In re G.O.
| Decision Date | 10 July 2020 |
| Docket Number | O-20839-19 |
| Citation | 2020 NY Slip Op 20184 |
| Parties | In the Matter of a Proceeding under Article 8 of the Family Court Act F.G.O., Petitioner, B.G., Respondent. |
| Court | New York Family Court |
Joseph Moliterno, Esq.670 White Plains Road, Suite 207Scarsdale, NY 10583
New York Legal Assistance Group7 Hanover Square, 18th FloorNew York, NY 10004By: Rachel Lieb, Esq.
NOTICE:YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN A FINDING OF CONTEMPT, A MONETARY FINE AND/OR YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
Before the Court is a motion to dismiss this Family Offense Proceeding by the respondent on the ground of diplomatic immunity. The Court has received and reviewed the following submissions: 1) Respondent's Motion to Dismiss, Affirmation and accompanying exhibits; 2) Petitioner's Affirmation in Opposition; 3) Respondent's reply affirmation; and 4) Surreply affirmations from both parties which were requested by the Court.
This proceeding was commenced in July 2019. Petitioner is the spouse of the Respondent and she seeks a final order of protection. The petition describes insults and verbal threats allegedly made by Respondent to Petitioner between 2017 and 2019. Although the petition does not provide great detail it also references that the parties have a home country, that Respondent allegedly told Petitioner to "go back home" and that Respondent would not build her a home. As for relief, among other things, the petition requests that Respondent "respect his promise to build the Petitioner a house in her country before his work contract here ends."
At the initial appearance before a Referee of this Court, a temporary order of protection was issued directing Respondent to refrain from committing any of the stated family offenses against Petitioner. This temporary order has been continued until present and this matter has been assigned to various jurists until it was assigned to this Court in February 2020. Both parties were assigned counsel; more recently Petitioner's current counsel was substituted for assigned counsel.
Although the issue of Respondent's diplomatic status was raised at the February 24, 2020 conference before this Court, no motion to dismiss on this ground was filed until on or about May 26, 2020.
Respondent argues for dismissal of this proceeding on the basis of Respondent's immunity pursuant to the Vienna Convention on Diplomatic Relations (1961), a copy of which is attached to the motion for reference. He argues that none of the exceptions to immunity in the Convention apply here.
Respondent states that he is a diplomatic agent of the Permanent Mission of the Republic of Congo to the United Nations. To demonstrate this status, Respondent has attached a copy of a document issued by the Permanent Mission of the Republic of Congo to the United Nations, dated October 9, 2019, which identifies Respondent as a diplomatic agent. In particular, it explains that Respondent is First Secretary to the Permanent Mission of the Republic of Congo.
Separately, this document notes that Respondent initiated divorce proceedings against Petitioner before the national courts of the Congo, and, referencing the Vienna Convention, that Respondent has immunity from criminal and civil jurisdiction in New York.
Respondent also provides a document from the United States Mission to the United Nations dated October 24, 2019 and executed by James B. Donovan, Minister Counselor for Host Country Affairs of the United States Mission to the United Nations. Donovan states that the official records of the United States Mission indicate that Respondent was "notified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity."
In response to the Court's request, Respondent provided a United Nations Diplomatic Identification Card with his name, personal information and photograph, issued by the U.S. Department of State, which expires on June 30, 2022. The back of the card explicitly states that the bearer of the card "enjoys immunity from criminal jurisdiction."
In opposition to the motion, Petitioner does not contest via affidavit that Respondent is in fact a diplomatic agent. Nor does she present any factual claims to the contrary regarding his status. Instead, Petitioner claims that the Vienna Convention does not apply to this case. In this regard, citing a separate Convention — The Convention of Privileges and Immunities of the United Nations (1946) — Petitioner claims that immunity only applies to acts committed by a diplomat in his or her official capacity.
Next, the Petitioner contends that even if immunity under the Vienna Convention is applicable here, Respondent has not sufficiently established his diplomatic status. In any event, Petitioner argues that the motion is not timely and that the immunity defense has been waived.
Petitioner also contends in her surreply that Respondent's identity card only protects him from criminal prosecution and not from civil jurisdiction. She also argues that in the Democratic Republic of Congo there are limited law protecting women from domestic violence as found by the United Nations, and thus if this matter is dismissed Petitioner will have little recourse in her home country.
Petitioner argues that in order to establish Respondent is a diplomat the State Department must certify to this Court that he is in fact a diplomat and entitled to immunity. In support of this contention, Petitioner cites certain precedent in which diplomatic status was established in the manner she describes (see Matter of Terrence K. (Lydia K.), 135 AD2d 857 [2d Dept 1987][ that certificate from Department of State attesting to the diplomatic status of an individual or individuals is conclusive]; see also U.S. v. Al-Hamdi, 356 F.3d 564 [4th Cir. 2004][same]) or finding that diplomats had to register with the State Department (see In re Grand Jury Subpoenas Returnable December 16, 2015, 871 F.3d 141 [2d Cir. 2017][ that procedure under, inter alia, the Vienna Convention, requires all foreign personnel [to] register with the State Department to be entitled to diplomatic immunity]).
While a certificate from the Department of State may be the best evidence and conclusive on the matter of a person's diplomatic status, the cases cited by Petitioner do not stand for the proposition that such certificate is required to prove the status to a Court. Here, Respondent has provided his United Nations Diplomatic Identification Card, issued by the U.S. Department of State. Notably, the card indicates that Respondent, i.e. the bearer of the card, "has been duly notified to the Department of State."
Respondent has also provided the Court copies of memoranda from the Permanent Mission of the Republic of the Congo to the United Nations and the United States Mission to the United Nations. Both documents are on official letter head of the respective Missions and both indicate that Respondent is a diplomatic agent.
Notably, the memorandum from James B. Donovan of the United States Mission explains that Donovan is responsible for overseeing the registration and maintaining the official records of members of Permanent Missions to the United Nations and that the "official records of the United States Mission indicate [Respondent] was notified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity." Donovan also proceeds to state that as a diplomatic agent Respondent is entitled to diplomatic immunity pursuant to the Vienna Convention.
Petitioner questions the admissibility of the memoranda documents provided by Respondent. While the memoranda submitted might be admissible as business records, the Court also notes...
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