On February 8, 2024, Justice Cohen of the New York County Commercial Division issued a decision in Shetty v. Bank of Baroda, 2024 NY Slip Op. 30454(U), authorizing service by e-mail when service under the Hague Convention was impractical, explaining:
CPLR 308(5) authorizes service upon a natural person in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section. Plaintiffs have established that service on Individual Defendants is impracticable and that service by electronic mail is appropriate.
In July of 2021, Plaintiffs retained an international service firm to serve Individual Defendants through the Indian Central Authority pursuant to Article 5 of the Hague Convention. However, despite repeated requests, Plaintiffs have not received proof of service from the Indian Central Authority.
Plaintiffs also engaged an investigation and legal services provider in India to locate contact information for the Individual Defendants. Plaintiffs’ counsel subsequently e-mailed the Summons and Complaint to the Individual Defendants at the e-mail addresses provided, and none of the e-mails were returned as undeliverable. Finally, Plaintiffs have provided copies of foreign court decisions and other documents indicating that Individual Defendants are active litigants in other forums.
Alternative service may be directed where Hague Convention service, although authorized, is impractical. Electronic mail is an appropriate method of alternative service where it is reasonably calculated under the circumstances to apprise defendant of the action.
Plaintiffs have undertaken significant efforts to serve the Individual Defendants to no avail. Plaintiffs have established that service by e-mail is likely to provide actual notice to Individual Defendants.
(Internal quotations and citations omitted).