Opinion
2011-09-20
In the Matter of Emma SHARMA, respondent,v.Robert NEW, appellant.
Robert New, Grapevine, Texas, appellant pro se.Patricia Miller Latzman, Port Washington, N.Y., attorney for the child.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County (Eisman, J.), dated July 9, 2010, as, without a hearing, granted the mother's petition to modify the overnight visitation provisions contained in an order of the same court dated January 14, 2010, so as to suspend the father's overnight visitation.
ORDERED that the order dated July 9, 2010, is reversed insofar as appealed from, on the law, without costs or disbursements, and the proceeding is dismissed.
In March 2010 the mother filed a petition and order to show cause to modify the overnight visitation provisions contained in an order dated January 14, 2010, alleging that the father violated that order by taking the subject child “to a different hotel than the one ... which he informed [the social worker] he would be using.” In an order dated July 9, 2010, the Family Court, inter alia, granted the mother's petition so as to suspend the father's overnight visitation. We reverse the order dated July 9, 2010, insofar as appealed from.
“ ‘The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with’ ” ( Matter of Theodore T. [ Charles T.], 78 A.D.3d 955, 956–957, 912 N.Y.S.2d 72, quoting Matter of Hennessey v. DiCarlo, 21 A.D.3d 505, 505, 800 N.Y.S.2d 576; see Matter of El Greco Socy. of Visual Arts, Inc. v. Diamantidis, 47 A.D.3d 929, 929, 852 N.Y.S.2d 165). “Moreover, where the court orders service by a particular date, all components of service must be accomplished by that date” ( Matter of El Greco Socy. of Visual Arts, Inc. v. Diamantidis, 47 A.D.3d at 929, 852 N.Y.S.2d 165; see Matter of Sorli v. Coveney, 51 N.Y.2d 713, 714, 431 N.Y.S.2d 1001, 410 N.E.2d 1228; Matter of Phillips v. Sanfilippo, 306 A.D.2d 954, 955, 761 N.Y.S.2d 574). Here, the record does not contain any evidence establishing that the father was properly or timely served in compliance with the provisions of the order to show cause ( cf. Matter of El Greco Socy. of Visual Arts, Inc. v. Diamantidis, 47 A.D.3d at 929, 852 N.Y.S.2d 165; Laurenzano v. Laurenzano, 222 A.D.2d 560, 560–561, 635 N.Y.S.2d 668). Moreover, contrary to the contention of the attorney for the child, the father asserted the defense of lack of personal jurisdiction in his answer and did not waive the defense ( see CPLR 3211[e]; see also 115 Austin Ave., LLC v. City of Yonkers, 37 A.D.3d 684, 684, 830 N.Y.S.2d 355; cf. Matter of Ciampi v. Sgueglia, 252 A.D.2d 755, 757, 676 N.Y.S.2d 243). Since personal jurisdiction was not obtained, the Family Court should have dismissed the proceeding ( see Matter of Phillips v. Sanfilippo, 306 A.D.2d at 955, 761 N.Y.S.2d 574; see also Matter of Sorli v. Coveney, 51 N.Y.2d at 714, 431 N.Y.S.2d 1001, 410 N.E.2d 1228; Matter of Psyllos v. Psyllos, 21 A.D.3d 560, 560, 799 N.Y.S.2d 903; cf. Matter of Church v. Church, 294 A.D.2d 625, 625–626, 740 N.Y.S.2d 895).
In light of our determination, we need not reach the father's remaining contentions.
RIVERA, J.P., FLORIO, LEVENTHAL and ROMAN, JJ., concur.