Wang v. TIAA-CREFF Life Ins.

NEW YORK COUNTY
Civil Practice

New York Law Journal

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Justice Joan Madden

In a dispute over an insurance policy's rightful beneficiary, Wang moved for permission authorizing service of process on Xu and her infant children via email under CPLR 308(5). Wang's counsel alleged that despite best efforts they were unable to locate Xu to serve her under §308(1), (2), (3) or (4), and service by email would likely apprise her of this action. Insurer argued Wang failed to make the necessary showing that service should be permitted by email as no attempts were made to serve Xu in China, where it was believed she was residing. Wang argued the standard for service under §308(5) was not exhaustion of attempts at service, but impracticability. The court agreed, noting a showing of impracticability did not require Wang to show actual prior attempts by every statutory method of service, finding Wang adequately demonstrated that service on Xu was impracticable under §308(5). It found Wang's submissions showed that diligent, though unsuccessful, efforts were made to serve Xu at her last known address and obtain her current address. It concluded service under §308(5) by email was warranted with copies of the summons and complaint to Xu's former attorney, her brother in California, her Swiss authority and regular mail at the last known residence.

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