Tanash v. Amien

82 A.D.3d 1252, 919 N.Y.2d 392

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2011
• Status: Published

Opinion

The mother correctly contends that the Family Court, Kings County, has subject matter jurisdiction over this custody proceeding (see Domestic Relations Law § 76 [1] [a]; Matter of Felty v Felty, 66 AD3d 64, 70 [2009]). 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 [2005], quoting Mrwik v Mrwik, 49 AD2d 750, 751 [1975]). 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. Mastro, J.E, Dillon, Balkin and Miller, JJ., concur.