Pamela P. v. Ray J.

• Citation: 432 N.Y.S.2d 838,105 Misc.2d 743
• Parties: In the Matter of PAMELA P., * Petitioner, v. RAY J.,* Respondent.
• Decision Date: 03 November 1980
• Court: New York Family Court

Page 838

432 N.Y.S.2d 838

105 Misc.2d 743

In the Matter of PAMELA P., ^* Petitioner, v. RAY J.,* Respondent.

Family Court, New York County.

Nov. 3, 1980.

Wachtell, Manheim & Grouf, Steven Harnick, New York City, for petitioner.

Clark, Wulf, Levine & Peratis, Kathleen Peratis, New York City, for respondent.

JACK TURRET, Judge:

In this paternity proceeding, the court has before it (1) petitioner's motion to strike respondent's pleadings, or, in the alternative, to compel his deposition, and (2) respondent's motion to dismiss for lack of personal jurisdiction. The court will deal first with the motion to dismiss.

Due process requires both an adequate underlying basis for the court's assertion of personal jurisdiction over a Respondent (CPLR 301) and service of process that is reasonably calculated to give the respondent actual notice of the proceeding. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Section 525(c) of the Family Court Act addresses only the legislature's concern that actual notice be given the respondent before a judgment is entered against him. In this instance, notice has been given according to statutory requirements but Respondent challenges the underlying basis for the court's power, asserting that he is not, in fact, a resident of this state, and is therefore beyond its jurisdiction, despite satisfaction of the notice requirement.

Paternity proceedings are governed by Article 5 of the Family Court Act ("FCA"). Section 525 of that Act, entitled "service of summons," provides in subdivision (c):

"In any case, whether or not service is attempted under subdivision (a) or subdivision (b), service of a summons and petition under this section may be effected by mail alone to the last known address of the person to be served." (emphasis added)

Petitioner and her attorney appeared before this court on June 27, 1980. Upon petitioner's sworn testimony as to Respondent's address and current unavailability to receive personal service, mail service was authorized. Mail service is all that is required under FCA § 525. The special requirements of the CPLR are not incorporated into Family Court procedures in this instance. FCA § 165; Horn v. Horton, 90 Misc.2d 159, 162, 393 N.Y.S.2d 537 (Fam. Ct. Steuben Co., Dugan, J. 1977).

The court's exercise of personal jurisdiction over respondent is not based on the long-arm statute, CPLR 302(b), there being, as yet, no obligation to pay child support. Matter of Anonymous, New York Law Journal, 6/30/80, p. 13, c.6 (Fam.Ct.N.Y. Co. Turret, J.)

The basis for this court's jurisdiction is petitioner's allegation that respondent is a resident of this state. (Petitioner's affidavit dated 9/27/80; petition dated 6/24/80). Respondent's denial of New York residence raises an issue of fact. A trial to determine his residence as it relates to the jurisdictional question is required. Where, as here, the challenge is to the court's competence to decide the matter, an immediate trial on that limited issue is appropriate. CPLR 3211(c), Howard v. Spitalnik, 68 A.D.2d 803, 414 N.Y.S.2d 8 (1st Dept. 1979). Respondent's motion to dismiss is held in abeyance pending a determination on the issue of his residence, to be held before me in Part III on November 20, 1980.

Service of process is not the issue to be examined at that hearing. Respondent clearly has received actual notice of this proceeding. See Dept. of Social Services v. Orbaker, 89 Misc.2d 1015, 393 N.Y.S.2d 657 (Wayne Co.Fam.Ct., Oliver, J.) The only issue to be considered is respondent's residence.

Respondent, having moved to dismiss for lack of personal jurisdiction, is not yet deemed to have entered a general appearance conferring jurisdiction. CPLR 320(b). The purpose of the hearing is limited, therefore, to the jurisdictional issue, and does not in any sense encompass a hearing on the merits. Petitioner may introduce evidence of respondent's alleged New York residence. The only remaining question is whether she may compel respondent to testify on that issue.

The court is mindful of the statutory privilege afforded the respondent by FCA § 531:

"The mother or the alleged father shall be competent to testify but the respondent shall not be compelled to testify."

In Margaret B. v. Gilbert W., 41 N.Y.2d 971, 395 N.Y.S.2d 162, 363 N.E.2d 712 (1977) the Court of Appeals ruled that the privilege extended to pre-trial inquiry as to respondent's name, addresses and social security number. The Margaret B. case is distinguishable, however, from the case before this court.

In Margaret B. the respondent raised the affirmation defense of the statute of limitations. Petitioner, in order to toll the two-year limitation, had to produce evidence of respondent's written acknowledgment of paternity or past support of the child. FCA 517(a). As the Appellate Division, First Department stated, respondent was "asked to give certain information which may enable petitioner to find evidence that he has either acknowledged the paternity of the child in writing or has supported them...." 51 A.D.2d 456, 460, 382 N.Y.S.2d 306 (1st Dept.) The court of Appeals reversed the Appellate Division's allowance of disclosure...