Can you be served in a lawsuit by email?

by Fred Abramson on March 30, 2011 · 1 comment

A young gentleman contacted my office today and informed me that he received some legal documents in his e-mail. Upon reviewing the offending message, I noticed it was a summons and complaint. If you are not in the know, in New York  the first legal papers for instituting a lawsuit is called a summons and complaint.  He wondered if it was necessary to answer the complaint.

The simple answer is no, at least not yet. The rules governing proper service of a lawsuit are embedded in the CPLR. Here are the basic provisions for service of process:

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR § 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

Since he was served by email, service was improper and he does not have to answer. However, Randall Harris, senior deputy counsel for Los Angeles County, says it is time for the law to catch up with technology.

Law Technology Today reports that Harris advocates for a change in court rules, to allow the use of e-mail for notification of hearings in child dependency matters. “The law should be modernized to keep pace with technology and the wireless reality of the 21st century. Having no physical address should no longer be a barrier to receiving due process,” he argues, in “The Case for Providing Electronic Notice in Child Welfare Proceedings.

What do you think? Should service of process of a lawsuit be permitted by email?

Update: Over on Twitter, Jim Brasher, Esq. has noted that in  SNYDER and Snyder Energy, LLC, v. ALTERNATE ENERGY INC., Corporate Energy Investing Inc., and Peter J. Nelson, 19 Misc.3d 954, 857 N.Y.S.2d 442, 2008 N.Y. Slip Op. 28137 the court allowed for email service under limited circumstances.

The Law Office of Frederic R. Abramson practices civil litigation in the State of New York. You may contact me at 212-233-0666.

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  • jeffrey

    What if the judge, unbeknownst to him, allowed alternate service under CPLR 308(5), as was the case in Snyder v. Alternate Energy, Inc., 19 Misc.3d 954, 857 N.Y.S.2d 442, 2008 N.Y. Slip Op. 28137 (N.Y. County Civ. Ct. 2008)? Wouldn’t this possibility make it advisable to at least examine the merits of the complaint, and respond immediately with a motion to dismiss for improper service, lest he risk losing on an OSC challenging the grounds for alternate service under that statute and being faced with a non-vacatable default judgment? In fact, shouldn’t he respond now anyway just to avoid the hassle of having a default judgment entered against him, even if the affidavit of service is a complete fabrication?

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