The following papers were read on this motion pursuant to CPLR 2219(a): Papers Notice of Motion — Order to Show Cause — Exhibits and Affidavits Annexed 1 Answering Affidavits and Exhibits 0 Replying Affidavits and Exhibits 0 DECISION/ORDER This matter having come before the Court is an Order to Show cause filed by the Respondent, J.L. for an Order to vacate the finding of a Family Offense against on default; to vacate the Order of Protection on default; and to vacate the Order of Custody on default. The Petitioner, S.M., has not filed opposition to Mr. L’s Order to Show Cause and her counsel has indicated to the Court that she does not intend to do so. Background S.M. and J.L. were intimate partners and are parents to one child in common, S. L. (DOB: 2021). On November 21, 2023, Ms. M. filed a Petition for Custody of S.L. and a Family Offense Petition, alleging that Mr. L. committed the following family offenses against her and/or their child which may constitute: Aggravated Harassment, Assault, Attempted Assault, Disorderly Conduct, Harassment, Menacing, Other, Reckless Endangerment, Stalking, Criminal Mischief, Sexual Abuse, Sexual Misconduct, Forcible Touching, Obstruction of Breathing, Strangulation, Identify theft, Grand larceny, Coercion, and/or Dissemination of Intimate Images. Ms. M in her Petition alleged that Mr. L. harassed and threatened S.L’s child’s daycare providers over the phone. An Affidavit of Service, attesting to the effectuation of personal service on Mr. L. on November 25, 2023, at 3:20 PM, was attached to Mr. L.’s Motion as Exhibit F. The Affidavit further stated that Mr. L. was served at 835 Broadway, Brooklyn, New York 11206. On November 30, 2023, the parties appeared in this part before the prior Jurist, the Hon. Esther Morgenstern, where the Court heard these matters with Ms. M. and her counsel both present. During the hearing, the Court requested Margaret McCarthy, an attorney from BDS, to stand up on the case for Mr. L. Ms. McCarthy at the time represented to the Court that neither she nor Mr. L had advanced notice of the proceedings. Mr. L. was not present for the proceedings. The Court found that Mr. L. had committed the family offense of reckless endangerment. This Court before the prior Jurist issued a Final Order of Protection on Default for two years and issued a final Order of Custody on Default, which suspended all contact between Mr. L and S.L. Mr. L, in his moving papers, contends that he was never served with these petitions. Mr. L states that the place of service was at place of his former employer, and he had not been employed at that location since the summer of 2023. Service was effectuated by V. M, who, Mr. L contends is the sister of Ms. M. The affidavit of Service also indicates that an Order was served on Mr. L., and not a Petition or Motion. Mr. L. further argues that the Family Offense petition does not allege domestic violence regarding S.L. or Ms. M., asserting that it was improper for the Court to make a finding of a family offense and issue a Final Order of Protection when there were no allegation of domestic violence regarding Ms. M. or S.L. Argument A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense. In custody proceedings pursuant to Family Court Act Article 6, the Second Department has adopted a liberal policy in favor of vacating defaults. Matter of Lemon v. Faison, 150 A.D. 3d 1003 (2017). The courts have generally disfavored the granting of custody and visitations rights on default where the best interest of the child is not taken into consideration and in custody proceedings pursuant to Family Court Act article 6, the Appellate Division of the Second Department has adopted a liberal policy in favor of vacating defaults. Id. citing Matter of Brice v. Lee, 134 AD3d 1106 [2d Dept 2015]); Matter of Cummings v. Rosoff, 101 A.D. 3d 713, (2d Dept., 2012); Matter of Johnson v. Lee, 89 AD3d 733, [2011]; Matter of Lee v. Morgan, 67 AD3d 681, 682, 889 NYS2d 205 [2009]; Matter of Tauber v. Tauber, 152 AD2d 674, 544 NYS2d 484 [1989]). Pursuant to New York CLS Family Ct Act §427(a); Personal service of a summons and petition may be made by delivery of a true copy thereof to the person summoned at least eight days before the time stated therein for appearance; or by delivery of a true copy thereof to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing a true copy thereof to the person to be served at his last known residence at least eight days before the time stated in the summons for appearance; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service. Service of process upon a natural person must be made in strict compliance with the methods of service set forth by statute. Matter of Mary A.G. v. Ira T.B., 157 AD3d 951 [2d Dept 2018]) citing FV-1, Inc. v. Reid, 138 AD3d 922, [2016]; Washington Mut. Bank v. Murphy, 127 AD3d 1167, [2015]; Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d 896, [2013]). An affidavit of a Process Server constitutes a Prima Facie showing that service upon the defendant is proper. FV-1, Inc. v. Reid, 138 AD3d 922 [2d Dept 2016]) citing Citimortgage, Inc. v. Baser, 137 AD3d 735 [2d Dept 2016]; American Home Mtge. Servicing, Inc. v. Gbede, 127 AD3d 1004 [2015]; Velez v. Forcelli, 125 AD3d 643, [2015]; Machovec v. Svoboda, 120 AD3d 772 [2014]; U.S. Bank, N.A. v. Arias, 85 AD3d 1014 [2011]; Scarano v. Scarano, 63 AD3d 716, [2009]). “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing.” Id. at 120 citing Deutsche Bank Natl. Trust Co. v. DaCosta, 97 AD3d 630 [2012]). Here, Mr. L’s moving papers correctly points out that he was allegedly served on November 25, 2023 for an in-person appearance in this court on November 30, 2022 at 10:00 a.m. (Exhibit “E”). The statutory language is clear that at least eight (8) days are necessary between the service of Ms. M’s Petition and the appearance in this part. This did not occur. Even if Mr. L. was properly served, he would have only been provided only five days’ notice instead of statutorily required eight days, and as such the Court finds that the service is inadequate under the statute. Further, there was no opportunity for a traverse hearing to be conducted for Mr. L to present specific facts that rebut the presumption of proper service. Mr. L. in his moving papers has represented to the Court that the place of service is not a usual abode nor place of business. Further, Mr. L. also states that he was not present at the time he was allegedly served. Additionally, Ms. M. did not provide sufficient evidence in her Petition filed on November 21, 2023 regarding her allegations of domestic violence. Mr. L is not related to any of the daycare employees by blood or marriage nor are there any facts presented to this Court to suggest that there exists any type of intimate relationship between Mr. L. and any of the daycare employees involved in the alleged dispute. Further, there were no plenary hearings conducted to determine the best interests of S.L prior to the Court issuing an Order of Custody on Default in favor of Ms. M. As such, this Court finds that Mr. L. had a reasonable excuse and potentially meritorious defense. Mr. L’s Motion for an Order vacating the finding of a Family Offense on default; Order of Protection on default; and the Order of Custody on default is hereby GRANTED. This constitutes the Decision and Order of the Court. Dated: August 21, 2024
