill amends Domestic Relations Law (DRL) § 232(a) to
add to the circumstances under which a default judgment may be entered
upon defendant's default in appearing or pleading, the fact that service
of the summons or summons and complaint was made by email through proof
of an active email account of the defendant which is shown to be reason-
ably calculated to give notice to the defendant.  As used in this
section, an active email account is one that is shown to have been used
by the defendant in the last thirty days.

Section 1 also amends DRL § 232(b) to replace statutory references to
"he" with "such person" and "affiant or officer, who executed the affi-
davit or certificate", respectively.  1

Section 2 of the bill fixes an immediate effective date for the bill.

5.  
JUSTIFICATION

This bill will further access to justice by increasing the likelihood
that defendants will receive notice of a divorce. Under DRL § 232(a) as
currently written, when the defendant cannot be found for service and
fails to answer, the only method of service which would permit the court
to enter a default judgment is court-ordered service pursuant to CPLR §
308 (which cannot be accomplished if defendant cannot be found and has
left no address) or court-ordered service by publication as a last
resort (which is expensive, time consuming, unlikely to reach the
defendant, and increasingly difficult with the dwindling number of print
publications).

This bill will increase the likelihood that defendants receive notice of
the divorce and are able to protect their important interests in the
divorce as to custody of their children and distribution of their prop-
erty, and avoid default. Plaintiffs will also benefit not only from the
reduced expenses of service by email rather than publication, but also
from being able to work out the details of the divorce with defendants
before the Judgment of Divorce is signed, thereby avoiding expensive and
lengthy post-judgment litigation brought by defendants who did not
respond to the summons. The court system will also benefit from the
reduction in post-judgment matrimonial litigation.

While personal service upon a defendant is required in a divorce action,
CPLR § 308 allows several other methods if delivery to the defendant is
not possible. These include service on a person of suitable age and
discretion with simultaneous mailing (CPLR § 308(2)); service on an
agent designated pursuant to Rule 318 for service (CPLR § 308(3)): and
"nail and mail" service where service pursuant to subdivisions one and
two cannot be made with due diligence (CPLR § 308(4).

All three subdivisions provide an exception in matrimonial actions where
service may be made pursuant to a court order in accordance with DRL §
232(a). CPLR § 308(5) provides for service "in such manner as the court,
upon motion without notice, directs, if service is impracticable under
paragraphs one, two and four of this section."  DRL § 232 requires that
if the complaint is not personally served with the summons, no default
judgment may be granted unless the summons gives notice of the nature of
the divorce action on its face and has either been personally delivered
to the defendant or served on defendant in accordance with either CPLR
308 or CPLR 315. CPLR 315 permits service by publication by court order
on motion without notice as a last resort "if service cannot be made by
another prescribed method with due diligence" in certain types of
actions, one of which is a matrimonial action.

These provisions have caused problems in divorce actions where the
plaintiff cannot locate the defendant, because the defendant has left no
forwarding address or contact information. Supreme Courts frequently
feel compelled to order publication as a method of last resort. As stat-
ed by the Court of Appeals in upholding an order of the Third Department
ordering service by publication to be paid by the county for an indigent
litigant: "We are not unmindful, however, of the cost of publication in
a matrimonial action and the burden it may impose on local government.
Our affirmance is, therefore, without prejudice to the parties, if so
advised, to apply for a determination whether, in a matrimonial action,
judicially devised service (CPLR 308, subd. 5) is available as an alter-
native to service by publication." Deason v. Deason, 32 N.Y.2d 93, 95,
296 N.E.2d 229, 230 (1973). Thus, the Court of Appeals encouraged courts
to devise means of alternative service pursuant to CPLR 308(5) whenever
possible.

Back in 1973 when Deason was decided, email was not available to use as
a method of alternative service. Today, the situation is totally differ-
ent as email is one of the most frequently used means of communication.
Nevertheless, although there have been cases where courts have fashioned
alternative service in matrimonial cases pursuant to CPLR 308(5), use of
email is rarely used in Supreme Court matrimonial actions. In a 1992
case, the court refused to grant service by publication and instead
ordered service by a combination of mailing to defendant's mother, and
posting in several places, stating:

"The court recognizes that where constructive means of service are
sought under CPLR 308 (5), publication is traditionally requested and
routinely granted either solely or in conjunction with some other deliv-
ery means. This habit may spring from other statutes that specify publi-
cation as a means of service. But a literal reading of CPLR 308 (5) and
the cases construing it and its predecessors lead this court to conclude
that publication under subdivision (5) is not an essential or necessary
element nor even a desirable element of judicially devised service."

See Debra M v. Guy M, 155 Misc. 2d 912, 914, 591 N.Y.S.2d 302 (Sup.  Ct.
1992).

This addresses this problem by amending DRL § 232(a) to give official
legislative recognition to use of email as a legitimate method of court
ordered alternative service pursuant to CPLR 308(5) in matrimonial
actions in accordance with the encouragement of the Court of Appeals in
Deason v. Deason, supra.

This proposal will ensure that service by publication in matrimonial
cases, will be used as a last resort only, and will encourage courts to
order alternative service by email where the court is satisfied that
service under paragraphs 1, 2 and 4 of CPLR § 308 is impracticable, and
that there is proof that the email account is active, and that the plat-
form to be used is reasonably calculated to reach the defendant. The
term "active" in the proposal is defined to mean that it has been used
within the last thirty days in order to prevent litigation.

The bill satisfies the demands of due process, which requires that
defendant be given notice of the divorce action by a method reasonably
calculated to reach the defendant, but does not require that the defend-
ant receive actual notice of the divorce action where the defendant
cannot be located. As stated in Hollow v. Hollow, service in a divorce
case must be sufficient to satisfy the demands of due process under the
statute permitting alternative methods for service of process. (See
Hollow v. Hollow, 193 Misc. 2d 691, 694, 747 N.Y.S.2d 704, 707 (Sup. Ct.
2002). However, it need not always provide actual notice to the defend-
ant as stated by the Court of Appeals in Dobkin v. Chapman in upholding
methods of alternative service ordered pursuant to CPLR 308 in three
automobile accident cases resulting in injury or death where defendants
could not be found and normal methods of service were impossible: "It is
quite clear that the draftsmen of section 308 deemed it not at all
unlikely that the method of service directed under its paragraph 4 would
occasionally result in failure to bring actual notice to a defendant."
(Dobkin v. Chapman, 21 N.Y.2d 490, 500, 236 N.E.2d 451, 456 (1968).
Further, the Court of Appeals stated: "Due process is not, however, a
mechanical formula or a rigid set of rules. Increasingly in modern
jurisprudence, the term has come to represent a realistic and reasonable
evaluation of the respective interests of plaintiffs, defendants and the
state under the circumstances of the particular case." Id. at 457-58).

6.  
PRIOR LEGISLATIVE HISTORY

A similar bill was submitted by the Judiciary in the 2019-20 legislative
session (OCA-89) and the 2021-22 legislative session

(OCA-58).

7.  
FISCAL IMPLICATIONS

This bill would have no meaningful State fiscal impact.

8.  
EFFECTIVE DATE
This bill would take effect immediately.