From Casetext: Smarter Legal Research

In re Hanan A. Tanash

Appellate Division of the Supreme Court of New York, Second Department
Mar 29, 2011
82 A.D.3d 1252 (N.Y. App. Div. 2011)

Opinion

Nos. 2010-06709 (Docket No. V-04793-10).

March 29, 2011.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Kennedy, J.), dated June 9, 2010, which dismissed the petition, without prejudice, on the ground that proof of service was defective.

Mark Brandys, New York, N.Y., for appellant.

Before: Mastro, J.P., Dillon, Balkin and Miller, JJ.


Ordered that the order is affirmed, without costs or disbursements.

The mother correctly contends that the Family Court, Kings County, has subject matter jurisdiction over this custody proceeding ( see Domestic Relations Law § 76 [a]; Matter of Felty v Felty, 66 AD3d 64, 70). However, the Family Court properly dismissed the petition on the ground that proof of service was defective. While the mother does not dispute that the affidavit of service contained a defect, she contends that the defect could have been cured. Indeed, "[a]n improperly executed affidavit of service is a mere irregularity and not a jurisdictional defect [and] `[t]he crucial question is whether or not [the party being served] was in fact served with process'" ( Mendez v Kyung Yoo, 23 AD3d 354, 355-356, quoting Mrwik v Mrwik, 49 AD2d 750, 751). Here, however, the mother presented no additional proof to demonstrate the validity of the affidavit of service, or to show that the father was in fact served. She merely submitted to the Family Court the same affidavit of service which had previously been found insufficient. Therefore, the Family Court properly dismissed the petition without prejudice.


Summaries of

In re Hanan A. Tanash

Appellate Division of the Supreme Court of New York, Second Department
Mar 29, 2011
82 A.D.3d 1252 (N.Y. App. Div. 2011)
Case details for

In re Hanan A. Tanash

Case Details

Full title:In the Matter of HANAN A. TANASH, Appellant, v. ASHRAF A. AMIEN, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 29, 2011

Citations

82 A.D.3d 1252 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 2687
919 N.Y.S.2d 392

Citing Cases

Spectrum Rests. LLC v. Chinese Staff & Workers' Ass'n, Inc.

Even without consideration of Ms. Shen's controverting affidavit, the affidavit of service does not state…

Noel v. Joseph

In those instances in which process has not been served upon a defendant, all subsequent proceedings will be…