| Matter of Romero v Ramirez |
| 2012 NY Slip Op 08019 [100 AD3d 909] |
| November 21, 2012 |
| Appellate Division, Second Department |
| In the Matter of Fernando Romero, Respondent, v YheizziRamirez, Appellant. |
—[*1] The Law Offices of Stephen I. Silberfein, P.C. (Mischel & Horn, P.C., New York, N.Y.[Scott T. Horn], of counsel), for respondent.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom 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 todismiss the petition for lack of personal jurisdiction, granted the father's petition for custody ofthe 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 orderor judgment entered upon the default of the appealing party, the appeal from the order brings upfor review those 'matters which were the subject of contest' before the [Family] Court" (Tun v Aw, 10 AD3d 651, 652[2004], quoting James v Powell, 19 NY2d 249, 256 n 3 [1967]; see Matter of Branch v Cole-Lacy, 96AD3d 741, 742 [2012]). Since the issue of whether the Family Court had personaljurisdiction over the mother was the subject of contest, it is brought up for review on this appeal(see James v Powell, 19 NY2d at 256 n 3).
The mother contends that service of process upon her in Ecuador had to be made pursuant tothe procedures set forth in the Inter-American Convention on Letters Rogatory (see 28USC § 1781). Contrary to the mother's contention, however, "the Inter-AmericanConvention permits alternate methods of service and . . . its procedures are not theexclusive means of service of process on defendants residing in a signatory nation" (Laino vCuprum S.A. de C.V., 235 AD2d 25, 29 [1997]). Accordingly, personal service upon themother pursuant to state statute was acceptable (see id.; see also Morgenthau v Avion ResourcesLtd., 11 NY3d 383, 391 [2008]).
The mother argues, alternatively, that the Family Court was required to hold a hearing on theissue of service. " 'Generally, a process server's affidavit of service establishes a prima facie caseas to the method of service and, therefore, gives rise to a presumption of proper service' " (Engel v Boymelgreen, 80 AD3d653, 654 [2011], quoting Washington Mut. Bank v Holt, 71 AD3d 670, 670 [2010]; see Tikvah Enters., LLC v Neuman, 80AD3d 748, 749 [2011]). "Although a [party's] sworn denial of receipt of service generallyrebuts the presumption of proper service established by the [*2]process server's affidavit and necessitates an evidentiary hearing, nohearing is required where the [party] fails to swear to 'specific facts to rebut the statements in theprocess server's affidavits' " (Scarano vScarano, 63 AD3d 716 [2009], quoting Simonds v Grobman, 277 AD2d 369,370 [2000]; see Tikvah Enters., LLC v Neuman, 80 AD3d at 749). Here, the mother'sbare denial of service was insufficient to rebut the prima facie proof of proper service establishedby the process server's affidavit (see Tikvah Enters., LLC v Neuman, 80 AD3d at 749;Scarano v Scarano, 63 AD3d at 716). Accordingly, the Family Court properly determinedthat no hearing was warranted (see Tikvah Enters., LLC v Neuman, 80 AD3d at 749).Skelos, J.P., Angiolillo, Dickerson and Hall, JJ., concur.