Dobkin v. Chapman

Civil Practice Law and Rules (CPLR) § 308(5) provided that if service of process was impracticable under the CPLR’s traditional methods, a plaintiff could obtain an ex parte order authorizing alternative service. The trial courts in three New York accident cases entered such orders based on the inability to locate the defendants. In Dobkin v. Chapman, Richard Dobkin (plaintiff) tried serving Shirley Chapman (defendant) with a summons and complaint (collectively, process) via regular and registered mail and via a county sheriff to the addresses Chapman provided to the department of motor vehicles. When these methods failed, the civil court issued an ex parte § 308(5) order permitting service by mailing the process to Chapman’s addresses and subsequently denied the motion of the Motor Vehicle Accident Indemnification Corporation (MVAIC), which became involved because Chapman was uninsured, to vacate the service. In Sellars v. Rye, Sellars (plaintiff) tried serving Rye (defendant), who also was uninsured, by regular and registered mail at Rye’s last known address and via the New York secretary of state. When these methods failed, the supreme court issued an ex parte § 308(5) order deeming the prior service efforts to be sufficient if Sellars also published a newspaper notice. The court subsequently denied the MVAIC’s motion to dismiss. In Keller v. Rappaport, Keller (plaintiff) tried to serve Rappaport by registered mail to a California address provided by Rappaport’s insurance carrier. When that effort failed, the supreme court issued an ex parte § 308(5) order authorizing service by mailing the process to Rappaport’s last known New York address and by providing copies to Rappaport’s insurance carrier. The court subsequently denied the carrier’s motion to dismiss. The appellate division affirmed the trial court orders. The MVAIC and the carrier appealed, arguing that § 308(5) did not permit the service utilized in these cases and that such service violated due process.