Anonymous v. Anonymous
| Decision Date | 17 March 1966 |
| Parties | Paternity Petition of ANONYMOUS, Petitioner, v. ANONYMOUS, Respondent. |
| Court | New York City Court |
Leo Katzman, Forest Hills, for petitioner.
The petitioner in this paternity proceeding applies for an order authorizing the service of process on the respondent outside the State of New York.
Concededly, the respondent is at the present time a non-domiciliary of the State of New York, having removed therefrom since the filing of the petition herein. He now resides, according to the petitioner, in the State of Pennsylvania.
Petitioner bottoms her application principally on the provisions of Family Court Act, § 165 and C.P.L.R. §§ 302 and 313. However, an examination of these statutes reveal their inapplicability to the pending proceeding.
It is settled that the provisions of the C.P.L.R., to the extent 'appropriate' are applicable to the Family Court (Schwartz v. Schwartz, 23 A.D.2d 204, 259 N.Y.S.2d 751). It follows that if the sections of the C.P.L.R. relied on by the petitioner authorize the relief, the relief sought may be granted.
C.P.L.R. § 313 permits personal service outside the state of any person 'subject to the jurisdiction of the courts of the state under section 301 or 302.' The petitioner contends respondent is subject to this Court's jurisdiction under § 302 on the theory that in siring the petitioner's child he committed a 'tortious' act.
Section 302 is applicable only where the act which forms the basis of the cause of action resulted from (1) the transaction of business in the State of New York, (2) the commission of a tortious act or (3) the ownership, use and operation of real estate.
Obviously, the cause of action at bar did not arise out of the transaction of business or ownership, use and operation of real estate in New York State. If jurisdiction under § 302 lies, it must be based on the commission of a tortious act in this state.
This proceeding is not one predicated on a tortious act (cf. Hoard v. U.S. Paint, Lacquer & Chem. Co., 44 Misc.2d 72, 253 N.Y.S.2d 89). An act leading to pregnancy need not constitute a tortious act. Indeed, petitioner indicates the relationship between her and the respondent was voluntary and of comparatively long standing.
The petitioner's reliance on State of New York v. Davies et al., 24 A.D.2d 240, 265 N.Y.S.2d 358 (App.Div.3rd Dept. Dec. 20, 1965) is unavailing. That case holds that § 302 is applicable to a defendant who is a domiciliary at the time of service as well as a defendant who is a...
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