| Matter of Keith X. v Kristin Y. |
| 2015 NY Slip Op 00429 [124 AD3d 1056] |
| January 15, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Keith X., Appellant, v Kristin Y.,Respondent. (Proceeding No. 1.) In the Matter of Keith X., Appellant, v KristinY., Respondent. (Proceeding No. 2.) |
Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), forappellant.
Devine, J. Appeals from two orders of the Family Court of Saratoga County (Jensen,J.), entered June 25, 2014, which, in two proceedings pursuant to Family Ct Act articles5 and 6, dismissed the petitions.
After petitioner commenced two proceedings to establish paternity and gain jointlegal and physical custody of an eight-year-old boy who he alleges is his child, petitionerwas unable to effectuate service upon respondent despite numerous attempts to do so. InApril 2014, petitioner moved by order to show cause for an order permitting him toresort to court-ordered service of process, pursuant to CPLR 308 (5). Having determinedthat the circumstances of these proceedings had rendered traditional service onrespondent impracticable, Family Court granted petitioner's motion and executed anorder establishing specific alternative methods of personal service. However, afterhaving determined that petitioner failed to conform to its prescribed methods of service,Family Court dismissed the petitions without prejudice. Petitioner now [*2]appeals both orders of dismissal.
Strict compliance with court-directed methods of service is necessary in order for thecourt to obtain personal jurisdiction over a respondent/defendant (see e.g. Pierce v Village ofHorseheads Police Dept., 107 AD3d 1354, 1355 [2013]; see also Matter ofSorli v Coveney, 51 NY2d 713, 714 [1980]). Here, petitioner's counsel drafted andpresented Family Court with a proposed order directing service pursuant to CPLR 308(5). Specifically, the order required that the amended orders to show cause and petitionsbe served on two attorneys who had represented respondent in unrelated litigation and,further, that substituted service be completed as follows: "2. By serving [respondent] at[two known] email addresses [and] by including with such emails copies of the[p]etitions, this [o]rder, and the [o]rders to show cause filed by [p]etitioner in support ofthe [p]etitions, in PDF format, each of such emails to be sent on or before April 28,2014; and 3. By sending [respondent] an SMS/text message at [a known] subscribernumber . . . advising her of the pendency of the two above-captionedproceedings and advising her to access her email addresses as set forth in paragraph 2herein, to review this [o]rder and the contents of the attached PDF files and to contact herattorneys . . . for copies of the [o]rders to show cause and [p]etitions uponwhom these papers have been served on her behalf, said text to be sent on or before April28, 2014."
Despite the fact that petitioner's counsel created the terms upon which substitutedservice of process would be deemed sufficient, the record demonstrates that petitioner'scompliance with such terms was lacking. As to the email requirement, petitioner'saffidavit of service states that respondent was served on April 28, 2014 via two separateemail [*3]addresses, as per Family Court's order, and thatboth emails were returned as undeliverable. While neither dictates of due process norFamily Court's order required proof that respondent actually received notice of theproceedings (see generally Bossuk v Steinberg, 58 NY2d 916, 918 [1983];Dobkin v Chapman, 21 NY2d 490, 502 [1968]), we observe that the affidavit ofemail service fails to state that the documents were, in fact, delivered to respondent in aPDF format.
Of greater concern, however, is the manner in which petitioner conducted service bytext message. As to that particular mode of delivery, petitioner's process server averredthat, on April 28, 2014, he sent respondent a text message stating that "[p]aternity andcustody petitions have been filed by [petitioner] regarding [the child]. Your court date in[Family Court] is May 21, 2014 at 9AM. Your failure to appear may result in a custodyorder and default. Contact [respondent's attorneys] for copies of these documents."Having neglected to state in the text message, as expressly required in Family Court'sorder, that respondent should access her email accounts to review the documents that hadbeen served in a PDF format by email and that the text message was being sent by virtueof Family Court's order, we agree with Family Court's determination that such substitutedservice was insufficient to confer personal jurisdiction over respondent (see Pierce vVillage of Horseheads Police Dept., 107 AD3d at 1355; Clarke v Smith, 98 AD3d756, 756 [2012]). Accordingly, petitioner's failure to perfect service of processaccording to the dictates that were clearly articulated in Family Court's order, pursuant toCPLR 308 (5), we conclude that the dismissal of the petitions was required (seeMacchia v Russo, 67 NY2d 592, 595 [1986]; see also Matter of Maddox v State Univ. of N.Y. at Albany, 32AD3d 599, 600 [2006], appeals dismissed 8 NY3d 978 [2007], lvdenied 8 NY3d 803 [2007]). In light of this disposition, we need not reachpetitioner's request that we grant his petitions on default.
McCarthy, J.P., Garry and Clark, JJ., concur. Ordered that the orders are affirmed,without costs.