In the final analysis, constitutional principles, not the lack of judicial precedent or the novelty of Facebook service, will be ultimately determinative here. The central question is whether the method by which plaintiff seeks to serve defendant comports with the fundamentals of due process by being reasonably calculated to provide defendant with notice of the divorce. Or more simply posed: If the summons for divorce is sent to what plaintiff represents to be defendant’s Facebook account, is there a good chance he will receive it?
In order for the question to be answered in the affirmative, plaintiff must address a number of this court’s concerns. The first is that the Facebook account that plaintiff believes is defendant’s might not actually belong to him. As is well known, the Facebook profile somebody views online may very well belong to someone other than whom the profile purports it to be. This has led courts to observe that “anyone can make a Facebook profile using real, fake, or incomplete information, and thus there is no way for the Court to confirm whether the Facebook page belongs to the defendant to be served” (PCCare247, Inc., 2013 WL 841037, at *5 [quoting Fortunato, 2012 WL 2086950, at *2]). As a result, this court required plaintiff to submit a supplemental affidavit to verify that the Facebook account she references is indeed that of the defendant. Plaintiff submitted such an affidavit, to which she annexed copies of the exchanges that took place between her and defendant when she contacted him through his Facebook page, and in which she identified defendant as the subject of the photographs that appear on that page. While it is true that plaintiff’s statements are not absolute proof that the account belongs to defendant — it being conceivable that if plaintiff herself or someone at her behest created defendant’s page, she could fabricate exchanges and post photographs — plaintiff has nevertheless persuaded the court that the account in question does indeed belong to defendant.
The second concern is that if defendant is not diligent in logging on to his Facebook account, he runs the risk of not seeing the summons until the time to respond has passed. Here too, plaintiff’s affidavit has successfully addressed the issue. Her exchanges with defendant via Facebook show that he regularly logs on to his account. In addition, because plaintiff has a mobile phone number for defendant, both she and her attorney can speak to him or leave a voicemail message, or else send him a text message alerting him that a divorce action has been commenced and that he should check his account (WhosHere, Inc., 2014 WL 670817, at *4 [“Courts have taken into consideration whether defendant already possessed either knowledge of suit or that he may be the subject to a suit”] ).
The third concern is whether a backup means of service is required under the circumstances. Although, as was discussed, other court decisions have endorsed using Facebook as a means of service, they have done so only where Facebook was but one of the methods employed, not the only method. As the court stated in PCCare247, Inc., 2013 WL 841037, at*5, “[t]o be sure, if the [plaintiff] were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process.” In that case, and as well as in WhosHere, Inc., the other federal court decision authorizing Facebook service, the court stressed that it was allowing the use of a social media site only in conjunction with notice being sent to the defendants by email. In Noel B., 2014 N.Y. Misc. LEXIS 4708, at *4, the only decision from a state court permitting service via Facebook, the petitioner was required to mail a copy of the child support summons and petition to the respondent’s “previously used last known address.”
Here, plaintiff does not have an email address for defendant and has no way of finding one. Nor does she have a street address for defendant that could constitute a viable “last known address;” defendant’s last known address dates back at least four years and the post office confirmed that defendant no longer resides there and he has left no forwarding address. Thus, plaintiff has a compelling reason to make Facebook the sole, rather than the supplemental, means of service, with the court satisfied that it is a method reasonably calculated to give defendant notice that he is being sued for divorce.
Before granting plaintiff leave to serve defendant via Facebook, a method of alternative service judicially-devised pursuant to CPLR 308(5), there is one remaining question that should be addressed: Why use Facebook as either the sole or the supplemental means of service in the first place when there is a statutorily prescribed method of service readily available? That method is service by publication, something that is specifically authorized under CPLR 315. After all, publication is not only expressly sanctioned by the CPLR, but it is a means of service of process that has been used in New York in one form or another since colonial times. Even today, it is probably the method of service most often permitted in divorce actions when the defendant cannot be served by other means.
The problem, however, with publication service is that it is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other law suit for that matter. In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none. The dangers of allowing somebody to be divorced and not know it are simply too great to allow notice to be given by publication, a form of service that, while neither novel or unorthodox, is essentially statutorily authorized non-service. This is especially so when, as here, there is a readily available means of service that stands a very good chance of letting defendant know that he is being sued.
Moreover, the court will not require publication in any newspaper even as a backup method to Facebook. Although a more widely circulated newspaper, like the New York Post or the Daily News, might reach more readers, the cost, which approaches $1,000 for running the notice for a week, is substantial, and the chances of it being by seen by defendant, buried in an obscure section of the paper and printed in small type, are still infinitesimal.
Under the circumstance presented here, service by Facebook, albeit novel and non-traditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.