| Matter of Kaila B. |
| 2009 NY Slip Op 05857 [64 AD3d 647] |
| July 14, 2009 |
| Appellate Division, Second Department |
| In the Matter of Kaila B. Westchester County Department of SocialServices, Respondent; Christopher M.B., Appellant. (Proceeding No. 1.) In the Matter ofChristopher B. Westchester County Department of Social Services, Respondent; ChristopherM.B., Appellant. (Proceeding No. 2.) In the Matter of Ava B. Westchester County Department ofSocial Services, Respondent; Christopher M.B., Appellant. (Proceeding No.3.) |
—[*1] Charlene M. Indelicato, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardinerof counsel), for respondent. Andrew W. Szczesniak, White Plains, N.Y., attorney for the children.
In three related child protective proceedings pursuant to Family Court Act article 10, thefather appeals from (1) an order of the Family Court, Westchester County (Edwards, J.), enteredSeptember 3, 2008, and (2) a resettled order of the same court entered November 19, 2008,which denied his motion to (a) dismiss the petitions for lack of personal jurisdiction or, in thealternative, to direct a hearing on the issue of whether service was properly made on him, and (b)to transfer venue of the proceedings concerning the children Christopher B. and Ava B. fromWestchester County to Kings County.
Ordered that the appeal from the order is dismissed, as that order was superseded by theresettled order; and it is further,[*2]
Ordered that the resettled order is reversed, on the law,that branch of the father's motion which was to dismiss the petitions for lack of personaljurisdiction is granted, the order is vacated, and that branch of the father's motion which was totransfer venue of the proceedings concerning the children Christopher B. and Ava B. fromWestchester County to Kings County is denied as academic; and it is further,
Ordered that one bill of costs is awarded to the father.
In a child protective proceeding, "[s]ervice of a summons and petition shall be made bydelivery of a true copy thereof to the person summoned" (Family Ct Act § 1036 [b]).However, "[i]f after reasonable effort, personal service is not made, the court may at any stage inthe proceedings make an order providing for substituted service in the manner provided forsubstituted service in civil process in courts of record" (Family Ct Act § 1036 [d]), which"encompasses any method of service devised by the court that is reasonably calculated to givethe party notice and an opportunity to be heard" (Matter of Niblock v Niblock, 181AD2d 825 [1992]).
Furthermore, "CPLR 308 (5) vests a court with the discretion to direct an alternative method[of] service of process when it has determined that the methods set forth in CPLR 308 (1), (2)and (4) are 'impracticable' " (Home Fed. Sav. Bank v Versace, 252 AD2d 480 [1998],quoting CPLR 308 [5]). "The impracticability standard does not require the applicant to satisfythe more stringent standard of due diligence under CPLR 308 (4) nor make an actual showingthat service has been attempted pursuant to CPLR 308 (1), (2), and (4)" (Contimortgage Corp. v Isler, 48 AD3d732, 734 [2008] [citations and internal quotation marks omitted]; see Dobkin vChapman, 21 NY2d 490 [1968]; Tremont Fed. Sav. & Loan Assn. v Ndanusa, 144AD2d 660 [1988]).
Here, the Westchester County Department of Social Services (hereinafter DSS) presentedevidence showing, among other things, that (1) the father was not living at an address inBrooklyn where he claimed to reside, but rather at an apartment building in Westchester County;(2) several unsuccessful attempts were made to personally serve the father at the Westchesteraddress, along with an unsuccessful attempt at his last known place of business; and (3) thefather gave instructions not to accept any mail sent to him at the address in Westchester. Thus,the evidence presented by DSS was sufficient to establish that it made a "reasonable effort" topersonally serve the father (see Family Ct Act § 1036 [d]), and that service wasimpracticable under CPLR 308 (1), (2) and (4) (see City of New York v Clark, 234AD2d 120 [1996]; Kelly v Lewis, 220 AD2d 485 [1995]; Dime Sav. Bank of N.Y. vMancini, 184 AD2d 989, 990 [1992]). Accordingly, the Family Court providently exercisedits discretion in directing service by publication.
However, since the Family Court directed that the summons be published together withnotice of the proceeding only once in each of two newspapers, the court's order directing serviceby publication failed to comply with CPLR 316, which requires publication "at least once ineach of four successive weeks." A failure to comply with the statutory requirements regardingthe manner or time of publication has been held to be a jurisdictional defect (see Caton vCaton, 72 Misc 2d 544, 545 [1972]; Doheny v Worden, 75 App Div 47 [1902]).Accordingly, the Family Court should have granted that branch of the father's motion which wasto dismiss the petitions for lack of personal jurisdiction and should have denied as academic thatbranch of the father's motion which was to transfer venue of the proceedings concerning thechildren Christopher B. and Ava B. from Westchester County to Kings County. Mastro, J.P.,Santucci, Eng and Lott, JJ., concur.