Lojano v Otero

[*1] Lojano v Otero 2007 NY Slip Op 51030(U) [15 Misc 3d 1138(A)] Decided on May 22, 2007 Supreme Court, Westchester County Lubell, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2007
Supreme Court, Westchester County

Jose G. Lojano, Plaintiff,

against

Carmen S. Otero, Defendant.



14950-06

Lewis Jay Lubell, J.

By Decision & Order of February 28, 2007, the Court granted plaintiff's motion for an order permitting renewal of an earlier motion seeking an ex parte order permitting service by publication of the summons and verified complaint in this matrimonial action (CPLR §315). Upon renewal, the Court determined that plaintiff had met his burden of establishing that "service [upon defendant could not] be made by another prescribed method with due diligence" (CPLR §315) and, in the interest of justice (CPLR §306-b), extended plaintiff's time to serve the summons and complaint conterminous with the service allowed therein by way of publication.

In pertinent part, the March 2, 2007 Order of Publication provides:

. . . [P]ursuant to Civil Practice Law and Rules Section 316(b) a copy of the summons with notice and notice of publication shall be served upon the defendant . . . by mail on or before the first date of publication. . .

Now, upon the presentation to the Court of, among other things, an Affidavit of Publication dated April 12, 2007, Affidavit of Mailing dated April 17, 2007, Note of Issue - Uncontested Divorce Action, Affidavit of Plaintiff dated April 17, 2007, proposed Findings of Fact and Conclusions of Law, and proposed Judgment of Divorce, plaintiff moves for the entry of Judgment of Divorce upon defendant's default. The application is denied.

Within the bounds of Constitutional protection, it is the Legislature which determines what steps are necessary to confer jurisdiction upon the courts of the State. Towards that end, the Legislature of New York has seen fit to prescribe the method for service of the summons upon a defendant in a matrimonial action where the defendant's location cannot be determined with "due diligence" (CPLR §§315; 316; DRL §232). [*2]

"The observance of requirements left by the statute to the discretion of the court or judge [such as what newspapers to use for service by publication pursuant to CPLR §316] may not reasonably be regarded as a statutory condition to the court's jurisdiction" (Valz v. Sheepshead Bay Bungalow Corp., 249 NY 122, 129 [1928]). Within the limits of that discretion a court may cure any defects by changing the requirements that it has itself imposed (id.).

However, notice of the pendency of an action upon a defendant is "nugatory and may be disregarded" where it is provided in a manner other than that which is statutorily prescribed and over which the court is not granted any discretion (Valz v. Sheepshead Bay Bungalow Corp., supra. at p. 130 citing Wuchter v. Pizzulti, 276 U.S. 13 [1928]; see, Doheny v. Worden, 75 A.D. 47 [4th Dept., 1902][noncompliance with statutory mandate of manner or time of publication is a jurisdictional defect]; Caton v Caton, 72 Misc 2d 544 [Sup. Ct., Monroe Cty., 1972][jurisdictional defect for failure to publish within twenty days after the order is granted [CPLR 316, subd. (c)]). Such jurisdictional defects cannot be waived by the Court nunc pro tunc or otherwise (Barleycorn v. Woolley, 109 Misc. 224 [Sup. Ct., Bronx Cty., 1919]), nor can they be ignored.

An examination of the "Affidavit of Publication from the Journal News" reveals that the first date of publication of the summons with notice was March 20, 2007. Since CPLR §316(b) fixes the first date of publication as the last date by which plaintiff must mail a copy of the summons with notice and notice of publication to defendant, here plaintiff must have accomplished the statutorily prescribed mailing by March 20, 2007.

The statutory mailing requirements of section 316(b)("Mailing to accompany publication in matrimonial actions") is not discretionary with the Court; it is a nonwaivable statutory precondition to the Court's jurisdiction.

Here, since the "Affidavit of Service of Summons (and Complaint)" reveals that copies of the "summons and complaint" were not served on defendant by mail until April 17, 2007, some 28 days after the March 20, 2007 deadline, and there is absolutely no showing that a copy of the notice of publication was ever served on defendant, plaintiff has failed to show compliance with to the nondiscretionary statutory mailing mandate of CPLR §316(b). Accordingly, the Court lacks jurisdiction over the defendant.

Based upon the foregoing, it is hereby

ORDERED, that plaintiff's application for a judgment of divorce upon default of the defendant is denied.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: White Plains, New York [*3]

May 22, 2007

__________________________________

HON. LEWIS J. LUBELL, J.S.C.

TO:John H. Hersh, Esq.

First Federal Building

Peekskill, NY 10566