In Rae v. Marciano (— N.Y.S.3d —-, 2024 WL 1895957, 2024 N.Y. Slip Op. 02337 (2d Dept., 2024)), the plaintiff commenced an action for a divorce and served the defendant with the summons and complaint by email. After the defendant rejected the papers, the plaintiff made an oral application for the Supreme Court to authorize service by email nunc pro tunc, claiming, without proof, that the defendant had previously agreed to it. The Supreme Court denied the application and dismissed the action for lack of personal jurisdiction.

The Appellate Division, Second Department, affirmed. It pointed out that a court lacks personal jurisdiction over a defendant who is not properly served with process, and that the Supreme Court properly denied the plaintiff’s application because she failed to adequately demonstrate that the defendant consented to email service. It noted that Domestic Relations Law §232 permits substituted service, pursuant to CPLR 308, by court order upon a showing that personal delivery of the summons and complaint on the defendant could not be effected despite efforts made with due diligence. It held that absent a court order authorizing service by email, the service was ineffective.