Opinion
184145
01-07-2015
Rosa Lisa Torres, , Petitioner, v. Anthony Wade, Respondent.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
In a proceeding to establish paternity and child support pursuant to the Uniform Interstate Family Support Act ("UIFSA") of the Family Court Act ("FCA") Article 5-B, petitioner, Rosa Lisa Torres by counsel, Assistant Corporation Counsel ("ACC"), Lynn Wolpoff, objects to Support Magistrate ("SM") Elizabeth Shamahs' June 4, 2014 decision and order which granted respondent's motion to vacate orders of filiation and child support entered on default on July 17, 2012.
Petitioner, by ACC, filed and served an objection; Respondent, by counsel, timely filed and served a rebuttal . Although objections may only be filed following the final order of the SM (FCA 413(e)), the court deems ACC's objection to be an interlocutory objection, the consideration of which is within the court's discretion.
The Order & Decision on Objection entered on Oct. 9, 2014 indicated that a rebuttal had not been filed. Following distribution of the Oct. 9, 2014 Order and Decision to parties and counsel, counsel for Respondent submitted a motion to renew and reargue the objection on the grounds that he had timely submitted a rebuttal. Counsel attached to his motion papers a time-stamped copy of the rebuttal that he had submitted to the Kings Family Court Parts Division on July 7, 2014. The rebuttal was not in the file when the objection was reviewed. The court granted counsel's motion to renew and reargue, reassigned counsel to Respondent nunc pro tunc to June 3, 2014, and considered Respondent's rebuttal when amending the Oct. 9, 2014 decision.
In her objection, Petitioner states that the SM erred in vacating the orders entered on default. Petitioner seeks to have the orders reinstated and the matter remanded to the SM for a traverse hearing. Following a review of the file and the digitally recorded proceedings conducted before the SM, petitioner's objection is granted and the matter is remanded back to the SM for a traverse hearing.
The relevant procedural history is as follows: On June 13, 2011, Ms. Torres, the custodial parent filed a petition in Florida to establish Mr. Wade's paternity of the children Anthony (d.o.b. 12/26/2005) and Marcus (d.o.b. 10/24/2010), and seeking an order of support on their behalf. Personal service on the Respondent, Mr. Wade, was ordered and pursuant to UIFSA the matter was scheduled for return of service on December 6, 2011 in Kings County Family Court. Respondent, Mr. Wade, did not appear on that date. The assigned ACC submitted an affidavit of service indicating that substituted service had been effectuated on Mr. Wade "by deliver[y] to a person of suitable age and discretion, Anthony A. Wade, who verified that the intended recipient lived at 192 Sands Street, Apt. 10G, Brooklyn, NY 11201." The affidavit of service also indicated that a copy of the petition had been mailed to the respondent at 192 Sands Street, Apt. 10G, Brooklyn, NY 11201. At the December 6, 2011 court appearance, the ACC requested an adjournment to submit an amended affidavit of service due to a defect in the affidavit of service, namely, that the affidavit indicated that substituted service had been effectuated, but the ACC represented to the court that in actuality personal service upon the respondent had occurred. The SM granted the request for an adjournment and calendared the matter for March 13, 2012. On March 13, 2012 the ACC submitted an amended affidavit of personal service indicating that the respondent had been personally served with the summons and petition on October 10, 2011. The affidavit of service described the person served as a black male with black hair approximately 48-51 years of age; 5ft. 7 inches to 5ft. 11 inches in height and weighing approximately 195-205 pounds. The SM deemed jurisdiction complete and the matter was adjourned to July 17, 2012.
On July 17, 2012, upon respondent's non-appearance, the SM entered an Order of Filiation on default and an Order of Support on default.
One year later, on July 29, 2013, respondent filed a motion to vacate the orders entered on default. Respondent stated in his affidavit, inter alia, that he was not present in court because he was not aware of the date; that he receives public assistance; that he works part-time; that in November 2010 petitioner informed him that she had multiple relations with other men; and that on the date he was scheduled to appear in court he was incarcerated at Riker's Island. The matter was scheduled before the SM on October 8, 2013.
It is not clear what "date" the respondent is referring to in his affidavit in support of the motion to vacate the default orders entered against him by the SM.
On October 8, 2013 respondent appeared in court and was assigned counsel. Counsel's request for an adjournment in order to confer with respondent was granted by SM and the matter was adjourned to February 25, 2014. On February 25, 2014 respondent appeared with counsel who again requested and was granted an adjournment to confer with respondent (counsel represented to the court that the respondent had failed to keep appointments to meet) and to file supplemental papers. The matter was adjourned to June 3, 2014.
On May 9, 2014, respondent filed a Supplemental Affidavit, in support of his July 29, 2013 motion to vacate the Order of Filiation and Order of Support entered on default, stating, inter alia, that he was never served with the underlying Summons and Petition; that he was not present at the 192 Sands Street on October 11, 2011; that he did not reside at 192 Sands Street; and that he did not match the description in the affidavit of the person allegedly served because, inter alia, respondent is age 28 and the affidavit of service shows that service was effectuated upon a male between the ages of 48 and 52. Respondent further stated that his mother and her husband reside at 192 Sands Street; he had resided at that address previously, but had not been residing there since 2009. In support of his motion, respondent attached to his papers an affidavit from his mother stating that respondent did not reside with her, had not been residing with her on October 11, 2011, and that a process server had not attempted to serve Respondent at her home on October 11, 2011. Respondent also attached to his papers a copy of his lease for his current address and an affidavit from his landlord.
The ACC's May 29, 2014 Supplemental Affirmation in Opposition to respondent's motion to vacate the default orders of filiation and support. The ACC maintained that the SM had proper personal jurisdiction over respondent and that respondent has failed to establish that the affidavit of service was defective.
On June 3, 2014 respondent appeared with counsel in support of his motion to vacate the default orders, maintaining that the affidavit of service was defective and therefore the SM did not have personal jurisdiction over him. The ACC requested a traverse hearing in order to produce the process server and establish proper service. The SM denied the application for a traverse hearing and concluded that the affidavit of personal service was indeed defective and vacated the orders of Filiation and Support entered on default. Petitioner filed the instant objection, alleging that the SM erred in denying petitioner's application for a traverse hearing and vacating the orders entered on default.
While the court is cognizant that while there is no "right" to file an objection prior the completion of a matter before a Support Magistrate, there are circumstances that warrant the grant of an interlocutory appeal (McGrath v McGrath, 166 Misc 2d 512, 513 [Fam Ct Eerie Co 1995]). Although Family Court Act, section 439 (e), is silent as to whether objections may be filed from interlocutory orders, where the denial of a right to file an objection could lead to irreparable harm, the court must exercise its discretion and permit such filing. Id.
In the instant case the court finds that the SM erred as a matter of law in summarily denying the ACC's application for a traverse hearing. It is settled law that "the burden of proving that personal jurisdiction was acquired rests with the [petitioner]" (C & H Environmental, Inc v Rothkrug, 2002 NY Slip Op 50519(U) at 2 [1st Dept 2002]). The impact of denying petitioner's application for a traverse hearing resulted in the vacatur of orders of paternity and child support for the two (2) subject children in a manner inconsistent with public policy and the interests of justice.
The general tenet of law is that a "process server's affidavit stating proper service in accordance with CPLR 308 constitutes prima facie evidence of proper service" (Martinez v McSweeney, 41 Misc 3d 1232(A) [Sup Ct Queens County 2013]). In those instances, however, where a defendant's sworn denial of receipt of service contains specific facts to rebut the statements contained in the process server's affidavit, the presumption of proper service established by the process server's affidavit is rebutted and an evidentiary hearing is required ( Id.; Deutsche Bank National Trust Co v Quinones, 114 AD3d 719 , holding that traverse hearing is not required if a defendant fails to establish through a sworn affidavit specific facts to rebut the statements in the process server's affidavit).
As set forth above, the burden of proving that personal jurisdiction was acquired rests with the petitioner. "[If] the process server is living and available to testify, [a] defendant's sworn denial of proper service renders the affidavit of service non-conclusive and shifts the burden of proof to plaintiff to substantiate the allegation of personal service therein. Under such circumstances, a hearing on the question of whether the affidavit of service establishes proper service requires the affiant must be made available for cross-examination by the party denying receipt" (Anton v Amato, 101 AD2d 810 [2d Dept 1984]).
Here, contrary to the process server's affidavit stating proper service in accordance with CPLR 308 submitted by petition to the SM on October 11, 2011, the respondent's sworn affidavits dated July 29, 2013 and May 9, 2014 respectively, allege specific facts which rebut the presumption of proper service by petitioner's process server. Respondent denies ever being served with the summons and petition, denies he was present at or residing at the 192 Sands Street address on October 11, 2011, and further maintains that on October 11, 2011, he was 28 years old and not 48 to 52 years of age as noted in the process server's amended affidavit of service. As noted by the court in 650 Fifth Avenue Co v Travers Jewelry Corp, 29 Misc 3d 1215 [Civil Ct NY County 2010], "[a] hearing is necessary to determine whether what the process server swore to is true... this is a classic situation which requires a court to conduct a traverse hearing; both stories cannot be true."
For all of these reasons, petitioner's objection is granted. The SM's June 4, 2014 Order is hereby vacated and the matter is remitted to the SM for a traverse hearing to be scheduled forthwith. Following the traverse hearing the SM will determine whether the orders will be continued or vacated and will enter appropriate orders to that effect.
Accordingly, it is hereby
ORDERED that the order entered on June 4, 2014 is vacated; and it is further
ORDERED that the orders vacated on June 4, 2014 are herein reinstated nunc pro tunc; and it is further
ORDERED that this matter be calendared before Support Magistrate Shamahs forthwith for a traverse hearing.
This constitutes the decision and order of the court.
Notify parties, counsel, Support Magistrate and Support Collection Unit.
ENTER:
_____________________________
Hon. Jeanette Ruiz
Acting Justice of the Supreme Court
Dated:January 7, 2015
Brooklyn, New York