DECISION/FINDINGS OF FACT AFTER SERVICE HEARING On June 20, 2021, the Petitioner, Angel K. (hereinafter “Ms. K.”), filed a violation petition against the Respondent, David K. (hereinafter “Mr. K.”). In her petition, Ms. K. seeks to enforce Mr. K.’s spousal maintenance obligation as set forth in the parties’ divorce documents. See Stipulation of Settlement (K. v. K., 06/27/2018), Suffolk County Supreme Court Index No. 04812/2017; see also Judgment of Divorce (Iliou, J., 09/07/2018), Suffolk County Supreme Court Index No. 04812/2017. Ms. K. is represented by Richard B. Lefkowitz, Esq. (hereinafter “Mr. Lefkowitz”). On June 29, 2021, a summons to appear virtually on July 29, 2021, and Ms. K.’s petition, were mailed by the family court to both parties as a courtesy.1 On July 29, 2021, Mr. K. failed to appear and the matter was adjourned for Mr. Lefkowitz to have Mr. K. personally served. A summons and petition was sent to Mr. Lefkowitz for that purpose. The summons, dated July 29, 2021, commanded Mr. K. to be present for a virtual appearance on September 9, 2021. On September 9, 2021, Mr. K. failed to appear and the matter was adjourned for Mr. Lefkowitz to make further attempts to personally serve Mr. K. A summons, dated September 9, 2021, and a petition, were sent to Mr. Lefkowitz for that purpose. The family court also mailed a copy of that summons and petition to Mr. K. The summons was a notice to appear virtually on October 18, 2021. The matter was scheduled for a hearing on service should Mr. K. fail to be present on October 18th. On October 18, 2021, Mr. K. did not appear. He did not contact the Court in any way, shape, form or fashion to let the Court that he was running late, had an emergency, or needed an adjournment. Given that Mr. K. has never appeared in the action, a hearing on service commenced. Two witnesses testified: Ms. K. and Marc Koehler (hereinafter “Mr. Koehler”), a process server. Ms. K. admitted several pieces of evidence. Mr. Lefkowitz argued that Mr. K. has been actively evading service and should be found to have been properly served. The Court reserved decision. The Court’s determination follows: THE EVIDENCE TESTIMONIAL EVIDENCE Mr. Koehler testified that he has been a professional process server for the past thirty-five years. He told the Court that Mr. Lefkowitz hired him to serve process upon a person named David K. He stated that Mr. Lefkowitz gave him information about Mr. K. so that he could personally serve him. Mr. Koehler explained that Mr. Lefkowitz gave him a photograph of Mr. K. and another photograph of Mr. K.’s truck. He further explained that Mr. Lefkowitz provided him with information about where Mr. K. lives and what type of vehicle he drives. Mr. Koehler testified that he was told Mr. K. lives at *** M. Street in N.B. and that he drives a red Chevrolet Avalanche. Mr. Koehler testified that he made approximately twenty attempts to personally serve Mr. K. He told the Court about some of those attempts. He stated that on August 14, 2021 at 11:42 A.M., he went to the N.B. location and Mr. K.’s vehicle was not present. He elaborated that although he tried to effectuate service on that day, he was unable to do so. Mr. Koehler testified that he next visited the premises on August 17, 2021 at 6:38 P.M. He told the Court that he had no success with service at that time. Mr. Koehler testified that thereafter, on August 18, 2021 at 11:45 A.M., he went to Mr. K.’s residence and Mr. K.’s truck was there. He told the Court that he took a picture of the vehicle. He stated that he confirmed that the truck at the location was the same vehicle registered to Mr. K. through the New York State Department of Motor Vehicles. Mr. Koehler testified that after such confirmation, he knocked on the door, but there was no answer. He stated that on August 24, 2021, he conducted a stakeout at the location, but Mr. K. never came home. Mr. Koehler testified that on September 1, 2021, Mr. K.’s truck was in the driveway at the same location. He told the Court that he attempted to personally serve Mr. K. on that date. He stated that approached the house and knocked on the door, but again, there was no answer. Mr. Koehler elaborated that the blinds were open as he approached the house, but as he went to leave, he observed someone manually close them. He admitted that he could not see who had closed the blinds. Mr. Koehler stated that he knew someone was in the house because the air-conditioning was operating and he heard someone walking around inside. Mr. Koehler testified that he observed other vehicles at the location, but never saw anyone drive them. He told the Court that whenever Mr. K.’s vehicle was at the location, he knocked on the front sliding glass doors as well as the rear doors of the home. He told the Court that on most of those occasions, he heard movement in the house, but no one ever answered the door. Mr. Koehler elaborated that he was aware that Mr. K. works in either the Bronx or Brooklyn and that he works from 10:00 P.M. until 6:00 A.M. He stated that because he was unsure of Mr. K.’s exact work location, he decided that his best course of action was to try to personally serve Mr. K. at his residence. Mr. Koehler testified that he attempted to personally serve Mr. K. at times when he believed that Mr. K. would be home, before and after Mr. K.’s work hours. Ms. K. testified that her ex-husband is the respondent, David K. She told the Court that she has been divorced from him since 2018. She stated that Mr. K. has lived at *** M. Street in N.B. for the last two and a half years. Ms. K. testified that Mr. K. rents the top portion of that house from an older woman who lives on the ground floor. She stated that Mr. K. drives a red Chevrolet Avalanche truck. Ms. K. testified that she provided her attorney, Mr. Lefkowitz, with a picture of Mr. K. and a picture of Mr. K.’s truck so that Mr. Lefkowitz could give those pictures to a process server. DOCUMENTARY EVIDENCE Ms. K. admitted a Department of Motor Vehicle registration record, dated September 13, 2021, for a 2002 red Chevrolet, VIN # *****************, along with a photograph of such truck, into evidence as Petitioner’s Exhibit 1. Ms. K. admitted a sworn Affidavit of Due Diligence, dated September 8, 2021, signed by process server, Marc Koehler, into evidence as Petitioner’s Exhibit 2. Ms. K. admitted a sworn Affidavit of Due Diligence, dated October 14, 2021, signed by process server, Marc Koehler, into evidence as Petitioner’s Exhibit 3. The Court took judicial notice of the support summonses to appear virtually, dated June 29, 2021, July 29, 2021, and September 9, 2021. The Court also took judicial notice of the Unified Court Management System’s information as it relates to this matter. DISCUSSION Due Process is a cornerstone of our system of justice codified within the United States Constitution as part of the Fourteenth Amendment, Section 12 as well as the New York State Constitution as part of Article I, Section 6.3 See U.S. CONST. AMEND. XIV, §1; see also N.Y. CONST. ART. I, §6. Due process requires notice and an opportunity to be heard. See People v. Baxin, 26 N.Y.3d 6 (2015); see also Raynor v. Landmark Chrysler, 18 N.Y.3d 48 (2011); Anita L. v. Damon N., 54 A.D.3d 630 (1st Dep’t 2008); 167-69 Allen Street H.D.F.C. v. Ebanks, 22 A.D.3d 374 (1st Dep’t 2005); Tyk v. N.Y. Education Dep’t, 19 A.D.3d 427 (2d Dep’t 2005); Commissioner of Social Servs. of the City of N.Y. v. Remy K.Y., 298 A.D.2d 261 (1st Dep’t 2002); Dariff v. Moskowitz, 252 A.D.2d 584 (2d Dep’t 1998). Thus, where a party receives notice of the proceedings and an opportunity to litigate his or her position at a hearing, due process has been met. See Raynor, 18 N.Y.3d at 59; Anita L., 54 A.D.3d at 631; 167-69 Allen Street H.D.F.C., 22 A.D.3d at 376; Matter of Tyk, 19 A.D.3d at 429; Remy K.Y., 298 A.D.2d at 262; Dariff, 252 A.D.2d at 585. With respect to the notice aspect of procedural due process, the means selected for providing notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to defend the action. See Armstrong v. Manzo, 380 U.S. 545 (1965); see also Hiller v. Burlington & M.R.R. Co., 70 N.Y. 223, 227 (1877). In order to proceed in a family court action, a party must be personally served. See e.g. N.Y. FAM. CT. ACT §§154(a), (b), 154-a, 427(a), 525(a) (McKinney’s 2021); see also Zivkovic v. Zivkovic, 36 N.Y.2d 216, 220 (1975). Personal service must be effectuated at least eight days in advance of a family court proceeding. See N.Y. FAM. CT. ACT §§427(a), 525(a) (McKinney’s 2021). Where reasonable efforts have been made to personally serve a party, substituted service may be ordered consistent with the New York State Civil Practice Law and Rules. See N.Y. FAM. CT. ACT §§427(b), 525(b) (McKinney’s 2021); see also Zivkovic, 36 N.Y.2d 216 at 221. Where a party is shown to evade service under New York City Practice Law and Rules §308, service of process may be effectuated by leaving a copy of the papers in the party’s general vicinity so long as the party is aware that such is being done. See N.Y. C.P.L.R. §308(1) (McKinney’s 2021); see also Sandella v. Hill, 166 A.D.3d 924, 924 (2d Dep’t 2018) (proper service found where defendant admitted he was aware summons and complaint left in general vicinity); Hall v. Wong, 119 A.D.3d 897, 897 (2d Dep’t 2014) (where defendant spoke through closed door, would not open door, and process server placed summons and complaint between storm door and interior door and told defendant he was doing so, burden of proper service satisfied) ; Bossuk v. Steinberg, 58 N.Y.2d 916, 918 (1983) (where a person evades service, proper service found when court papers are left “outside the door, provided the person to be served is made aware that [the process server] is doing so”); Lefton v. Freedman, 163 A.D.2d 360, 363 (2d Dep’t 1990); Spector v. Berman, 119 A.D.2d 565, 566 (2d Dep’t 1986). It is well-settled in the Second Department that proper service will be found under such circumstances. See Sandella, 166 A.D.3d at 924; see also Hall, 119 A.D.3d 897-98. In light of the evidence presented, the Court can not find that Mr. K. was evading service. Moreover, given the proof at the hearing, the Court can not find that Mr. K. was properly served. The evidence showed that Mr. K. was sent summonses and petitions by mail to his last known address.4 The Unified Court Management System does not show that such mail was returned as undeliverable.5 However, there is no way to know whom at the N.B. residence may have retrieved and/or seen said mail. Further, the proof established that Mr. Koehler made multiple attempts to personally serve Mr. K. at his home. While there on more than one occasion, he observed Mr. K.’s truck on the driveway and there was someone inside of the house. Nevertheless, there is no way to know who was inside the residence during those instances. This is especially so since Mr. K. does not live on the ground floor. There was no evidence that Mr. Koehler left the court papers at the location while Mr. K. was made aware that he was doing so. Notwithstanding, the Court finds that Ms. K. exercised due diligence when attempting to personally serve Mr. K. and that alternative service is entirely necessary and appropriate under the totality of the circumstances. See N.Y. FAM. CT. ACT §§427(b), 525(b) (McKinney’s 2021); N.Y. C.P.L.R. §308) (McKinney’s 2021); seel also Zivkovic, 36 N.Y.2d 216 at 221. Based upon the Department of Motor Vehicles records admitted, it is evident that Mr. K. owns the red Chevrolet truck that Mr. Koehler observed parked on the driveway of *** M. Street in N.B. on several dates at different hours of the day. Give such proof, coupled with Ms. K.’s testimony that Mr. K. has lived at that address for the past two and a half years, the Court finds that Mr. K. resides at that location. Thus, the Court orders alternative service at that address by way of nail and mail as well as overnight mail service with tracking. See N.Y. C.P.L.R. §§308(2), (3), (4) (McKinney’s 2021). ADJUDGED, that Ms. K. failed to meet her burden of proving that Mr. K. was personally served with a summons to appear to court and a copy of Ms. K.’s petition; and, it is further, ADJUDGED, that Ms. K. failed to meet her burden of proving that Mr. K. was evading service; and it is further, ADJUDGED, that alternative service is necessary and appropriate; and it is further, ADJUDGED, that Mr. K. lives at *** M. Street in N.B.; and it is therefore, ORDERED, that in light of the information elicited at trial, and the diligent attempts made to personally serve Mr. K., Mr. K. shall be served by using an alternative method as prescribed under New York Civil Practice Law Rules §308. Ms. K. shall have Mr. K. served by nail and mail service, and overnight mail service with tracking. This constitutes the decision, opinion, and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATE ISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL 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 APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: __________ Order received in court on [specify date(s) and to whom given]:_________ Dated: October 18, 2021
