In this action, plaintiff, Lupo Geronazzo-Alman, has brought a breach-of-contract claim against his general contractor, defendant King Rose of NY, Inc., for its allegedly unsatisfactory renovation work in plaintiff's apartment. King Rose has impleaded third-party defendants Warren Whyte and Agustina Cervera, plaintiff's architects.^[FN1]

On this motion, King Rose seeks leave under CPLR 308 (5) to serve Whyte and Cervera by alternate means, and an extension under CPLR 306-b of King Rose's time to serve them. King Rose's expedient-service request is denied. Its request for more time to serve is granted.

CPLR 308 (5) allows a court to direct alternate service when a party shows that "service is impracticable under paragraphs one, two and four of this section." The standard of impracticability does not rise to the level of "due diligence" under CPLR 308 (4), but nevertheless requires "some showing that the other prescribed methods of service could not be made." (Markoff v South Nassau Community Hosp., 91 AD2d 1064, 1065 [2d Dept 1983] [internal quotation marks omitted].) Such a showing must be sufficiently detailed to describe, "for example, what steps [a party] had taken to effect service pursuant to the prescribed methods, when such steps were undertaken, and/or why such steps were not practicable under the particular facts and circumstances." (Id.)

1. With respect to third-party defendant Whyte, King Rose represents through an affirmation of counsel that it found Whyte's address through his state registration as an architect and his registration as a professional corporation, but that its process server's attempt to serve him at that address failed because Whyte apparently "sold [the] house a few years ago." (NYSCEF No. 26 at 4 [affidavit of non-service].) King Rose's attorney states that he "cannot find any forwarding information for Mr. Whyte." (NYSCEF No. 24 at ¶ 3.) King Rose requests permission to mail service to Whyte's "former house, where a mail forwarding with the post office will direct it to the right place." (Id.)

This showing is insufficient to permit court-ordered service under CPLR 308 (5). King Rose's attorney affirmation does not identify what steps he normally takes to locate a service address for a party after an initial service attempt fails; whether he took those steps (or others) in this case; what results he obtained; or why he believes any additional efforts to find or serve Whyte will be unsuccessful absent CPLR 308 (5) service.^[FN2] Additionally, King Rose has not [*2]shown that its proposed method of alternate service—mailing to a residential address that has been concededly invalid for "a few years" as of April 2022 (NYSCEF No. 26 at 4)—is "reasonably calculated, under all the circumstances, to apprise [Whyte] of the action." (Safadjou v Mohammadi, 105 AD3d 1423, 1424-1425 [4th Dept 2013] [internal quotation marks omitted].)

2. King Rose also does not satisfy CPLR 308 (5) for Cervera. Its attorney affirmation states that counsel initially found an address for Cervera on an invoice she sent to plaintiff, produced during discovery; that counsel had found the same address on a website called HomeAdvisor; and that counsel's process server, upon attempting delivery at that address, was told that Cervera no longer lived there. (See NYSCEF No. 24 at ¶ 4; NYSCEF No. 27 at 5.) But the address on the invoice and the address on the HomeAdvisor printout are different. (Compare NYSCEF No. 27 at 1-2 [HomeAdvisor printout], with id. at 4 [invoice].) The invoice address matches an address for Cervera given in correspondence between plaintiff and King Rose that appears in the record of this action. (See NYSCEF No. 17 at 6.) Nothing suggests that King Rose ever tried to serve Cervera at that address. (Cf. NYSCEF No. 27 at 5-6 [affidavit of non-service at the HomeAdvisor address). And the attorney affirmation does not explain that omission.

Counsel does explain that after the first attempt at service failed, he tried to serve Cervera at the corporate-registration address for Cervera's design firm; but that his process server's service attempt at that address was also unsuccessful.^[FN3] (NYSCEF No. 24 at ¶ 4; see NYSCEF No. 27 at 9-10 [affidavit of non-service at the corporate-registration address].) Given these unsuccessful attempts, King Rose proposes serving Cervera by uploading the summons and complaint to the design firm's "website contact portal," with a follow-up mailing to the two service addresses King Rose had previously used. (See NYSCEF No. 24 at ¶ 6; see also NYSCEF No. 27 at 11 [website screenshot].)

This proposal is unsatisfactory in multiple respects. King Rose has not shown a need to resort to using a firm's website contact page. That is, the record contains both a telephone number and an email address for Cervera that she used in correspondence with plaintiff during the underlying renovation project. (See NYSCEF No. 17 at 25.^[FN4] ) King Rose's motion papers do not say whether it ever attempted to contact Cervera by telephone or email to obtain a current mailing address; nor, if it did so, whether that number and email address remain valid.

Even assuming that these methods of contacting Cervera are no longer available, King Rose has not demonstrated that trying to send Cervera documents through her firm's website would be a practicable alternative. King Rose's counsel describes the website contact page as a "portal where inquiries and documents can be uploaded." (NYSCEF No. 24 at ¶ 6.) But that page appears from King Rose's submitted screenshot to be merely a typical plain-text comment form, with no separate uploading functionality. (See NYSCEF No. 27 at 11; see also NYSCEF No. 29 at ¶ 20 [affirmation in opposition of plaintiff's counsel] [making a version of this point].) On reply, King Rose's attorney says that "[p]laintiff is incorrect that documents cannot be uploaded to the SpearHead website contact portal," and that "[c]ounsel is simply not aware how these [*3]portals work." (NYSCEF No. 30 at ¶ 3.) Suffice to say that this court's understanding matches that of counsel for plaintiff, not counsel for King Rose.

3. In short, King Rose has not established that it should be permitted to serve Whyte and Cervera through court-ordered alternative methods under CPLR 308 (5). At the same time, this court agrees with King Rose that it has shown good cause for an extension of time to serve the third-party defendants under CPLR 306-b. King Rose's motion papers show it diligently attempted service; it filed this motion within the initial 120-day service period; and its third-party complaint shows that its claims against Whyte and Cervera are at least potentially meritorious. (See Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001] [describing factors affecting whether to grant a motion for extension of time to serve.)

Accordingly, it is

ORDERED that the branch of King Rose's motion seeking leave to employ alternate methods of service under CPLR 308 (5) is denied without prejudice; and it is further

ORDERED that the branch of King Rose's motion seeking an extension of time to serve is granted, and King Rose's deadline to serve Whyte and Cervera is extended to 60 days from entry of this order.