Friday, July 26, 2013

Service of Process/Traverse Hearing in New York Family Court

FAMILY COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK, COUNTY OF QUEENS

[CAPTION]

FINDINGS OF FACT

[], being the Support Magistrate to whom the issues of support in the above- captioned proceeding were referred for determination, makes the following Findings of Fact:

The underlying petition was filed on March  7, 2012 by the [Petitioner], alleging a violation of a supreme court order directing the [Respondent], to pay child support.

On April 10, 2012, both parties appeared. An Affidavit of Service was filed with court, reflecting that [Respondent] was served on March 31, 2012. [Respondent] denied service and requested an adjournment to return with counsel. [Respondent’s] application was granted. The matter was set down for a traverse hearing and adjourned to June 12, June 13, and June 19, 2012. It was advanced on April 30, 2012 for the assignment of counsel for [Respondent] and rescheduled to July 30,2012 for a traverse hearing.

On July 24, 2012, [Respondent’s] assigned counsel filed an Order to Show Cause asking to be relieved based upon the breakdown in communications between them and threats to file criminal charges and grievances against counsel. On July 30, 2012, the application to be relieved was granted and new counsel was assigned to the Respondent. The matter was adjourned to October 22, October 23 and October 29, 2012 for a traverse hearing and hearing on the violation (should service be deemed complete).

Both parties and their attorneys appeared and a traverse hearing was held on October 22, 2012. The Petitioner called [Process Server], a licensed process server, as [Petitioner’s] witness. He identified [Respondent] in the courtroom as the person he served and added that he was familiar with [Respondent] as he had previously served [Respondent] in the past. He testified that he went to [Respondent’s] home on March 31, 2012 at approximately 4 pm, he knocked on [Respondent’s] door and no one answered. He waited in his vehicle across the street. [Respondent] pulled into [Respondent’s] driveway approximately 30 minutes later. He testified that as he approached and announced that he had process for [Respondent], [Respondent] ran into [the] house leaving a child behind in [the] driveway. He announced again that he was serving [Respondent] with process and that he was placing it in the door. He testified that he rolled up the summons and the violation petition and placed in the door handle.

[Respondent] did not present any witnesses, nor did [Respondent] testify on [Respondent’s] behalf. [Respondent] did not contradict the testimony of the process server and, in fact, conceded to his credibility. Nevertheless, [Respondent] maintained that [Respondent] was not properly served, because he did not hand [] or touch [Respondent] with the court papers.

The Fourteenth Amendment of the United States Constitution guarantees that a person may not be deprived "of life, liberty, or property, without due process of law ..." (U.S.C.A. Const. Amend. 14).

The Supreme Court of the United States has held that due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & TrustCo., 1950, 339 U.S. 306, 314. 70

The New York laws regarding jurisdiction and service are codified in the Civil Practice Law and Rules (hereinafter referred to as "C.P.L.R.").

C.P.L.R.Section 308 states that "Personal service upon a natural person shall be made... 1. by delivering the summons within the state to the person to be served;..."

Our courts have held that if a person refuses to accept process, the process may be left in that person's general vicinity. "It is well settled that a defendant has a duty to accept service of process..., and that one who resists such service may be considered validly served pursuant to CPLR 308(1) if process is subsequently left in his or her general vicinity." Coyner v. Besser, 154 A.D.2d 503, 503 (1989).

The Court of Appeals has stated that "if a person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware that he is doing so." Bossuk v. Steinberg, 58 N.Y.2d 916, 918 (1983).

It is uncontroverted that the Petitioner's process server announced that he was serving [Respondent] with process. [Respondent] ran into [the] home, leaving a child in [the] driveway, in an apparent attempt to evade service. The process server announced a second time that he was serving [Respondent] and informed [Respondent] that he was placing the summons and violation petition in [the] door.

Based upon the resistance of the Respondent to accept service, [Respondent] being made aware that [Respondent] was being served and the leaving of process within [Respondent’s] general vicinity, the court finds that the proper service was effectuated.

Accordingly, the matter is set down for a willfulness hearing on January 7, 2013 at 9:30 a.m. (all day) and January 8, 2013 at 2:30 p.m.

Notify parties and counsel.

Date: November 19,2012


/S/ SUPPORT MAGISTRATE

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