A Snyder v. Alternate Energy Inc., a New York City Civil Court decision from last month, allows this in certain circumstances, and canvasses past opinions on the subject. It then analyzes things this way:
[S]o long as Nelson's physical whereabouts remain a secret, reaching him and his company by ordinary means remains every bit as difficult as reaching the defendant in Hollow v. Hollow [an earlier New York state case -EV]. For the plaintiffs here, like the plaintiff in Hollow, the internet may very well offer the best hope they have of ever being able to reach the defendants Nelson and Corporate Energy.
The problem with the internet is that it is hard to be absolutely sure that the message is actually received by the person it is intended to reach. Despite the information plaintiffs' counsel has supplied tying defendant Nelson to e-mail address EnergyAEI@aol.com, there is still the chance, however slight, that the address belongs to someone who for some unknown reason is merely pretending to be Nelson. And even if the address is indeed Nelson's, then at any given time some other person say, a friend, family member or co-worker may be the one using the address and thus end up intercepting the message being sent to Nelson.
Concerns about the uncertainty of an e-mailed summons and complaint making its way across the internet to its intended target is reason to proceed with caution when being asked to authorize e-mail service. But such concerns are not reason enough to summarily reject an application for alternate service simply because the method sought involves e-mail. Strange as it may sound, the validity of a particular form of service is not necessarily dependent on the likelihood of receipt. As the court of Appeals wrote in Dobkin, "Our law has long been comfortable with many situations in which it is evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it." Dobkin v. Chapman, 21 NY2d at 502.
A prime example of a type of alternate service that is almost certain not to provide actual notice to a defendant turns out to be one of the most frequently used. This is service by publication. Buried in small type in the back pages of a newspaper, legal notices may very well be some of the least read prose ever composed. It is clearly no secret that the chances of a defendant leafing through the New York Law Journal or the Village Voice and happening upon a summons intended for him or her are remote at best. A recent article in the New York Times highlighted the futility of publication service; the article was pointedly entitled "How to Tell Someone She's Being Sued, Without Really Telling Her."
Unlike publication, service by e-mail at least offers a chance of providing actual notice to a defendant of a pending lawsuit. Of course, the mere fact that a defendant has a computer and an e-mail address is not a basis to allow a plaintiff to resort to e-mail service. In this case, however, plaintiffs have shown that defendant Nelson is regularly online using an e-mail address that by all indications is his. Under these particular facts, a court could readily conclude that service by e-mail is "reasonably calculated, under all the circumstances, to apprise the defendants of the action brought against them." Dobkin v. Chapman, 21 NY2d at 505, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 314. Accordingly, I determined that service of the summons and complaint on defendants by e-mail was an appropriate form of service....
To better insure the effectiveness of the notice to defendants, the order imposed some additional requirements.
The first of these additional requirements was that the e-mail be sent on two consecutive dates and that it bear a prominent subject line indicating that what was being sent were legal papers in an attachment that was to be opened immediately. This was done to increase the chance that the transmittal would be brought to defendant Nelson's immediate attention and not inadvertently left unopened, deleted or read by somebody else and forgotten.
Another requirement was that the summons and complaint be mailed to defendants' last known New York and Connecticut addresses. Although this was probably an exercise in futility, it was nevertheless worth having plaintiffs spend the postage on the offhand chance that defendant Nelson had recently provided the postal service with forwarding information for him and his company.
The last requirement involved the cellular telephone number that plaintiffs had for defendant Nelson. Plaintiffs' counsel was directed to contact Nelson at that number and inform him that the summons and complaint were being sent by e-mail and regular mail. While it is unusual to advise a defendant in advance of impending service, alternate service is by its very definition a departure from the usual. As with the other requirements imposed by the order, the goal was to improve the odds that defendants would actually be aware they were being sued. Although e-mail would be the primary form of notice, a hybrid approach including mail and phone notice could only serve to heighten that awareness.