Kijewski v. TIAA
- Stewart Aaron
- 1:25-cv-01779
- U.S. District Court · Southern District of New York
- 3
In Kijewski v. TIAA, Judge Aaron denied without prejudice alternative service on Marie Kijewski because one unsuccessful attempt did not show traditional service was impracticable.
Peter K. Kijewski's request to serve defendant Marie Kijewski by an alternative method was denied without prejudice. The order also rejected his request for information from Maureen Dunn or Mitchell Cohen for purposes of service.
What happened
In Kijewski v. TIAA, Peter K. Kijewski asked the court to approve an alternative way to serve defendant Marie Kijewski with the lawsuit. He said that a process server had been unable to serve her.
The court explained that New York law allows several ordinary service methods, including personal delivery, delivery and mailing, service on an authorized agent, and attaching the summons to a door and mailing it. A person seeking an alternative method must show that these methods cannot reasonably be used and that the proposed method would likely notify the defendant. The court found that the unsuccessful process-server attempt was not enough.
The court denied the motion without prejudice, meaning the request was not permanently barred. Judge Stewart D. Aaron also said that information sought from Maureen Dunn or Mitchell Cohen was improper and that they could not accept service for Marie Kijewski because they were also defendants. The court entered this order on June 2, 2025.
The detailed version
- Kijewski v. TIAA · No. 1:25-cv-01779
- Stewart Aaron
- June 2, 2025
Background
Peter K. Kijewski filed a letter motion asking the court to authorize alternative service of process on defendant Marie Kijewski. He stated that he had retained a process server but that service on Marie Kijewski had been unsuccessful. He also sought information about her from Maureen Dunn or Mitchell Cohen, who the opinion states were also defendants in the action.
Legal standard
Federal Rule of Civil Procedure 4(e) permits service on an individual in the United States under the law of the state where the federal district court is located or where service is made. Under New York Civil Practice Law and Rules § 308, ordinary methods include personal service, delivery to a suitable person at the defendant's business or home followed by mailing, service on an agent, and “nail and mail” service. When those methods are impracticable, the court may direct another method of service. The plaintiff must make some showing that the prescribed methods cannot be used, and the alternative must be reasonably calculated to notify the defendant of the case and give her an opportunity to respond.
Court's analysis
The court held that stating that a process server had been unsuccessful was insufficient to show that the other authorized service methods could not be used. The court also determined that the request for information from Maureen Dunn or Mitchell Cohen was improper. Because they were defendants in the action, they could not represent Marie Kijewski or accept service for her.
The opinion's footnote additionally states that the United States Marshals Service is not a for-hire process server. It says that, even if the Marshals Service were involved, Peter K. Kijewski would still need to provide accurate information to permit proper service.
Disposition
The court denied Peter K. Kijewski's letter motion for alternative service without prejudice. The order does not state that the court dismissed the case or permanently barred a renewed request.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.