Opinion
Index No. 55874/2023
12-04-2023
S.B., Plaintiff, v. A.K., Defendant.
James L. Hyer, J.
On December 1, 2023, Plaintiff's counsel appeared at Status Conference and made an application requesting the Court to determine Defendant to be in default and scheduling this matter for an Inquest.
Basic Background & Procedural History
On January 23, 2023, this action was commenced with the Plaintiff's filing of a Summons with Notice. The Summons with Notice indicates Plaintiff's intention to seek a dissolution of the parties' marriage based upon the alleged irretrievable breakdown of the parties' marriage pursuant to New York State Domestic Relations Law § 170(7), that Plaintiff is not seeking an award of spousal maintenance/support, that Plaintiff is not seeking equitable distribution of marital property, that Plaintiff is not seeking payment of counsel fees or other costs associated with the litigation and no other ancillary relief is sought. Defendant did not file any responsive pleading and did not otherwise appear in this action.
On May 16, 2023, Plaintiff's counsel filed a Motion seeking relief, inter alia, declaring the Defendant in default for failure to appear and entering a default judgment of divorce (hereinafter referred to as "Motion Sequence #1"). In support of this application, Plaintiff submitted a Statement of Service pursuant to CPLR § 2106(b) of Lirim Maqedonci (hereinafter referred to as the "CPLR 2106(b) Statement"), which noted, in part, that he is not a party to this action; is over the age of eighteen; notes his address; that he has known Defendant for ten years; that he served Defendant personally with the Summons, Notice of Automatic Orders, Notice of Continuation of Health Care Coverage, Notice of Availability of Electronic Filing; and, that at the time of service of Defendant, he asked Defendant if he was in the military of any state and Defendant responded in the negative. The CPLR 2106(B) Statement further included as paragraph seven the following language:
"I affirm this 10 day of March, 2023, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law."
On June 28, 2023, a Decision and Order was entered pertaining to Motion Sequence #1, denying the requested relief and noting, "Defendant was purported personally served on March 3, 2023 in Kosovo. However, the Affidavit of Service does not comply with CPLR § 2106, as it was not signed before a notary public or other authorized official (see generally U.S. Bank National Association v Langner, 168 A.D.3d 1021 [2d Dept 2019])" (NYSCEF Doc. No. 12 at 1).
On September 7, 2023, Plaintiff filed an Order to Show Cause (hereinafter referred to as "Motion Sequence #2"), seeking renewal, reargument, and reconsideration of the Court's Decision and Order entered pertaining to Motion Sequence #1. On October 24, 2023, the Court entered a Decision and Order, denying the relief requested in Motion Sequence #2 (NYSCEF Doc. No. 21).
On December 1, 2023, Plaintiff's counsel appeared, requested Defendant be held in default, and again requested that the Court revisit the prior Decisions entered in this case, asserting that Defendant had been served as required by applicable law.
Findings of Fact & Conclusions of Law
CPLR § 2309 sets forth the way oaths and affirmations are to be administered and notes in section (c) regarding oaths and affirmations taken without the state:
An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed has been acknowledged before the officer who administered the oath or affirmation.
CPLR § 2106 was adopted to provide alternatives to affidavits requiring notarization in two instances, the first being for attorneys and health care practitioners licensed to practice within New York State who are not parties to an action and for those who are physically located outside the United States of America noting:
"(b) The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:
I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.
(Signature)"
The Supplemental Practice Commentaries to CPLR § 2309 authored by Professor Patrick M. Conners provides useful guidance with respect to the legislative intent of section (b) of this statute:
"The legislative history indicates that the amendment to CPLR 2106(b) was specifically designed to alleviate the difficulties encountered by those obtaining affidavits in foreign countries. See New York State Senate, Introducer's Memorandum in Support, S5372-A, at p. 5 (NY 2013) ("The current law [concerning compliance with CPLR 2309] has created significant problems in New York practice. The requirement has made it extremely burdensome to obtain equivalent notarization in foreign countries, which is a common occurrence in major commercial litigation. When executing an affidavit abroad, questions often arise as to who would be the appropriate official that would be equivalent to a New York notary and whether the affidavit obtained in a foreign country may be unusable in New York litigation."). Given the legislature's intention in enacting CPLR 2106(b), it appears that affirmations in compliance with the subsection should, like their counterparts in CPLR 2106(a), be considered without needing to comply with the provisions in CPLR 2309(c)."(CPLR § 2309, C2309:3).
Upon review of the CPLR § 2106(b) Statement, a plain reading of the document confirms that it in substance and form complies with the requirements of CPLR § 2106(b). The Court must now inquire whether Plaintiff's compliance with CPLR § 2106(b) alone is sufficient or if Plaintiff must be further compelled to comply with CPLR § 2309(c).
The Court recognizes the determination of the Appellate Division, Second Department which noted, in part that:
"Here, the process server's affidavit established, prima facie, that service was validly made pursuant to CPLR 308(2) (see E*Trade Bank v. Vasquez, 126 A.D.3d 933, 934, 7 N.Y.S.3d 285). The affirmation submitted by the defendant in support of his cross motion failed to rebut the process server's affidavit because the affirmation was not in admissible form. "[A]ny person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so," but such affirmation "must be made before a notary public or other authorized official," and the affirmant must "be answerable for the crime of perjury should he make a false statement" (Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801, 439 N.Y.S.2d 910, 422 N.E.2d 570 n). Furthermore, an affirmation from a person physically located outside the geographic boundaries of the United States must comply with the additional formalities of CPLR 2309(c), and must, in substance, affirm that the statement is true under the penalties of perjury under the laws of New York (see CPLR 2106[b]). While the defendant's identity was verified by an authorized official in Israel acting in the capacity of a notary, the affirmation itself failed to indicate that the statements made therein were true under the penalties of perjury. Therefore, the affirmation was without probative value, and the Supreme Court should have denied the defendant's cross motion to dismiss the complaint insofar as asserted against him."(U.S. Bank National Association v Langner, 168 A.D.3d 1021 [2d Dept 2019]).
The Court of Appeals has provided useful guidance with respect to the way courts are to interpret statutes:
"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature" (Patrolmen's Benevolent Assn. v City of New York, 41 N.Y.2d 205, 208; see also, Longines-Wittnauer v Barnes & Reinecke, 15 N.Y.2d 443, 453). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated:
"In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" (Tompkins v Hunter, 149 NY 117, 122-123; see also, Matter of Raritan Dev. Corp. v Silva, 91 N.Y.2d 98)."(Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583 [1998]).
Utilizing the statutory review process as set forth by the Court of Appeals, this Court must respectfully depart from the Appellate Court's ruling in Langner as a plain reading of the language of CPLR § 2106(b) is devoid of any requirement that a litigant who had complied with that section must further submit a second document in compliance with CPLR § 2309(c). To the contrary, the legislative intent behind the adoption of CPLR § 2106(b) was specifically to relieve litigants the burden of the necessity of locating an individual authorized to administer an oath pursuant to the directives of CPLR § 2309.
Accordingly, the Court finds that Plaintiff's submission of the CPLR § 2106(b) Statement was permissible and in acceptable form, and grants Plaintiff's application to hold Defendant in default for failure to appear and to schedule an inquest.
Any relief specifically not granted or otherwise addressed herein is denied.
Based upon the foregoing, it is hereby
ORDERED that Plaintiff's application is granted to the extent that Defendant is held in default for his failure to appear; and it is further
ORDERED that an Inquest shall be held on January 9, 2024, at 11:30 a.m., wherein parties and counsel shall appear virtually via a Microsoft Teams link to be circulated by the Court, the instructions for which shall be served by Plaintiff's counsel upon Defendant via traceable delivery by December 8, 2023; and it is further
ORDERED that by December 22, 2023, all parties shall serve upon each other and file with the Court: (1) Witness list of any witnesses to be called to testify at the Inquest; (2) Exhibit list of any exhibits to be marked for identification and utilized at the Inquest, with copies of same; and (3) Affidavit of Service of same; and it is further
ORDERED that by December 8, 2023, Plaintiff's counsel shall serve by NYSCEF filing a Notice of Entry of this Decision and Order on Defendant via traceable delivery and file a copy of the Notice of Entry with an Affidavit of Service with the Court; and it is further
ORDERED that to the extent any relief sought has not been granted, it is expressly denied.
The foregoing constitutes the Decision and Order of the Court.