DECISION AND ORDER AFTER MOTION TO DISMISS The parties are divorced and have one child-in-common, J.P.W. (hereinafter “J” or “son” or “child”). See Judgment of Divorce (W v. W, 10/13/2017), Nassau County Supreme Court Index Number 200419/2016. On April 18, 2024, the father, V.W. (hereinafter “Father” or “Mr. W”) filed a support petition against the mother, N.M.H. (hereinafter “Mother” or “Ms. H”). See Petition for Support (W, 04/18/2024), Nassau County Family Court Docket Number F-03365- 24. He sought Ms. H’s contribution towards their son’s support. Id. On July 22, 2024, Ms. H filed a motion to dismiss. See Not. of Mot. to Dismiss (Rueda, 07/18/2024), Nassau County Family Court Docket Number F-03365-24; see also Atty. Aff. in Supp. of Resp’t's Mot. to Dismiss (Rueda, 07/18/2024), Nassau County Family Court Docket Number F-03365-24; Aff. in Supp. of Resp’t's Mot. to Dimiss (H, 07/18/2024), Nassau County Family Court Docket Number F-03365-24. Ms. H argued that Mr. W’s petition should be dismissed for the following reasons: (1) both parties waived child support in their June 23, 2021 Supreme Court stipulation;1 (2) the Family Court has no jurisdiction to invalidate a Supreme Court stipulation; (3) Mr. W filed a support petition when he should have filed a modification petition; and, (4) should the Court treat Mr. W’s petition as a modification petition, there has not been a substantial change in circumstances since the parties signed their June 23, 2021 Supreme Court stipulation. See id. On August 14, 2024, Mr. W filed opposition papers. See Aff. in Opp’n of Mot. to Dismiss (W, 08/14/2024), Nassau County Family Court Docket Number F-03365-24. In his opposition papers, Mr. W argued that the parties’ June 23, 2021 Supreme Court stipulation does not comply with the law and is therefore invalid; in that, their stipulation fails to set forth all of the required Child Support Standards Act2 (hereinafter “CSSA”) recitals. See id. On August 23, 2024, Ms. H filed reply papers. See Aff. in Reply to Pet.’s Opp’n (Rueda, 08/23/2024), Nassau County Family Court Docket Number F-03365-24. The motion was marked submit. The Court’s determination follows: DISCUSSION MS. H’S MOTION TO DISMISS BROUGHT PURSUANT TO N.Y. C.P.L.R. §3211(a)(1) IS HEREBY DENIED A petition may be dismissed under the theory that documentary evidence disposes of all issues in the case as a matter of law. See N.Y. C.P.L.R. §3211(a)(1) (McKinney’s 2024); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2024); Mulacek v. ExxonMobil Corp., 2024 N.Y. Slip. Op. 02724, at *1 (2024); Cunningham v. Cunningham, 225 A.D.3d 584, 585 (2d Dep’t 2024); Vasquez v. Kennedy, 221 A.D.3d 936, 937 (2d Dep’t 2023); Dubon v. Drexel, 195 A.D.3d 991, 993 (2d Dep’t 2021); Lerner v. Lerner, 168 A.D.3d 736, 738 (2d Dep’t 2019). For the purposes of a motion to dismiss, documentary evidence must be unambiguous and of undisputed authenticity. See Bronxville Scout Comm. v. Cty. of Westchester, 2024 N.Y. Slip. Op. 04055, at * 1 (2d Dep’t July 31, 2024); see also Olivera-Perez v. B.A.M. Bldrs., Inc., 2024 N.Y. Slip. Op. 03894, at *1 (2d Dep’t July 24, 2024); Shah v. Mitra, 171 A.D.3d 971, 973 (2d Dep’t 2019). Judicial records, mortgages, deeds, and contracts qualify as documentary evidence. See Olivera- Perez, 2024 N.Y. Slip. Op. 03894, at *1; see also Vasquez, 221 A.D.3d at 937. Handwritten, undated, unnotarized, unsworn, and uncertified documents are not considered documentary evidence. See Olivera-Perez, 2024 N.Y. Slip. Op. 03894, at *1 (affidavits and letters not considered documentary evidence); see also Pena v. KST Trucking, Inc., 206 A.D.3d 1007, 1008 (2d Dep’t 2022) (uncertified report not considered documentary evidence); Huang v. “John Doe,” 169 A.D.3d 1014, 1016 (2d Dep’t 2019) (uncertified report and unsworn statement not considered documentary evidence); Allstate Ins. Co. v. Persampire, 45 A.D.3d 706, 706-07 (2d Dep’t 2007) (handwritten, undated and unnotarized statement, and conclusory affidavit, not considered documentary evidence); Goldberger v. Village of Kiryas Joel, 31 A.D.3d 496, 497 (2d Dep’t 2006) (unsworn letter not considered documentary evidence); Orelli v. Showbiz Pizza Time, Inc., 302 A.D.2d 440, 441 (2d Dep’t 2003) (unsworn letter not considered documentary evidence); Tatti v. Cummings, 193 A.D.2d 596, 596 (2d Dep’t 1993) (unsworn letter not considered documentary evidence). In support of her motion to dismiss, Ms. H attached a copy of the parties’ June 23, 2021 stipulation. The CSSA governs stipulations that cover the issue of child support. See N.Y. FAM. CT. ACT §§413 et al. (McKinney’s 2024); see also N.Y. DOM. REL. LAW §§236, 240 (McKinney’s 2024). Such stipulations must contain the parties’ incomes, a statement that the parties were advised of the CSSA provisions and the presumptive child support amount under the statute as well as whether the parties are deviating from the basic child support obligation and, if so, the basis for such deviation. See N.Y. FAM. CT. ACT §413(1)(h) (McKinney’s 2024); see also N.Y. DOM. REL. LAW §240(1-b)(h) (McKinney’s 2024); Tompkins Cty. Support Collection Unit ex rel. v. Chamberlin, 99 N.Y.2d 328, 337 (2003); Hayter v. Hayter, 184 A.D.3d 553, 555 (2d Dep’t 2020); Spivak v. Spivak, 177 A.D.3d 660, 661 (2d Dep’t 2019). Such requirement may not be waived by the parties or their attorneys. See N.Y. FAM. CT. ACT §413(1)(h) (McKinney’s 2024); see also N.Y. DOM. REL. LAW §240(1-b)(h) (McKinney’s 2024). For that reason, an untimely objection is not considered fatal, see Usenza v. Swift, 52 A.D.3d 876, 877 (3d Dep’t 2008), and an agreement may be considered invalid and unenforceable for failure to comply. See Michael J.F. v. Jennifer M.B., 192 A.D.3d 556, 557 (1st Dep’t 2021) (remanded; agreement did not set forth required recitations); see also Spooner v. Spooner, 154 A.D.3d 1158, 1160 (3d Dep’t 2017) (same); McKenna v. McKenna, 90 A.D.3d 1110, 1111 (3d Dep’t 2011). Notwithstanding, invalidity of one portion of an agreement does not necessarily invalidate the entire agreement. See Ferro v. Bologna, 31 N.Y.2d 30, 35-6 (1972) (one illegitimate provision “does not vitiate the entire agreement and the other provisions of the agreement may be valid and enforceable.”); see also Young v. Young, 142 A.D.3d 612, 613 (2d Dep’t 2016) (finding child support provisions were invalid and unenforceable, but other parts remained valid and enforceable); Cimons v. Cimons, 53 A.D.3d 125, 129 (2d Dep’t 2008) (same). There is no dispute that the parties’ June 23, 2021 Supreme Court stipulation contains an agreement waiving child support. See So-Ordered Stipulation (W v. W, 06/23/2021), Nassau County Supreme Court Index Number 200419/2016. However, absent from such agreement are some of the required CSSA recitations. Thus, such document does not dispose of all issues in the case as a matter of law since such stipulation is infirm. See Vasileva v. Christy, 195 A.D.3d 980, 982 (2d Dep’t 2021) (deleting child support provisions of oral stipulation and remitting for new determinations; stipulation failed to recite parties’ incomes); see also O’Hanlon v. O’Hanlon, 114 A.D.3d 915, 917 (2d Dep’t 2014) (finding child support provision invalid and correctly vacated; CSSA recitations, including parties’ incomes, absent from stipulation); Baranek v. Baranek, 54 A.D.3d 789, 790-91 (2d Dep’t 2008) (child support provisions vacated as unenforceable; stipulation did not include parties aware of CSSA guidelines, CSSA calculations, presumptively correct child support sum and reasons for departure from guidelines); Lepore v. Lepore, 276 A.D.2d 677, 678 (2d Dep’t 2000) (same). Accordingly, the Court denies Ms. H’s §3211(a)(1) motion to dismiss. See Cunningham v. Cunningham, 225 A.D.3d 584, 585 (2d Dep’t 2024) (upholding denial of §3211(a)(1) dismissal where submissions failed to refute allegations or conclusively constitute defense as matter of law). MS. H’S MOTION TO DISMISS BROUGHT PURSUANT TO N.Y. C.P.L.R. §3211(a)(2) IS HEREBY GRANTED A party to a family court action may file a motion to dismiss under the theory that the court does not have subject matter jurisdiction. See N.Y. C.P.L.R. §3211(a)(2) (McKinney’s 2024); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2024). A court is required to dismiss any petition over which it has no subject matter jurisdiction. See Kevin P. v. Ieisha T., 2024 Slip. Op. 03891, at *1 (2d Dep’t July 24, 2024) (custody and violation petitions properly dismissed where New York was not subject child’s home state pursuant to UCCJEA); see also Adams v. Pilarte, 204 A.D.3d 529, 529 (1st Dep’t 2022) (action properly dismissed where Federal court had exclusive jurisdiction); Ladder Capital Fin. LLC v. Portfolio Hotels, LLC, 198 A.D.3d 482, 483 (1st Dep’t 2021) (court lacked subject matter jurisdiction where agreement obligated parties to litigate in California, not in New York, and apply North Carolina law); Nassau Cty. Dep’t of Soc. Servs. v. Ablog, 194 A.D.3d 817, 819 (2d Dep’t 2021) (finding petition should have been dismissed where Florida retained continuing, exclusive jurisdiction over child support action); Criscuola v. State of N.Y., 188 A.D.3d 645, 646 (2d Dep’t 2020) (upholding dismissal grounded in want of subject matter jurisdiction since failure to comply with filing requirements deprived court of such jurisdiction); Klingsberg v. Council of Sch. Supervisors & Admi’rs-Local 1, 181 A.D.3d 949, 950 (2d Dep’t 2020) (affirming subject matter jurisdiction dismissal where cause of action preempted by Federal law); Noy v. Noy, 160 A.D.3d 885, 886 (2d Dep’t 2018) (upholding denial of §3211(a)(2) cross-motion where court not obligated to extend comity to Israeli divorce). Inasmuch as this Court agrees with Mr. W and finds that the parties’ June 23, 2021 Supreme Court stipulation fails to comport with the requirement that all CSSA recitals be present therein, this Court is powerless to invalidate such stipulation. See N.Y. FAM. CT. ACT §§461, 466 (McKinney’s 2024); Georgette D.W. v. Gary N.R., 134 A.D.3d 406, 406 (1st Dep’t 2015) (finding Family Court has no power to invalidate a Supreme Court stipulation, even where support magistrate determines stipulation fails to comport with CSSA); Castaneda v. Castaneda, 132 A.D.3d 667, 669 (2d Dep’t 2015) (same); Savini v. Burgaleta, 34 A.D.3d 686, 689 (2d Dep’t 2006) (“Nowhere in the Constitution, in the Family Court Act, or in the judgment of divorce itself, is the Family Court empowered, in effect, to invalidate a stipulation incorporated into the judgment of divorce entered by the Supreme Court.”). That is to say, this Court lacks subject matter jurisdiction to hear the matter. See Castaneda, 132 A.D.3d at 669 (finding Family Court properly granted objection to vacate support magistrate’s order based upon lack of subject matter jurisdiction where order invalidated child support provisions of parties’ stipulation). Thus, the matter is more properly heard before the Supreme Court. See Georgette D.W., 134 A.D.3d at 406 (Supreme Court stipulation’s legality must be determined by Supreme Court); see also Castaneda, 132 A.D.3d at 669; Savini, 34 A.D.3d at 689. Accordingly, the Court grants Ms. H’s §3211(a)(2) motion to dismiss. MS. H’S OTHER ARGUMENTS ARE UNAVAILING Ms. H’s argument that Mr. W’s petition should be dismissed as defective on its face since Mr. W should have filed a modification petition, rather than a support petition, is misguided. Ms. H was the child’s initial custodial parent. Any modification application relating to Mr. W’s child support obligation, while he was the non-custodial payee parent, would have necessitated the filing of a modification petition. By stipulation, Mr. W became the child’s custodial parent in 2021. Since Mr. W seeks his own support order as the child’s custodial parent, having previously been the non-custodial parent, his application is properly brought by a support petition. Accordingly, Mr. W correctly filed a support petition and he has no burden to establish that a substantial change in circumstances has occurred since the parties’ order was last entered, modified, or adjusted. See N.Y. FAM. CT. ACT §451 (McKinney’s 2024). ORDERED, that Ms. H’s motion to dismiss pursuant to New York Civil Practice Law and Rules §N.Y. C.P.L.R. §3211(a)(1) is hereby denied; and it is further, ORDERED, that Ms. H’s motion to dismiss pursuant to New York Civil Practice Law and Rules §N.Y. C.P.L.R. §3211(a)(2) is hereby granted; and it is further, ORDERED, that Mr. W’s petition is hereby dismissed as the matter is more properly heard before the Supreme 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: August 27, 2024
