MATTER OF ETUK v. Etuk

• Decision Date: 16 December 2002
• Parties: In the Matter of MERLEINE ETUK, Respondent,<BR>v.<BR>LEONARD M. ETUK, Appellant.
• Court: New York Supreme Court — Appellate Division

300 A.D.2d 483

751 N.Y.S.2d 566

In the Matter of MERLEINE ETUK, Respondent,

v.LEONARD M. ETUK, Appellant.

Decided December 16, 2002.

Florio, J.P., Friedmann, Adams and Crane, JJ., concur.

Ordered that the order dated November 9, 2001, is reversed, on the law, without costs or disbursements, the objections are reinstated, and the matter is remitted to the Family Court, Dutchess County, for further proceedings on the objections.

The father served his objections to an order of a Hearing Examiner on the attorney who represented the mother in proceedings before the Hearing Examiner, but did not directly serve the mother herself. The Family Court dismissed the father's objections for failure to serve them on the "opposing party" (see Family Ct Act § 439 [e]). Since there is no provision in Family Court Act § 439 (e) addressing the issue of whether service on the attorney of a represented party will or will not constitute service on the "opposing party," the provisions of the Civil Practice Law and Rules come into play (see Family Ct Act § 165 [a]; Matter of Masse v Masse, 273 AD2d 928, 929).

Pursuant to CPLR 2103 (b), "papers to be served upon a party"—this includes an "opposing party" described in Family Court Act § 439 (e)—"shall be served upon the party's attorney" (emphasis added). Separate procedures exist for serving a party who has not appeared by counsel (see CPLR 2103 [c]). Furthermore, CPLR 321 (a) gives a natural person the option of appearing by an attorney or in person. Once the choice is made, any change of attorney, withdrawal or death, removal, or disability of the attorney is governed by CPLR 321 (b) and (c). Until then, a represented party "may not act in person * * * except by consent of the court" (CPLR 321 [a]), an exception not applicable in this case.

CPLR 2103 (b) requires service on the attorney for a party "[e]xcept where otherwise prescribed by law or order of [the] court." An example of such a prescription is furnished by CPLR 2303 (a) mandating service of subpoenas in the same manner as service of a summons. By contrast, the reference to service on an "opposing party" in Family Court Act § 439 (e) contains no overriding directive concerning the manner of such service. Family Court Act § 439 (e), therefore, is perfectly complementary to CPLR 2103 (b), and we conclude that the CPLR provision for service on an opposing party represented by counsel requires service on the attorney, not the party (see Matter of Oneida County Dept. of Social Servs. [Hurd] v Hurd, 295 AD2d 70).

The cases on which the mother relies to vindicate the dismissal of the father's objections are inapposite because they all fault the objecting party for failing to file proof of service of the objections as required by Family Court Act § 439 (e) (see Matter of Mayeri v Mayeri, 279 AD2d 473, 474; Matter of Rinaldi v Rinaldi, 239 AD2d 506, 507; Matter of Star v Frazer, 232 AD2d 570, 571; Matter of Fokine v Prisciantelli, 208 AD2d 534). By contrast, the mother never argued that the father failed to file proof of...