Opinion
2012-11-21
In the Matter of Fernando ROMERO, respondent, v. Yheizzi RAMIREZ, appellant.
Jose A. Muniz, New York, N.Y., for appellant. The Law Offices of Stephen I. Silberfein, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondent.
Jose A. Muniz, New York, N.Y., for appellant. The Law Offices of Stephen I. Silberfein, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondent.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and L. PRISCILLA HALL, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Joseph, J.), dated November 3, 2011, which, upon her default in answering or appearing, and, in effect, upon the denial of her motion to dismiss the petition for lack of personal jurisdiction, granted the father's petition for custody of the parties' child.
ORDERED that the order is affirmed, without costs or disbursements.
“[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the order brings up for review those ‘matters which were the subject of contest’ before the [Family] Court” ( Tun v. Aw, 10 A.D.3d 651, 652, 782 N.Y.S.2d 96, quoting James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741;see Matter of Branch v. Cole–Lacy, 96 A.D.3d 741, 742, 945 N.Y.S.2d 743). Since the issue of whether the Family Court had personal jurisdiction over the mother was the subject of contest, it is brought up for review on this appeal ( see James v. Powell, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741).
The mother contends that service of process upon her in Ecuador had to be made pursuant to the procedures set forth in the Inter–American Convention on Letters Rogatory ( see28 USC § 1781). Contrary to the mother's contention, however, “the Inter–American Convention permits alternate methods of service and ... its procedures are not the exclusive means of service of process on defendants residing in a signatory nation” ( Laino v. Cuprum S.A. de C.V., 235 A.D.2d 25, 29, 663 N.Y.S.2d 275). Accordingly, personal service upon the mother pursuant to state statute was acceptable ( see id.; see also Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, 391, 869 N.Y.S.2d 886, 898 N.E.2d 929).
The mother argues, alternatively, that the Family Court was required to hold a hearing on the issue of service. “ ‘Generally, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service’ ” ( Engel v. Boymelgreen, 80 A.D.3d 653, 654, 915 N.Y.S.2d 596, quoting Washington Mut. Bank v. Holt, 71 A.D.3d 670, 670, 897 N.Y.S.2d 148;see Tikvah Enters., LLC v. Neuman, 80 A.D.3d 748, 749, 915 N.Y.S.2d 508). “Although a [party's] sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the [party] fails to swear to ‘specific facts to rebut the statements in the process server's affidavits' ” ( Scarano v. Scarano, 63 A.D.3d 716, 880 N.Y.S.2d 682, quoting Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692; see Tikvah Enters., LLC v. Neuman, 80 A.D.3d at 749, 915 N.Y.S.2d 508). Here, the mother's bare denial of service was insufficient to rebut the prima facie proof of proper service established by the process server's affidavit ( see Tikvah Enters., LLC v. Neuman, 80 A.D.3d at 749, 915 N.Y.S.2d 508;Scarano v. Scarano, 63 A.D.3d at 716, 880 N.Y.S.2d 682). Accordingly, the Family Court properly determined that no hearing was warranted ( see Tikvah Enters., LLC v. Neuman, 80 A.D.3d at 749, 915 N.Y.S.2d 508).