Matter of F.G.O. v B.G.

[*1] Matter of F.G.O. v B.G. 2020 NY Slip Op 20184 Decided on July 10, 2020 Family Court, Bronx County Chesler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 10, 2020
Family Court, Bronx County

In the Matter of a Proceeding under Article 8 of the Family Court Act F.G.O., Petitioner, B.G., Respondent.



O-20839-19



Attorney for Petitioner FGO

Joseph Moliterno, Esq.670 White Plains Road, Suite 207Scarsdale, NY 10583

Attorney for Respondent BG

New York Legal Assistance Group7 Hanover Square, 18th FloorNew York, NY 10004By: Rachel Lieb, Esq.
Ariel D. Chesler, J.

[*2]NOTICE:YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN A FINDING OF CONTEMPT, A MONETARY FINE AND/OR YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

ARIEL D. CHESLER, J.:

Before the Court is a motion to dismiss this Family Offense Proceeding by the respondent on the ground of diplomatic immunity. The Court has received and reviewed the following submissions: 1) Respondent's Motion to Dismiss, Affirmation and accompanying exhibits; 2) Petitioner's Affirmation in Opposition; 3) Respondent's reply affirmation; and 4) Surreply affirmations from both parties which were requested by the Court.

BACKGROUND AND POSITIONS OF THE PARTIES

This proceeding was commenced in July 2019. Petitioner is the spouse of the Respondent and she seeks a final order of protection. The petition describes insults and verbal threats allegedly made by Respondent to Petitioner between 2017 and 2019. Although the petition does not provide great detail it also references that the parties have a home country, that Respondent allegedly told Petitioner to "go back home" and that Respondent would not build her a home. As for relief, among other things, the petition requests that Respondent "respect his promise to build the Petitioner a house in her country before his work contract here ends."

At the initial appearance before a Referee of this Court, a temporary order of protection was issued directing Respondent to refrain from committing any of the stated family offenses against Petitioner. This temporary order has been continued until present and this matter has been assigned to various jurists until it was assigned to this Court in February 2020. Both parties were assigned counsel; more recently Petitioner's current counsel was substituted for assigned counsel.

Although the issue of Respondent's diplomatic status was raised at the February 24, 2020 conference before this Court, no motion to dismiss on this ground was filed until on or about May 26, 2020.

Respondent argues for dismissal of this proceeding on the basis of Respondent's immunity pursuant to the Vienna Convention on Diplomatic Relations (1961), a copy of which is attached to the motion for reference. He argues that none of the exceptions to immunity in the Convention apply here.

Respondent states that he is a diplomatic agent of the Permanent Mission of the Republic of Congo to the United Nations. To demonstrate this status, Respondent has attached a copy of a document issued by the Permanent Mission of the Republic of Congo to the United Nations, dated October 9, 2019, which identifies Respondent as a diplomatic agent. In particular, it explains that Respondent is First Secretary to the Permanent Mission of the Republic of Congo.

Separately, this document notes that Respondent initiated divorce proceedings against Petitioner before the national courts of the Congo, and, referencing the Vienna Convention, that Respondent has immunity from criminal and civil jurisdiction in New York.

Respondent also provides a document from the United States Mission to the United Nations dated October 24, 2019 and executed by James B. Donovan, Minister Counselor for Host Country Affairs of the United States Mission to the United Nations. Donovan states that the official records of the United States Mission indicate that Respondent was "notified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity."

In response to the Court's request, Respondent provided a United Nations Diplomatic Identification Card with his name, personal information and photograph, issued by the U.S. Department of State, which expires on June 30, 2022. The back of the card explicitly states that the bearer of the card "enjoys immunity from criminal jurisdiction."

In opposition to the motion, Petitioner does not contest via affidavit that Respondent is in fact a diplomatic agent. Nor does she present any factual claims to the contrary regarding his status. Instead, Petitioner claims that the Vienna Convention does not apply to this case. In this regard, citing a separate Convention — The Convention of Privileges and Immunities of the United Nations (1946) — Petitioner claims that immunity only applies to acts committed by a diplomat in his or her official capacity.

Next, the Petitioner contends that even if immunity under the Vienna Convention is applicable here, Respondent has not sufficiently established his diplomatic status. In any event, Petitioner argues that the motion is not timely and that the immunity defense has been waived.

Petitioner also contends in her surreply that Respondent's identity card only protects him from criminal prosecution and not from civil jurisdiction. She also argues that in the Democratic Republic of Congo there are limited law protecting women from domestic violence as found by the United Nations, and thus if this matter is dismissed Petitioner will have little recourse in her home country.

LEGAL ANALYSIS AND DISCUSSION

Petitioner argues that in order to establish Respondent is a diplomat the State Department must certify to this Court that he is in fact a diplomat and entitled to immunity. In support of this contention, Petitioner cites certain precedent in which diplomatic status was established in the manner she describes (see Matter of Terrence K. (Lydia K.), 135 AD2d 857 [2d Dept 1987][finding that certificate from Department of State attesting to the diplomatic status of an individual or individuals is conclusive]; see also U.S. v. Al-Hamdi, 356 F.3d 564 [4th Cir. 2004][same]) or finding that diplomats had to register with the State Department (see In re Grand Jury Subpoenas Returnable December 16, 2015, 871 F.3d 141 [2d Cir. 2017][finding that procedure under, inter alia, the Vienna Convention, requires all foreign personnel [to] register with the State Department to be entitled to diplomatic immunity]).

While a certificate from the Department of State may be the best evidence and conclusive on the matter of a person's diplomatic status, the cases cited by Petitioner do not stand for the proposition that such certificate is required to prove the status to a Court. Here, Respondent has provided his United Nations Diplomatic Identification Card, issued by the U.S. Department of State. Notably, the card indicates that Respondent, i.e. the bearer of the card, "has been duly notified to the Department of State."

Respondent has also provided the Court copies of memoranda from the Permanent Mission of the Republic of the Congo to the United Nations and the United States Mission to the United Nations. Both documents are on official letter head of the respective Missions and both indicate that Respondent is a diplomatic agent.

Notably, the memorandum from James B. Donovan of the United States Mission explains that Donovan is responsible for overseeing the registration and maintaining the official records of members of Permanent Missions to the United Nations and that the "official records of the United States Mission indicate [Respondent] was notified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity." Donovan also proceeds to state that as a diplomatic agent Respondent is entitled to diplomatic immunity pursuant to the Vienna Convention.

Petitioner questions the admissibility of the memoranda documents provided by Respondent. While the memoranda submitted might be admissible as business records, the Court also notes that they appear to have been prepared for this litigation and are not certified. However, it is clear that the content of the documentary evidence submitted, particularly the Diplomatic Identification Card, unlike an affidavit or deposition testimony, is "essentially undeniable" (see Fontanetta v. Doe, 73 AD3d 78, 84-85 [2d Dept 2010]). Therefore, this documentary evidence may conclusively establish a defense to the proceeding as a matter of law (see Dixon v. 105 West 75th Street LLC, 148 AD3d 623 [1st Dept 2017]). In sum, there is nothing that calls into question the basic validity of this documentary evidence as a basis to seek dismissal of this proceeding.

Nor does the Court find that Respondent has waived the defense asserted by previously appearing in the proceeding or due to delay. Unlike a personal jurisdiction defense which may be waived, this Court concludes that a defense based on diplomatic status cannot be so easily waived. Further, although there was some delay in making this motion, Respondent appeared in the proceeding without counsel on two occasions, and after counsel was assigned this defense was raised by counsel on the record before the motion was in fact filed.

Turning to the substance of the defense, the Vienna Convention states that a "diplomatic agent shall enjoy immunity from the civil and administrative jurisdiction [of the receiving State]" (Vienna Convention at art. 31.1). Although there are exceptions to this immunity involving, inter alia, property in the receiving state and professional or commercial activity outside the scope of diplomatic functions, none of the exceptions are applicable here. In other words, apart from inapplicable exceptions, a diplomatic agent has absolute immunity from civil jurisdiction.

In Matter of Terrence K. (Lydia K.), 135 AD2d 857 [2d Dept 1987], which is controlling on this Court, the Second Department found that Family Court had properly dismissed the child abuse proceeding because the respondent parents were entitled to diplomatic immunity pursuant to the Vienna Convention. Specifically, the father was an Attache of the Mission of the Republic of Zimbabwe to the United Nations. The Court noted the record included a certificate stating the father was accepted by the United States Government for inclusion on the list of Members of Permanent Missions Entitled to Diplomatic Privileges and Immunities, and that the mother and child were registered as members of the household and thus share in the privileges and immunites of the father. The Court ultimately found that this evidence "conclusively establishes that the father and his family, including the child, are immune from the civil process of the courts of this State."

Once diplomatic status is sufficiently established, as here, and no exceptions apply, this Court is bound to follow the Vienna Convention and controlling precedent (see Reinoso v Bragg,

28 Misc 3d 1235(A) [Sup Ct, New York County 2010]). Therefore, this proceeding must be dismissed as the Respondent and Petitioner are immune from the civil process of the courts of this State. The court does not find that the limited language on the Respondent's identification card controls or limits Respondent's immunity to criminal matters. This Court does not condone or excuse domestic violence, nor make any determination regarding the merits of the allegations in this matter. However, given the foregoing this Court is constrained to dismiss this proceeding.

The authorities referenced by the Petitioner are unavailing and do not change the Court's analysis. First, Petitioner cites to the Convention on Privileges and Immunities, which only provides immunity to diplomats for acts performed in their official capacity. While the Court agrees that domestic violence can never be considered a protected activity or one performed in an official capacity, the Vienna Convention is far broader than the Convention on Privileges and Immunities and provides near total immunity for both criminal and civil jurisdiction, regardless of whether an act is performed in an official capacity.

Reliance on Rhee v Dahan (116 Misc 2d 548 [Appellate Term, 1st Dept 1982]) is misplaced because that case involved real property held by the purported diplomatic officer, which even under the Vienna Convention, is subject to local laws and process. To the extent Rhee also holds that diplomatic officers are only immune for acts performed in their official capacity, the decision does not reference the Vienna Convention and, in any event, Terrence K. is binding authority on this Court.

People v. Leo (95 Misc 2d 408 [Criminal Court, New York County, 1978]) does not require a different result here. Leo concerned a United Nations employee who never held any diplomatic position. As such, the controlling authorities granting some immunity to the employee did not include the Vienna Convention and only provided immunity from legal process relating to acts performed in an "official capacity," "in distinction to the unlimited form of immunity traditionally accorded to diplomats" (Id. at 411). Thus, under those circumstances the court did not find immunity for acts which took "place wholly within the context of a personal, domestic matter" and which were outside the scope of the limited immunity to which the defendant was entitled as a United Nations' employee. In contrast, Respondent in this proceeding is in fact a diplomatic agent, and is afforded a far broader immunity from legal process (see Ahmed v. Hoque, 2002 WL 1964806 [SDNY 2002][distinguishing Leo and discussing the far broader immunity granted to diplomats under the Vienna Convention and other authorities]).

Finally, as Petitioner's counsel stresses, this Court is also concerned with the plight of women around the globe who may not be afforded full protection from violence or sufficient avenues to justice. However, this Court is bound to follow the law and may not determine this motion based on an assessment of the legal systems of other nations. For petitioner, and others in her position, the answer may lie in amending, changing or limiting the immunity afforded to diplomats under the Vienna Convention, a task beyond the jurisdiction and role of this Court.

In sum, the motion to dismiss this proceeding must be granted as Respondent is afforded immunity from the civil process of the courts of this State.

Accordingly, it is

ORDERED that the motion to dismiss is granted and the temporary order of protection vacated; and it is further

ORDERED that email copies of this order to counsel for the parties shall be deemed appropriate service.

This constitutes the decision and order of the court.

Dated:July 10, 2020

Bronx, NY

ENERED:

_________________________

ARIEL D. CHESLER, J.F.C.