Matter of Saber v Saccone

[*1] Matter of Saber v Saccone 2009 NY Slip Op 51183(U) [23 Misc 3d 1138(A)] Decided on June 10, 2009 Family Court, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 10, 2009
Family Court, Essex County

In the Matter of a Proceeding for Child Support Parvaz Ahmad Saber, Petitioner,

against

Ellen T. Saccone, Respondent.



F-00621-07/08



Virginia J. Morrow, Esq., Saranac Lake, New York, for Petitioner.

Parvaz Ahmad Saber, Pro Se, , New York, for Respondent.

Richard B. Meyer, J.

Objections filed by Petitioner Parvaz Ahmad Saber (Saber) to an order of the Support Magistrate (Heussi) dated March 24, 2009 which dismissed Saber's modification petition after it had been withdrawn by his counsel.

Petitioner objects to the dismissal, claiming that the Support Magistrate violated his rights by refusing to grant Saber's then counsel's request for a two minute recess to speak both with the representative from the child support unit about possible discrepancies in the unit's calculations and [*2]with her client about possibly withdrawing his petition prior to calling a witness, threatening dismissal of Saber's petition if his counsel did not immediately call a witness, and then, after dismissing his petition, granting a five minute recess as requested by Respondent's counsel. Saber alleges in his objections that he withdrew his petition in response to anger displayed by the Support Magistrate during the course of the proceeding and his belief that he could not expect justice in a courtroom presided over by the Support Magistrate. Respondent Ellen T. Saccone (Saccone) opposes the objections as untimely, and claims also that the objections are improper since Saber withdrew his modification petition. For the reasons that follow, Saber's objections are granted.

This is not the first time that this court has been asked to review the actions of the Support Magistrate in this case (see Saccone v. Saber, 23 Misc 3d 823, ___ NYS2d ____, 2009 WL 416201). Previously, this court vacated the Support Magistrate's default order finding Saber to be in willful violation of a March 4, 2008 child support order for failure to pay his pro-rata share of day care expenses, and dismissing his modification petition. On that occasion, the Support Magistrate's actions were found to be an abuse of discretion for refusing to grant Saber an adjournment due to his counsel's prior engagement. The instant matter represents the return of the issues to the Support Magistrate pursuant to that decision. This time, although Saber appeared with counsel, the Support Magistrate refused to allow Saber and his counsel a two minute recess and after dismissing his petition granted the request of Saccone's counsel for a five minute recess. The unedited, verbatim transcript of the March 24, 2009 proceeding is as follows (Saber is referred to as the respondent and Saccone as the petitioner):

"THE COURT:These are the matters involving Parvaz Ahmed Saber and Ellen Saccone. Mr. Saber is present with his attorney Miss Kahn. Is that correct?

ATTORNEY FOR RESPONDENT:Yes, Your Honor.

THE COURT:And Ms. Saccone is present with her attorney Miss Morrow. This matter was set down for a trial today on both petitions. Ms. Kahn are you ready to proceed or do you have modifications?

ATTORNEY FOR RESPONDENT:Your Honor, I do have a little bit um, for my, I need to talk to the child support unit person.

THE COURT:Do you understand this was scheduled for one o'clock for a trial today. If you're not ready to proceed, your petition will be dismissed.

ATTORNEY FOR RESPONDENT:Yes, but there's some discrepancies in the calculations which if I have a look at them . . .

THE COURT:Ms. Kahn, I have not heard any proof yet on any violation petition. Ms. Morrow is proceeding with her violation and if she calls somebody from the support unit, you'll get a chance to cross examine that witness. But I'm sorry, these matters have been scheduled since last [*3]summer.

ATTORNEY FOR PETITIONER:Your Honor, if counsel wants five minutes . . .

THE COURT:I don't care how much time she might want Ms. Morrow, thank you very much. Ma'am, are you prepared to call a witness or are you withdrawing the modification?

ATTORNEY FOR RESPONDENT: No Your Honor. I need to consult with my client.

THE COURT:Ms. Kahn?

ATTORNEY FOR RESPONDENT:Yes, Your Honor?

THE COURT:We were scheduled at one o'clock. It's now five minutes after one. This matter has been scheduled for trial. Mr. Saber chose not to show up be with his attorney. I dismissed his petition based upon incorrect and erroneous objections that were filed. Our Family Court Judge restored this matter to my calendar. I set this down back in February. February 10th? Wasn't that the day of the notice?

ATTORNEY FOR PETITIONER:I believe so Your Honor but this matter was also recently scheduled upstairs for a custody proceeding . . .

THE COURT:I don't know about anything that was scheduled upstairs . . .

ATTORNEY FOR PETITIONER:That we just got out of. I'm aware of that but we did just get out of that.

THE COURT:I re-scheduled for a trial. Either call a witness or I will dismiss your petition, Ms. Kahn. I don't know that it's any more clear than that.

ATTORNEY FOR RESPONDENT:Your Honor, I'm taking two minutes to talk with my client.

THE COURT:The petition is dismissed. Ms. Morrow, are you ready to proceed with your petition?

ATTORNEY FOR PETITIONER:I uh, I am Your Honor. I, I just . . .

RESPONDENT:[Inaudible]. Your Honor.

THE COURT:Sir, you have an attorney.

RESPONDENT:Yes, I have to ask her . . .

THE COURT:Sir, you may not address the court. Address your attorney. [*4]

ATTORNEY FOR RESPONDENT:Your Honor, just let me address the court for a minute. I was just trying to bring to the court's notice to um, to make matters clearer before the court. So there can be some justice done. So um, if I can't even get two minutes to talk with my client, uh, that's just uh, Your Honor, that's denying certain rights to my client.

THE COURT:Denying certain rights? When were you retained, Ms. Kahn?

ATTORNEY FOR RESPONDENT:Very recently Your Honor.

THE COURT:And this is the first opportunity that you've had to discuss this case with your client?

ATTORNEY FOR RESPONDENT:Your Honor, this is not the first opportunity but . . .

THE COURT:Then why, then why in the world Ms. Kahn, do you need two more minutes when we started this three minutes late?

ATTORNEY FOR RESPONDENT:Your Honor then I would . . .

THE COURT:Which is certainly not my practice.

ATTORNEY FOR RESPONDENT:Alright Your Honor. I'm not used to your practice. I don't the practice in this county.

THE COURT:Well, in this county you should have figured out what the practice is in Essex county before you accepted a case in this county.

ATTORNEY FOR RESPONDENT:Alright Your Honor, for future reference, I will remember that.

THE COURT:I'm sure there will be no future here Ms. Kahn.

ATTORNEY FOR RESPONDENT:Your Honor, I would request that you we be allowed to withdraw uh, the modification petition, then.

THE COURT:Ms. Morrow, do you have any objections?

ATTORNEY FOR PETITIONER:No objection, Your Honor.

THE COURT:The petition's withdrawn and dismissed. Ms. Morrow, are you ready to continue with your violation?

ATTORNEY FOR PETITIONER:Yes Your Honor. [*5]

THE COURT:Is there any agreement on the violation?

ATTORNEY FOR PETITIONER:Um, perhaps for five minutes.

THE COURT:Call a witness please.

ATTORNEY FOR PETITIONER:I'm the one prosecuting, I don't have a problem with talking with Ms. Kahn for five minutes. But if the court is not willing to indulge that, I , I will proceed.

ATTORNEY FOR RESPONDENT:Your Honor, I will be happy to talk with the other attorney.

THE COURT:You have exactly five minutes from right now."

Reversal of a child support modification hearing is required when such hearing "fail[s] to comply with the rudiments of due process" (Pringle v. Pringle, 296 AD2d 828, 744 NYS2d 784). The right to be heard as contained in the Due Process Clause is a cornerstone of our system of justice (US Const. Amend. 14; Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 70 SCt 652, 94 LEd 865; In the Matter of Jung, 11NY3d 365, 870 NYS2d 819, 899 NE2d 925 ; People v. David W., 95 NY2d 130, 711 NYS2d 134, 733 NE2d 206; Commissioner of Social Services of the City of New York v. Remy K.Y., 298 AD2d 261, 748 NYS2d 732). "It is undisputed that due process is violated unless the opportunity to be heard is afforded at a meaningful time and in a meaningful manner (Fuentes v. Shevin, 407 US 67, 92 SCt 1983, 32 LEd2d 556; Armstrong v. Manzo, 380 US 545, 85 SCt 1187, 14 LEd2d 62; Mullane v. Central Hanover Trust Co., 339 US 306, 70 SCt 652, 94 LEd 865)" (Jones v. Berman , 37 NY2d 42, 55, 371 NYS2d 422, 431, 332 NE2d 303, 310).

No legitimate basis exists in the record justifying the Support Magistrate's refusal to allow Saber's counsel a two minute recess. The abject nature of such refusal is exacerbated by the Support Magistrate's granting of a five minute recess to Saccone's counsel immediately after denying Saber's request and dismissing his modification petition. The actions of the Support Magistrate were arbitrary and an abuse of discretion (see, e.g., People v. Spears, 64 NY2d 698, 485 NYS2d 521, 474 NE2d 1189; Santora & McKay v. Mazzella, 211 AD2d 460, 620 NYS2d 395). Though Saber's petition was indeed withdrawn on the record by his attorney, such clearly was done in direct response to the Support Magistrate's first having dismissed that petition as a tactical move by his counsel to preserve the merits of his petition for any possible later litigation. Any argument advanced by Saccone that the withdrawal was voluntary is thus without merit.

Family Court Support Magistrates are required to "comply with the rules [of Judicial Conduct] in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct" (Advisory Comm. on Judicial Ethics, Opinion 03-80; see 22 NYCRR 100.6). "[A] judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity . . ." (22 NYCRR 100.3[B][3]). "[T]he duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike [*6]while being patient and deliberate" (Commentary, Code of Judicial Conduct, Canon 3, McKinney's Consolidated Laws, Book 29 Appendix). Additionally, "[a] judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law" (22 NYCRR 100.3 [B][6]). In light of the history of this case, this and all related and future child support matters involving the parties shall be assigned to a different Support Magistrate.

Finally, Saccone's claim that Saber's objections are untimely is not supported by the record and is denied. No proof of service of the order dismissing Saber's modification petition has been furnished. Saccone relies upon the mailing of the order by the Family Court Clerk's office. The Clerk's records reveal only that the decision and order was mailed on March 25, 2009, and that Saber's objections were filed 37 days later on May 1, 2009. However, the records do not specifically indicate whether the mailing was to counsel, the parties, or both, and the actual date of mailing cannot be ascertained since the Family Court mail goes directly to a mail room operated by Essex County where envelopes and parcels are weighed and postage is affixed. At an unknown later time, county employees deliver those mailings to the United States Post Office in Elizabethtown. The County mail room is not an official depository of the Post Office, and there is no proof from which this Court can determine, without speculation, that the mailing here occurred on any particular date.

Significantly, the responsibility to effectuate service of an order so that the time to file objections can begin to run lies not with the Court but with the prevailing party or his or her counsel. "Where a party's rights will be affected by an order, the successful party must serve a copy of the order on the adverse party in order to give it validity (McCormick v. Mars Assoc., 25 AD2d 433, 265 NYS2d 1004; see, also, Siegel, New York Practice, §250, 309; 2A Weinstein-Korn-Miller, NY CivPrac, §2220.02; 2 Carmody-Wait 2d, NY Prac, §8:105, p. 124)" (Cultural Center Com'n v. Kokoritsis, 103 AD2d 1018, 1018, 478 NYS2d 199, 200). In order for the 30 or 35 day period under FCA §439(e) to commence against the non-prevailing party, service of the order with notice of entry is required (see Canfield v. Canfield, 185 AD2d 611, 587 NYS2d 558). Since the record contains no evidence as to when the order with notice of entry was served upon Saber, Saccone has failed to establish that his objections were untimely filed (see, Ogborn v. Hilts, 262 AD2d 857, 692 NYS2d 490; Canfield v. Canfield, supra ).

IT IS HEREBY ORDERED that Saber's objections are granted and the matter is remanded to a new Support Magistrate for proceedings not inconsistent herewith.

ENTER

Richard B. Meyer

J.F.C.

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